The State of Assam Vs Sri Chandrama Devi and 2 Ors.

ODALBAKRA GUWAHATI-34 REP. BY ITS HEAD MASTER. -----------Advocate for : MR. R MAZUMDAR Advocate for : MR A CHETIA (r-1 3) appearing for SRI CHANDRAMA DEVI AND 2 ORS

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BEFORE

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HONOURABLE MR. JUSTICE ROBIN PHUKAN

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ORDER

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Date : 15.10.2025

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Heard Mr. N.J. Khataniar, learned counsel for the review petitioners. Also heard Mr. H.K. Das, learned counsel for the respondent No. 1.

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2. This petition, under Section 114, read Order 47 Rule 1 CPC, is preferred for review/recall/modification of the order dated 23.02.2021, passed by this Court, in WP(C) No. 596/2018.

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3. It is to be noted here that vide order dated 23.02.2021, this Court was pleased to direct the review petitioners to provide all consequential benefits of provincialization to the writ petitioner/respondent No. 1 herein within a period of two months.

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4. The background facts, leading to filing of the present petition, are briefly stated as under:

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“The respondent No. 1, as writ petitioner claimed that she

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was appointed as 3^rd Assistant Teacher (Arts) in Sabitri Bharali High School, Guwahati on 27.06.2006, and accordingly, she claimed for provincialization of her service under the Assam Venture Educational Institutions (Provincialization of Services) Act, 2011 (‘Act of 2011, for short). Thereafter, the Headmaster of the school submitted the particulars of employees of the school as per provision of the Act of 2011, as amended in 2012 to the District Scrutiny Committee for the purpose of provincialization of their services. The name of the petitioner was initially not forwarded and she was marked as 'withheld' in the list of eligible teachers. The order of provincialization, dated 22.09.2014 was issued in respect of the employees of the school showing the post of 3^rd Assistant Teacher (Arts) as vacant.

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The respondent No. 1 earlier approached this Court by filing two writ petitions, being WP(C) No. 5513/2014 and WP(C) No. 6501/2015, for provincialization of her service and both the writ petitions were disposed of with a direction to consider her case.

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The respondent No. 1 again filed WP(C) No. 596/2018, for provincialization of her service and this Court, vide order dated 23.02.2021, directed the respondent authorities to provide all consequential benefits of provincialization to the petitioner w.e.f. 01.01.2013.

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Thereafter, Inspector of Schools, Kamrup (M) submitted a

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report on 27.04.2021, wherein he stated that the name of the respondent No. 1 was neither recommended by the District Scrutiny Committee for provincialization of her service nor found in any of the particulars submitted by the school authority. Thereafter, on perusal of the reports and other material available on records, it has come to light that the respondent No. 1 was not working in the school as on 31.12.2010, which is mandatory for provincialization of service of an employee. But, this fact could not be brought to the notice of this Court at the time of hearing of the matter, and after the Act of 2011, being declared as ultra vires by a Division Bench of this Court, vide order dated 23.09.2016, the respondent No. 1 is not entitled to any benefit under the provision of said Act.”

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5. Accordingly, being aggrieved, this review petition is preferred on the following grounds:

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(i) That, the Headmaster of the school submitted the particulars of the employees of the school on 27.09.2012 to the Inspector of Schools, Kamrup after the amendment of the Act of 2011, which came into force from 23.08.2012, which provided 3 (three) Assistant Teacher (Arts) for provincialization, but the name of the writ petitioner/respondent No. 1 was not forwarded as 3^rd Assistant Teacher (Arts). The Headmaster had submitted another list of teachers on 26/27.09.2012 inserting the name of the petitioner on the same format, which appears to be doubtful and manipulated.

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(ii) That, the name of the writ petitioner/respondent No. 1 was not recommended by the District Scrutiny Committee under the Act of 2011, and as the writ petitioner/respondent No. 1 was not in service in the school as on 31.12.2010, her name did not figure as 'excess teacher' in the report of the District Scrutiny Committee like one excess teacher working against 3^rd Assistant Teacher (Science).

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(iii) That, the Inspector of Schools, Kamrup (M), vide his report dated 27.04.2021, stated that the name of the writ petitioner/respondent No. 1 was neither recommended by the District Scrutiny Committee for provincialization of her service as 3^rd Assistant Teacher (Arts) of Sabitri Bharali High School nor found in any of the particulars submitted by the school authority for provincialization of services of staff of the school.

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(iv) That, there is no record to show that the appointment of the writ petitioner/respondent No. 1 as Assistant Teacher in the school was approved by the departmental authority. Further, the writ petitioner/respondent No. 1 did not receive financial assistance continued up to 2010-11, which would go to show that the petitioner did not work in the school up to 2011, and as per Act of 2011, the employee must be appointed in the school and should be in service as on 31.12.2010, for consideration for provincialization of service.

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(v) That, this Court, vide order dated 04.04.2016, in WP(C) No.6501/2015, directed the respondent authorities to verify

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whether the writ petitioner/respondent No. 1 had worked as 3^rd Assistant Teacher in the school during the period from 28.06.2006 to 31.12.2010. On verification of documents, it is found that she was not working in the school as on 31.12.2010.

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(vi) That, originally there was no recommendation made by the District Scrutiny Committee and no particulars of the writ petitioner/respondent No. 1 were submitted by the Headmaster of the school and this appears to be manipulation of records, which will be a subject of enquiry. However, the aforesaid fact was not placed before this Court, when the order dated 23.02.2021, was passed.

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(vii) That, after the Act of 2011 being declared as ultra vires by the Division Bench of this Court, vide order dated 23.09.2016, the writ petitioner/respondent No. 1 is not entitled to any benefit under the provision of said Act. Further, as on 23.09.2016, the status of the writ petitioner/respondent No. 1 was not a Government employee and she did not receive salary and therefore, the writ petitioner/respondent No. 1 is not protected by the judgment and order passed by this Court, in Review Petition No. 167/2016.

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(viii) That, the recommendation made by the District Scrutiny Committee and the State Scrutiny Committee for provincialization of service of an employee needs to be approved by the Government and thereafter, the order of provincialization could be issued. However, the name of the writ

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petitioner/respondent No. 1 was only reflected in the list of employees eligible for provincialization in the district, but till date order of provincialization has not been issued in her favour. Therefore, the service of the petitioner would not be deemed to have been provincialized w.e.f. 01.01.2013 by operation of law under Section 4 (1) of the Act of 2011.

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6. Mr. Khataniar, learned counsel for the review petitioners submits that while the order dated 23.02.2021, was passed by this Court in WP(C) No. 596/2018, directing the review petitioners for provincialization of her service with all consequential benefits of provincialization w.e.f. 01.01.2013, the Inspector of Schools, Kamrup(M) had submitted a report to the Director of Secondary Education, Assam, dated 27.04.2021, wherein it is stated that the name of the writ petitioner/respondent No. 1 was neither recommended by the District Scrutiny Committee for provincialization of her service nor found any of the particulars submitted by the school authority, and that the petitioner was not working in the school as on 31.12.2010, which is mandatory for provincialization of employee under the Act of 2011. Mr. Khataniar also submits that the Act of 2011 was declared as ultra vires by this Court, vide order dated 23.09.2016, and as such, the writ petitioner/respondent No. 1 is not entitled to any benefits under the Act of 2011.

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6.1. Mr. Khataniar has also drawn the attention of this Court to Annexure-1, which is a copy of order dated 22.09.2014, relating to Sabitri Bharali High School, which indicates that the 3^rd Graduate Teacher (Arts) is shown as vacant; and Annexure-6, which is a report submitted by the Inspector of Schools, Kamrup(M), dated 27.04.2021, enclosing the proposal submitted by the Head of the Institution for provincialization of Teaching and Non-teaching staffs of his

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institution under the Act of 2011, and the copy of letter of approval by the then Inspector of Schools, Kamrup District Circle, Gauhati and a copy of the recommendation of the District Scrutiny Committee for consideration; and the particulars of employees submitted by the Headmaster on 27.09.2012 in Annexure-9 series, is found to be contrary to another format of particulars of employees submitted by the Headmaster of the school on 26.09.2012; and that though the Headmaster of the school had filed one affidavit, he had not explained as to why the name of the writ petitioner/respondent No. 1 was not forwarded, vide his letter dated 27.09.2012, and under the above facts and circumstances, Mr. Khataniar submits that the order passed by this Court, dated 23.02.2021, in WP(C) No. 596/2018, may be reviewed/recalled/modified.

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7. On the other hand, Mr. Das, learned counsel for the respondent No. 1 submits that the order dated 23.02.2021, was passed by this Court after considering all the materials and the said order was based on the documents produced by the writ petitioner/respondent No. 1, which were furnished to her by the review petitioners herein and now the review petitioners are arguing against their own documents. Mr. Das also submits that the documents which are presently relied upon by the review petitioners, were not produced before the Court at the time of hearing of the petition, and there was no explanation on the part of the review petitioners as to why the documents could not be produced at the time of hearing, and that there is lack of due diligence and on such count, this review petition may be dismissed. Mr. Das further submits that the review petitioners had, even failed to file their affidavit-in-opposition in WP(C) No. 596/2018, and their stand could not be known at that point of time of hearing and now they come to this Court for review of the order on the basis of some documents, which were existed earlier and which they could not

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produce at the time of hearing in WP(C) No. 596/2018, and on such count, Mr. Das has contended to dismiss this petition.

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7.1. In support of his submission, Mr. Das has referred to the following decisions:

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(i) Malleswari vs. K. Suguna and Anr. , reported in 2025 SCC OnLine 1927 .

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(ii) Shri Ram Sahu (dead) through legal representatives and Ors. vs. Vinod Kumar Rawat and Ors. , reported in (2021) 13 SCC 1 .

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8. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record, and also gone through the decisions referred by Mr. Das, learned counsel for the respondent No. 1.

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9. It appears that this Court, vide order dated 23.02.2021, in WP(C) No. 596/2018, had declared that the service of the writ petitioner/respondent No. 1 was deemed to have been provincialized under Section 4(1) of the Act of 2011, as per the conclusion arrived at by the respondents therein that she was the 3^rd Assistant Teacher (Arts) of the School concerned and under Section 3 of the Act of 2011 as amended, the 3^rd teacher is entitled to be provincialized, and accordingly, it was directed that all consequential benefits of provincialization that the writ petitioner/respondent No. 1 may be entitled, shall be provided to her within a period of two months from the date of receipt of certified copy of that order. It was also held that as required under Section 10(4), the Government of Assam had also to approve the provincialization of the writ petitioner/respondent No. 1.

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10. It also appears from this petition that the review petitioners have relied upon a letter dated 27.04.2021 (Annexure-6), written by the Inspector of Schools, which is enclosed with other documents and the said letter is subsequent to the order passed by this Court, dated 23.02.2021. It further appears that the documents enclosed with Annexure-6 are of the year 2012, but the said documents were not produced before this Court at the time of hearing of the matter on 23.02.2021. It also appears that the review petitioners have failed to offer any explanation for failing to produce the said documents before this Court, rather they have admitted that they had not filed counter-affidavit in the aforementioned writ petition.

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11. It is to be noted here that the grounds for judicial review are well settled by Hon’ble Supreme Court in the case of Malleeswari (supra), in the following para:-

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“ 17.1. The ground of discovery of new and important matter or evidence is a ground available if it is demonstrated that, despite the exercise of due diligence, this evidence was not within their knowledge or could not be produced by the party at the time, the original decree or order was passed.

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17.2 Mistake or error apparent on the face of the record may be invoked if there is something more than a mere error, and it must be the one which is manifest on the face of the record. Such an error is a patent error and not a mere wrong decision. An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record.

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17.3 Lastly, the phrase 'for any other sufficient reason' means a reason that is sufficient on grounds at least analogous to those specified in the other two categories.”

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11.1. In the case of Shri Ram Sahu (dead) (supra), Hon’ble Supreme Court has also discussed several earlier decisions, especially the case of State of W.B. vs. Kamal Sengupta , reported in (2008) 8 SCC 612 , wherein in paragraph 35 of the said case, it has culled out the principles as under:-

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“ 35. The principles which can be culled out from the above noted judgments are:

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(i) The power of the Tribunal to review its order/decision under Section 22(3)(f) of the Act is akin/analogous to the power of a civil court under Section 114 read with Order 47 Rule 1 CPC.

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(ii) The Tribunal can review its decision on either of the grounds enumerated in Order 47 Rule 1 and not otherwise.

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(iii) The expression "any other sufficient reason" appearing in Order 47 Rule 1 has to be interpreted in the light of other specified grounds.

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(iv) An error which is not self-evident and which can be discovered by a long process of reasoning, cannot be treated as an error apparent on the face of record justifying exercise of power under Section 22(3)(f).

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(v) An erroneous order/decision cannot be corrected in the guise of exercise of power of review.

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(vi) A decision/order cannot be reviewed under

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Section 22(3)(f) on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.

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(vii) While considering an application for review, the tribunal must confine its adjudication with reference to material which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.

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(viii) Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier."

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12. Thus, it is well settled that mere discovery of new or important matter or evidence is not sufficient ground for review and the party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the Court earlier.

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13. In the instant case, the review petitioners have mainly relied upon the report of the Inspector of Schools, Kamrup(M), dated 27.04.2021, and also the annexure enclosed therewith and the said annexure indicates that the 3^rd Graduate Teacher (Arts) is shown as vacant and the particulars of the employees submitted by the Headmaster of the school on 27.09.2012 in Annexure-9 series, which bears some contradictions with the format of

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particulars of employees furnished by the Headmaster on 26.09.2012. But, interestingly, the review petitioners had failed to file their affidavit in WP(C) No. 596/2018, for which their stand could not be known at that point of time. And though they have approached this Court by filing the present review petition, yet they have failed to demonstrate their due diligence as to why the documents enclosed with the report of the Inspector of Schools, dated 27.04.2021, could not be produced before this Court at the time of hearing of WP(C) No. 596/2018. Moreover, the report of the Inspector of Schools, dated 27.04.2021, is subsequent to the order dated 23.02.2021, and Mr. Das, learned counsel for the writ petitioner/respondent No. 1 has rightly pointed this out in his argument and this Court finds sufficient force in his submission.

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14. Thus, on the following grounds, this review petition is found to be not maintainable:

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(i) The review petitioners had failed to file their affidavit in WP(C) No. 596/2018, and as such, their stand in the aforementioned petition could not be known at that time.

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(ii) The review petitioners have relied upon the documents, which were enclosed with the report of the Inspector of Schools, Kamrup(M), dated 27.04.2021 and the documents enclosed therewith which existed prior to passing of the order dated 23.02.2021, and no explanation has been offered either in this review petition, nor in the submission of Mr. Khataniar, learned counsel for the review petitioners as to why the same could not be produced before this Court on the date of passing of the order under review i.e. 23.02.2021, which demonstrated that there is lack of due diligence on their part.

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15. Under the given facts and circumstances, this Court finds no merit in this petition and accordingly, the same stands dismissed. Since the review petitioners have been trying to circumvent the order, so passed by this Court dated 23.02.2021, in WP(C) No. 596/2018, and since Contempt Case (C) No. 246/2021, is also pending for non-compliance of the order of this Court since the year 2021, and a considerable judicial time is wasted, this Court is compelled to impose a cost of Rs. 10,000/-, upon the review petitioners, which shall be deposited by the review petitioners in the account of Gauhati High Court (Principal Seat) Employees’ Association.

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16. Interim order passed earlier, if any, stands vacated.

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JUDGE

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Comparing Assistant

The State of Assam v. Sri Chandrama Devi and 2 Ors.

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The State of Assam v. Sri Chandrama Devi and 2 Ors.

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