Delhi High Court
Director Of Education & Anr. vs Smt.Krishna Kumari on 7 January, 2011
Author: Anil Kumar
Bench: Anil Kumar, Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C ) No. 13987/2009
% Date of Decision: 07.01.2011
Director of Education & Anr. .... Petitioners
Through Mr. Somdutt Kaushik, Advocate
Versus
Smt. Krishna Kumari .... Respondent
Through Nemo
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE VIPIN SANGHI
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported in NO
the Digest?
ANIL KUMAR, J.
* RA No. 2/2011 & CM No. 119/2011 These are the applications seeking condonation of delay in filing the review application seeking review of order dated 21st December, 2009 dismissing the writ petition and upholding the order of the Tribunal dated 15th May, 2009 passed in OA No. 1790/2008 allowing the original application of the respondent and issuing a direction to the petitioner to accord notional pay fixation to the respondent TGT from 1984.
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For seeking condonation of delay of 335 days in filing the review application, it is contended by the petitioner/applicant that the file was sent to the Directorate of Education for necessary action on 19th January, 2010 and thereafter, the file was sent to OS(III), Litigation on 27th January, 2010.
According to the averments of the petitioner/applicant, from 27th January, 2010 up to 8th September, 2010, the file remained in the concerned department for observation. The applicant has further contended that the Department of Personnel and Training Office, North Block, issued an Office Memorandum dated 9th September, 2010 whereby reference to the Department of Personnel and Training Office Memorandum of even number dated 19th May, 2009 was invited regarding the Modified Assured Career Progression Scheme (MACPS). Thereafter, on 25th November, 2010, OS (ACP) Cell sent the file to DDE (NWA) to file review application before the Court and DDA (NEW) by letter dated 7th December, 2010, had sent the file to Government for further action. Thereafter, the review application was filed on 21st December, 2010 after a delay of 335 days.
The learned counsel for the petitioner/applicant is unable to explain the delay from 27th January, 2010 up to 8th September, 2010 when the file allegedly remained in the concerned department. Merely stating that the file remained in the concerned department from 27th RA No. 2/2011 in WP(C ) No.13987/2009 Page 2 of 7 January, 2010 to 8th September, 2010 will not constitute sufficient cause for condoning such a long delay of about 9 months. Neither any particulars have been given nor has any averment been made as to why the file remained with the concerned department and what was done on the file during this period. Thought, it has been alleged that the file remained for observation, however, the learned counsel is not in a position to disclose as to what observation had to be made by the department for keeping the file nor is the learned counsel able to show any such fact, which will constitute sufficient cause for condonation of delay in the facts and circumstances.
Therefore, the petitioner/applicant has not been able to make out sufficient cause for condonation of delay in filing the review application and the application is liable to be dismissed. The application for condonation of delay of 355 days is therefore, dismissed Even on merits, the petitioner/applicant is not entitled for review of order dated 21st December, 2009. While dismissing the writ petition of the petitioner against the order dated 15th May, 2009, passed by the Central Administrative Tribunal, Principal Bench, New Delhi in OA 1790/2008 issuing the direction to the petitioner to accord notional pay fixation to the respondent TGT from 1984, the judgment of the Supreme Court in the matter of Union of India Vs. Ishwar Singh Khatri & Ors., 1993 (2) SCALE 730 was taken into consideration in which the RA No. 2/2011 in WP(C ) No.13987/2009 Page 3 of 7 petitioners had sought to deny the notional pay fixation on the ground that the order was passed directing the Directorate of Education to assign proper seniority as per ranking, but had not granted the relief of notional pay fixation.
This Court had held that once the respondent has been granted notional seniority from 1984, i.e., she had to be treated as being in service from 1984 onwards, the said fiction has to be given its full effect, including for the purposes of pay fixation and therefore, it was held that the order of the Tribunal fixing the notional pay of the respondent TGT from 1984 cannot be faulted and she had to be notionally given increments and benefit of wage revision, which had taken place in the meantime.
For seeking review of the order, the learned counsel for the petitioner/applicant has relied on the office memorandum dated 9th September, 2010, item No. 4 dealing with whether the benefits of MACPS would be granted from the date of entry grade or from the date of their regular service/approved service counted under various service rules. The said memorandum clarifies that benefits under the MACPS would be available from the date of actual joining of the post in the entry grade.
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Considering the facts and circumstances, it is apparent that the said clarification is not applicable to the case of the respondent as she was granted notional seniority from 1984. The plea of the petitioner was that she has only been assigned seniority but had not been granted relief of notional pay fixation. This Court had held that if she has been granted notional seniority from 1984, then the fiction has to be given full effect including for the purpose of pay fixation. In the circumstances, in the garb of alleged clarification, which is also not applicable to the case of the petitioner/applicant, the applicant is not entitled for review of order dated 21st December, 2009.
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 stays in the face without any elaborate argument being needed for establishing it. This power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR 1979 SC 1047 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 be exercise of the power of review. The power of RA No. 2/2011 in WP(C ) No.13987/2009 Page 5 of 7 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."
It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. 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.
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 RA No. 2/2011 in WP(C ) No.13987/2009 Page 6 of 7 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 further with a clear caution that in exercise of power of review the Court may correct the mistake but not to substitute the view.
In the circumstances, this Court does not find any ground for review of order dated 21st December, 2009. In any case, the application of the petitioner/applicant seeking condonation of delay has also been dismissed.
The applications of the petitioners/applicants are therefore, dismissed, leaving the parties to bear their own costs.
ANIL KUMAR, J.
JANUARY 7th, 2011 VIPIN SANGHI, J.
„rs‟
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