Gauhati High Court Overrules 2017 Order Allowing 'Shiksha Sarathis' To Work Till Notional Age Of Retirement Upon Completing 10 Yrs Of Service

The full bench comprising Justice Michael Zothankhuma, Justice Kalyan Rai Surana and Justice Sanjay Kumar Medhi observed:

“In the opinion of this Court, since the direction passed in the judgment dated 26.10.2017 are contrary to the materials on record, which is ex-facie, this Court in exercise of the powers of review would be within its jurisdiction to review the aforesaid judgment. We are also of the view that there are sufficient reason for which the power of review is to be exercised.”

The present review petition was filed against the judgment and order dated October 26, 2017 passed in WP(C)/5002/2012, on the ground that when the State Government was in the process of complying with the direction passed by the Court that a scheme should be framed for Siksha Sarathis working for more than 10 years, to be allowed to work till their normal retirement age, the Government found that no Siksha Sarathis had worked for more than the 11 months contractual period.

The Advocate General, Assam (AG) submitted that the finding was the High Court in the said judgment was erroneous and not based on any fact or document. It was argued that therefore, the subsequent direction passed by the Court for framing a scheme for Siksha Sarathis, who had worked for more than 10 years, could not be implemented.

Thus, the AG prayed that the review petition should be allowed and the impugned judgment and order should be recalled.

However, the Senior Counsel appearing for the respondents-writ petitioners submitted that the review petition is not maintainable, athough, he admitted that the finding of the Court in para 42 of the said judgment that Siksha Sarathis were in their second decade of engagement was a wrong finding. It was further argued that the Siksha Sarathis had worked for 7 to 8 years. It was submitted that there being no error apparent on the face of the record, the review petition should be dismissed.

The Court noted that the fact that the Siksha Sarathis (writ petitioners) had not worked for 10 years as Siksha Sarathis has not been disputed by the respondents.

“When the length of engagement of the Siksha Sarathis was less than 10 years, the finding of this Court in para 42 of the impugned judgment and order that their engagement as Siksha Sarathis was now in the second decade, is clearly a mistake apparent on the face of the record. We are also of the view that review proceedings cannot be an appeal in disguise and have to be confined within the scope and ambit of Order 47 Rule 1 CPC. However, the power of review can be exercised when a mistake or error apparent on the face of the record is found,” the Court noted.

The Court relied upon the judgment of the Supreme Court in Inderchand Jain v. Motilal (2009) 14 SCC 663.

It was further noted by the Court that the application for review has been necessitated, as the State Government could not implement the directions of this Court on the ground that none of the Siksha Sarathis had completed 10 years of service and thus, the doctrine of actus curiae neminem gravabit can be invoked, i.e., the act of the Court shall prejudice no one.

“……we find that not only has there been a mistake made on the part of this Court in holding that the Siksha Sarathis had been engaged for more than a decade, the same being without any basis, the mistake on facts in our view amounts to sufficient reason for invoking the doctrine of actus curiae neminem gravabit. Consequently, we are of the view that ground for review of the impugned judgment and order has been made out by the review petitioners,” the Court said.

Justice Sanjay Kumar Medhi in his concurring opinion observed that under the said Right to Education Act, 2009, the engagement of Siksha Sarathi is not even contemplated and therefore, even by operation of law from the year 2009 when the said Act came into operation, such engagement was not legally permissible.

“The writ petition was by the Association of Siksha Sarathi only of the Kamrup district. Such Siksha Sarathis, at one point of time, were engaged for the entire State of Assam. Therefore, the direction contained in the judgment dated 26.10.2017, directing a scheme to be made in respect of Siksha Sarathis for one district when Siksha Sarathis was discontinued in the entire State of Assam is an error apparent on the face of the record,” Justice Medhi noted.

Thus, the Court said that there are sufficient reason for which the power of review is to be exercised.

“The judgment dated 26.10.2017 accordingly stands reviewed and consequently, the writ petition being WP(C)/5002/2012 stands dismissed,” the Court said.

Citation: 2024 LiveLaw (Gau) 46

Case No: Review Pet. 149/2019 in WP(C) 5002/2012 (D/O)

Case Title: The State of Assam & Anr. v. Kamrup District Siksha Sarathi (I) Assocoation & Anr.

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