1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Misc. Civil Application (Review) No. 977/2006 in Writ Petition No. 2474/2005 Abhay Shaligram Gajbhiye ..vs.. State of Maharashtra and another -------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. -------------------------------------------------------------------------------------------------------------------------------------- CORAM: A. P. LAVANDE & R. V. MORE, JJ. DATED : 31 st July, 2007 1. Heard Mr. R. B. Pendharkar, learned Senior Advocate for the applicant and Ms. Jog, learned A.G.P. for respondent Nos. 1 and 2. 2. By filing this application, the applicant is seeking review of order dated 08.06.2005 passed by the Division Bench of this High Court in Writ Petition No. 2474/2005. Few facts relevant for the disposal of the present Misc. Civil Application are as follows:- 3. The petitioner filed Original Application No. 587/2004 before the Maharashtra Administrative Tribunal, Nagpur thereby challenging the order passed by the respondents by which he was not called for interview for the post of Deputy Director of Health Services. During 2 pendency of the aforesaid Original Application, the applicant filed Civil Application bearing No. No. 168/2005 seeking amendment thereby adding para Nos. 4.11 to 4.17 in the Original Application. 4. The above said application for amendment came to be allowed partly by the Maharashtra Administrative Tribunal. The proposed amendment in para Nos. 4.16 and 4.17 was allowed and rest of the proposed amendment in para No. 4.11 to 4.15 came to be rejected. The applicant, being aggrieved thereby, preferred the above said Writ Petition No. 2474/2005, which also came to be disposed of by order dated 08.06.2005. The Division Bench gave liberty to the applicant to challenge the order rejecting application for amendment in para Nos. 4.11 and 4.15 if the applicant is finally aggrieved by the order of the Maharashtra Administrative Tribunal. 5. Mr. Pendharkar, the learned Senior Counsel submitted that the amendment sought for neither changes the nature of the proceeding nor causes any sort of hardship to the respondents, if the same is allowed. The amendment is necessary for adjudication of the 3 controversy. He further submitted that the amendment is required to be introduced in view of subsequent development during the pendency of Original application before the Maharashtra Administrative Tribunal. He further submitted that the Division Bench, while passing order dated 08.06.2005 committed error apparent on the face of record, which has resulted in great prejudice to the applicant. He also submitted that after the impugned order is passed, the applicant received a letter from the University Grants Commission that the Ph. D. degree is not a medical qualification. Thus, there is discovery of new evidence which was not available when writ petition was heard by this Court. 6. On the contrary, Mrs. Jog, the learned A.G.P. for the state supported the impugned order dated 08.06.2005 and submitted that the applicant has failed to make out any case for review. Therefore, the application deserves to be dismissed. 7. Having heard learned counsel for the respective parties and having gone through order dated 08.06.2005 along with compilation 4 of the writ petition, we are of the considered opinion that the applicant has made out case for review. 8. The application filed by the applicant for amendment to the Original Application No. 587/2004 came to be filed in view of new and additional events which had occurred after filing of the Original Application. Bare perusal of the contents of Para Nos. 4.11 to 4.17 i.e. the proposed amendment shows that they do not change the nature of the original application. By the proposed amendment, the applicant sought to contend that the candidates, whose names were recommended in pursuance of the interview for the post Deputy Director of Health Services, Maharashtra Medical and Health Services Grade-'A' were not eligible and qualified. This amendment, in our view, was necessitated in view of the subsequent developments during the pendency of the Original Application. In our opinion, the amendment does not cause any prejudice to the respondents. Normally, amendment has to be allowed, if the same does not change nature of the proceedings. The learned Member of the Maharashtra Administrative Tribunal partly allowed the application for amendment, 5 thereby allowing insertion of paragraph Nos. 4.16 and 4.17 and rest of the proposed amendment was rejected. This order was challenged by filing Writ Petition, which came to be disposed of by giving liberty to the applicant as stated above. 9. The Division Bench, while disposing of the writ petition by its order dated 08.06.2005 granted liberty to applicant to challenge the order, rejecting application for amendment, in case the petitioner is finally aggrieved by the order of the Maharashtra Administrative Tribunal. However, this liberty was granted in respect of para Nos. 4.11 and 4.15 only. The order does not refer to amendment in para Nos. 4.12, 4.13 and 4.14 and it refers to only para Nos. 4.11 and 4.15 and liberty in respect of these paragraphs only was given to the applicant. There are no reasons why the liberty is not granted in respect of the proposed amendment of para Nos. 4.12, 4.13 and 4.14. In our opinion, omission to refer these paragraphs is the result of error apparent on the face of record. Therefore, the order deserves to be reviewed. 6 10. The Hon'ble Apex court in Jai Jai Ram Manohar Lal ..vs.. National Building Material Supply, Gurgaon; AIR 1969 Supreme Court 1267, while dealing with the scope of the amendment application held as follows:- “Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.” 11. We have gone through the proposed amendment and if it is examined on the touchstone of the observations of the Hon'ble Apex Court, we are of the opinion that the applicant's application for amendment deserves to be allowed in toto, especially when it was necessary because of the subsequent events which does not change 7 nature of the suit or does not cause any prejudice or hardship to the respondents. 12. Be that as it may, on 04.07.2006 the applicant received intimation from University Grants Commission, which indicate that the Ph. D. is not a medical qualification. The case of the applicant is that the criteria of possessing Ph. D. qualification is not given in the advertisement but at the time of short listing of the candidates this criteria was applied. This fact was discovered subsequent to the disposal of the writ petition. Had the applicant brought this fact before the Division Bench of this Court at the time of disposal of the aforesaid writ petition, the result would have been otherwise. 13. In the result, present Misc. application is allowed. The order impugned in the Writ Petition i.e. order of the Maharashtra Administrative Tribunal dated 04.05.2005, so far as it rejects the proposed amendment in para No. 4.11 to 4.15 is quashed and set aside. Civil Application No. 168/2005 in Original Application No. 587/2004 before the Maharashtra Administrative Tribunal, Nagpur for 8 amendment of the Original Application is allowed. The applicant shall carry out amendment within a period of four weeks from today. Needless to mention that the respondents are at liberty to reply to the same. Miscellaneous Civil Application stands disposed of accordingly. In view of above, the writ petition is disposed of in the above terms with no order as to the costs. JUDGE JUDGE kahale