IN THE GAUHATI HIGH COURT (High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) WRIT PETITION(C) No. 5164/2014 [ENTITY] S/O Shri Tankeswar Saikia Village- Garikuri, P.O.: Hatbor, P.S.: Jakhalabandha, Kaliabor Sub-Division, Nagaon, Assam Petitioner - Versus - 1) The [ENTITY], represented by The Commissioner & Secretary to the Govt. of Assam, Department of Education (Higher), Dispur, Guwahati-6. 2) The [ENTITY]. 3) The Inspector of Schools, Nagaon District Circle (NDC), Nagaon, Pin- 782001. 4) The [ENTITY], Represented by its Secretary cum Principal, P.O.- Kuwaritol, District: Nagaon, Assam, Pin- 782137. 5) Shri [ENTITY], S/O Late Shiba Shastri, R/O Kaliabor Tiniali, PO- Kuwaritol District- Nagaon, Pin- 982137. 6) Shri [ENTITY] S/O Late Hem Chandraa Borah, R/O Chotahoibor Gaon, District-Nagaon, Pin- 782003. Respondents
BEFORE HON'BLE MR. JUSTICE [ENTITY] For the petitioner: Mr. [ENTITY], Mr. [ENTITY], Mr. [ENTITY], Ms. [ENTITY], Mr. [ENTITY], Advocates.
For the respondents: Mr. [ENTITY], Sr. SC, Secondary Education Department.
Mr. [ENTITY], Counsel for the respondent No. 5 & 6.
Date of Hearing: 26-09-2014 Date of Judgment: 15-10-2014 JUDGMENT & ORDER Mr. [ENTITY], the learned counsel for the petitioner, Mr. [ENTITY], the learned senior standing counsel for Education (Secondary) Department, Assam and Mr. [ENTITY], the learned counsel for the respondent No. 5 & 6/caveators, have agreed that this writ petition could be decided on the question of law without filing of counter-affidavits by the respondents, and were accordingly heard at length on 24-2014 for final disposal at the motion stage itself. The hearing was concluded on that day whereafter the writ petition was adjourned for verdict, and is now being disposed of by this judgment.
2. The facts relevant for disposal of this writ petition, as pleaded by the petitioner, may be briefly noticed at the outset. The petitioner completed Master Degree in Physics from Gauhati University in the year 2007 and obtained M.Ph degree from Vinayaka Mission University in June, 2008 and has been working as Lecturer in Physics at Kaliabor College since 1-11-2008. Kaliabor College ("the College" for short) is a venture college which falls within the purview of [SECTION] of the [ACT] ("the Act" for short). When the process for provincialization of the College was initiated, the petitioner was found to be qualified for provincialization in the post of Assistant Professor, Department of Physics therein. The maximum number of posts permissible for provincialization in the College under the Act are fifteen, and the name of the petitioner had been included for provinciialization among these fifteen posts as initially published by the respondent No. 2 vide the statement showing the eligibility of posts at Annexure 4, whereas the names of the respondent No. 5 and 6 were shown therein as under-qualified Lecturers of the College for provincialization.
3. It is the case of the petitioner that both the respondent No. 5 and 6 ("the two respondents" for short) obtained Ph.D. degree from CMJ University, Meghalya without the mandatory requirement of submitting thesis and without any guide and that all the degrees conferred by the CJM University were subsequently cancelled by the Meghalaya Government as it was run without any affiliation and by grossly violating the rules and regulations of UGC. After publication of the list of teaching staff of the College for provincialization including the name of the petitioner, the two respondents separately filed [CASE NUMBER] and [CASE NUMBER] before this Court challenging the legality of the said publication. This Court disposed of the writ petition on 3-1-2014 by directing the respondent No. 2 to pass appropriate order. At this stage, it may be noted that the respondent No. 6 cleared the State Level Eligibility Test (SLET) in the month of March, 2013 and has, therefore, fulfilled the eligibility criteria for the post of Assistant Professor for the first time in the year 2013. However, according to the petitioner, the respondent No. 5 has not acquired the eligibility criteria for the said post till now.
4. It is the further case of the petitioner that he, being one of the respondents in the said two writ petitions, had expected that he would be granted an opportunity of hearing by the respondent No. 2 before passing any order in compliance with the order of this Court, but he did not do so. On the contrary, much to his consternation, the respondent No. 2 issued the impugned order dated 10-2-2014 replacing him and his colleague by the two respondents for provincialization of their services against the posts of Assistant Professor. Aggrieved by this, he immediately filed an RTI application on 20-2-2014 before the SPIO, DHE, Kahilipara, Assam and obtained the information with respect to the list of employees for such provincialization with the details as well as the list of employees submitted for financial assistance during the year 2009-2012. It is contended by the petitioner that the respondent No. 5 did not have M.Phil/Ph.D./SLET/NET qualifications, having one of such qualifications is mandatory to become eligible for the post of Assistant Professor, and he is thus not qualified for the post. It is also contended by the petitioner that the respondent No. 6, whose Ph.D. degree had been cancelled by the Meghalaya Government earlier, passed the SLET examination only in March, 2013 and cannot thus steal a march over him, who had already become eligible for the said post in June, 2008 when he had obtained M.Phil. degree in the same year. He, therefore, submits that the impugned order, in so far as it declares the two respondents to be senior to the petitioner and proposes the provincialization of the services of the two respondents against the posts of Assistant Professor instead of him, is to that extent illegal and is also violative of the principles of natural justice.
5. The contention of Mr. [ENTITY], the learned counsel for the petitioner, is that the veracity of the M.Phil degree obtained by the petitioner from Vinayak University cannot be challenged by the respondents without filing an affidavit inasmuch as the said University is recognised by the UGC to be deemed University. Even if we assume that the respondent No. 6 has passed the SLET examination in 2003, contends the learned counsel, his seniority can be counted only with effect from the date when he passed the SLET and not from the date of his appointment, whereas the seniority of the petitioner is to be counted with effect from June, 2008 when he obtained M.Phil degree, and so counted, the petitioner is well ahead of the respondent No. 6 in seniority. According to the learned counsel, as the respondent No. 5 is not eligible for the post of Assistant Professor for not having passed the SLET/TET or for not obtaining Ph.D./M.Phil degree till now, the decision of the respondent No. 2 upholding the proposal for his provincialization is illegal. He also contends that the notification exempting the two respondents from obtaining the said eligibility criteria is inconsistent with the eligibility criteria prescribed by [SECTION] of the Act, and is, thus, a nullity and cannot be acted upon.
6. Per contra, Mr. [ENTITY], the learned senior standing counsel for the Education (Secondary) Department, Assam, supports the impugned order and submits that inasmuch as the dates of joining of the two respondents are recorded as 25-2-1999 and 23-12-1999 respectively, they are not only exempted from having M.Phil/NET/SLET/Ph.D qualifications in terms of the said Office Memorandum dated 7-2-2014, but are also, ipso facto, senior to the petitioner. He, therefore, submits that the impugned order issued by the respondent No. 2, therefore, does not suffer from any infirmity calling for the interference of this Court.
7. Mr. [ENTITY], the learned counsel for the respondent No. 5 and 6, while supplementing the contentions of the learned senior standing counsel, maintains that this writ petition not maintainable being barred by the doctrine of res judicata since this Court in the earlier proceedings in [CASE NUMBER] and [CASE NUMBER] has already heard both the parties and finally decided the dispute directly and substantially in issues in the instant writ petition. He further contends that petitioner has no locus standi to file this writ petition since the M.Phil degree has been obtained from an unrecognised University, namely, Vinayaka Mission Research Foundation: such degree from this University is valid only when the same is obtained from approved campus, and there is no approved campus in Guwahati. He further contends that the said Office Memorandum dated 7-2- 2014 exempting the two respondents from having the qualifications of M.Phil/Ph.D./NET/SLET, until and unless successfully challenged and quashed by this Court, has the force of law and, so understood, enables them to become eligible for the post of Assistant Professor, and they, having joined the post of Lecturer in 1999, are entitled to count their seniority from the dates of the respective dates of their joining the posts held by them.
8. Drawing my attention to the proviso to [SECTION] of the Act which provides that where the number of employees serving in venture schools exceeds the sanctioned posts, the provincialization shall be made on the basis of seniority, the learned counsel for the private respondents submits that the services of the two respondents, who are senior to the petitioner, are entitled to be provincialized against the posts of Assistant Professor, and the petitioner has no legitimate grievance to make in this behalf. According to the learned counsel, once this Court in the former writ petitions has already recorded the findings that the respondent No. 5 and 5 had been appointed as Lecturers in Physics and Chemistry respective in 1999 and the petitioner herein and one other Lecturer had been appointed in the year 2007 and 2008 respectively, the respondent No. 2 has no alternative but to record the same findings and does not, therefor, commit any illegality in issuing the impugned order. He lastly submits that the respondent No. 2 had already admitted in his affidavit filed in the former writ petitions that there was mistake on the part of the District Scrutiny Committee in forwarding the name of the petitioner for provincialization of his service, and he, realizing the mistake, replaced the names of the petitioner and the other Lecturer by the names of the respondent No. 5 and 6: the impugned order has been rightly issued and should not be interfered with by this Court. Reliance is placed by him upon the decision of the Apex Court in [PRECEDENT] to fortify his various contentions.
9. In reply, Mr. [ENTITY], the learned counsel for the petitioner, argues that there is no evidence to show that Vinayaka Missions University is not a recognized Deemed University: the Provisional Certificate M.Phil degree issued by the University in question at Annexure-2 clearly indicates that it has been declared to be so under [SECTION] of [ACT]. On the contrary, my attention was drawn by him to the letter dated 4-9-2013 addressed to the respondent No. 6 by the Under Secretary & PIO (CPP-I), UGC, New Delhi, wherein it has been stated that M.Phil by the Vinayaka Missions Research Foundation, Salem is valid if the course was conducted in regular mode at the UGC/MHRD approved campus of the Foundation: he then submits that there is also no evidence to show that the Petitioner did not obtain the course was obtained by the petitioner from such non-approved campus. It is also maintained by him that there is no question of applying the principles of res judicata when the former writ petitions were merely remanded to the respondents for passing appropriate orders: the writ petitions were never heard and finally decided on merit.
10. After giving my thoughtful consideration to the rival submissions made at the bar, it becomes apparent that the objection to the maintainability of the writ petition raised by the learned counsel for the private respondents on the ground of res judicata has force. One of the ingredients to constitute res judicata is that the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the former suit. In [PRECEDENT], the Apex Court reiterated the legal position that the principle of res judicata is applicable to writ proceedings. It is also applicable to subsequent suits where the same issues between the same parties had been decided in an earlier proceeding under [SECTION] of the [ACT]. In order to sustain the plea of res judicata, it is not necessary that all the parties to the two litigations must be common. All that is necessary is that the issue should be between the same parties or between parties under whom they or any of them claim. Undoubtedly, the parties as well as the matters in issue in both the former writ petitions and this writ petition are one and the same. The question to be determined now is whether the matters in issue in both the writ petitions have been finally heard and decided by this Court in the former writ petitions. To appreciate this question, it will be appropriate to refer to the common order dated 3-1-2014 passed by this Court in [CASE NUMBER] and [CASE NUMBER], which reads thus:
"3-1-2014 Heard Mr. [ENTITY] learned counsel for the petitioners. Also heard Mr [ENTITY], learned counsel representing the respondent No.
5. I have also heard Mr. [ENTITY], the standing counsel, Education.
Both the writ petitions pertain to provincialization of services of petitioneers and the respondent No. 5 and 6. It is an admitted fact that the names of the two petitioner were included inn the list for provincialization prepared by the District Scrutiny Committee. As per provision of [SECTION] of the [ACT], there shall be one District Scrutiny Committee in each district and the said Committee is required to be constituted by the Deputy Commmissioner of the District. While the petitioners were appointed as Lecturers in Physics and Statistics respectively in 1999, the respondent Nos. 5 and 6 involved in the writ petition were appointed in 2007 and 2006 respectively. Thus admittedly the two petitioners are senior to them.
When the matter for provincialization of service of the teaching staff was processed and routed through the District Scrutiny Committee, the said Committee incorporated the names of two petitioners in the list by which recommendation was made for provincialization of their services along with others. However, when the matter was placed before the Director, Higher Education, he prepared another list incorporating the names of respondent Nos. 5 and 6 and placing the names of the petitioners in the list of under qualified teaching staff. Being aggrieved by such action on the part of the Director of Higher Education, the writ petitions have been filed.
In the counter-affidavit filed by the Director, Hioogher Education, he has virtually admitted the mistake committed by him in deleting the names of the petitioners and incorporating the names of the private respondents i.e. the respondent Nos. 5 and 6 in paragraph 5 of the said affidavit it has been stated thus:
"That the deponent begs to state that the Government of Assam in the Education Department has taken steps for provincialization of services of the employees working in venture educational institutions in the light of the "[ACT].
As per [SECTION] of the Act, the Head of the venture institutions are required to forward the particulars of the teaching and non-teaching staffs working in the institution before the District Scrutiny Committee for scrutiny. The District Scrutiny Committee after scrutinizing the same will transmit the same to the Directorate for taking steps for provincialization. Thereafter the office of the deponent uploaded the list of qualified venture colleges showing the names of staff of the said college. The Act of 2011 amended in 2012 has prescribed the number of staff of the said college for provincialization. The office of the Directorate cannot change the staff pattern as submitted by the District Scrutiny Committee. Unless the name of the petitioner is forwarded by the District Scrutiny Committee within the number of staffs entitled for the benefits of provincialization as per the Act, the deponent cannot include the name of the petitioner.
However, while uploading the list of qualified/under qualified/disqualified incumbents in SSA portals, some inadvertent errors through
oversight/typographical mistakes occurred in making recommendation for the purpose of the benefit of provincialization. In this connection, the office of the deponent uploaded a Notification vide No. PC/HE/Col-16/2011/215 dated 14-03-2013 in website for submission of appeal on or before 25-04-2013 for review/reconsideration of those errors/mistakes and for further examination and finalization of the list of employees/college for provincialization. The process of further examination of the list of employees/colleges are going on. Therefore, the directorate needs/requires some more time for examination/verification of the petitioner's case. The process for verification and correction of errors/mistakes process is under progress."
If we go by the above admission on the part of the Director of Higher Education, he could not have changed the list that was sent by the District Scrutiny Committee. While admitting the mistakes committed by him he has qualified the same as inadvertent errors through oversight/typographical mistake. He also admitted that the Directorate could not have changed the staff pattern as was submitted by the District Scrutiny Committee.
Mr. [ENTITY], learned counsel for the respondent No. 5 however submits that the Director is vested with the power to make change in the list forwarded by the District Scrutiny Committee, as per the provisions of [SECTION] of the aforesaid Act. Apart from the fact that the Director of Higher Education has not assigned any reason for the changes made by him in the counter affidavit, no remarks requiring such changes are also discernible in the subsequent list prepared by him.
As per provision of [SECTION], the final notification is required to be issued by the Government after the list submitted by the District Scrutiny Committee routed through the Director of Higher Education.
Mr. [ENTITY], learned counsel for the respondent No. 5 while emphasizing the power of the Director to make the changes has also emphasized on the requirement of eligibility of provincialization. He submits that the petitioners being not qualified having not obtained the Ph.D/NET/SLET qualification, the Director rightly made the changes in the list that was recommended by the District Scrutiny Committee.
Countering the above arguments, Mr. [ENTITY], learned counsel for the petitioners, submits that the petitioner involved in [CASE NUMBER] has also obtained SLET qualification in February, 2013. So far the second petitioner involved in [CASE NUMBER] is concerned, referring to the provisions of [SECTION] of the Act, he submits that apart from the fact that the petitioner is senior to the respondent No. 5 and 6, he is entitled to get relaxation in respect of prescribed qualification from the date of provincialization of service. It is on record that Lecturers acquiring NET/SLET in February, 2013 along with the petitioner in [CASE NUMBER] have been considered for provincialization. Thus no distinction can be made in respect of the petitioner involved in [CASE NUMBER]. As regards the other petitioner in [CASE NUMBER], his case will have to be considered as per relaxation clause under [SECTION] of the Act.
Director of Higher Education having admitted his mistake in respect of the
recommendation made by the District Scrutiny Committee, he ought to have rectified the same and thereafter placed the matter before the State Govt. in the Education Department for final notification.
Be that as it may, since the matter is now pending with the Govt. in the Education Department, both the writ petitions are disposed of with a direction to pass appropriate order consistently with the observations made above, as expeditiously as possible preferably within 28th February, 2014."
(Underlined for emphasis)
11. A plain reading of the aforesaid order will reveal that the following categorical findings have been made by this Court, namely, (i) the private respondents are senior to the petitioner herein inasmuch as they were appointed as Lecturers in Physics and Statistics in 1999, whereas the petitioner and the other Lecturer were appointed only in the year 2007 and 2006; (ii) an the admission was made by the Director of Higher Education that mistakes were committed by him by substituting the names of the private respondents herein by the names of the petitioner and one other Lecturer in the list prepared by him for provincialization of their services; (iii) the Director of Higher Education, having admitted such mistakes, ought to have rectified the same and thereafter placed the same before the Education Department for issuance of the notification. On the basis of such findings, this Court issued the direction upon the Director of Higher Education to pass appropriate order consistently with the observations made by it earlier. These are findings which cannot be said to be obiter dicta or are issue ancillary or incidental to the main issue involved in the said writ petitions: they rather strike at the root of the case of the petitioners therein. Nay, the issues involved in this writ petition, namely the inter-se seniority between the petitioner and the private respondents and the question of provincialization of their respective services in the posts of Assistant Professor were matters directly and substantially in issue in the former writ petitions. The question is whether the Director of Higher Education could have passed any order holding the petitioner to be senior to the private respondents or prepared a fresh list of teaching staff of the College for provincialization of their services contrary to or inconsistent with the above directions in the light of the observations made by this Court in the two writ petitions? The answer must be "No". In my judgment, this Court in the former writ petitions have already heard the submissions of both the counsel for the rival parties (who are also parties to this writ petition) and finally decided the issues, which are directly and substantially in issues in this writ petition. In other words, the common order in question had decisively decided the issues involved in this writ petition against the petitioner, who should have carried the matter in appeal to the appellate court. Having finally decided such issues, even if such direction i.e. the direction to pass appropriate order can be said to be superfluous, but that does not affect the binding character of the order between the parties. The words and figure "Be that as it may,"
shall not also materially affect the binding nature of the direction. Any order/direction made by the Director of Higher Education inconsistent with the said findings already made by this Court can even expose him to the charge of contempt of court. The law is now well settled that all questions which had been expressly decided by this Court on contest between the petitioner and the private respondents and other questions which must be deemed by necessary implication to have been decided are res judicata.
12. True, the aforesaid decision of this Court might have been erroneous on a question of fact or of law or of both, but such decision nevertheless constitutes res judicata. The legal position was reiterated by the Apex Court recently in [PRECEDENT] after reviewing the various case-laws. This is what it said:
"19. It is trite that law favours finality to binding judicial decisions pronounced by courts that are competent to deal with the subject-matter. Public interest is against individuals being vexed twice over with the same kind of litigation. The binding character of the judgments pronounced by the courts of competent jurisdiction has always been treated as an essential part of the rule of law which is the basis of the administration of justice in this country. We may gainfully refer to the decision of the [ACT] Bench of this Court in [PRECEDENT] where the Court succinctly summed up the law in the following words: (AIR p. 1462, paras 9 & 11) "9. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation.
* * *
11. The binding character of judgments pronounced by courts of competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the [ACT] lays so much emphasis."
20. That even erroneous decisions can operate as res judicata is also fairly well settled by a long line of decisions rendered by this Court. In [PRECEDENT] 14 this Court observed: (AIR p. 72, para
23) "23. There is ample authority for the proposition that even an erroneous decision on a question of law operates as 'res judicata' between the parties to it. The correctness AIR 1961 SC 1457 AIR 1953 SC 65 or otherwise of a judicial decision has no bearing upon the question whether or not it operates as 'res judicata'."
21. Similarly, in [PRECEDENT] 15 this Court reiterated the above principles in the following words: (AIR p. 1066, para 14) "14. A wrong decision by a court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides."
22. The recent decision of this Court in [PRECEDENT] is a timely reminder of the very same principle. The following passage in this regard is apposite: (SCC pp. 267-68, para 44) "44. In our opinion, if the parties are allowed to re- agitate issues which have been decided by a court of competent jurisdiction on a subsequent change in the law then all earlier litigation relevant thereto would always remain in a state of flux. In such circumstances, every time either a statute or a provision thereof is declared ultra vires, it would have the result of reopening of the decided matters within the period of limitation following the date of such decision."
23. In [PRECEDENT] this Court held that for the application of the rule of res judicata, the court is not concerned with AIR 1966 SC 1061 : 1966 Cri L 805 (2013) 5 SCC 252 : (2013) 2 SCC (Civ) 797 (1970) 1 SCC 613 the correctness or otherwise of the earlier judgment. The matter in issue if one purely of fact decided in the earlier proceedings by a competent court must in any subsequent litigation between the same parties be recorded as finally decided and cannot be reopened. That is true even in regard to mixed questions of law and fact determined in the earlier proceeding between the same parties which cannot be revised or reopened in a subsequent proceeding between the same parties. Having said that we must add that the only exception to the doctrine of res judicata is "fraud" that vitiates the decision and renders it a nullity. This Court has in more than one decision held that fraud renders any judgment, decree or order a nullity and non est in the eye of the law. In [PRECEDENT], "fraud" was defined by this Court in the following words: (SCC pp. 231-32, para 26) "26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss [and cost] of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of 'finality of litigation' cannot be stretched to the extent of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent litigants." (2007) 1 SCC 613
13. The net effect of the foregoing discussion is that this writ petition is barred by the doctrine of res judicata, and can no longer be decided by this Court. As the writ petition is not maintainable on the ground of res judicata, the other issues raised by the learned counsel appearing for the rival parties do not survive for consideration on the principle that a court of law does not decide more than what is necessary.
14. For the reasons stated above, this writ petition is plainly barred by res judicata and is, therefore, dismissed on the ground of non-maintainability. The parties are, however, directed to bear their respective costs.
JUDGE [ENTITY]