Jharkhand High Court
Miss Anita Rani Dey D/O Shri Kumud ... vs State Of Jharkhand The Chief Secretary on 8 August, 2018
Author: Pramath Patnaik
Bench: Pramath Patnaik
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Civil Review No. 93 of 2017
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Miss Anita Rani Dey d/o Shri Kumud Bhushan Dey r/o Ward No.7, Ashram Road, PO, PS & District Araria Petitioner Versus
1.State of Jharkhand the Chief Secretary, Government of Jharkhand, Ranchi, PO & PS Dhurwa District Ranchi
2.The Commissioner-cum- Secretary, Human Resources Department, Government of Jharkhand, Ranchi, PO & PS Dhurwa District Ranchi
3.The Secretary, Department of Primary/Secondary and Mass Education, Government of Jharkhand, Ranchi, PO & PS Dhurwa District Ranchi
4.The Director, Primary Education, Jharkhand, Ranchi, PO & PS Dhurwa District Ranchi
5.The State of Bihar through the Chief Secretary, Government of Bihar, Patna, PO & PS Sachivalaya, District Patna
6. The Commissioner-cum- Secretary, Human Resources Department, Government of Bihar, Vikash Bhawan, Patna, PO & PS Sachivalaya, District Patna
7.The Secretary, Department of Primary/Secondary and Mass Education, Government of Bihar, Patna, PO & PS Sachivalaya, District Patna
8.The Director, Directorate of Mass Education, Department of Primary/Secondary and Mass Education, Government of Bihar, Patna, PO & PS Sachivalaya, District Patna
9.The Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, Patna, PO & PS Sachivalaya, District Patna
10.The Deputy Director, Adult and Non-Formal Education, Department of Education, Government of Bihar, Patna, PO & PS Sachivalaya, District Patna Opp. Parties
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For the Appellant/Petitioner Mrs. Rakhi Rani, Advocate For the Respondent/Opp.Party Mr.Anoop Kumar Agrawal, Advocate
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Coram: HON'BLE MR. JUSTICE PRAMATH PATNAIK ......
Dated : 8th August, 2018 This review petition has been filed for review of the order dated 13.09.2017 passed in W.P (S) No.3701/2005 dismissing the prayer of the petitioner made in the writ application.
2. Before adverting to the issues raised in the review application, it would be relevant to delve upon the reliefs sought for in the writ application. In the writ application, the prayer of the petitioner was for (i) quashing the order dated 09.12.1998 ordering for removal of the name of the petitioner 2 from the published provisional seniority list; (ii) for quashing the order dated 13.03.1989 order the petitioner to be relieved from the work of Supervisor along with others; (iii) for commanding the respondents to reinstate the service of the petitioner from the date of termination with all consequential benefits including time bound payment of the arrears etc.; (iv) for a direction to the respondents to regularize/absorb the service of the petitioner along with others in pursuance of order passed in CWJC No.5036/1992; (v) for a direction for payment of compensation including the cost of litigation; (vi) for an order commanding the respondents to allow the petitioner's seniority over juniors with all consequential benefits and (vii) for any other relief or reliefs to which the petitioner is entitled under law.
3. The writ application has been dismissed by hearing learned counsel for the respective parties at length and on the basis of the averments made in the writ application and in the counter affidavit filed by the respondent- State. In the counter affidavit dated 14.11.2005, specific statements have been made that the petitioner, having appointed on ad hoc and temporary basis on the post of Adult Education Supervisor in the pay scale of Rs.785- 1210/- in the year 1986 and 1987, was terminated, in compliance of the order dated 01.02.1988 passed in CWJC No.5165/1987, vide letter no.529 dated 13.03.1989 (Annexure - 4 to the writ application) and after termination from the post of Adult Education Supervisor on ad hoc and temporary basis, the petitioner was entrusted supervision work on honorarium and she worked till the date on which the Adult Education Project was abolished on the direction of Government of India, i.e. June, 1992; further the petitioner along with others filed writ petition, CWJC No.5672/1992, which was disposed of with a liberty to the petitioner to approach the authority for the reliefs; from the representation of the petitioner filed along with another person, it would be clear that petitioner earlier appointed on ad hoc and temporary basis was reinstated on honorarium basis; thus she cannot claim parity with the supervisors who were appointed through proper procedure; by order dated 28.05.1990, the petitioner was ordered to work temporarily and on ad hoc basis for which she was ordered to be paid at the rate of Rs.400/- per year per centre and this arrangement of payment and nature of the job is nothing but one that is honorarium based; no person as that of the petitioner has been absorbed 3 and only pay scale employees were absorbed.
In counter affidavit dated 07.09.2005, it has been specifically stated that the name of the petitioner, which found place in the gradation list of pay scale supervisors by mistake, was order to be struck off from the gradation list of pay scale supervisor after duly examining the matter, vide order dated 09.12.1998; thus, the petitioner being not full time Government employee like other pay scale supervisors cannot claim parity with them and for other consequential benefits, if accrued to them.
It has also been stated in the aforesaid counter affidavit dated 07.09.2005 that two types of supervisors were engaged for supervision work in Adult Education Scheme - in the first type, the supervisors were recruited in the pay scale of Rs.785-1210/-, while in the second type, the supervisors were engaged on part time and temporary basis and were paid honorarium only and the petitioner belonged to the second type i.e. the supervisors engaged on part time and temporary basis and paid honorarium only.
On the basis of the statements made in the counter affidavit, the prayer of the petitioner made in the writ application could not be acceded to.
4. Being aggrieved by the rejection of the prayer made in the writ petition, learned counsel for the review petitioner has vehemently submitted that the name of the petitioner was illegally ordered to be struck off from the Gradation list as the petitioner was getting salary of Supervisor and prescribed amount of money was also deducted against GPF and GIS. Learned counsel for the petitioner has strenuously urged that Hon'ble Patna High Court in CWJC No.5036/1992, after consideration of all material facts, directed for absorption/regularization of all the petitioners thereof and against the said judgment, no appeal was preferred, therefore, that attained finality. In view of the said judgment, the petitioner should not have deprived of the benefit of absorption/regularization in service. Learned counsel for the petitioner further submitted that the judgment is sought to be reviewed on the ground that the same has been passed not in consonance with the documentary evidence available on record.
45. Learned counsel for the opposite parties, supporting the impugned judgment, has submitted that the scope of judicial review is well laid down under Order 47 Rule 1 of the Code of Civil Procedure, wherein the conditions for invoking the power of review are enumerated which also form the basis for exercise of review jurisdiction even by the Writ Court. Learned counsel for the opposite parties further submitted that the review is not an appeal in disguise; on merits also, learned counsel for the review petitioner cannot be allowed to argue the case afresh even though the order passed by this Court may be erroneous; moreover, the review petitioner cannot be allowed to improve his case at the stage of review; hence, the impugned judgment does not suffer from any error apparent on the face of the record; thus, no ground raised by the review petitioner can be said to fall in the category of grounds available under Order 47 C.P.C where any such documents which were not within the knowledge of the affected party even after exercise of due diligence, could be produced now at the stage of review; in any case that could not be a ground of review of the impugned judgment.
6. I have heard learned counsel for the respective parties at length and gone through the relevant materials available on record including the impugned judgment. It appears that this review application has been preferred for review of the order dated 13.09.2017 passed in W.P (S) No.3701/2005 and the learned counsel for the review petitioner has attempted to argue out the writ petition afresh/again which is not permissible in law. The provision under Order 47 C.P.C, being apposite in this context, is quoted below:
" ORDER XLVII REVIEW
1.Application for review of judgement.- (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, 5 from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or couldn't 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 judgement 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 of a review of judgement notwithstanding the 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."
7. Hon'ble Apex Court in the case of Kamlesh Verma Vs. Mayawati & Ors. reported in JT 2013 (12) 155, after elaborate discussion on the powers and scope of review, summarized the principles under which the review is maintainable. Hon'ble Apex Court has also laid down the principles which could be the basis for exercise of short power of review:
" (A) When the review will be maintainable:
(I) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; (II) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason."
"(B) When the review will not be maintainable:
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor Mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii)The error apparent on the face of the record should not be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within 6 the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."
8. The words "any other sufficient reason" has been interpreted in the case of Chhajju Ram vs. Neki reported in AIR 1922 PC 112 and the same Principles have been reiterated in the case of Union of India vs. Sandur Manganese & Iron Ores Ltd. & Ors. reported in JT 2013 (8) SC 275, wherein it has been held that the words, "any other sufficient reason"
must mean "a reason sufficient on grounds, at least analogous to those specified in the rule."
9. It has been held by Hon'ble Supreme Court in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma & Ors., reported in (1979) 4 SCC 389, at Para no. 3 as under :
"3. The Judicial Commissioner gave two reasons for reviewing his predecessor's order. The first was that his predecessor had overlooked two important documents Exs. A-1 and A-3 which showed that the respondents were in possession of the sites even in the year 1948-49 and that the grants must have been made even by then. The second was that there was a patent illegality in permitting the appellant to question, in a single writ petition, settlement made in favour of different respondents. We are afraid that neither of the reasons mentioned by the learned Judicial Commissioner constitutes a ground for review. It is true as observed by this Court in Shivdeo Singh v. State of Punjab there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate court."
10. It has further been held by Hon'ble Supreme Court in the case of 7 Meera Bhanja v. Nirmala Kumari Choudhury, reported in (1995) 1 SCC 170, especially at Para nos. 8, 9 and 15 as under :
"8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, CPC. In connection with the limitation of the powers of the court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma , speaking through Chinnappa Reddy, J., has made the following pertinent observations:
(SCC p. 390, para 3) "It is true as observed by this Court in Shivdeo Singh v. State of Punjab, there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court."
9. Now it is also to be kept in view that in the impugned judgment, the Division Bench of the High Court has clearly observed that they were entertaining the review petition only on the ground of error apparent on the face of the record and not on any other ground. So far as that aspect is concerned, it has to be kept in view that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. We may usefully refer to the observations of this Court in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale wherein, K.C. Das Gupta, J., speaking for the Court has made the following observations in connection with an error apparent on the face of the record:
An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from selfevident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ.
15. In our view the aforesaid approach of the Division Bench dealing with the review proceedings clearly shows that it has overstepped its jurisdiction under Order 47, Rule 1 CPC by merely styling the reasoning adopted by the earlier Division Bench as suffering from a patent error. It would not become a patent error or error apparent in view of the settled legal position indicated by us earlier. In substance, the Review Bench has reappreciated the entire evidence, sat almost as 8 court of appeal and has reversed the findings reached by the earlier Division Bench. Even if the earlier Division Bench's findings regarding C.S. Plot No. 74 were found to be erroneous, it would be no ground for reviewing the same, as that would be the function of an appellate court.
Learned counsel for the respondent was not in a position to point out how the reasoning adopted and conclusion reached by the Review Bench can be supported within the narrow and limited scope of Order 47, Rule 1 CPC. Right or wrong, the earlier Division Bench judgment had become final so far as the High Court was concerned. It could not have been reviewed by reconsidering the entire evidence with a view to finding out the alleged apparent error for justifying the invocation of review powers. Only on that short ground, therefore, this appeal is required to be allowed. The final decision dated 8-7-1986 of the Division Bench dismissing the appeal from Appellate Decree No. 569 of 1973 insofar as C.S. Plot No. 74 is concerned as well as the review judgment dated 5-9-1984 in connection with the very same plot, i.e., C.S. Plot No. 74, are set aside and the earlier judgment of the High Court dated 3-8- 1978 allowing the second appeal regarding suit Plot No. 74 is restored. The appeal is accordingly allowed. In the facts and circumstances of the case, there will be no order as to costs."
11. It has further been held by the Hon'ble Supreme Court in the case of Parsion Devi & Ors. v. Sumitri Devi & Ors., reported in (1997) 8 SCC 715, especially in Para nos. 7 to 9 as under :
"7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P. (SCR at p. 186) this Court opined: "What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an 'error apparent on the face of the record'). The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an 'error apparent on the face of the record', for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. "
8. Again, in Meera Bhanja v. Nirmala Kumari Choudhury while quoting with approval a passage from Aribam Tuleshwar Sharma v. Aribam Pishak Sharma this Court once again held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.
9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise."
912. It has further been held by Hon'ble Supreme Court in the case of Haridas Das v. Usha Rani Banik & Ors., reported in (2006) 4 SCC 78, especially in Para nos. 13 to 18 as under :
"13. In order to appreciate the scope of a review, Section 114 CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the court since it merely states that it "may make such order thereon as it thinks fit". The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason". The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict. This is amply evident from the Explanation to Rule 1 of Order 47 which states that the fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the court should exercise the power to review its order with the greatest circumspection. This Court in Thungabhadra Industries Ltd. v. Govt. of A.P. held as follows: (SCR p. 186) "There is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. ... where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out."
14. In Meera Bhanja v. Nirmala Kumari Choudhury it was held that:
"8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. In connection with the limitation of the powers of the court under Order 47 Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution, this Court, in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma speaking through Chinnappa Reddy, J. has made the following pertinent observations: ' It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground.10
But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court.' " (SCC pp. 172-73, para 8)
15. A perusal of Order 47 Rule 1 shows that review of a judgment or an order could be sought: (a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of the record or any other sufficient reason.
16. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma this Court held that there are definite limits to the exercise of power of review. In that case, an application under Order 47 Rule 1 read with Section 151 of the Code was filed which was allowed and the order passed by the Judicial Commissioner was set aside and the writ petition was dismissed. On an appeal to this Court it was held as under: (SCC p. 390, para 3) "It is true as observed by this Court in Shivdeo Singh v. State of Punjab there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate court."
17. The judgment in Aribam case has been followed in Meera Bhanja. In that case, it has been reiterated that an error apparent on the face of the record for acquiring jurisdiction to review must be such an error which may strike one on a mere looking at the record and would not require any long-drawn process of reasoning. The following observations in connection with an error apparent on the face of the record in Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale were also noted: (AIR p. 137) "An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ." (SCR pp. 901-02)
18. It is also pertinent to mention the observations of this Court in Parsion Devi v. Sumitri Devi. Relying upon the judgments in Aribam and Meera Bhanja it was observed as under: (SCC p. 719, para 9) 11 "9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition, it must be remembered has a limited purpose and cannot be allowed to be 'an appeal in disguise'."
13. In the backdrop of the discussions coupled with the legal propositions in the foregoing paragraphs, the review petitioner has failed to make out any case for review of the impugned judgment. Accordingly the review petition is dismissed.
(Pramath Patnaik,J.) dey