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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Dipankar Datta, V.G.Joshi, JJ.
Sachin - Appellant
Versus
Dr. Panjabrao - Respondent
Writ Petition No. 2412/2020
Decided On : 09-12-2021
Misrepresentation - Writ Petition - AIR 1963 1909, (2004) 6 SCC 126 - The court examined whether the judgment and order dated February 27, 2020 was obtained by misrepresentation and held the writ petition to be maintainable based on the precedent set by AIR 1963 1909 and (2004) 6 SCC 126. The court found that the observation in paragraph 28 of the said judgment was inconsistent with the conclusion recorded in paragraph 15 and, thus, in the exercise of the inherent power of the Court, the judgment was reviewed and the action taken by the University to divest the petitioner of the fruits of promotion as an Associate Professor, Horticulture, was regarded as inoperative and ineffective. The petitioner was deemed to have continued in service on the promoted post of Associate Professor, Horticulture from the initial date of his promotion, and the selection process initiated by the University was aborted and shall not be carried forward any further.
Fact of the Case:
The petitioner sought relief to quash and set aside the judgment and order dated 27/02/2020, passed by the Court in W.P. No. 2444/19, 2471/2019 and 2806/2019, alleging misrepresentation by the respondent No. 5 to 9. The University initiated action for fresh selection and appointment, and the petitioner was served with an order reverting him to the post of Assistant Professor in Horticulture. The petitioner moved a writ petition seeking to stay the effect and operation of the impugned communication and restrain the University from proceeding with the said selection process of promotion of Associate Professor.
Finding of the Court:
The court held the writ petition to be maintainable based on the precedent set by AIR 1963 1909 and (2004) 6 SCC 126. The court found that the observation in paragraph 28 of the said judgment was inconsistent with the conclusion recorded in paragraph 15 and, thus, in the exercise of the inherent power of the Court, the judgment was reviewed and the action taken by the University to divest the petitioner of the fruits of promotion as an Associate Professor, Horticulture, was regarded as inoperative and ineffective.
Issues: The issues revolved around the maintainability of the writ petition and the validity of the judgment and order dated February 27, 2020, passed by the Court in W.P. No. 2444/19, 2471/2019 and 2806/2019, alleging misrepresentation by the respondent No. 5 to 9.
Ratio Decidendi: The court relied on the precedent set by AIR 1963 1909 and (2004) 6 SCC 126 to hold the writ petition to be maintainable and to review the judgment and order dated February 27, 2020, based on the inconsistency between the observation in paragraph 28 and the conclusion recorded in paragraph 15 of the said judgment.
Final Decision: The court deemed the petitioner to have continued in service on the promoted post of Associate Professor, Horticulture from the initial date of his promotion, and aborted the selection process initiated by the University. The court also held that the order does not affect any action taken by the University against the promotees who were respondents in the said three writ petitions and which were disposed of by the said judgment.
JUDGMENT
DIPANKAR DATTA,C.J.
1. W.P. No. 2412/2020 has been instituted by Shri Sachin Rameshwarrao Bhople seeking the following relief: -
"It is, therefore, most humbly and respectfully prayed that this Hon'ble Court may kindly be pleased to issue an appropriate writ, order or direction and thereby be pleased to hold and declare that the judgment and order dtd. 27/02/2020, passed by this Hon'ble Court in W.P. No. 2444/19, 2471/2019 and 2806/2019 (Annex-N) is obtained by misrepresentation by the respondent No. 5 to 9 and further be pleased to: -
i) quash and set aside/recall the said judgment and order dtd. 27/02/2020 (Annex-N) passed by this Hon'ble Court in W.P. No. 2444/19, 2471/2019 and 2806/2019 (Annex-J to L), in the interest of justice;
ii) issue an appropriate writ, order or direction and thereby be pleased to quash and set aside the impugned communication dtd. 09/07/2020 (Annex-T) issued by the respondent No. 1/University, cancelling the promotion of the petitioner on the post of Associate Professor and further be pleased to direct the respondent No. 1/University and respondent No. 2/Vice-Chancellor to restore the petitioner on the said post, with continuity and all benefits, in the interest of justice;
iii) during the pendency and final disposal of the present petition, stay the effect and operation of the impugned communication dtd. 9/7/20 (Annex-T), issued by the respondent No. 1/University and further restrain the respondent No. 1/University from proceeding ahead with the said selection process of promotion of Associate Professor in the respondent No. 1/University, in the interest of justice;"
2. Since order has been claimed for a declaration is prayed for quashing and/or setting aside the judgment and order passed by a coordinate Bench of this Court, on the ground of alleged misrepresentation, Mr. Sudame, learned advocate representing the respondents 5 to 7 has raised a preliminary objection to the maintainability of the writ petition. According to him, the judgment and order dated February 27, 2020 by which the petitioner feels aggrieved has attained finality by reason of no appeal being carried therefrom to the Supreme Court as well as no review application having been filed in line with the principles flowing from sec. 114 read with Order XLVII of the Code of Civil Procedure. These being the remedies made available by law to the petitioner, it is contended that he ought to have elected one such remedy but writ remedy is not available to him in the circumstances. He also contends that relief as claimed by the petitioner cannot be granted since it is not open to us to quash and/or set aside the judgment and order of a co-ordinate Bench in exercise of judicial review powers; if at all the petitioner is aggrieved, his remedy lies elsewhere. It is, thus, prayed that the writ petition be dismissed.
3. Mr. Khedkar, learned advocate representing the petitioner counters such preliminary objection by placing reliance on a decision of the Supreme Court reported in (2007) 14 SCC 108 : Deepa Gourang Murdeshwar Katre vs. Principal, V.A.V. College of Arts and others. According to him, the said decision is an authority for the proposition that if an order has been passed by a Court of law based on fraud or misrepresentation, the Court can recall its order in exercise of its inherent power. It is, therefore, submitted that this Court may examine whether the contention of the petitioner that the judgment and order dated February 27, 2020 was obtained by misrepresentation has substance or not; if yes, the Court may proceed to grant such relief as it may consider appropriate in the circumstances.
4. Before dealing with the preliminary objection, it would be appropriate for us to notice what was under challenge in W.P. Nos. 2444/2019, 2471/2019 and 2806/2019 and what the judgment and order dated February 27, 2020 (hereafter "the said judgment", for short), whereby these writ petitions were disposed of, directed. Incidentally, the sai
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