Gujarat High Court
Chetnaben Jayrambhai Savaliya vs Saurashtra University on 4 May, 2022
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.12315 of 2004
With
R/SPECIAL CIVIL APPLICATION NO.17738 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
================================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution NO of India or any order made thereunder ?
================================================================ CHETNABEN JAYRAMBHAI SAVALIYA Versus SAURASHTRA UNIVERSITY & 4 other(s) ================================================================ Appearance:
MR BM MANGUKIYA(437) for the Petitioner(s) No. 1 MR SHIVANG A THACKER FOR MR AR THACKER for the Respondent No. 1 MR SHALIN MEHTA, SENIOR ADVOCATE WITH MS SHIKHA PANCHAL for the Respondent(s) No. 5 MR DHRUV THAKKAR FOR MR MUKUND M DESAI for the Respondents No. 2,3 MR ROHAN SHAH, AGP for the Respondent(s) No. 4 MR SHALIN MEHTA, SENIOR ADVOCATE WITH MS SHIKHA PANCHAL for the Respondent(s) No. 5 ================================================================ CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA Date : 04/05/2022 COMMON CAV JUDGMENT (1) Since the issues involved in both these captioned writ petitions are intrinsically connected, the same are heard together and decided analogously by this Common Judgment.Page 1 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022
C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 (2) This is a classic case where the litigant keeps on spinning the litigation wheel of fortune until he / she hits with the jackpot.
FACTS (3) The petitioner is serving as a part-timer Lecturer. Though, it is her case that she was selected for full-time Lecturer, but the respondents have illegally appointed the respondent No.5 on such post. The petitioner is having degree of Bachelor of Arts (BA) in Psychology. The petitioner cleared the said examination with 1st Class securing 60% marks. She was appointed as a part-timer Lecturer in Psychology subject by the respondent No.3, on 01.12.1992.
3.1) Thereafter, the respondents published an advertisement for filling up the post of the full-time Lecturer on 02.09.1993.
3.2) Pursuant to the said advertisement, the respondent Nos.2 and 3 received total 32 applications. The selection Committee was constituted, however no one was appointed pursuant to the said advertisement & interview, as it was held by the Selection Committee that the respondent No.2 and 3 did not obtain any "no objection certificate"
Page 2 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 for making such appointment for the teaching staff. Accordingly, the respondent No.3 - College requested the State Government to issue "no objection certificate" for filling up the post of teach staff. Thereafter, vide order dated 06.07.1994, the commissioner of Higher Education gave "No Objection Certificate" in respect to the appointment of the teaching staff.
3.3) Thereafter, a fresh advertisement was issued by the respondent-Trust for which the interviews were held on 29.05.1995. The petitioner and the respondent No.5 appeared in the said interview and in the final result, the respondent was placed at serial No.1 and the petitioner was placed at the serial No.2 by the Selection Committee. The list was not made available to the petitioner, however, when the petitioner learned about the selection of the respondent No.5, the petitioner started inquiry about the procedure followed by the respondents with respect of the interview held by the respondents was validly held and there was no defect at all.
3.4) Being aggrieved by the said selection of the respondent No.5, the petitioner filed an Page 3 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022 C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 application being Application No.59 of 1995 before the Gujarat Affiliated College Service Tribunal at Ahmedabad under Section 8 of the Gujarat Affiliated Colleges Services Tribunal Act. It appears that an ad-interim relief was granted by the Tribunal of maintaining status quo by the order dated 22.02.1996. The respondent No.5 made an application for joining in the said proceedings, which was rejected by the Tribunal.
3.5) Being aggrieved by the said order of the Tribunal, the respondent No.5 approached this Court by filing writ petition being Special Civil Application No.892 of 1999, which was allowed by this Court vide order dated 05.04.1999 and the respondent No.5 was allowed to join as party respondent in the application being Application No.59 of 1995 filed by the petitioner.
3.6) By the judgment and order dated 14.02.2003, the Tribunal rejected the application being Application No.59 of 1995 filed by the petitioner and the status quo order, as granted earlier, was also vacated.
3.7) Being aggrieved, the petitioner challenged the said judgment and order dated 14.02.2003 Page 4 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022 C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 by filing a writ petition being Special Civil Application No.2174 of 2003. This Court rejected the said petition vide order dated 07.03.2003, with a liberty reserved in favour of the petitioner to challenge the appointment of the respondent No.5 appointing her on the post of full-time Lecturer.
3.8) The petitioner, thereafter filed a writ
petition being Special Civil Application
No.2705 of 2003 before this Court
challenging the selection process and the
selection of respondent No.5 to the post of full-time Lecturer, however the petitioner withdrew the said petition to make representation to the respondent-University.
3.9) Accordingly, the petitioner made a representation to the respondent-University. It appears that total four numbers of representations made by the petitioner before the respondent University.
3.10)The petitioner, thereafter again, challenged the selection of the respondent No.5 as full-time Lecturer by filing a writ petition being Special Civil Application No.7413 of 2004, which was dismissed in limine by this Page 5 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022 C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 Court on the ground of inordinate delay as well as on the ground of res judicata.
3.11)Being aggrieved, the petitioner filed a Letters Patent Appeal No.1723 of 2004 before the Division Bench, challenging the order passed by the Co-ordinate Bench. The said Letters Patent Appeal was withdrawn by the petitioner and the same was disposed of vide order dated 14.09.2004 reserving liberty in favour of the petitioner to challenge the decision on the representation filed before the University.
3.12)The petitioner, thereafter filed the captioned writ petition being Special Civil Application No.12315 of 2004, seeking direction on the University to decide the representation dated 19.05.2008, during the pendency of the petition, it appears that the respondent University decided the representation by the order dated 12.06.2004. Accordingly, the petitioner amended the writ petition and has challenged the decision dated 12.06.2004.
3.13)In Special Civil Application No.17738 of 22011, the petitioner has challenged the order dated 04.10.2011 passed by the Tribunal in Restoration Application No.1 of Page 6 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022 C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 2011 preferred by the petitioner. The said Restoration Application No.1 of 2011 was filed by the petitioner by taking clue from the order dated 09.12.2010 passed by the Division Bench in Letters Patent Appeal No.2520 of 2010.
3.14)The Tribunal, accordingly, rejected the Restoration Application No.01 of 2011, which is challenged in the captioned writ petition being Special Civil Application No.12315 of 2004.
3.15)Before the Division Bench passed the order passed dated 09.12.2010 in Letters Patent Appeal No.2520 of 2010, the petitioner filed Misc. Civil Application No.2386 of 2010 in Special Civil Application No.2174 of 2003 against the order dated 07.03.2003 rejecting the writ petition filed by the petitioner. Thus, the review application was filed after a period of 7 years, however, it is contended that subsequently, when the petitioner was supplied the information under the Right to Information Act, such review application was necessitated as the order before the Tribunal was obtained on fraud or misrepresentation by the respondents.Page 7 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022
C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 SUBMISSIONS (4) Learned advocate Mr.Mangukiya, appearing for the petitioner has submitted that the entire selection process of the respondent No.5 and the order passed by the Tribunal rejecting his Application No.59 of 1995 by the judgment and order dated 14.02.2003 is required to be quashed and set aside, since the said judgment has been passed by suppressing the relevant facts and has been obtained by fraud.
4.1) Learned advocate Mr.Mangukiya, has referred to each and every page of the writ petitions and the also has read the contents therein and has submitted that the petitioner was appointed as a full-time Lecturer and the selection procedure adopted by the respondents is contrary to their own norms of allocation of the marks. He has referred the contents made in paragraph No.21, 22, 23 and 24 of the writ petition being Special Civil Application No.12315 of 2004.
4.2) It is submitted that the marking system adopted by the Committee was not followed in accordance with the guidelines issued by the University and the selection process of the interview held on 06.03.1994 was itself Page 8 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022 C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 illegal. It is submitted by him that the documents including the workload produced from page No.89 to 100 indicates that the petitioner was undertaking 21 lectures which were taken by her as a regular full-time Lecturer, and such facts are not denied by the respondents.
4.3) It is submitted by him that in the affidavit filed by the respondents, in fact, it is admitted that the extra wages was paid by them to the petitioner for extra workload which was allotted to the petitioner. It is submitted that the findings of the Tribunal in this regard are absolutely perverse, since it is recorded by the Tribunal that the petitioner was unable to show that she was appointed as a full-time Lecturer and no material was produced showing that she was working as a full-time Lecturer. Learned advocate Mr.Mangukiya, has also placed reliance on the certificate dated 09.09.1993 whereby, it is certified that she is working as full time Lecturer. It is submitted that both these petitions may be allowed.
4.4) It is submitted that such observation is contrary to the record which was produced by the petitioner and not denied by the Page 9 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022 C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 respondents. While referring to the challenge or prayers made in Special Civil Application No.17738 of 2011, learned advocate Mr.Mangukiya has submitted that though the application filed before the Tribunal being Application No.1 of 2011, is a restoration application, however the same was treated as a review application which was filed after the order passed by the Division Bench in Letters Patent Appeal No.2520 of 2010. While referring to the order dated 09.12.2010 passed by the Division Bench in Letters Patent Appeal No.2520 of 2010, it is submitted by learned advocate Mr.Mangukiya that the Division Bench has referred to the judgment of the Supreme Court in paragraph No.4 and thereafter the appeal was dismissed reserving liberty in favour of the petitioner to file appropriate application before the Tribunal. It is submitted that, since the petitioner, after obtaining the information and documents under the Right to Information Act, she realized that a fraud has been committed by the respondents before the Tribunal, while deciding the Application No.59 of 1995. It is submitted that the Tribunal was not apprised with the correct facts with regard to material obtained by Page 10 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022 C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 her under the R.T.I, which pertains to the working hours and the wages being paid to the petitioner by the respondents. It is submitted by learned advocate Mr.Mangukiya that the Tribunal while considering the Restoration Application No.1 of 2011, should have examined the aforesaid facts of working hours and wages of the petitioner.
4.5) It is submitted by Mr.Mangukiya that there is failure of adjudication by the Tribunal with regard to the finding of fraud. It is submitted asserted that the judgment and order passed by the Tribunal in Application No.59 of 1995 has been rendered by suppressing of facts and the nomenclature of the application being Restoration Application No.1 of 2011, cannot come in the way of the petitioner since the said application is named as such because of mistake committed by the learned advocate who was appearing before the Tribunal. It is submitted by him that the Tribunal fell in error to appreciating the material produced by the petitioner in the Application No.1 of 2011 with regard to her being engaged a full time Lecturer, though, she was treated as a part-time Lecturer by the respondent College. Thus, he has submitted that the Page 11 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022 C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 order dated 14.10.2011 rejecting the Restoration Application No.1 of 2011 filed by the petitioner, is required to be quashed and set aside.
4.6) So far as the prayers made in Special Civil Application No.12315 of 2004, learned advocate Mr.Mangukiya, has submitted that the decision rendered by the University dated 12.06.2004 rejecting the representation of the petitioner is required to be quashed and set aside, since the contents of the representation are not dealt by the respondent University and the appointment of the respondent No.5 on the post of full time Lecturer has been approved. He has submitted that such decision is required to be set aside and hence, the respondents may be directed to set aside the appointment of the respondent No.5 as full time Lecturer made pursuant to the interview held on 29.05.1995. (5) In response to the aforesaid submissions advanced by learned advocate Mr.Mangukiya, learned Senior Advocate Mr.Shalin Mehta, appearing for the respondent No.5 has submitted that the writ petitions do not require to be entertained, since the same are absolutely abuse of process of law.
Page 12 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 5.1) It is vehemently submitted that the petitioner has been agitating the appointment of respondent No.5 to the post of full-time Lecturer right from 1995 and she has been failing in her attempts. He has submitted that initially, the petitioner filed in Application No.59 of 1995 which was filed by the petitioner with a prayer to protect her rights as full-time Lecturer w.e.f. 01.07.1993 and to set aside the advertisement and the interview held on 29.05.1995, whereby the respondent No.5 was selected by the Committee as a full-time Lecturer. He has submitted that such Application No.59 of 1995 filed by the petitioner was dismissed by the Tribunal vide judgment and order dated 14.02.2003.
5.2) It is further submitted that the petitioner did not produce any documentary evidence or the appointment order showing that she was appointed as a full-time Lecturer. The said decision of the Tribunal was challenged by the petitioner by filing subsequent writ petition which was also withdrawn by him. It is submitted by the learned Senior Advocate Mr.Mehta that even after failing before every forum, the petitioner having suppressed the orders passed in earlier writ Page 13 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022 C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 petition(s) has successfully obtained the orders from the Division Bench which was an ex parte order of filing further application before the Tribunal against the judgment and order passed in Application No.59 of 1995.
5.3) It is further submitted by Mr.Mehta that the restoration application filed by the petitioner was not maintainable, since at the most, it can be said to be a review application, not a restoration application. He has placed reliance on the judgment of the Division Bench dated 08.11.2011 passed in Letters Patent Appeal No.1428 of 2006.
5.4) Finally, it is submitted by Mr.Mehta that the respondent No.5 has already declared as surplus in the year 2017 and the entire exercise of entertaining the writ petition would be a futile exercise. Thus, he has submitted that both these writ petitions may be rejected.
(6) Learned advocate Mr.Thacker, appearing for the respondent-College has, while adopting the argument advanced by learned Senior Advocate Mr.Mehta, submitted that the writ petition deserves to be rejected, since the petitioner has failed in all rounds of writ Page 14 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022 C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 petitions and this Court has only allowed the petitioner to file an application against the judgment and order dated 14.02.2003 rejecting the Application No.59 of 1995. He has submitted that the present writ petition is not maintainable since the petitioner has not challenged the initial order passed by the Tribunal in rejecting the Application No.59 of 1995. It is submitted that none of the proceedings initiated by the petitioner, the said judgment and order dated 14.02.2003 rejecting the Application No.59 of 1995 has been set aside and hence, the order dated 04.10.2011 rejecting the Restoration Application No.1 of 2011 by the Tribunal which is challenged in the writ petition being Special Civil Application No.17738 of 2011, does not require any interference. In support of his submissions, learned advocate Mr.Thakkar, has placed reliance on the judgment of the Division Bench of this Court in the case of Bal Shikshan Samiti Trust Vs. State of Gujarat, reported in 2011 (3) GLR 2681.
CONCLUSION (7) I have heard the learned advocates appearing for the respective parties at length. The Page 15 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022 C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 documents as pointed out by them are also perused.
(8) The petitioner has filed following proceedings challenging the selection of the respondent no.5.
1) Application No.59 of 1995(Tribunal), which is rejected on 14.02.2003;
2) Special Civil Application No.2174 of 2003, which is rejected on 07.03.2003;
3) Special Civil Application No.2705 of 2003, which is withdrawn on 13.03.2003;
4) Special Civil Application No.7413 of 2004, which is dismissed on 05.07.2004;
5) Letters Patent Appeal No.1723 of 2004, which is dismissed on 14.09.2003;
6) Misc. Civil Application No.2386 of 2010, which is rejected on 29.09.2010;
7) Letters Patent Appeal No.2520 of 2010, which is dismissed on 09.12.2010;
8) Restoration Application No.1 of 2011 in Application No.59 of 1995(Tribunal); which is rejected on 04.10.2011;
9) and the present writ petitions.
(9) The facts which are established from the entire record are that the petitioner was appointed as a part-time Lecturer in the Page 16 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022 C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 respondent No.3 College in Psychology subject on 01.12.1992. It appears that thereafter an advertisement was issued by the respondent No.3 for filling up the post of full-time Lecturer on 02.09.1993. The petitioner applied for the same. She was selected at serial No.1, however, the aforesaid selection appears to have been cancelled since approval was not obtained from the State Government for filling up such post. Thereafter, it appears that the second advertisement was issued on 31.07.1994, for which, interview was conducted on 29.05.1995. The Selection Committee selected placed the respondent No.5 and placed her at serial no.1, whereas the petitioner was placed at serial No.2.
(10) The petitioner, accordingly, filed an Application No.59 of 1995 filed before the Tribunal challenging the appointment of the respondent no.5. The opening recital of the judgement of the Tribunal indicates that the petitioner had prayed for directions to protect her right of full time lecturer, to quash and set aside the advertisement and the interview held on 29.05.1995 and to restrain the respondents from appointing anybody else as full time lecturer.
Page 17 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 (11) By the judgment and order dated 14.02.2003, the Tribunal rejected the appeal by observing that the petitioner was unable to point out any appointment order by which she was appointed as a full-time Lecturer after following due process of law. The Tribunal has observed that in the subsequent selection process, the respondent No.5 was selected and placed at serial No.1 by the Selection Committee and the petitioner was selected at serial No.2. From the entire records and from both the writ petitions, the petitioner has miserably failed to show any order, by which, she was appointed as a full-time Lecturer and it is admitted fact that pursuant to the interview which was held on 29.05.1995, the petitioner was placed at serial No.2, whereas the respondent no.5 was placed at serial No.1 in the select list and accordingly, respondent No.5 was appointed to the post of full-time Lecturer in Psychology subject, which was also approved by the competent authority.
(12) The judgment and order dated 14.02.2003 rejecting the appeal of the petitioner was challenged by the petitioner by filing Special Civil Application No.2174 of 2003. Vide order dated 07.03.2003, the writ Page 18 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022 C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 petition filed by the petitioner was rejected in the order dated 07.03.2003, by recording the statement of the learned advocate appearing for the which reads as under.
"2.xxxxx So far as the decision of the tribunal for non-granting of pay-scale is concerned Mr.Mangukia fairly submitted that since there is no order for appointment as full time lecturer the petitioner is not in a position to show any material of documentary evidence to satisfy that the petitioner is working as full time lecturer."
(13) In the paragraph No.4, the Coordinate Bench has observed thus:
"4. Having considered the above, and on perusal of the order passed by the tribunal, it is clear that the tribunal has rejected the application of the petitioner on the ground that the petitioner has not been able to show any appointment order as full time lecturer and therefore in my view the tribunal is right in rejecting the application made by the petitioner for grant of payscale of full time lecturer. It can not be said that the tribunal has committed any jurisdictional error while rejecting the claim of the petitioner as full time lecturer with effect from 1.7.93. So far as challenge to recruitment or appointment pursuant to the advertisement is concerned I am primafacie of the view that the tribunal had no jurisdiction to examine the same aspect and rightly the tribunal has also dismissed that part of the application by not examining the contentions. Hence, I find that no case is made out for interference of this court and hence the petition is rejected with clarification that it will be open to the petitioner to challenge the appointment pursuant to the advertisement for recruitment and appointment of lecturer in accordance with law."Page 19 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022
C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 (14) Thus, the Coordinate Bench has observed that the Tribunal was justified in rejecting the application of the petitioner on the ground that the petitioner was unable to show any appointment order as she was working as full-time Lecturer. However, the Coordinate Bench has dismissed the writ petition filed by the petitioner with a clarification that it will be open to the petitioner to challenge the appointment of the respondent No.5, pursuant to the advertisement for recruitment for the post of Lecturer, in accordance with law.
(15) Instead of challenging the appointment of the respondent no.5, before the Tribunal, the petitioner directly filed the writ petition being Special Civil Application No.2705 of 2003 which was disposed of as withdrawn to make a representation vide order dated 13.03.2003. The same reads as under.
"4. Having considered the above, I am of the view all these contentions can only be examined by the University while considering the question of granting approval and normally not by this court while exercising power under Article 226 of the Constitution of India.
5. Mr.Mangukia at this stage seeks permission to withdraw the petition with a view to make proper representation before the University. Without Page 20 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022 C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 expressing any opinion further merits permission is granted. Petition is disposed of as withdrawn."
(16) Thereafter, the petitioner made representations on 19.03.2003, 13.05.2003, 13.08.2003 and 08.03.2004.
(17) It appears that since there was no reply to her representations, the petitioner filed Special Civil Application No.7413 of 2004 challenging the selection of Respondent no.5. The said petition was dismissed by the order dated 05.07.2004 by observing thus:-
"The petition deserves to be dismissed on the ground of inordinate delay in as much as the process of interview held on 29th May, 1995 has been challenged before this Court first in the year 2003 and now in the year 2004. The inordinate delay of eight years has not been explained. Evidently, so long as the petitioner's service was protected pending her application before the Tribunal, the petitioner did not consider it necessary to challenge the selection of the respondent No.5. Now that the petitioner has failed before the Tribunal and before this Court, she has challenged the selection of the respondent No.5. This Court in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India shall not examine the correctness of selection made as far back as in the year 1995.
Further, the Special Civil Application No.2705/2003 was withdrawn by the petitioner unconditionally. No liberty was reserved to the petitioner to file fresh petition in the same subject matter. The Hon'ble Supreme Court and this Court have time and again held that "filing Page 21 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022 C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 of fresh writ petition in the same subject matter after withdrawing the first writ petition without liberty to file fresh petition is opposed to the public policy and such second writ petition is barred being against the public policy" (reference can be had to the judgment of the Hon'ble Supreme Court in the matter of Sarguja Transport Service v/s. State Transport Appellate Tribunal, Gwalior and others [AIR 1987 SC 88] and of this Court in the matters of Natwar Textile Processors Pvt. Ltd. and another v/s. Union of India and others [31(1) GLR 338] and of Bhagwandas D.Tandel v/s. S.N.Sinha, Director General of Police and others [37(1) GLR 782]). The petition is dismissed in limine."
(18) The petition was dismissed in limine on the ground of inordinate delay in challenging the selection process after 8 years. This Court has further observed that the writ petition being Special Civil Application No.2705 of 2003, which was filed by the petitioner and the same was withdrawn unconditionally and no liberty was reserved to the petitioner to file fresh petition in the same subject matter and while placing reliance on the judgment of the Supreme Court, the writ petition was dismissed.
(19) The petitioner thereafter filed the Letters Patent Appeal No.1723 of 2004 challenging the aforesaid order dated 13.03.2003. The same was also dismissed. While rejecting the LPA vide order dated 14.09.2004, the Division Bench, disposed of the LPA as withdrawn by observing thus :-
Page 22 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 "4. Upon perusal of the papers, we find that in all the three petitions the prayer which the appellant desires to make in the new petition, was not made. In our opinion, the question of res judicata cannot arise if a petition with such a prayer is filed by the appellant, because till today respondent No 4 University has not taken any final decision on the representation.
If no final decision has been taken so far, the question of challenging the same has not arisen so far.
5. In the aforesaid circumstances, with permission to file a petition praying for a mandamus against respondent No. 4 University, learned advocate Shri Mangukiya seeks permission to withdraw this appeal. The appellant is permitted to withdraw the appeal so as to file a fresh petition with such a prayer.
6. If respondent No. 4 University has already taken a decision on the representation, but the same has not been communicated to the appellant, needless to say that it would be open to the appellant to file a petition challenging the decision, which might have been rendered by respondent No. 4 University, which has not been communicated to the appellant so far.
The appeal stands disposed of as withdrawn."
(20) Thus, the Letters Patent Appeal was withdrawn with a view to file a fresh petition challenging the decision of the respondent-University taken on the representation by filing a writ petition. The Division Bench has disposed of the writ petition by observing that a question of res judicata will not arise, if the prayer with regard to deciding of his representation was not made.
Page 23 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 (21) It is shocking to note that, the petitioner preferred Misc. Civil Application No.2386 of 2010 after more than a period of 7 years seeking review of the order dated 07.03.2003 passed in Special Civil Application No.2174 of 2003 by which his initial challenge to the Tribunal judgement rejecting her appeal no.59 of 1995, was rejected. Her review application was was rejected vide order dated 24.09.2010.
(22) The petitioner filed a Letters Patent Appeal No.2520 of 2010 against the order dated 24.09.2010 rejecting the Review Application No.2836 of 2010 vide order dated 09.12.2010. The Division Bench, after hearing learned advocate Mr.Mangukiya passed an ex-parte order and dismissed the appeal with a liberty to make appropriate application before the Tribunal. Before the Division Bench, it was contested that the order passed by the Tribunal and confirmed by this Court in Special Civil Application No.2174 of 2003 vide order dated 07.03.2003 was obtained by fraud. The Division Bench, after reposing faith in the statement made by the learned advocate appearing for the petitioner, dismissed the LPA, vide order dated 09.12.2010 however since a liberty was Page 24 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022 C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 reserved to file an application before the Tribunal and it was clarified that the order dated 07.03.2003 passed by the Co- ordinate Bench in Special Civil Application No.2174 of 2003 shall not come in the way of the present petitioner in making application before the Tribunal. The Division Bench in the order dated 09.12.2010 has observed thus :-
"5. After discussion at the bar of the ratio of aforesaid judgments, it was clear and fairly conceded that the alleged fraud or misrepresentation was allegedly committed before the Tribunal and not before the High Court when the order dated 7/3/2003, as aforesaid, was made. It was also culled out from the observations of the Apex Court that in case fraud were established, the principle of res judicata should not come in the way of the aggrieved party. Under such circumstances, the appellant was required to approach the Tribunal and not apply for recalling the order based on the appellant's own statement and the present appeal preferred from the impugned order was not required to be entertained.
6. Therefore, the appeal as well as the civil application are dismissed subject to the observation that the appellant shall be at liberty to make appropriate application before the Tribunal concerned, which may entertain such application in accordance with law. It is clarified that we have not expressed any opinion about the allegations made and contentions raised by the appellant before us, nor are we expressing any opinion about the advisability or maintainability of the application, which the appellant may file before the Tribunal. However, subject to the above observations, we further clarify that the order dated 7/3/2003 of Ld. Single Judge in Special Civil Application No. 2174 of 2003 shall not come in the way of the Page 25 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022 C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 appellant in making an application before the Tribunal, as aforesaid. D S Permitted."
(23) Taking clue from the ex parte order passed by the Division Bench, the petitioner filed a Restoration Application No.1 of 2011 in Application No.59 of 1995 which was rejected and dismissed by the Tribunal vide order dated 14.02.2003. The said application was also dismissed vide order dated 04.10.2011. Thus, by obtaining such order and despite the rejection of the writ petition being Special Civil Application No.2174 of 2003, withdrawal of special civil application no.2705 of 2003, the petitioner ultimate succeeded in getting the order of filing a review/restoration application on the judgment dated 14.02.2003 rejecting the Application No.59 of 1995, after a period of almost 10 years. It is a very interesting to note that in all the aforementioned proceedings, the judgment dated 14.02.2003 rejecting the Application No.59 of 1995 has not been disturbed in any manner. Accordingly, the petitioner's restoration application No.1 of 2011 has been rejected by the Tribunal vide order dated 04.10.2011 which is challenged in the captioned writ petition being Special Civil Application Page 26 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022 C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 No.17738 of 2011. The application was dismissed with costs of Rs.5,000/-. Though, the application is named and styled as restoration application, however the Tribunal has treated it as a review application and has considered the entire record and reconsidered the submissions advanced by the petitioner and after perusing the entire record, ultimately did not think it fit to entertain the review application or restoration application and to interfere with the judgment and order dated 14.02.2003. The Tribunal has considered the material which was produced before it and again it is reiterated and reaffirmed that the petitioner has not produced anything on record to show that she was appointed as a full time Lecturer.
(24) The Tribunal has observed that the petitioner was paid an amount of Rs.1100/- which was fixed for part-time Lecturer and also whatever additional work was given to her, she was accordingly paid. By the documents which are produced on record in the writ petition, the petitioner has endeavoured to show that she has taken 21 lectures which have been taken by her as a full-time Lecturer, however she has been Page 27 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022 C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 assigned the work of full-time Lecturer since her initial appointment was a part time Lecturer and in all these proceedings which are noted hereinabove, she is unable to show that she was appointed as full time Lecturer. Even if such material was produced before the Tribunal, the same will have no impact on the selection of the Respondent no.5 as a full-time lecturer. Merely assigning the work of a full-time Lecturer to the petitioner will not make her eligible to be appointed as a full time Lecturer. On the contrary, the Selection Committee has appointed the respondent no.5 by following the appropriate selection procedure, as a full-time Lecturer, but the respondents are unable to effectively take her duties as full-time Lecturer because of the litigation filed by the petitioner and the respondent no.5 is declared surplus.
(25) The petitioner has been very ingeniously agitating/re-agitating the appointment of respondent No.5 as full-time Lecturer by resorting to various proceedings and by withdrawing the writ petitions and by filing number of representations or proceedings, on one or other pretexts. Throughout all these proceedings, she has remained unsuccessful Page 28 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022 C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 of proving that she has been appointed as full time lecturer. The Tribunal has rejected the appeal and the restoration application by observing that the petitioner was unable to show her appointment order as a full-time Lecturer. On the contrary in the order dated 07.03.2003 passed in Special Civil Application No.2174 of 2003, a statement of learned advocate appearing for the petitioner was recorded that he has admitted that there is no appointment of the petitioner as a full-time Lecturer and he is not in a position to show any documentary evidence to satisfy that the petitioner was working as a full-time Lecturer.
(26) Thus, the appointment of the respondent No.5 as full-time Lecturer has become final, since the Co-ordinate Bench has clarified that it will be open for the petitioner to challenge the appointment pursuant to the advertisement for recruitment of the respondent No.5, the petitioner accordingly filed another writ petition being Special Civil Application No.2705 of 2003 which was also withdrawn vide order dated 13.03.2003 without seeking any liberty to challenge in case her representation is rejected. Again she filed a writ petition being Special Page 29 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022 C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 Civil Application No.7413 of 2004 which was rejected vide order dated 05.07.2004. The Division Bench, vide order dated 14.09.2004 in Letters Patent Appeal No.1723 of 2004, has only expressed with regard to the decision taken by the University on the representation filed by the petitioner and permission was only given to challenge the same. The petitioner has accordingly challenged the representation rejected by the University in the writ petition being Special Civil Application No.12315 of 2004 by making amendment. This Court has undertaken the necessary exercise in examining the submissions of the learned advocate for the petitioner.
(27) As stated hereinabove, the Tribunal in the judgment dated 14.02.2003, while rejecting the Application No.59 of 1995 has considered all the aspects and subsequently, in the order passed in Restoration Application No.1 of 2011, all the aspects with regard to the appointment of the respondent No.5 and the work undertaken by the petitioner as full time Lecturer is also considered. In the considered opinion of this Court, the petitioner was never appointed as a full-
Page 30 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 time Lecturer and in the wake of the fact that now the respondent No.5 is also declared as surplus in the year 2017, no purpose will be served in setting aside the appointment of the respondent No.5. The petitioner is unable to show that the entire selection process was initiated, illegally, she could have challenged such selection and recruitment process by appropriate proceedings at the relevant time. The Court, while exercising its jurisdiction under Article 227 of the Constitution of India, cannot undertake the exercise of examining the validity of the recruitment process which was undertaken in the year 1995. Even otherwise, the Co-ordinate Bench of this Court has rejected the writ petition being Special Civil Application No.7413 of 2004, challenging the selection process and the appointment of the respondent No.5. The writ petition was rejected on two counts; one is on the ground of delay; and second is on the ground of withdrawing of the earlier petition being Special Civil Application No.2705 of 2003. Thus, the order dated 05.07.2004 passed in Special Civil Application No.7413 of 2004 is never set aside by the Division Bench. On the contrary, Letters Patent Appeal No.1723 of Page 31 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022 C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 2004 filed against the said order has been withdrawn by the petitioner. However, the Division Bench has given liberty to file a fresh writ petition and such prayer, in case, the representation of the petitioner was rejected. However, it is interesting to note that in the Letters Patent Appeal No.2520 of 2010, the Division Bench was not apprised with the order dated 14.09.2004 passed in Letters Patent Appeal No.1723 of 2004 and the same was withdrawn with a view to file an application before the Tribunal. Thus, there were two different proceedings initiated by the petitioner, one which culminated in the order dated 14.09.2004 being Letters Patent Appeal No.1723 of 2004 and however in Letters Patent Appeal No.2520 of 2010 which was dismissed vide order dated 09.12.2010. In all these proceedings, the orders reveal that the petitioner has not apprised the Division Benches with true facts. The petitioner has very cleverly moulded the issue which was already dealt in the writ petition being Special Civil Application No.2174 of 2003 by filing a review application after a period of 8 years being Misc. Civil Application No.2386 of 2010 which was rejected vide order dated 24.09.2010. Thus, the proceedings initiated Page 32 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022 C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 by the petitioner are an absolutely abuse of process of law.
(28) The Division Bench in the case of Bal Shikshan Samiti Trust (supra) after considering the judgment of the Apex Court in the principle enshrined under Order 23 Rule 1 of the Code of Civil Procedure,1908 and the issue of filing successive writ petitions with different prayers on the same set of facts would be barred by the principle of constructive res judicata, has observed thus:
"22. The issue of filing successive writ petition has been considered by the Courts time and again and held that even if the earlier writ petition has been dismissed as withdrawn, Public Policy which is reflected in the principle enshrined in Order 23, rule 1, CPC, mandates that successive writ petition cannot be entertained for the same relief (vide M/s. Sarguja Transport Service v/s. State Transport Appellate Tribunal, AIR 1987 SC 88, Ashok Kumar v/s. Delhi Development Authority, 1994 (6) SCC 97 :
(1994 AIR SCW 5155) and Khacher Singh v/s. State of U. P., AIR 1995 All 338.
23. Even if a party does not pray for the relief in the earlier writ petition, which he ought to have claimed in the earlier petition, he cannot file a successive writ petition claiming that relief, as it would be barred by the principle of constructive res judicata enshrined in Explanation IV to Section 11 and Order 2, Rule 2, CPC as has been explained, in unambiguous and crystal clear language by the Supreme Court in Commissioner of Income-tax, Bombay v/s. T.P. Kumaran, reported in (1996) 10 SCC 561; Union of India v/s. Punnilal, reported in (1996) 11 SCC 112; M/s. D.Cawasji and Page 33 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022 C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 Co. v/s. State of Mysore, reported in AIR 1975 SC 813; Avinash Nagra v/s. Navodaya Vidyalaya Samiti, reported in (1997) 2 SCC 534 and State of U. P. v/ s. Labh Chand, reported in AIR 1994 SC 754."
(29) While placing reliance on catena of judgments of Apex Court the Division Bench has held that "even if a party does not pray for the relief in the earlier writ petition, which he ought to have claimed in the earlier petition, he cannot file a successive writ petition claiming that relief, as it would be barred by the principle of constructive res judicata enshrined in Explanation IV to Section 11 and Order 2, Rule 2, CPC". As noted hereinabove the sole object or goal of the petitioner in all the aforenoted writ petitions was the selection of respondent no.5 as a full-time lecturer. The petitioner has surreptitiously steered through the process of law, even becoming unsuccessful in her first attempt before the Tribunal.
(30) The petitioner was given the additional duties of a full-time lecturer. She was never appointed as full-time lecturer thought a valid recruitment process. The assignment of the additional work and also payment of the additional allowances for Page 34 of 35 Downloaded on : Thu May 05 20:46:03 IST 2022 C/SCA/12315/2004 CAV JUDGMENT DATED: 04/05/2022 doing such work will not render her eligible of being appointed as a Full-time lecturer. The Tribunal in both the proceedings has also undertaken necessary exercise with regard to the selection of respondent no.5 and no illegality is found in the selection process. Thus, the present writ petition is nothing but an abuse of process of law and the same is rejected accordingly.
(31) In the result, the writ petitions fail. Rule is discharged.
(32) Registry to place a copy of this order in the connected matter.
Sd/- .
(A. S. SUPEHIA, J)
***
Bhavesh-[PPS]*
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