BITUL NEOG v. THE STATE OF ASSAM AND 10 ORS

BEFORE HONOURABLE MR. JUSTICE NANI TAGIA Date : 15-06-2022 ORDER Heard Mr. M. H. Ahmed, learned counsel for the review petitioner. Also heard Mr. J. K. Goswami, learned Additional Senior Government Advocate representing the State respondents.

This review petition has been filed seeking review of the judgment dated 28.10.2021, passed in WP(C)/1750/2011. The WP(C)/1750/2011 was filed by the petitioner seeking appointment of the petitioner as Sub- Inspector (S.I) of Police (AB), Assam Police, pursuant to the advertisement dated 17.12.2008, issued by the Additional Director General of Police (TAP) Chairman, SI (AB) Selection Board, inviting applications for filling up of 115 posts of Sub Inspector of Police (AB), by setting aside the appointment of the candidates who had secured lesser marks than the petitioner. The petitioner though had secured more marks than the private respondents arrayed in the writ petition, the petitioner was denied appointment as Sub-Inspector of Police (AB) on account of not securing the qualifying marks in the interview. The petitioner had contended in the writ petition that denying the petitioner an appointment on account of not securing the qualifying marks in the interview was illegal as the said criteria was not prescribed in the advertisement. This Court while upholding the contention of the petitioner in WP(C)/1750/2011, vide Page No.# 5/9 judgment dated 28.10.2021, did not give any consequential relief to the writ petitioner for non-joinder of the necessary party in the writ petition. This court in the writ petition had found that though the private respondents had secured lesser marks than the writ petitioner yet there were other candidates who were selected and appointed in the total 115 posts advertised for Sub-Inspector of Police (AB), and had secured even lesser marks than the private respondents arrayed by the writ petitioner. It was under the aforesaid circumstances that this Court did not provide any consequential relief to the writ petitioner as the candidates who had secured the lowest marks amongst the selected 115 candidates were not arrayed as party respondent in the writ petition.

The writ petitioner has now filed this review petition on the strength of the RTI information furnished to his counsel Mr. M.H Ahmed by the Assistant inspector General of Police (A), Assam & PIO, Assam, Ulubari, Guwahati, vide letter dated 18.04.2022, under memo No. G(RTI)/VI/27/2022/13-A, whereby, in serial no. 3, thereof, it has been informed that total 10 (ten) number of posts are lying vacant after the selection and appointment. By relying on the aforesaid information furnished, it is the case of the review petitioner that the aforesaid information is a discovery of new and important matter of evidence, which the petitioner could not file at the time of filing of the writ petition even after exercise of due diligence and was not within the knowledge of the petitioner, which is one of the ground recognised under Order 47 Rule 1 of the CPC, for seeking a review of the judgment.

On the basis of the above, the petitioner now seeks a review of the judgment dated 28.10.2021, passed in WP(C)/1750/2011, seeking further Page No.# 6/9 direction from this Court in the aforesaid writ petition to appoint review petitioner in one of the 10 (ten) vacant posts of Sub Inspector (AB), informed to the counsel of the petitioner to be lying vacant after the selection of the appointment vide letter dated 18.04.2022, as mentioned hereinabove.

Opposing the prayer for review of the judgment dated 28.10.2021, passed in WP(C)/1750/2011, Mr. J. K. Goswami, learned Additional Senior Government Advocate submits that it is evident from the information furnished to the counsel of the petitioner under RTI that 10 (ten) number of posts of S.I (AB), has been stated to be lying vacant after the selection and appointment, which selection and appointment took place in the year 2010-11. As such, it cannot be said that the 10 number of posts of Sub- Inspector (AB) of Police, for which the selection and appointment took place in the year 2010-11, are still lying vacant in the Department.

Rival contentions advanced by the learned counsel for the parties have received due consideration by this Court.

A perusal of the judgment dated 28.10.2021, passed in WP(C)/1750/2011, indicates that despite the contention raised by the petitioner having been upheld, no consequential relief was given to the petitioner on the ground of non-joinder of necessary and proper parties, which, in the facts of the case obtaining in WP(C)1750/2011, was that the candidates who had scored the lowest marks out of the 115 selected candidates was not arrayed as respondent. On perusal of the RTI information furnished to the counsel for the petitioner, Mr. M. H. Ahmed, dated 18.04.2022, which is the basis for seeking a review of the aforesaid judgment passed by this Court in WP(C)/1750/2011, it is noticed that the Page No.# 7/9 10 (ten) number of posts of Sub Inspector (AB) have been informed to be lying vacant after the selection and appointment. The selection for the appointment of SI (AB) in the instant case, having taken place in the year 2010, pursuant to an advertisement issued in 2008 and the writ petition by the petitioner having been filed in the year 2011, it cannot be said that the vacancy position of SI (AB) after the selection and appointment, as above, could not have been within the knowledge of the petitioner even after exercise of due diligence until the said information was furnished to the learned counsel for the petitioner, vide letter dated 18.04.2022, to bring it within the meaning of “discovery of new and important matter or evidence” as provided under Order 47 Rule I of the CPC, as recourse to information under RTI Act, 2005, was available to the petitioner even before WP(C)/1750/2011 was filed by the petitioner in the year 2011, challenging the selection made by the authority for the appointment of 115 posts of SI of Police (AB).

28.10.2021 was passed in WP(C)/1750/2011. The review petitioner in the instant case failed to act with due diligence before or immediately after filing of the WP(C)/1750/2011 on 14.03.2011, until the writ petition was disposed of on 28.10.2021.

Accordingly, I am of the view that information furnished to the learned counsel for the petitioner by the Assistant Inspector General of Police (A) & PIO, Assam, vide as vide letter dated 18.04.2022, under memo No. G(RTI)/VI/27/2022/13-A stating 10 (ten) number of posts are lying vacant after the selection and appointment cannot be termed as discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge of the petitioner or that the petitioner could not produce at the time when the judgment dated 28.10.2021, was passed in WP(C)/1750/2011.

That apart, it is also not ascertainable from the information furnished to the petitioner by letter dated 18.04.2022, that whether the 10 (ten) posts of SI (AB) stated to be lying vacant after the selection and appointment, are still lying vacant in the Department or not. Even if the 10 (ten) posts of SI (AB) stated to be lying vacant after the selection and appointment is assumed to be still lying vacant in the Department, there can hardly be any determination in the instant review petition whether the petitioner can be legitimately appointed at this point in time as Sub Inspector (AB) by virtue of the selection held in the year 2010, pursuant Page No.# 9/9 to an advertisement issued in the year 2008.

For the reasons indicated hereinabove, I am of the view that no case for review of the judgment dated 28.10.2021, passed in WP(C)/1750/2011, has been made out by the petitioner and the same stands dismissed. Accordingly, no notice is called for to the respondent nos. 6 to 11. JUDGE Comparing Assistant