S.11 CPC | Second Writ Petition On Identical Grounds Not Maintainable: Calcutta High Court Upholds Appointment Of Kazi Nazrul University Registrar

The Calcutta High Court has dismissed a Public Interest Litigation seeking to nullify the appointment of the Registrar of Kazi Nazrul University, West Bengal, on the grounds that such an appointment was made on the basis of an erroneous advertisement, which did not conform to the UGC Regulations, 2018 or the All India Council for Technical Education (“AICTE”) Regulations, 2010.

A division bench of Chief Justice T.S. Sivagnanam and Justice Ajay Kumar Gupta noted that while there was no inconsistency between the UGC/AICTE Regulations and the impugned notification, identical reliefs had earlier been sought for in another writ petition, which had already been dismissed on merits.

In holding that a second writ petition on the same grounds would be barred under the principles of res judicata, the Bench opined:

“In the said writ petition, which was the public interest litigation, prayer was made to issue a writ of quo warranto against the 6th respondent and the challenge was to his qualification qua the AICTE Regulation/UGC Regulations. The matter was considered on merits and the writ petition was dismissed by order dated 05.06.2023. The said order has become final. Therefore, a second writ petition for the very same relief is not maintainable, more so when the grounds raised in the present writ petition also touches upon the eligibility/qualification of the 6th respondent. The petitioner cannot be permitted to have a piece-meal challenge of the appointment of the 6th respondent on the ground that certain grounds ought to have been raised in the earlier writ petition. Therefore, the present writ petition is clearly barred by the principles of res judicata.”

It was the case of the petitioners that the notifications issued by the UGC and AICTE laying down the minimum eligibility criteria for appointment to academic positions would have the force of statute and that according to the UGC Regulations on appointment of registrars, the impugned appointee had neither completed the necessary years of experience, nor did they belong to the eligible academic pay-level.

It was argued that while the State could decide to impose higher standards than those prescribed by the UGC Regulations, it could not dilute the provisions thereunder, and as such impugned appointment be set aside.

The respondents on the other hand argued that the Registrar/6th respondent satisfies the essential qualification prescribed in the advertisement dated 07.12.2022.

It was further argued that the aforesaid advertisement was in conformity with the UGC Regulations 2018, with the only difference being that instead of academic level, the relevant pay-scale had been mentioned. It was therefore submitted that there was no error in the impugned advertisement.

The respondents, compared the impugned notification to that of Bankura University, and pointed out that the essential qualifications prescribed for the post of Registrar therein is identical to the advertisement issued by the respondent University dated 07.12.2022, which was in accordance with the UGC/AICTE Regulations.

It was also submitted by the respondents that the writ petition would not be maintainable on the grounds that an earlier petition (WPA (P) 223 of 2023) had been dismissed on merits, being a public interest litigation, which contained identical averments to the present petition. It was thus submitted, that such a petition would be hit by the principles of res judicata, and be non-maintainable.

Appointment of Registrar not illegal according to UGC/AICTE Regulations

The first question which the Court needed to consider, was whether the appointment of the Registrar was in accordance with the UGC Regulations, and whether the advertisement for the post of Registrar had conformed to the aforesaid regulations as well.

In holding that there was no inconsistency between the impugned advertisement, the AICTE Regulations 2010, and the UGC Regulations 2018, the Bench opined:

In this writ petition, we are concerned about the post of Registrar of the respondent University. The advertisement mentions the essential qualifications…the issue would be as to whether the said essential qualification prescribed in the advertisement dated 07.12.2022 is in consonance with the notification issued by the UGC. The Central Government by notification dated 02.11.2017 has communicated to the UGC, the minimum qualification for direct recruitment of Registrar/Finance Officers/Controller of Examination. A comparison of the essential qualification prescribed in the advertisement dated 07.12.2022 with clause (b) of the qualification prescribed by the Government of India shows that the same are identical.

Further as per AICTE Regulations, 2010, three designations in respect of teachers, universities and colleges were notified as Assistant Professor, Associate Professor and Professors…the details of employment experience as given by the 6th respondent in the application/recruitment form shows that the he was a Lecturer in the Bengal College of Engineering and Technology. Thereafter he was employed as a Senior Lecturer in Dr. B. C Roy Engineering College, Durgapur…subsequently as the Assistant Professor in Bengal Institute of Technology and Management in and thereafter as Professor as the head of department in Dr. B.C. Roy Engineering College, Durgapur. Thus, it could be seen that the 6th respondent would fulfil the criteria as stipulated in the notification of the AICTE Regulations dated 22.01.2010. In any event, the present public interest writ petition cannot in any manner seeks to question the appointment of the 6th respondent as an Lecturer or the Assistant Professor as the writ petition concerns the appointment of the 6th respondent as the Registrar of the respondent University. We need to bear in mind this important fact.”

Second writ petition with identical averments barred under principle of res judicata

The Court in its judgement held that no fraud had been committed in the appointment of the Registrar/respondent no 6. It was also found that similar questions had been raised in an earlier writ petition, and therein, the Court had dismissed the petition, upholding the appointment of the Registrar/6^th Respondent.

It was therefore held, that given the totality of circumstances, another writ petition on the same facts and agitating for the same reliefs, would not be maintainable under the civil law concept of res judicata. Further, since the bona fides of the earlier litigation had not been questioned, it had become final, and as such no other public interest litigation could be maintained on the same set of facts.

The Bench opined:

“We find that the private respondent is fully eligible to hold the post of Registrar of the said University and the petitioner has not made out any case for interference. Since we are satisfied that the petitioner has not made out any case for interference, we decline to entertain the writ petition. Accordingly, the writ petition fails and is dismissed.

The substantial part of the arguments as advanced by the learned Advocates for the petitioner is identical and similar to the contention which was raised in the earlier writ petition...In the said writ petition, which was the public interest litigation, prayer was made to issue a writ of quo warranto against the 6th respondent and the challenge was to his qualification qua the AICTE Regulation/UGC Regulations. The matter was considered on merits and the writ petition was dismissed by order dated 05.06.2023. The said order has become final. Therefore, a second writ petition for the very same relief is not maintainable.”

While acknowledging that Section 11 of the Civil Procedure Code, 1908, and the principle of res judicata should consciously be applied to public interest litigations due to their sensitive nature, the Bench held that the instant case was one where it may be applied in order to adjudge the maintainability of the petition. The Bench concluded:

“While determining the applicability of the principles of res judicata under Section 11 of CPC, the court must be conscious that grave issues of public interest are not lost in the woods merely because a petition was initially filed and dismissed, without a substantial adjudication on merits. In the case on hand, the earlier public interest writ petition was wholly based on the qualification which the 6th respondent possess and the challenge to his appointment to the post of Registrar of University was based on his qualification in the teaching posts hold earlier, and the present writ petition has been founded on the very same set of facts except for vague allegations of fraud. To be noted that use of the expression “fraud” would not make an exercise fraudulent. The allegations of fraud being a serious allegation, the onus is on the person making the allegation to substantiate the same in the manner known to law. In the instant case, apart from lack of pleadings of fraud the allegation is absolutely vague and unsubstantiated. For all the above reasons, we find no grounds to entertain the writ petition. Accordingly, the writ petition fails and is dismissed.”

Coram: Chief Justice T.S. Sivagnanam and Justice Ajay Kumar Gupta

Case: Smt. Shanta Paul v The State Of West Bengal And Others

Citation: 2023 LiveLaw (Cal) 187

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