Gujarat High Court
State Of Gujarat & 2 vs Vyas Prakashkumar Gunvantbhai & ... on 31 July, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
C/MCA/1214/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL APPLICATION NO. 1214 of 2013
In SPECIAL CIVIL APPLICATION NO. 16140 of 2006
TO
MISC.CIVIL APPLICATION NO. 1230 of 2013
In SPECIAL CIVIL APPLICATION NO. 16285 of 2006
With
CIVIL APPLICATION NO. 7920 of 2013
In MISC.CIVIL APPLICATION NO. 1214 of 2013
TO
CIVIL APPLICATION NO. 7936 of 2013
In MISC.CIVIL APPLICATION NO. 1230 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
===========================================================
1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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STATE OF GUJARAT & 2....Applicant(s)
Versus
VYAS PRAKASHKUMAR GUNVANTBHAI & 3....Opponent(s)
Page 1 of 29
C/MCA/1214/2013 CAV JUDGMENT
================================================================
Appearance:
MR PK JANI, GOVERNMENT PLEADER for the Applicant(s) No. 1 - 3
MS FARHANA Y MANSURI, ADVOCATE for the Opponent(s) No. 1 - 4
MS SRUSHTI A THULA, ADVOCATE for the Opponent(s) No. 1
================================================================
CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 31/07/2014
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) These applications are at the instance of the State of Gujarat for review of our judgment and order dated 28 th December 2012 passed in Special Civil Application No.16140 of 2006 and other allied matters.
Controversy in the main writ-application :
The main writ-applications were filed by the unsuccessful candidates who had applied for appointment to the post of Lok Rakshak pursuant to the advertisement published by the State Government dated 7th February 2004.
The grievance voiced in those petitions was that the Page 2 of 29 C/MCA/1214/2013 CAV JUDGMENT entire procedure which was undertaken by the State Government, viz. the Gujarat Subordinate Services Selection Board, in selecting the candidates who had applied in response to the advertisement dated 7th February 2004 was illegal and violative of the fundamental rights guaranteed under Part-III of the Constitution of India.
The advertisement dated 7th February 2004 provided for various details regarding educational qualifications, sanctioned posts and reservation of posts for Scheduled Caste (SC), Scheduled Tribe (ST) and Socially and Economically Backward Class (SEBC) candidates.
In response to the advertisement referred to above, more than 1,60,000 applications were received by the State Government. In all, 3000 posts were advertised according to the advertisement dated 7th February 2004. The breakup of the posts advertised is as under :
"07.02.2004 ADVERTISEMENT FOR 3000 POSTS POSTS SC ST SEBC EX-ARMY GENERAL TOTAL Armed Constable 79 186 433 10.00% 1267 1965 Unarmed Constable 67 121 277 10.00% 570 1035 Page 3 of 29 C/MCA/1214/2013 CAV JUDGMENT 146 307 710 1837 3000 "
In all, 16,325 candidates were interviewed and finally a merit list of 3000 candidates was prepared. The final merit list was published in the Official Gazette on 1st July 2006.
The case of the original petitioners was that the reserved posts for Scheduled Castes, Scheduled Tribes and Socially and Economically Backward Classes were 146, 307 and 710 respectively, whereas, according to the policy adopted by the State Government in respect of reservation, the same should have been 225, 450 and 810 respectively.
According to the petitioners, out of the total candidates selected, 15% of the selected candidates should have belonged to the SC category while 7.5% of the candidates should have belonged to the ST category. However, out of the total 3000 candidates selected, only 142 candidates belonged to the ST category, which was less than 5%.
It was also the case of the petitioners that the candidates of the SC category who were selected on the basis of their own merit were counted against the quota reserved for the ST Page 4 of 29 C/MCA/1214/2013 CAV JUDGMENT candidates. According to the petitioners, after including such persons in the general category having been found meritorious with the candidates of the general category, the select list should have been prepared in such a manner that the candidates belonging to the reserved category could get the benefit of the reservation. It was also the case of the petitioners that the reservation quota ought to have been calculated after the open merit list was filled up and could not have been counted against those seats.
In the aforesaid background of the case, the petitioners prayed before us for the following reliefs :
"(A) Your Lordships may be pleased to allow this petition.
(B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order of direction quashing and setting aside the whole procedure undergone by the State authorities in the selection of the candidates who had applied in response to the advertisement dated 7.2.2004 quash and set aside the final select list for the post of Lok Rakshak and direct the respondent authorities to make fresh recruitment for the post of Lok Rakshak by issuing fresh advertisement.
(C) Your Lordships may be pleased to quash and set aside the Government Resolution dated 21/1/2004.
(D) Your Lordships may be pleased to appoint the vigilance inquiry and direct such vigilance committee to inquire into and examine the irregularities and illegalities as alleged in the above mentioned petition against the respondents by not making the selection of 3000 Page 5 of 29 C/MCA/1214/2013 CAV JUDGMENT candidates, as successful candidates.
(E) Your Lordships may be pleased to call the record of oral test of the candidates for the scrutiny of the Hon'ble High Court of Gujarat.
(F) Pending hearing and final disposal of this petition.
(1) Your Lordships may be pleased to stay the implementation and execution of the Resolution dtd. 21/1/2004.
(2) Your Lordships may be pleased to restrain the whole procedure undergone by the State authorities and restrain the respondents from further proceeding with the recruitment process for filling the post of Lok Rakshak.
(3) Your Lordships may be pleased to appoint the vigilance inquiry in this regard and direct such vigilance committee to inquire into and examine the irregularities and illegalities as alleged in the above mentioned petition against the respondents by not making the selection of 3000 candidates, as successful candidates.
(4) Your Lordships may be pleased to call the record of oral test of the candidates for the scrutiny of the Hon'ble High Court of Gujarat.
(G) Your Lordships may be pleased to grant such other and further relief and/or order as deemed fit in the facts and circumstances of the case and in the interest of justice."
The stance of the State Government i.e. the applicant herein before us was that sufficient care had been taken to protect the rights of the candidates belonging to the SC and ST categories. More candidates from the reserved category had Page 6 of 29 C/MCA/1214/2013 CAV JUDGMENT been selected as against number of reserved posts mentioned in the advertisement dated 7th February 2004. In the affidavit- in-reply filed by the State Government, a statement was provided showing category-wise selection of the candidates as under :
Sr. Category No. of Posts No. of Candidates Total No. Advertised Selected On Reserve On General Category Category 1 S.C. 146 146 189 335 2 S.T. 307 307 97 404 3 S.E.B.C. 710 710 724 1434 Total 1163 1163 1010 2173 4 General 1837 27 827 Total 3000 1163 1837 3000 The stance of the Government was that as against 1160 reserved category posts published in the advertisement, 2173 candidates found place in the select list of the general category, and against 18376 of the general category, only 827 had gone to the general category seats. Over and above, 1010 seats of the general category candidates had been occupied by the reserved category candidates.
The State Government denied the allegations as regards providing quota of 5% and 10% to the SC and ST category respectively in the advertisement instead of 7.5% and 15% in Page 7 of 29 C/MCA/1214/2013 CAV JUDGMENT terms of the policy adopted by the State Government. The State Government also pointed out that the ratio of the decision of the Supreme Court in the case of Indra Sawhni and others v. Union of India and others, reported in 1992 Supp (3) SCC 217, had been followed by the Board in selecting the candidates of the reserved quota from the general category on their individual merit.
After hearing the learned counsel for the parties and after going through the materials on record, more particularly, the stance of the State Government, we took the view observing in paras 8 and 9 of our judgment under review as under :
"8. The first infirmity which we noticed during the course of hearing of the applications was that the reserved posts for SC, ST and SEBC were 146, 307 and 710 respectively, whereas we found that taking into consideration the policy adopted by the State Government in respect of the reservation, the same should have been 225, 450 and 810 respectively. We, therefore, thought fit vide our order dated 31st August, 2012 to call upon the State respondent to explain whether after the year 1986, there had been any change of policy decision regarding reservation. Pursuant to our order, the Additional Director General of Police (Administration), Gujarat State, Gandhinagar filed an affidavit stating that vide resolution dated 30th September, 1994 issued by the Government of Gujarat (GAD), the reservation ratio for SEBC was Page 8 of 29 C/MCA/1214/2013 CAV JUDGMENT earlier 10%, which was enhanced to 27%. The State Government vide resolution dated 6th March, 1999 determined the ratio of reservation for Class I, Class II, Class III and Class IV employees. Accordingly, the reservation ratio for SC, ST and SEBC candidate was fixed at 7%, 14% and 27% respectively. It has also been stated in the Affidavit-in-reply that vide resolution dated 5th September, 2000, the ratio for reservation was thereafter amended and the reservation ratio was determined as 7% for SC, 15% for ST and 27% for SEBC. Thus, even according to the State respondent, the reservation ratio for SC, ST and SEBC candidate should have been 7%, 14% and 27% respectively. It is apparent from the materials on record and fairly conceded by Mr.Jani, the learned Government Pleader that the ratio was not maintained at the time of recruitment and preparation of the final select list.
9. If the aforesaid ratio would have been adopted, then, the number of posts reserved for SC category should have been 225, for ST, should have been 450 and for SEBC should have been 810 respectively."
For the reasons assigned in our judgment and order dated 28th December 2012 under review, we disposed of the writ-applications by issuing the following directions :
"(1) The State respondent is ordered to cancel the entire select list, which is the subject matter of challenge in the present petitions.Page 9 of 29 C/MCA/1214/2013 CAV JUDGMENT
(2) On cancellation of the entire select list, the State respondent shall undertake a fresh exercise of preparing the select list by first preparing a general merit list of 1515 candidates and thereafter, prepare the merit list of 1485 candidates of the reserved category.
(3) If a candidate of a reserved category finds himself in the merit list of the general category, then such a candidate of the reserved category shall not be counted against the quota reserved for SC/ST or SEBC.
(4) We also direct that the reservation shall be provided in terms of the resolution of the State Government dated 5th September, 2000 i.e. in the ratio of 7% for SC, 15% for ST and 27% for SEBC.
(5) We direct the State Government that till completion of the entire exercise of refixing/preparation of the select list, the candidates, who are already in service, may not be disturbed till the finalization of the entire select list.
(6) Such exercise shall be undertaken by the State Government within a fortnight from today, and the same should be completed within two months thereafter.
19. With the aforesaid observations and directions, we dispose of all the writ applications. Rule is made absolute to the aforesaid extent. However, in the facts and circumstances of the case, there shall be no order as to costs."
Page 10 of 29 C/MCA/1214/2013 CAV JUDGMENT
It appears that our judgment and order under review was carried to the Supreme Court by filing Special Leave to Appeal (Civil) Nos.13134-13153/2013. It also appears that before the Supreme Court, the learned counsel who appeared on behalf of the applicant herein submitted that many points were argued before the High Court but the same had not been taken note of and, therefore, the learned counsel sought permission to withdraw the SLPs with a liberty to file review petitions. The order passed by the Supreme Court dated 16th April 2013 reads thus :
"Upon hearing counsel the Court made the following ORDER The special leave petitions are dismissed as withdrawn as the learned counsel for the petitioners want to file a review petition on the ground that he had argued many other points which had not been taken note of by the High Court. If the learned counsel for the State has argued many other points before the High Court, the High Court may decide it in accordance with law.
However, it is clarified that we have not expressed any opinion on the merit of the case."
Submissions on behalf of the State Government : Page 11 of 29 C/MCA/1214/2013 CAV JUDGMENT
Mr.P.K.Jani, the learned Government Pleader, submitted that the order passed by us under review is not in conformity with the records which were produced before this Court.
According to Mr.Jani, there is an error apparent on the face of the record as, so far as the posts of Lok Rakshak is concerned, there are two types of cadres; (1) State level cadre, and (2) District level cadre.
According to Mr.Jani, in the matter of recruitment to the posts identified on the State level cadre, the State Government revised the percentage of reservation of posts for recruitment of candidates of the Scheduled Castes and Scheduled Tribes for all the classes i.e. Classes-I, II, III and IV posts at the State level for the whole State i.e. 7% for the SC and 14% for the ST vide Government Resolution dated 1 st October 1974.
Subsequently, the quota in respect of recruitment to the State level posts of Class-I to Class-IV was revised, and vide Government Resolution dated 1st March 2000, 14% was made 15% for the Scheduled Tribes.
Mr.Jani submits that so far as the recruitment to Class-III and Class-IV posts in the District level cadres is concerned, the State Government has prescribed the District-wise percentage Page 12 of 29 C/MCA/1214/2013 CAV JUDGMENT of reservation for the Scheduled Castes and Scheduled Tribes considering the population of the members of the Scheduled Castes and Scheduled Tribes. According to Mr.Jani, this has been the consistent policy of the State Government pursuant to its Government Resolution dated 21 st January 1986, which is based on the report submitted by the Sadhwani Committee constituted by the State Government.
According to Mr.Jani, the policy with regard to the percentage of reservation for Class-III posts to be filled in at the State level and Class-III posts to be filled in at the District level are absolutely different. The post of Lok Rakshak is a District level Class-III post and, therefore, the Government Resolution dated 21st January 1986 would be applicable.
According to Mr.Jani, since the post of Lok Rakshak is a District level Class-III post, the Director General of Police, State of Gujarat, after considering the Government Resolution dated 21st January 1986, collected the details regarding the vacancies from all the District Superintendents of Police, and after receiving such details, had forwarded a requisition for filling up the posts of 3000 Lok Rakshaks.Page 13 of 29 C/MCA/1214/2013 CAV JUDGMENT
Pursuant to that, the Gujarat Subordinate Services Selection Board had carried out the recruitment procedure according to the requisition. Mr.Jani submits that adequate care had been taken to protect the rights of the SC, ST and SEBC candidates in the selection procedure.
According to Mr.Jani, this Court, while deciding the main writ-applications, issued direction in terms of the Government Resolution dated 5th September 2000 which, at any rate, would not be applicable so far as the appointment of Lok Rakshaks is concerned being a District level cadre. Mr.Jani submitted that their appointments would be governed by the Resolution dated 21st January 1986.
In such circumstances referred to above, Mr.Jani prays that as the reservation policy for recruitment was followed according to the Government Resolution dated 21 st January 1986, there was no justification for this Court to have issued the directions as contained in the judgment and order dated 28th December 2012.
At this stage, it may not be out of place to state that in the course of the hearing of these review applications, many Page 14 of 29 C/MCA/1214/2013 CAV JUDGMENT documents were produced before us to fortify the submission that it is the Government Resolution of 1986 which would govern the field and not the Government Resolution of 2000 which was taken into consideration by us. Most of those documents were not part of the record of the main petition.
Mr.Jani has also placed reliance on one unreported decision delivered by this Court in Letters Patent Appeal No.2277 of 2010 dated 17th February 2011, to which one of us (J.B.Pardiwala, J.) was a party. Mr.Jani has placed reliance on this decision to fortify his submission that the post of Lok Rakshak is a District level cadre.
In such circumstances referred to above, Mr.Jani submits that if the order passed in the main matter is not recalled, then the same would lead to a serious miscarriage of justice, and for no reason the Government will have to cancel the select list and prepare afresh as directed by this Court in the judgment under review.
Submissions on behalf of the opponents - original writ applicants :
Mr.Y.N.Oza, the learned senior advocate appearing on Page 15 of 29 C/MCA/1214/2013 CAV JUDGMENT behalf of the opponents, has vehemently opposed these review applications and submitted that the same are not maintainable in law as by such applications the Government is seeking rehearing of the entire matter on merits. According to Mr.Oza, within the limited scope of review jurisdiction, it is only a palpable error apparent on the face of the record which could be corrected. Mr.Oza submits that it is not the stance of the State Government that the so-called error is on account of misapplication of facts by this Court or by wrong application of law, but the stance of the Government is that it was a mistake on their part in not correctly presenting the matter before the Court. Mr.Oza submits that such a mistake cannot be a ground for review of the order passed by the Court on merits. Mr.Oza also disputed the stance of the State Government that the reservation provided was District-wise and not State-wise.
In such circumstances referred to above, Mr.Oza prays that there being no merit in these review applications, the same deserve to be rejected and the State Government be directed to comply with the directions issued in the judgment and order dated 28th December 2012.
Having heard the learned counsel appearing for the Page 16 of 29 C/MCA/1214/2013 CAV JUDGMENT parties and having gone through the materials on record, the only question that falls for our consideration in this batch of review applications is, whether there is an error apparent on the face of the judgment dated 28 th December 2012, warranting recall of the impugned order.
Before entering into the merit of these applications, it will be profitable to look into the provisions of Order 47, Rule 1 CPC. Order 47, Rule 1 CPC reads as follows :
"REVIEW
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 Page 17 of 29 C/MCA/1214/2013 CAV JUDGMENT 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 or judgment 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.
Explanation : The fact that the decision on 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.
2. [Repealed by Act 66 of 1956]."
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 party 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, Page 18 of 29 C/MCA/1214/2013 CAV JUDGMENT 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.
The Apex Court in M/s. Thungabhadra Industries Ltd. v/s. Government of Andhra Pradesh, reported in AIR 1964 SC 1372, held as follows :
"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 characterized 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 Page 19 of 29 C/MCA/1214/2013 CAV JUDGMENT 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."
In Meera Bhanja v. Smt. Nirmala Kumari Choudary, reported in AIR 1995 SC 455, the Supreme Court held that :
"It is well settled law 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 [AIR 1979 SC 1047] 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 of 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 in the province of a court of appeal. A power of review is not to be confused with Page 20 of 29 C/MCA/1214/2013 CAV JUDGMENT appellate power which may enable an appellate Court to correct all manner of error committed by the subordinate court.""
A perusal of Order 47, Rule 1 CPC 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.
In a very pronouncement of the Supreme Court in the case of Kamlesh Verma v. Mayawati and others, reported in AIR 2013 SC 3301, the Supreme Court, in paras 15 and 16 of the judgment, has reiterated the well-settled principles as regards the scope and power of the Court to review, which read thus :
"15. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1 of CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise Page 21 of 29 C/MCA/1214/2013 CAV JUDGMENT that an alternative view is possible under the review jurisdiction.
Summary of the Principles:
16. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:
(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.
The words "any other sufficient reason" has been interpreted in Chhajju Ram vs. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulos Athanasius & Ors., (1955) 1 SCR 520, to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India vs. Sandur Manganese & Iron Ores Ltd. & Ors., JT 2013 (8) SC 275.
(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 Page 22 of 29 C/MCA/1214/2013 CAV JUDGMENT 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 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."
Bearing the aforesaid principles in mind, let us consider the claim of the applicant so as to find out whether any case has been made out for interference exercising review jurisdiction.
When these applications were taken up for hearing, the very first question which was put by us to Mr.Jani, the learned Government Pleader, was as to which were those contentions although raised before us in the main matter, yet not answered as submitted before the Supreme Court.
Mr.Jani, with his usual fairness, submitted that in what circumstances such statement was made before the Supreme Court by the learned counsel appearing for the State of Gujarat is not known. The case of the Government is not that some of Page 23 of 29 C/MCA/1214/2013 CAV JUDGMENT the contentions although argued, yet have not been dealt with but, it was a mistake on the part of the Government in not properly presenting their case, which has led to the error in the original judgment.
Mr.Jani has also been very fair to submit that the entire case proceeded on the footing that the ratio of reservation State-wise was not adhered to by the Government. It was not pointed out to the Court that the Government had committed no illegality in preparing the select list by providing District- wise reservation in accordance with its Government Resolution of the year 1986 based on the report of the Sadhwani Committee. Thus, the stance of the State Government is very clear that due to inadvertence on their part, the correct picture could not be projected and the same should now be considered at length in these review applications and the order be recalled.
The question as regards the Court's power of review in proceedings under Article 226 of the Constitution of India came up for consideration before a Full Bench of this High Court in Gujarat University v. Sonal P.Shah (AIR 1982 Guj 58). The Full Bench, after taking notice of the amendment made in Section 141 of the Civil Procedure Code to the effect that the word Page 24 of 29 C/MCA/1214/2013 CAV JUDGMENT 'proceeding' used in that section did not include a writ petition under Article 226 of the Constitution of India, held :
"(1) The provisions of the Civil P.C. of Order 47 are not applicable to the High Court's power of review in proceedings under Article 226 of the Constitution.
(2) The said powers are to be exercised by the High Court only to prevent miscarriage of justice or to correct grave and palpable errors. (The epithet "palpable" means that which can be felt by a simple touch of the order and not which could be dug out after a long drawn out process of argumentation and ratiocination).
(3) The inherent powers through ex facie plenary are not to be treated unlimited or unabridged, but they are to be invoked on the grounds analogous to the grounds mentioned in Order 47. Rule 1, namely : (i) discovery of new and important matter or evidence which the party seeking the review could not produce at the time when the earlier order sought to be reviewed was made, despite exercise of due diligence; (ii) existence of some mistake or error apparent on the face of the record; and
(iii) existence of any analogous ground. (These are the very three grounds referred to in Order 47, Rule 1, Civil P. C. and by declaration of law at the hands of the Supreme Court in the above case they are the hedges or limitations of the High Court's power)."
Coming to the facts of the instant case, it would be seen Page 25 of 29 C/MCA/1214/2013 CAV JUDGMENT that here the review is sought not on the ground that a glaring omission or a patent mistake or like grave error has crept in earlier by judicial infallibility nor on the ground that this Court committed a grave and palpable error in deciding the writ applications. It has been filed only on the ground of mistake in not pointing out the true and correct facts. It is also not the case of the applicant that the same has been filed on the ground of discovery of new and important evidence. The facts were known but the applicant proceeded on the footing that State-wise reservation of 7%, 15% and 27% respectively could not be adhered to, and in such circumstances, we issued the directions to cancel the select list and prepare a fresh adhering to the percentage of reservation according to the policy of the Government. What is now sought to be argued is nothing but complete rehearing of the main matter on absolutely a new ground that the State Government was not obliged to provide State-wise reservation of 7%, 15% and 27% respectively but the select list was prepared providing District-wise reservation keeping in mind that the post of Lok Rakshak was a District level cadre.
To fortify this submission, the entire matter has been argued before us de novo with a view to convince us that there Page 26 of 29 C/MCA/1214/2013 CAV JUDGMENT is an error apparent in our judgment.
We find it extremely difficult to accept this submission because even in a case of discovery of new and important evidence, a review application can be entertained only if it is established by the applicant that the additional evidence which is sought to be relied on was "after the exercise of due diligence 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". The requirement of the "exercise of the diligence" at the appropriate time constitutes the very basis for maintaining a review application filed on the ground of discovery of new and important matter of evidence. In the present case, even that is no so, but the ground is one of mistake.
It is well-settled that review is not a full-fledged power of the reconsideration of the entire case as if it was a second inning on facts and law.
It cannot be gainsaid that there is a clear distinction between review power and appeal power. A review can never be said to be an appeal in disguise. An error which has to be Page 27 of 29 C/MCA/1214/2013 CAV JUDGMENT 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. We do not think that this is a fit case for exercise of our power under the circumscribed jurisdiction of review.
We may only say that while deciding the main matter, we took into consideration that a common select list was prepared by the Gujarat Subordinate Services Selection Board at the State level and thereafter appointments were given without adhering to the reservation policy.
At this stage, in a review application, if we have to consider as submitted on behalf of the State Government that the appointments were made in accordance with the Government Resolution dated 21st January 1986 and not in accordance with the Government Resolution dated 1st March 2000, then it definitely amounts to rehearing of the entire matter.
For the foregoing reasons, we are of the opinion that these applications travel beyond the scope of review and deserve to be rejected.
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The review applications fail and are accordingly rejected.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) MOIN Page 29 of 29