Karnataka High Court
Bangalore University vs Mari Gowda J H on 31 January, 2022
Author: S.G. Pandit
Bench: S.G. Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE S.G. PANDIT
REVIEW PETITION NO 123/2021 IN
WRIT PETITION NOS. 11340-11341/2014 (S-RES)
BETWEEN:
BANGALORE UNIVERSITY,
JNANA BHARATHI,
BENGALURU-560 056,
REP. BY ITS REGISTRAR.
- PETITIONER
(BY SRI. N.K. RAMESH, ADVOCATE)
AND:
1. MARI GOWDA J.H S/O HUTCHAIAH,
AGED 73 YEARS, R/A NO. 57, SHREE NILAYA,
2ND MAIN ROAD, EKADANTHANAGAR,
HEROHALLI, BENGALURU-560 091.
2. NAGARAJ B.M S/O LATE MUNIYAPPA,
AGED 73 YEARS, R/O NO. 357, 11TH MAIN,
1ST BLOCK, 3RD STAGE, WEST OF CHORD ROAD,
MANJUNATHA NAGAR, BENGALURU-560 010.
3. UNIVERSITY VISVESVARAYA COLLEGE
OF ENGINEERING, KR CIRCLE, BENGALURU-560 001
REPRESENTED BY ITS PRINCIPAL
- RESPONDENTS
(BY SMT. VAISHALI HEGDE, ADVOCATE FOR R1 & R2,
NOTICE TO R3 IS SERVED)
2
THIS REVIEW PETITION IS FILED UNDER ORDER 47
RULE 1 R/W SECTION 151 OF CPC PRAYING TO REVIEW THE
ORDER DATED 11.06.2019 PASSED IN W.P. NO. 11340-
11341/2014 & ETC.
THIS REVIEW PETITION HAVING BEEN HEARD AND
RESERVED FOR 'ORDERS' ON 18.12.2021 COMING ON FOR
'PRONOUNCEMENT OF ORDER' THIS DAY AT DHARWAD
BENCH, THE COURT DELIVERED THE FOLLOWING:
ORDER
The respondent No.1 in W.P. Nos. 11340- 11341/2014 is before this Court under Order 47 Rule 1 r/w Sec. 114 of CPC praying to review the order dated 11.06.2019 passed in W.P. Nos. 11340-11341/2014 and to hear the petitions on merits.
2. Parties to the present review petition would be referred to as per their ranking in the writ petitions.
3. The review petitioner was respondent No.1 and the respondents No.1 and 2 herein were petitioners in W.P. Nos. 11340-11341/2014.
4. The petitioners were working as Instructors in the respondent No.3-College and were before this Court in 3 W.P. Nos. 11340-11341/2014 praying for a direction to the respondent-University to extend the benefit of All India Council for Technical Education pay scales (for short 'AICTE pay scales') and for consequential benefits. When the matter was listed in 'B' group on 30.05.2019, learned counsel for the petitioners submitted that the issue in the writ petition is identical to the issue in W.P. No. 18069/2006 which was disposed of 21.07.2011. On the said submission, learned counsel for the University was directed to verify whether the matter is covered by the said decision. Learned counsel for the respondent- University, on instructions submitted that the issue is identical to that of W.P. No. 18069/2006. Accordingly, W.P. Nos. 11340-11341/2014 stood disposed of in terms of W.P. No. 18069/2006. Praying to review the said order dated 11.06.2019, the respondent-University is before this Court in this review petition.
5. Heard learned counsel Sri N.K. Ramesh for the respondent-University and Smt. Vaishali Hegde, learned 4 counsel for the petitioners in W.P. Nos. 11340-11341/2014 and perused the entire review petition papers.
6. Learned counsel for the petitioner would submit that the first petitioner in the writ petition possessed the qualification of SSLC and the second petitioner possessed qualification of fail in 7th standard. They were initially appointed on 08.11.1965 and 12.10.1965 as Helpers on temporary basis. They were regularized as Helpers on 08.01.1965 and 13.10.1965 respectively. Both the petitioners were promoted as Mechanic under University order dated 28.01.1980 with effect from 30.10.1979. Further, they were promoted as Instructors with effect from 02.09.1988.
7. It is submitted that the qualification possessed by the petitioners, i.e., SSLC and fail in 7th standard, would not entitle them for extension of AICTE pay scales. The petitioner in W.P. No. 18069/2006 was a Foreman and he possessed qualification of Diploma in Mechanical Engineering. The case of the petitioners were not similar 5 or identical to that of the petitioner in W.P. No. 18069/2006. Therefore, he submits that the order requires to be reviewed.
8. Learned counsel would also contend that the University without verifying the facts and educational qualification of the petitioners instructed the counsel that the case of the petitioners as well as petitioner in W.P. No. 18069/2006 is identical which is not a fact. He further submits that the person who instructed the counsel is not in service and is stated to have died. He would further contend that concession of the counsel or Lawyer would not be binding on the party if it is not authorized. Further, the learned counsel would submit that the order under review is not passed on merits and it is passed only on concession of the learned counsel appearing for the University. Petitioners have also not disclosed their educational qualification in the writ petition so as to determine their entitlement to the AICTE pay scales. 6
9. It is his further submission that the AICTE norms require minimum of bachelor's degree in Engineering for entitlement for extension of AICTE pay scales. Referring to Order 47 Rule 1 CPC learned counsel would submit that the Court would get jurisdiction to review the order when there is discovery of important matter or evidence which could not be produced even after due diligence at the time of hearing and on account of some mistake apparent on the face of the record, apart from any other sufficient reason.
10. Learned counsel would further submit that the person who is not qualified would not get any right to seek extension of AICTE pay scales. If persons who are not qualified are extended the AICTE pay scales, it would be against the norms of AICTE as well as it would be financial burden on the University. Thus he prays for review of the order.
11. Per contra, learned counsel for the respondents No.1 and 2 Smt. Vaishali Hegde contends that the review 7 petition itself is not maintainable, since the writ petition is disposed of on the submission made by the learned counsel appearing for the respondent-University, on instructions. When an order is passed on the submission of the learned counsel for the respondent-University it is not permissible for the University to say otherwise to seek review. Apart from the above objection with regard to maintainability, learned counsel would submit that there is no apparent error on record so as to exercise review jurisdiction.
12. Inviting attention of this Court to paragraph no. 3 of the order under review, the learned counsel would submit that the learned counsel for the respondent-University on obtaining instructions from the University submitted that the case of the petitioner is identical to that of petitioner in W.P. No. 18069/2006 and on the said submission writ petitions were disposed off. In that circumstances it is submitted that the respondent-University now cannot say that the case of the petitioner is not identical to that of 8 petitioner in W.P. No. 18069/2006. It is her submission that the review petition is filed only to harass the petitioners.
13. Learned counsel would rely upon the decision of the apex Court in the case of Kamalesh Varma vs. Mayavathi & Ors. reported in (2013) 8 SCC 320 and Haridas Das vs- Smt. Usha Rani Banik & Ors reported in AIR 2006 SC 1634 to contend that it is not a case for review. Learned counsel also submitted that on merits also the review petition would not be maintainable.
14. It is submitted that the post of Instructors and Workshop Superintendent are equivalent posts and which is treated as equivalent to the cadre of Lecturers. Learned counsel referring to Annexure-R1 order dated 04.10.2005 in W.P. No. 13203/2005 submitted that this Court relying upon the decision in Dalappa Vs. Bangalore University & Another reported in (2003) 6 KLJ 236 which was affirmed by the Hon'ble apex Court, held that the Instructor, Foreman and Workshop Superintendent are in 9 one hierarchy of teaching staff and they are declared as equivalent to the post of Lecturers. In view of above, learned counsel would submit that there is no ground to review the order and the petitioners would be entitled for AICTE pay scales. Thus she prays for dismissal of the review petition.
15. On hearing the learned counsel and on careful scrutiny of the material on record the only point which falls for consideration is as to whether the order requires to be reviewed as prayed for under Order 47 Rule 1 CPC?
16. The answer to the above point would be in the affirmative for the following reasons.
17. Order 47 Rule 1 CPC provides for review of the judgment on the ground stated therein, i.e., on the ground of discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge or could not be produced at the time when the decree or order was passed or on account of some mistake 10 or error apparent on the face of the record or for any other sufficient reason. One of the main ingredient of Order 47 Rule 1 CPC is that the person who seeks review shall point out the error apparent on the face of the record or any other sufficient reason which goes to the root of the matter to get the review of the judgment or order.
18. The Hon'ble apex Court in a decision reported in (2005) 4 SCC 741 in the case of BCCI vs. Netaji Cricket Club at paragraph no. 90 with regard to sufficient reason occurring in Order 47 Rule 1 CPC, it is held as follows:
"Thus, a mistake on the part of the Court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefore. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words "sufficient reason"
in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a Court or even an advocate. An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit."
11
19. The Madras High Court in Shanmugam Servai v. Periyakaruppan Servai reported in AIR 1996 MADRAS 411 has explained at paragraph no. 5 the expression 'any other sufficient cause occurring in 'Order 47 Rule 1 CPC', which reads as under:
"The expression, "any other sufficient cause" found in Order 47 Rule 1 must be interpreted to mean a reason sufficient or ground at least analogous to those specified immediately before. It must be ejusdem generic to the reasons previously stated. There is a difference between the words, 'ejusdem generis' and 'at least analogous'. The Lation phrase ejusdem generic according to the Chambers Twentieth Century Dictionary means, 'of the same kind'. The word analogous means bearing same; corresponds with or resembles to, similar in certain circumstances or in relation. So, the phrase 'ejusdem generis' is more restricted than the word, 'analogous'. The popular meaning of the word 'ejusdem generis' is, it is a rule of legal construction that general words following enumeration of particulars are to have their generality limited by reference to the preceding particular and to be construed as including only after argicles of the like nature and quality."
20. A reading of the above two decisions it is clear that not only on the ground of error apparent on the face of the 12 record, but for any other 'sufficient reason' the Court which passed the judgment or order could review the judgment or order. What would constitute sufficient reason would depend on the facts and circumstances of the case. Sufficient reason must be such that on the face of it, one should be able to understand miscarriage of justice.
21. In the case on hand admittedly the issue as to whether the petitioners would be entitled for extension of AICTE pay scale is not decided on merit. The writ petition is disposed of on the submission of the learned counsel that the issue involved in the writ petition is identical to that of W.P. No. 18069/2006, but factually it is not so. The petitioners in the writ petition were working as Instructors and they had qualification of pass in SSLC and fail in 7th standard respectively. Admittedly the petitioners were working in the technical wing of the University which requires technical qualification. Appendix to letter bearing No. E.6-1/88-T.5, dated 28.02.1989 of Government of India produced along with memo dated 18.12.2021 13 prescribes qualification of 1st Class Bachelor's Degree in appropriate branch of Engineering Technology. The petitioner in W.P. No. 18069/2006 was working as Foreman and possessed qualification of diploma in Mechanical Engineering. The petitioners cannot claim that they are identically situated as that of the petitioner in W.P. No. 18069/2006, since they do not possess the qualification as possessed by the petitioner in W.P. No. 18069/2006 as well as they were not in the cadre of Foreman.
22. The submission of the learned counsel for the University in the writ petition to the effect that "on instructions that the matter is identical" is on misconception and when compared to the qualification and post held by the petitioners as well as the petitioner in W.P. No. 18069/2006 it can be safely concluded that they are incomparable or in other words, the petitioners cannot claim parity. It was for the petitioners to establish that on the qualification that they possess they would be entitled 14 for extension of AICTE pay scales. Without establishing the entitlement based on the qualification and the post held by them, the petitioners cannot claim parity with the petitioner in W.P. No. 18069/2006. Thus, not deciding the entitlement of the petitioners and disposing of the writ petition only on the concession of the learned counsel for respondent would be an error apparent on the face of the record and also would fall within the meaning of 'any other sufficient reason' under Order 47 Rule 1 CPC so as to review the order.
23. The learned counsel for the respondents contended that the posts of Foreman, Instructor and Workshop Superintendent are treated as Lecturer based on the decision in Dalappa's case supra. It is seen that Dalappa's case was taken to the Hon'ble Apex Court in Civil Appeal No. 5620/2009 which was disposed of by order dated 30.08.2017. The order of the apex Court reads as follows:
"The respondents had superannuated in 2004 at the age of 60 years.15
The controversy in this case is whether the respondents were holding teaching posts or not.
Since the respondents have superannuated several years ago, we are not inclined to proceed further with these matters.
Accordingly, the appeals are disposed of. However, the question of law raised by the appellant is left open for consideration in an appropriate case."
A reading of the above decision of the Hon'ble Apex Court in the case of Dalappa (supra) reveals that the Apex Court recorded the controversy, i.e., as to whether the respondents were holding the teaching post or not. Thereafter, since the respondent-Dalappa had superannuated, it kept the question of law raised by the appellant open for consideration in an appropriate case and disposed of the appeal. In other words, the Apex Court kept open the question as to the respondents therein, i.e., Dalappa, was holding teaching post or the post held by him was a teaching post to be decided in an appropriate case. In other words, the question as to whether the post of Instructor is a teaching post or not, is 16 not decided. The question as to whether the post of Instructor with the qualification the petitioners possessed could be considered as teaching post and whether they would be entitled for extension of AICTE pay scales requires to be decided on merit.
24. The Hon'ble Apex Court in Director of Elementary Education, Odisha and Ors. V. Pramod Kumar Sahoo (AIR 2019 SC 4755), considering identical fact situation held that concession by State counsel was concession in law and contrary to the statutory rules, such concession is not binding on the State for the reason that there cannot be any estoppel against law. The respondent in the said case joined service as Primary School Teacher with qualification of intermediate and had appeared for B.A. Examination and in the Pay Scale of untrained Teachers. Under the relevant rules therein had prescribed a separate scale of pay for Trained Matric Teachers and non-Trained Metric Teachers. Respondent claimed that he is entitled to pay scale of Trained Metric Teacher even though he was 17 untrained. He approached Tribunal on the ground that as he is intermediate, he is to be treated as a Trained Teacher. Before the Tribunal appellant-State counsel conceded that the Teachers having intermediate qualification are entitled to the Scale available to Trained Teachers. Challenging the same the appellant-State filed application which was dismissed observing remedy is to file review. Thereafter review was filed, which was also dismissed on laches as well as observing that there is no error apparent on the face of the order. Writ petition filed thereafter, which was dismissed. In the above factual position, the Hon'ble Apex Court at paragraph nos. 9, 10 and 11 has held as follows:
"9) On the other hand, it is argued that since the respondent is possessing higher qualification and is now graduate, therefore, he is entitled to the pay scale meant for Trained Matric Teachers and that State is bound by the concession given by its counsel before the Tribunal.
10) We have heard learned counsel for the parties and find that the distinction between Trained Matric Teacher and Untrained Matric Teacher has not been appreciated 18 by the Tribunal and the same error was committed by the High Court as well.
11) The concession given by the learned State Counsel before the Tribunal was a concession in law and contrary to the statutory rules. Such concession is not binding on the State for the reason that there cannot be any estoppel against law. The rules provide for a specific Grade of Pay, therefore, the concession given by the learned State Counsel before the Tribunal is not binding on the appellant."
The Principles and ratio laid down in the above decision would squarely apply to the facts of the present case. It is observed in the above decision that State counsel concession in law and contrary to the statutory rules, would not be binding on the State since there cannot be estoppel against law.
25. The decision relied upon by the learned counsel for the petitioners would not assist the petitioners in any way in view of the peculiar facts of the present case, since this Court has come to the conclusion that the petitioners are 19 not similarly situated as that of the petitioner in W.P. No. 18069/2006.
26. In the instant case, it is for the petitioners to prove that the petitioners are legally entitled for AICTE pay scale based on their educational qualification as well as nature of duties performed by them.
27. For the reasons recorded above, the following order is passed.
ORDER Review petition is allowed.
Order dated 11.06.2019 passed in W.P. Nos.11340- 11341/2014 is reviewed and recalled. W.P. Nos.11340- 11341/2014 are restored to its original file.
SD/-
JUDGE bvv