Madhya Pradesh High Court
The State Of Madhya Pradesh vs Pavan Kumar Jain on 19 January, 2017
(1)
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR.
R.P. No.23/2017.
State of Madhya Pradesh & others.
Vs.
Pavan Kumar Jain.
PRESENT:
For Petitioners : Mr. Pushpendra Yadav, G.A.
For Respondent : Mr. Vishal Dhagat, Advocate.
(O R D E R ) 19.01.2017 Per : Justice Sujoy Paul The petitioner/department has filed this petition seeking review of order passed in W.P. No.4651/2011, dated 07.11.2016.
2. Mr. Pushpendra Yadav, learned G.A. advanced singular contention. He submits that this Court directed the department to consider the case of the petitioner for the post of Constable (GD). By taking this Court to the result of the interview (Page No.24), it is submitted that petitioner has secured only six marks, whereas the selected candidates have secured eight marks. Thus, even if the benefit of age relaxation is given to the petitioner, he will not be selected because he secured less marks than the last selected candidate.
3. Mr. Vishal Dhagat, learned counsel for the respondent/candidate submits that alongwith the rejoinder with writ petition, the petitioner has filed document (2) (Annexure-P/10), which shows that he posses a driving licence. Two marks are earmarked in the head of such driving licence. Those marks were not given to the candidate and if those marks are give, the respondent will get eight marks and he will secure an appointment. He submits that this point was specifically raised in the rejoinder.
4. No other point has been raised by the learned counsel for the parties.
5. I have heard the parties at length and pursued the record.
6. It is apt to mention that this Court in order dated 07.10.2016, has mentioned the rival contentions advanced by the parties and gave a specific finding that parties confined their arguments to the extent the points mentioned in the order. At that point of time, the candidate did not raise the question of non-grant of two marks in the head of driving licence. The point which is not argued/abandoned cannot be subject matter of review. Moreso, when no such review is filed by the candidate. In a review petition filed by the department, the alleged error pointed out by the candidate cannot be gone into. The prayed of Mr. Dhagat, learned counsel for the respondent/candidate cannot be accepted for yet another reason. This is settled in law, that parties cannot be permitted to argue beyond the pleadings and beyond the relief claimed (See: 2007 (3) MPHT 309 [Nagda Municipality, Nagda vs. ITC Limited] and 2008 (4) MPLJ 536 [Gomti Bai Tamrakar & others vs. State of M.P. & others]).
(3)7. In the writ petition, the candidate has claimed for following relief:
"(i) This Hon'ble Court be pleased to direct the respondents to produce the entire record of selection of procedure, in the interest of justice.
(ii) This Hon'ble Court be pleased to direct the respondents to consider the case/application of the petitioner for the post of "Constable (G.D.)" in the interest of justice.
(iii) Any other relief which this Hon'ble Court deems fir and proper in view of the facts and circumstances of the case may kindly be granted to the petitioners."
A plan reading shows that no relief was claimed for grant of marks in the head of driving licence. A microscopic reading of writ petition makes it clear that there is no factual foundation in the petition that two marks under the head of driving licence were not granted to the candidate.
In AIR 1959 SC 395 [M.S.M. Sharma vs. Shri Krishna Sinha], 2006 (9) SCC 90 [Ashok Lanka vs. Rishi Dikshit & others] and 1981 (2) SCC 484 [Randhir Singh vs. State of Punjab], the Apex Court disapproved the practice whereby a new case is sought to be set out by filing rejoinder. For these cumulative reasons the argument of Mr. Dhagat, learned counsel for the respondent/candidate cannot be accepted.
8. Reverting back to the arguments of Mr. Yadav, learned G.A., it is seen that he has not advanced or pointed out any error apparent on the face of the record relating to the order under review. He is pointing out about the merits of the case. I am only inclined to observe that this Court has not given any finding about the comparative merits of the candidates nor issued any direction to appoint the candidate. This Court has merely directed the respondents to consider the case of the petitioner in the teeth of circular (4) dated 04.06.2010, with further specific direction that "if he is found eligible as per the circular, he be considered for the post in question". Thus, the direction issued was only relating to the consideration of the petitioner. Thus, in review jurisdiction, I am not inclined to deal with the point whether upon such consideration, the candidates would succeed or not. The department may consider the candidate by giving age relaxation and informs the outcome of such consideration to the candidates.
9. With the aforesaid observation, review petition is disposed of.
(Sujoy Paul) Judge s@if