ASMA PARVEEN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This application has been filed by the West Bengal Council of Higher Secondary Education (hereinafter referred to as 'the Council') seeking recalling/modification of the order passed by this court on January 3, 2019.

(2.) Mr. Bhattacharya, learned counsel appearing on behalf of the Council submits that the order dated January 3, 2019 was passed in his absence and the petitioner had not given notice of the inclusion of the matter as an 'Urgent Motion' to his client or to him. He submits that the order was passed on the basis of a concession given by the counsel appearing on behalf of the State authorities who was not the person authorized to do so. He further submits that the order directing the Mathematics paper to be treated as the optional elective instead of the Chemistry paper is not permissible in cases of students who have passed in the examination. He submits that Clause 9(2) of the West Bengal Council of Higher Secondary Education Examination Regulation 2006 (hereinafter referred to as 'the Regulation') is only applicable to students who have not passed in the examination. In the present case, he submits that the petitioner had passed in the examination and, therefore, there was no question of interchanging of the compulsory elective with the optional elective. Mr. Bhattacharya thereafter relied on a Supreme Court judgement reported in (1999) 4 Supreme Court Cases 396 (Budhia Swain and Others -v- Gopinath Deb and Others) and placed paragraph 8 of the said judgement to submit that a court may recall an order where a mistake has been committed by the court prejudicing a party and/or where a judgement was rendered in ignorance of the fact that a necessary party had not been served.

(3.) Learned counsel appearing on behalf of the petitioner relies on a Calcutta High Court Judgement passed by the Division Bench in Abhijit Bhadra and Others -v- Union of India and Others reported in 2009 (84) AIC 443: 2009 (22) R.C.R. (Civil) 500 to emphasize that once a court has passed a judgement it becomes functus officio and cannot modify and/or recall its judgement except in cases of typographical errors or mistakes apparent on record. He further relies on the Supreme Court Judgements in State Bank of India and Others -v- S. N. Goyal reported in 2008(8) SCC 92 and Ram Chandra Gingh -v- Savitri Devi and Others reported in 2004(12) SCC 733 to buttress his above argument.