Judgment:
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Civil Review No. 59 of 2017 Dr. Amitabh Kumar, son of Sri Harihar Prasad Pandey, Resident of Sainik Coloney, Dumardaga, Booty, P.O. Via Neorivikas, P.S. Sadar, District Ranchi. ….. ….. Petitioner Versus 1. Union of India, through Director, Ministry of Ayurveda Yoga and Naturopathy, Unani, Siddha, Homeopathy (Ayush), B Block GPO Complex, INA, New Delhi-110023. 2.Central Council of Indian Medicine through its Secretary 61-65, Institutional Area, Janakpuri, P.O. & P.S. Janakpuri, New Delhi.
3. Registrar, Vinoba Bhave University, Hazaribagh, P.O. & P.S. Hazaribagh, District Hazaribagh. . ….. …. Respondents --------- CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK ---------- For the Petitioner : M/s Rajiv Kumar & Naiyar Eqbal, Adv. For the Respondent nos.1 & 2 : Ms. Bakshi Vibha, Adv. For the Respondent no.3 : Mr. Mithilesh Kumar Singh, Adv. ----------- th CAV on 18 July, 2017 Pronounced on 11/08/2017 Per Pramath Patnaik, J.: This civil review application has been filed praying inter alia, to review/modify order dated 20.01.2017 passed in W.P. (S) No. 2943 of 2016, on the ground that the certain observations made in the impugned order has been made bereft of the record inadvertently and those errors are apparent on the face of record.
2. Learned counsel for the petitioner submitted that in paragraph 5 of the impugned order, it has been observed that “the notification dated 02.08.2011 vide Annexure -R/1 to the counter affidavit of respondent no. 1 indicates that the valid tenure of the petitioner's membership in Suryamukhi Dinesh Ayurvedic Medical College, which is affiliated with Vinoba Bhave University, Hazaribagh, is 05.07.2011 to 05.07.2016.” In this regard, it has been submitted that from perusal of aforesaid observation, it suggests that the tenure of the petitioner as a member of Suryamukhi Dinesh Ayurvedic Medical College, is for five years but the fact is that the petitioner is selected to term of membership in Central Council of Indian Medicine (in short CCIM for the sake of convenience) on being elected under Section 3(1)b of the Indian Council of Central Medicine Act, 1970. 2 3. Learned counsel for the petitioner further submitted that in paragraph 5 of the impugned order it has further been observed that “the present case does not pertain to terms of member of CCIM but the issue relates to faculty tenure of the petitioner, which is requisite qualification under the statute to continue as a member of the College under Section 3 (1) (b) of the IMCC Act, 1970.” Learned counsel for the petitioner submitted with vehemence that there was no dispute regarding continuance as a faculty member of College and aforesaid observations at paragraph 5 of the impugned judgment is bereft of the record and same is required to be deleted/modified.
4. In support of his submission, learned counsel for the petitioner referring to letter dated 01.12.2005, Annexure 4 to I.A. No.4960 of 2017, submitted that Surya Mukhi Dinesh Ayurveda College and Hospital, Ranchi has been permanently affiliated to the Vinoba Bhave University with effect from 15.11.2000, the date of creation of the Jharkhand State and the same has been included in Schedule II of the Indian Medicine of Central Council Act, 1970. It has further been submitted that from perusal of letter dated 07.05.2016 of the Vinoba Bhave University, Annexure-5 to I.A. No. 4960 of 2017, it clearly manifests that the petitioner is a bona fide member of Surya Mukhi Dinesh Ayurveda College and Hospital, Ranchi, a permanent affiliated college under Vinoba Bhave Unviersity, and presently a deemed faculty of Ayurved College. Referring to various decisions annexed at Annexure 7, learned counsel for the petitioner submitted that the persons whose term in the CCIM has come to an end, by virtue of the provision of Section 7(1) of the Indian Medicine of Central Council Act, 1970, they are continued till his successor is elected or till the election of the Central council, hence, the petitioners ought to be permitted to continue as per provision made in Act. It has further been submitted that there must be parity in the matter of appointment under Article 16(1) of the Constitution of India, and the denial of statutory right under Section 7(1) of the IMCC Act, to the petitioner to continue as member till his successor is duly elected, though other persons were permitted to continue, is in utter violation of doctrine of parity. It has further been submitted that normally tenure of a member CCIM is 5 years and upon contingency viz. retirement/resignation/removal etc. from the faculty of a recognized institution he ceases to be a member of CCIM, and admittedly in the case at 3 hand there is no such exigency. Learned counsel for the petitioner has further referred to Annexure-10 of the supplementary affidavit, the letter of the Central council of Medicine dated 11.08.2016, wherein the petitioner has been informed that in view of the provisions of Section 7(2) of the Indian Medicine of Central Council Act, 1970 the petitioner has been deemed to have vacated his seat in the council. Learned counsel for the petitioner submits that the reference to Section 7(2) of the Act is not applicable, instead thereof Section 7(1) of the Act is applicable.
5. Learned counsel for the petitioner further submitted that the whole confusion has been crept because of ambiguous affidavit filed by respondents to create confusion, hence, the patent error that has crept in the impugned judgment be modified and clarified. In support of his submission, learned counsel further submits that the High Court being a Court of record under Article 215 of the Constitution of India, has a power and duty to correct its records being Court of superior jurisdiction as per the law laid down in the case of M.M. Thomas Vs. State of Kerala & Anr as reported in (2000) 1 SCC666and also in the United India Insurance Co. Ltd Vs. Rajendra Singh & Ors as reported in (2000) 3 SCC581 6. Learned counsel for the petitioner has also referred to the decision of the Hon’ble Apex Court reported in (2003) 8 SCC648South Eastern Coalfields Ltd. Vs. State of M.P & Ors wherein at paragraph 28, it has been held that no one shall suffer by an act of the court is not a rule confined to erroneous act of the court; the “act of the court” embraces within its sweep all such acts as to which the court may form an opinion in any legal proceedings that the Court would not have acted had it been correctly apprised of the facts and law. Learned counsel for the petitioner further submitted that it is well settled law as enunciated in the case of Ram Chandra Singh vs. Savitri Devi & Ors as reported in (2003) 8 SCC319 that the Court can take notice of the subsequent events and can mould the relief accordingly.
7. Learned counsel for the petitioner submitted at Bar that though the petitioner has preferred an appeal being L.P.A. No. 67 of 2017, but, the petitioner is going to withdraw the same.
8. Learned counsel for the respondent-university referring to Annexure-2 of I.A. No.4960 of 2017, submitted that vide notification dated 27.01.2017 4 the respondent-university issued a notice for holding election of the member of faculty of Indian System of Medicine Ayurveda amongst faculty of ISM of Vinoba Bhave University, Hazaribagh to be held on 28.02.2017.
9. Ms. Bakshi Vibha, learned C.G.C appearing for the respondent-Union of India submitted that in review application, the scope of interference is very narrow, however, referring to paragraph 2 of the counter affidavit submitted that Government of India-respondent no.1 vide notification dated 20.06.2012 mentioned the term of membership of the petitioner to the CCIM i.e. with effect from 05.07.2011 for a period of five years, or until his successor shall have been duly elected or nominated, or till expiry of the term of membership in Vinoba Bhave University. It has further been submitted that the Registrar and Returning Officer of Vinoba Bhave University vide notification dated 02.08.2011 declared that the valid term of membership of the petitioner in the Ayurvedic faculty is from 05.07.2011 to 05.07.2016.
10. Before adverting to the contentions of the learned counsel for the respective parties, it would be apposite to see the scope of review application is to be considered. For ready reference, Order XLVII Rule 1 of the Code of Civil Procedure is quoted herein below:
“1. Application for review of judgment- (1) Any person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred. (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the 5 pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.”
11. The grounds enumerated therein are specific. The principles for interference in exercise of review jurisdiction are well settled. The Court passing the order is entitled to review the order, if any of the grounds specified in the aforesaid provision are satisfied. From the pleading available on record of writ petition as well as civil review and candid admittance by the respondent-university and respondent-CCIM it can safely be concluded that the term of petitioner in S.M. D. Ayurveda College and Hispital, Ranchi is totally independent of election of CCIM and had the tenure of petitioner been expired as member of CCIM he would have continued to be a faculty member of Surya Mukhi Dinesh Ayurveda College and Hospital, Ranchi.
12. The Hon’ble Apex Court in case of Board of Control for Cricket in India and Another vs. Netaji Cricket Club and Others reported in (2005) 4 SCC741 at paragraph-89 and 90 has been held as under:
“89. Order 47 Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.
90. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words “sufficient reason” in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate. An application for review may be necessitated by way of invoking the doctrine “actus curiae neminem gravabit”.”
13. The Hon’ble Apex Court in case of M.M. Thomas Versus State of Kerla and Another reported in (2000) 1 SCC666 at paragraph-14, 15 and 16 has been held as under:
6. /p>
“14. The High Court as a court of record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testimony. A court of record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. The High Court, as a court of record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it the High Court has not only power, but a duty to correct it. The High Court’s power in that regard is plenary. In Naresh Shridhar Mirajkar v. State of Maharashtra a nine-Judge Bench of this Court has recognised the aforesaid superior status of the High Court as a court of plenary jurisdiction being a court of record.
15. In Halsbury’s Laws of England (4th Edn., Vol. 10, para
713) it is stated thus: “The chief distinctions between superior and inferior courts are found in connection with jurisdiction. Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court. An objection to the jurisdiction of one of the superior courts of general jurisdiction must show what other court has jurisdiction, so as to make it clear that the exercise by the superior court of its general jurisdiction is unnecessary. The High Court, for example, is a court of universal jurisdiction and superintendency in certain classes of actions, and cannot be deprived of its ascendancy by showing that some other court could have entertained the particular action.” (Though the above reference is to English courts the principle would squarely apply to the superior courts in India also.) 16. Referring to the said passage and relying on the decision of this Court in Naresh Shridhar Mirajkar a two-Judge Bench of this Court in M.V. Elisabeth v. Harwan Investment & Trading (P) Ltd. has observed thus: (AIR Headnote) 7 “The High Courts in India are superior courts of record. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of the Supreme Court, the High Courts have unlimited jurisdiction….”
14. The Hon’ble Apex Court in case of Ram Chandra Singh v. Savitri Devi & Ors reported in (2003) 8 SCC319 at paragraph-41 it has been held as under:
“41. In Rajesh D. Darbar v. Narasingrao Krishnaji Kulkarni this Court noticed: (SCC p. 223, para
6) “The courts can take notice of the subsequent events and can mould the relief accordingly. But there is a rider to these well-established principles. This can be done only in exceptional circumstances, some of which have been highlighted above. This equitable principle cannot, however, stand in the way of the court adjudicating the rights already vested by a statute. This well-settled position need not detain us, when the second point urged by the appellants is focused. There can be no quarrel with the proposition as noted by the High Court that a party cannot be made to suffer on account of an act of the court. There is a well-recognised maxim of equity, namely, actus curiae neminem gravabit which means an act of the court shall prejudice no man. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia i.e. the law does not compel a man to do that what he cannot possibly perform. The applicability of the abovesaid maxims has been approved by this Court in Raj Kumar Dey v. Tarapada Dey, Gursharan Singh v. New Delhi Municipal Committee and Mohd. Gazi v. State of M.P.”
15. For better appreciation, it would be relevant to refer to the relevant provisions of the Indian Medicine Central Council Act, 1970: “Section 3(1)(b): One member for each of the Ayurveda, Siddha and Unani systems of medicine from each University to be elected from amongst themselves by the members of the Faculty or Department (by whatever name called) of the respective system of medicine of that University. 8 Section 7(1): The President, a Vice-President or a member of the Central Council shall hold office for a term of five years from the date of his election or nomination, as the case may be, or until his successor shall have been duly elected or nominated, whichever is longer. Section 7(2): An elected or nominated member shall be deemed to have vacated his seat if he is absent without excuse, sufficient in the opinion of the Central Council, from three consecutive ordinary meetings of the Central Council or, in the case of a member elected under clause (a) of sub-section (1) of section 3, if he ceases to be enrolled on the concerned State Register of Indian Medicine, or in the case of member elected under clause (b) of that sub-section, if he ceases to be a member of the Faculty or Department (by whatever name called) of Indian Medicine of the University concerned. Section 7(4): Members of the Central Council shall be eligible for re-election or re-nomination.”
16. In view of the aforesaid facts, reasons, relevant provisions of Act and judicial pronouncements, and in order to rectify the error, which has crept in the judgment dated 20.01.2017 passed in W.P.(S) No.2943 of 2016, paragraphs 5, 6 and 7 are hereby deleted and in place thereof, following paragraphs are directed to be inserted and shall be read accordingly. “5.Normally tenure of a member CCIM is 5 (five) years and upon contingency viz. retirement/resignation/removal etc. from the faculty of a recognized institution he ceases to be a member of CCIM. Since the stand of the University clearly reflects that the matter relates to tenure of petitioner as a faculty member of Ayurveda University, therefore, by virtue of Section 7(1) of the Act, his tenure continues till his successor is elected or nominated. 6.Undisputedly from the aforesaid provisions, it is quite apparent that the term of petitioner in Surya Mukhi Dinesh Ayurveda College and Hospital, Ranchi, which is affiliated to Vinoba Bhave University, Hazaribagh is totally independent of election of CCIM. Even though the tenure of the petitioner has expired as member of CCIM but he continues to be a faculty member of Surya Mukhi Dinesh Ayurveda College and Hospital, Ranchi. 9 7.In view of the changed circumstances, even if the tenure of the petitioner has come to an end, in view of Section 7(1)(b) of the Act and admittance made by respondents, the petitioner can continue till his successor has been duly elected. So far as initiation, holding and completion of election process for members of Central Council of Indian Medicine from Vinoba Bhave University, the recognized institution from the State of Jharkhand quota is concerned, the respondents are at liberty to do the same in accordance with law. 8.With the aforesaid observations and direction, the petition stands disposed of.”
17. With the aforesaid modification/clarification and insertion of the paragraphs, as stated above, the review application stands disposed of. (Pramath Patnaik, J.) Saket/alankar/-