Delhi High Court
Raj Kunwar vs Delhi Jal Board Through Its Chairman on 29 October, 2010
Author: Anil Kumar
Bench: Anil Kumar, Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RA 377/2010 & CM No.12134/2010 in W.P(C) No.624/2010
% Date of Decision: 29.10.2010
Raj Kunwar .... Petitioner
Through Mr. U.Srivastava, Advocate.
Versus
Delhi Jal Board through its Chairman .... Respondent
Through Nemo.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR.JUSTICE MOOL CHAND GARG
1. Whether reporters of Local papers may YES
be allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be NO
reported in the Digest?
ANIL KUMAR, J.
* This is an application seeking review of order dated 1st February, 2010 passed in WP(C) No. 624/2010 titled as Raj Kunwar Vs. The Delhi Jal Board dismissing the writ petition against the order of the Tribunal dated 9th December, 2009 in TA 367/2009 dismissing the application of the petitioner seeking consideration of his case on the basis of a select panel of 1983 of 83 persons in which the petitioner was the last person, on the plea that as per the office memorandum dated 8th February, 1982, it was decided that the select panel would remain in existence RA No.377/2010 & CM No.12134/2010 in W.P(C) No.624/2010 Page 1 of 7 and till such time the entire panel is exhausted even in relation to future vacancies.
The petitioner/applicant has also sought condonation of delay in filing the review application by CM No. 12134/2010 on the ground that though he had received the copy of the order dated 1st February, 2010 on 3rd March, 2010, the copy remained with his counsel Sh. D.P. Sharma, who ultimately expired in July, 2010 after a long ailment and after the death of his counsel, the petitioner kept on trying to collect his file as the next date intimated to him was on 13th August, 2010. It is contended that later on it transpired that no review application was filed by his counsel Sh. D.P. Sharma and since the application was not traceable, therefore, the present application has been filed seeking condonation of delay of 162 days in filing the review application.
The petitioner/applicant had approached the Central Administrative Tribunal contending, inter alia, that in 1983, the respondents had held a selection and had prepared a select list of General Category and 24 SC/ST Category candidates. The petitioner also filed an affidavit deposing that in 1983, 64 posts were filled (51 for General and 13 for reserved). The plea of the petitioner was, however, not in consonance with Annexure-A which was alleged to be the minutes of Selection Committee and containing a list of the empanelled candidates. In 1985, according to the petitioner, on the basis of the select panel of 1983, 20 vacancies of General candidates and 10 RA No.377/2010 & CM No.12134/2010 in W.P(C) No.624/2010 Page 2 of 7 vacancies of SC candidates were filled, however, the case of the petitioner was not considered. The petitioner, therefore, sought appointment to any future vacancies after 1985 including the vacancies which arose in 1987.
The petition was contested by the respondent contending, inter- alia, that w.e.f. 12th May, 1985, the panel which was prepared in 1983 had become outdated and on that date fresh applications were invited for appointment to the post of Junior Engineer. The petitioner was considered, however, he was not found fit. Since, for appointment of the post in 1985, the petitioner was found unfit, he could not revert to the select panel prepared in 1983 and could not sought appointment on that basis. It was categorically contended that the validity of the panel was for a period of one year and the copy of the extract of a memorandum of Govt. of India, Cabinet Secretariat, DP & AR OM 22100/6/75-Estt.(D) dated 30th December, 1976 was also relied on.
The Tribunal, relying on the judgment of the Apex Court in Shankarsan Dash Vs. Union of India 1991 3 SCC 47; State of Madhya Pradesh Vs. Sanjay Kumar Pathak (2008) 1 SCC (L&S) 207 and SS Balu & Anr. Vs. State of Kerala & Ors. (2009) 1 SCC (L&S) 388, held that the selected candidates do not have a legally enforceable right and in any case on the basis of circular of 1982, the select panel of 1982 could not be kept alive. It was further held that in any case as the petitioner was RA No.377/2010 & CM No.12134/2010 in W.P(C) No.624/2010 Page 3 of 7 found unfit for selection in 1985, therefore, on the basis of select panel of 1983, he could not have been appointed and dismissed the petition.
The petitioner aggrieved by the order of the Tribunal dated 9th December, 2009 in TA 367/2009 had filed the petition being WP(C) No. 624/2010, which was also dismissed after detailed consideration of the pleas and contentions of the petitioner by order dated 1st February, 2010, which is sought to be reviewed by the petitioner on similar grounds, that were raised by the petitioner in the writ petition.
The petitioner has contended that the respondent‟s plea that the select list of 1983 has outlived on 11th May, 1985 in terms of GOI OM 22011/6/75-Estt. dated 30th December, 1976, is misconceived and misleading as the respondents could not apply an old circular, while according to the petitioner, his case would be covered under GOI OM 22011/2/79-Estt(D) dated 8th February, 1982. According to the petitioner the practice invoked in the department is in terms of Circular dated 8th February, 1982 and in support of his allegation, it is contended that the applications were invited for filling up the posts of Junior Accountants and Accountants in the year 1996 and after completion of selection process, the final merit list was prepared in the year 1996 itself and appointments were being made up to the year 2000 and thereafter, the select list was declared as not valid and the respondents by order dated 5th May, 2000 revised the aforesaid panel for filling up the posts of Junior Accountants and Accountants and RA No.377/2010 & CM No.12134/2010 in W.P(C) No.624/2010 Page 4 of 7 started appointing the remaining persons in the year 2001. Another example has been given for appointment to the post of LDC in the year 1988 and in the circumstances, it is contended that the Tribunal has dismissed his TA 367/2009 without appreciating these relevant facts.
We have heard the learned counsel for the applicant in detail. It is well settled that the review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 of CPC. A review cannot be sought merely for fresh hearing or arguments or correction of an erroneous view taken earlier. The power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate arguments being needed for establishing it. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and Ors, (1979) 4 SCC 389 the Supreme Court held that :-
"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 merit."RA No.377/2010 & CM No.12134/2010 in W.P(C) No.624/2010 Page 5 of 7
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.
Attempt of the applicant by filing the present applications is only to re-agitate the issues. No error much less an error apparent on the face of the record has been pointed out by the applicant. An error which is not self evident and has to be dictated by a process of reasoning can hardly be said to be an error apparent on the face of the record. This principle was reiterated by the Supreme Court in the case of Lily Thomas, etc. v. Union of India and Ors. MANU/SC/0327/2000 with a clear caution that in exercise of the power of review the Court may correct the mistake but not to substitute the view. The mere possibility of two views on the subject, is not a ground for review.
The pleas raised by the petitioner were considered and rejected. The petitioner after failing to get selected in 1985 could not contend that the select panel of 1983 was valid and he should have been appointed on the basis of same. The plea of the petitioner is without any merit and has been rejected. There is no error apparent in the order RA No.377/2010 & CM No.12134/2010 in W.P(C) No.624/2010 Page 6 of 7 sought to be reviewed by the petitioner nor any other ground to review the order dated 1.2.2010.
The petitioner has also not been able to make out sufficient ground for condonation of delay in filing the review application. The petitioner is literate and would not have waited till 13.8.2010 to realize that the review application was not filed by his counsel. The applicant is trying to capitalize on the fact that his earlier counsel has died. The petitioner has failed to disclose relevant facts on the basis of which it can be inferred that his deceased counsel had represented to him that he had filed an application seeking review of order dated 1.2.2010. In the circumstances this Court does not find sufficient grounds even to condone the delay in filing the review application. However, since the review application has been considered on merit, the application for condonation of delay becomes infructuous.
In the facts and circumstances the plea of the petitioner for review of order dated 1.2.2010 is declined and his applications are dismissed.
ANIL KUMAR, J.
MOOL CHAND GARG, J.
OCTOBER 29, 2010 „rs‟ RA No.377/2010 & CM No.12134/2010 in W.P(C) No.624/2010 Page 7 of 7