Madhya Pradesh High Court
State Of Madhya Pradesh And Anr. vs Jaswantpuri And Ors. on 29 January, 1988
Equivalent citations: AIR1989MP115, AIR 1989 MADHYA PRADESH 115, (1989) JAB LJ 41 (1989) JAB LJ 43, (1989) JAB LJ 43
JUDGMENT B.C. Varma, J.
1. This is an application for review of our order dated 11-11-1987 passed in Miscellaneous Petition No. 928 of 1987.
2. The non-applicants responded to an advertisement issued by the State Junior Service Selection Board, Bhopal and faced interview for appointment to the posts of Lower Division Teachers. The Selection Board found them suitable for those posts. Their names were included in the list of successful candidates for Hoshangabad district. About 500 persons were included in Select List. They contended that the list was arranged in order of merit. Out of that list of 500 successful candidates only 232 persons were appointed. The petitioners (non-applicants in this application) in Miscellaneous Petition No. 928 of 1987 contended that although certain posts remained vacant, 95 persons not included in the aforesaid list of 500 persons were appointed as Teachers. They claimed that those 95 posts should have been filled in from among the persons included in that Select List, If that were done, they could well have been appointed. For the reasons stated in the order dated 11/11/1987 this contention did not find favour with the Court and was rejected. The statement made by the State Government at the hearing of that Misc.
Petition was that no posts were then lying vacant. It was, therefore, not possible for the Court to issue any direction to appoint the non-applicants against any post of teacher, All the same, this Court made a direction "that if vacancies occur in future, the petitioners who has been duly selected by the State Junior Service Selection Board, may be appointed against those vacancies." (Those petitioners are non-applicants in the present application). We, however, did not accept the contention advanced by the Government Advocate that the select list became inoperative after the expiry of a period of one year of its publication on 3-3-1986. This was so because nothing was placed before the Court to substantiate that contention. No provision contained in any Act, Rule or Notification was cited before the Court saying that such select list published by the Junior Service Selection Board exhausts itself after the expiry of any specified period. Finally, this Court concluded as under :--
"We would, therefore, issue a direction to the respondents that as and when posts of lower Division Teachers fall vacant in Hoshangabad district/division, such candidates out of the select list including the petitioners who have not yet been appointed, shall be considered and appointed against such vacancies."
2A. The State has now filed this application with. Annexure R-II, an order issued by the State of Madhya Pradesh in General Administration Department bearing No. C/323/78/3/1 Bhopal dated 21-11-1985 saying that the list of selected candidates published by the Junior Service Selection Board shall be in force, only for a period of one year from the date of its receipt in the concerned office/department. It is stated on affidavit that although in the return filed in Misc. Petition No. 928 of 87 by the State Government the fact of existence of such notification was mentioned, yet no such notification was placed before the Court. The contention, therefore, is that this Court committed an apparent error while passing the direction in Misc. Petition No. 928 of 1987 on the basis of its finding that there exists no provision which limits the life of the list of selected candidates published by the Junior Service Selection Board. It is on this ground that review of our order passed in M.P. No. 928 of 87 is sought for.
3. This application has been vehemently opposed by the non-applicants. Shri V. S. Shroti, learned counsel appearing for the non-applicants, submitted that no case for reviewing our order in Misc.Petn.No. 928/87 is made out because it cannot be said that the Govt. could not trace out the Notification dated 21-11-1985 in spite of due diligence. There is no error in our order sought to be reviewed. And if there is any, it can only be corrected in appeal because the error pointed out cannot be said to be an error apparent on the face of the record Shri Shroti, however, did not question this Court's jurisdiction to review its order passed in a Petition under Article 226 of the Constitution of India but added that review is permissible only on grounds contained in Order 47 Rule 1 of the Civil P.C. or on grounds analogous thereto.
4. Review is a strict legal remedy and not an equitable proceeding. Often it is regulated and controlled by Statute and is limited and confined to such cases as the Statute enumerates. Although, there must be strict compliance with the statutes authorising reviews, such statutes are remedial and should be liberally construed in order to advance the remedy (See Corpus Juris Secundum Vol. LXXVII). A review may be granted because of mistakes of parties or of their attorneys as well as for mistakes of the Court, Clerk of Court or of the Commissioner in particular proceedings. Mistake consisting an error of computation, or a mistake which is the result of accident or misfortune may well afford a ground for review. Review may also be granted on the ground of newly discovered evidence or when there is error apparent on the face of the record. Such an error may exists "if of two or more views canvassed on the point it is possible to hold that the controversy can be said to admit of only one of them. If the view adopted by the Court in the original judgment is a possible view having regard to what the record states, it is difficult to hold that there is an error apparent on the face of the record. "See AIR 1980 SC 674.
The Supreme Court in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR 1979 SC 1047 pointed out that the power of review inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it.
This power of review, however, has its own limitations. It was observed that this power may be exercised on 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. This power may also be exercised where some mistake or error apparent on the face of the record is found It cautioned that review is not permissible on the ground that the decision was erroneous on merits. That certainly is province of a Court of appeal and in Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi, AIR 1980 SC 674 in the majority judgment delivered by the then Justice R. S. Pathak and V. D. Tulzapurkar.
It is held that the Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice. This court in Bhaiyalal v. Sualal, 1980 MPLJ 789 observed that the omission to consider and apply its mind to a material provision of law is an error apparent on the face of the record or analogous to it. A Division Bench of this Court in M.C.C. No. 309 of 1979 decided on 18-8-1980 :
(Reported in 1981 Tax LR1741) held that an order based upon a law which stood amended when the order was passed but the amended provision was not brought to the Court's notice is liable to be reviewed. It was held that review is permissible when the law as amended was not placed before the Court for consideration.
5. The operative order in our order under review proceeds on the basis that there exists no provision limiting the time during which the select list published by the Junior Service Selection Board is to remain in force. The applicants did make a reference to some notification by the State Government in that behalf. No such notification was, however, brought to the Court's notice at the time of hearing of that petition. Now such notification has been placed on the record. This Court is bound to consider impact of that notification. Our omission to advert to apply mind to that notification is a mistake which is apparent on the face of the record. It has resulted in manifest wrong. It is necessary to pass an order with due advertence to and after full application of mind to the aforesaid notification. This is necessary in order to do full and effective justice. We have, therefore, no hesitation in accepting this application.
6. The application is allowed. Our order dated 11-11-1987 passed in M.P. No. 928 of 1987 is set aside. The Miscellaneous Petition No. 928 of 1987 (Jaswantpuri and 10 others v. State of Madhya Pradesh and two others) shall now be set down for further hearing.