Himachal Pradesh High Court
Surender Singh vs State Of H.P. & Others ... on 14 July, 2023
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CMP(M) No. 411 of 2023
and CMP(M) No. 521 of 2023
in Review Petition No.69 of
2023 and Review Petition
.
No.70 of 2023.
Reserved on: 07.07.2023
Decided on: 14.07.2023
__________________________________________________________
1. CMP(M) No. 411 of 2023
Surender Singh Applicant/Review Petitioner
Versus
State of H.P. & others Non-applicants/Respondents.
2. CMP(M) No. 521 of 2023
Balbir Singh Applicant/Review Petitioner
Versus
State of H.P. & Others Non-applicants/Respondents
__________________________________________________________
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge
The Hon'ble Mr. Justice Satyen Vaidya, Judge
1 Whether approved for reporting? Yes
______________________________________________________
For the applicant(s)/
Review Petitioner(s) : Mr. Hirdaya Ram, Advocate.
For the non-applicants/
Respondents :Mr. Anup Rattan, Advocate General,
with Mr. I. N. Mehta, Sr. Addl.
Advocate General, Mr. Ramakant
Sharma, Ms. Sharmila Patial, Addl.
Advocate Generals, Ms. Priyanka
Chauhan, Dy. A.G. and Mr. Rajat
Chauhan, Law Officer, for the
respondents/State.
Satyen Vaidya, Judge
CMP(M) Nos. 411 of 2023 & 521 of 2023
Delay condoned. The applications stand
disposed of.
1
Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/07/2023 20:36:03 :::CIS
2
Review Petitions be registered.
Review Petition Nos.69 of 2023 & 70 of 2023.
Heard.
.
2. Both these petitions have been heard and
are being decided together as common questions of
facts and law are involved.
3. The Government of Himachal Pradesh has
framed and notified a policy "Part Time Multi Task
Worker Policy, 2020" (for short "Policy") for the
appointment of Part Time Multi Task Workers in the
Government Schools of Himachal Pradesh under
Higher and Elementary Education Department. As per
Clause 7 (iv) of the Policy, 8 (eight) marks are allocated
for candidates whose families have donated land for
school.
4. Petitioners herein were also applicants for
the posts of Part Time Multi Task Workers in their
respective areas. They remained unsuccessful as were
not awarded any marks on account of being family
members of land donors.
::: Downloaded on - 15/07/2023 20:36:03 :::CIS
3
5. Initially, at the time of formulation of policy,
the term "family" was not defined. Later, a clarification
was issued on 24.05.2022 whereby the term "family"
.
for the purposes of Clause 7 (iv) of the Policy, was
restricted to mean only "Land Donor or His/Her
Spouse and their Children".
6. Admittedly, petitioners were neither the land
owners themselves nor were falling in the category of
spouse or children of the land donor. Petitioner
Surender Singh had assailed the validity of Clause 7(iv)
of the Policy as also his rejection by way of CWP
No.4139 of 2022. His contention was rejected vide
judgment passed by this Court on 28.06.2022.
Petitioner Surender Singh assailed the above noted
judgment passed by this Court by way of Special Leave
Petition (Civil) Diary No(s). 33066 of 2022, but
remained unsuccessful. His petition was dismissed by
the Hon'ble Supreme Court vide order dated
28.02.2023 in following terms:
"Delay condoned.
We do not see any valid reason to
interfere with the impugned orders and
::: Downloaded on - 15/07/2023 20:36:03 :::CIS
4
hence, the special leave petitions are
dismissed.
Pending application(s), if any, shall
stand disposed of."
.
7. Petitioner Balbir Singh had also assailed the
validity of Clause 7 (iv) of the Policy as also his
rejection by way of CWP No.4169 of 2022 before this
Court. His contention was also rejected by this Court
vide judgment dated 29.06.2022.
8. Inr both the above noted cases, the
amendment made in the definition of term "family" in
the Policy vide Clause 7 (iv), was upheld.
9. The petitioners have sought the review of
above noted judgments passed in CWP No. 4139 of
2022 and CWP No. 4169 of 2022 on the grounds that
the restrictive meaning given to the term "family" in
the Policy is arbitrary and discriminatory. It is
submitted that the definition of "family" in the
Himachal Pradesh Panchayati Raj Act, 1994 and the
H. P. Tenancy and Land Reforms Act, 1972, which
provides expansive meaning to the term "family" has
not been considered. It is also submitted that in the
::: Downloaded on - 15/07/2023 20:36:03 :::CIS
5
same policy, the definition of "family", for the persons
living in extreme indigent condition is different with
larger connotation, therefore, the term "family" for the
.
purposes of Clause 7 (iv) of the Policy, cannot also be
given a restrictive meaning. Reliance has also been
placed on the judgment dated 06.03.2020 passed by a
co-ordinate Bench of this Court in LPA No. 40 of 2019,
titled Sudama Nand vs. State of H.P. and others,
wherein, according to petitioners, the extended scope
of term "family" was considered by placing reliance on
the judgment passed by Hon'ble Supreme Court in
K.V. Muthu vs. Angamuthu Ammal, reported in
(1997) 2 SCC 53.
10. In order to justify the maintainability of the
review petition after dismissal of SLP(Civil) No. 33066
of 2022 in the case of petitioner Surender Singh,
learned counsel for the petitioner(s) has placed reliance
on the judgment passed by the Hon'ble Supreme Court
in the case of Civil Appeal No. 2432 of 2019 (arising
out of SLP (C) No. 490 of 2012), titled Khoday
::: Downloaded on - 15/07/2023 20:36:03 :::CIS
6
Distilleries Ltd. vs. Sri Mahadeshwara Sahakara
Sakkare Karkhane Ltd., decided on 01.03.2019.
11. To maintain a review petition, one has to
.
satisfy the requirements of Section 114 and Order 47
Rule 1 of the Code of Civil Procedure, which reads as
under:
"114. Review. - Subject as aforesaid, any
person considering himself aggrieved -
(a) by a decree or order from which an
r appeal is allowed by this Code, but
from which no appeal has been
preferred.
(b) by a decree or order from which no
appeal is allowed by this Code, or
(c) by a decision on a reference from a
Court of Small Causes,
may apply for a review of judgment to the
Court which passed the decree or made the
order, and the Court may make such order
thereon as it thinks fit."
"Order XLVII Rule 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.
::: Downloaded on - 15/07/2023 20:36:03 :::CIS
7
(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
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 of
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 applied for the review.
Explanation.- The fact that the decision
on a question of law on which the
::: Downloaded on - 15/07/2023 20:36:03 :::CIS
8
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."
12. Thus, after having availed the remedy of
filing Special Leave to Appeal before the Hon'ble
Supreme Court and rejection thereof, the review
petition on behalf of petitioner Surender Singh will not
be maintainable. The judgment in Khoday Distilleries
Ltd. (supra), will not be helpful to petitioner Surender
Singh for the reasons that it was passed in its peculiar
facts where the review petition had been filed on the
ground of suppression of material facts and
commission of fraud on the Court. However, keeping
the technicalities apart, the review petition of
petitioner Surender Singh is also being considered on
merits alongwith the review petition filed by petitioner
Balbir Singh, who had not availed the remedy of filing
Special Leave to Appeal before the Hon'ble Supreme
Court.
::: Downloaded on - 15/07/2023 20:36:03 :::CIS
9
13. The scope of review of judgment is quite
restrictive. It definitely cannot extend to grounds on
which an appeal can be preferred. The scope of
.
interference is only if any error on the face of record is
found to exist or some new and important material
becomes available which despite due diligence could
not be produced. This Court in exercise of jurisdiction
under Article 226 of the Constitution, can also review
its decisions on any other sufficient grounds. The
scope of interference by way of review of judgment has
been explained as under:
In State of Rajasthan v. Surendra Mohnot,
(2014) 14 SCC 77, it was held as under:
22. In Aribam Tuleshwar Sharma v. Aribam
Pishak Sharma (1979) 4 SCC 389, the two-Judge
Bench speaking through Chinnappa Reddy, J.
observed thus: (SCC p. 390, para 3) "3. ... It is true as observed by this Court in Shivdeo Singh v. State of Punjab AIR 1963 SC 1909, there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent ::: Downloaded on - 15/07/2023 20:36:03 :::CIS 10 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 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; 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 the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate court."
23. In Thungabhadra Industries Ltd. vs. State of A.P. AIR 1964 SC 1372, while dealing with the concept of review, the Court opined thus:
"11. ... A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this ::: Downloaded on - 15/07/2023 20:36:03 :::CIS 11 difference exhaustively or in any great detail, but it would suffice for us to say that 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."
24. In Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi (1980) 2 SCC 167, R.S. Pathak, J. (as His Lordship then was) while speaking about jurisdiction of review observed that:
"8. ... it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except 'where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility'."
25. To appreciate what constitutes an error apparent on the face of the record, the observations of the Court in Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale AIR 1960 SC 137 are useful:
::: Downloaded on - 15/07/2023 20:36:03 :::CIS 12"An error which has to be 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. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ."
In Inderchand Jain v. Motilal, (2009) 14 SCC 663, the Hon'ble Supreme Court held as under:
10. It is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A rehearing of the matter is impermissible in law. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order.
11. Review is not appeal in disguise. In Lily Thomas v. Union of India (2000) 6 SCC 224 this Court held:
"56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be ::: Downloaded on - 15/07/2023 20:36:03 :::CIS 13 exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise."
.
Our opinion, the principles of law enumerated by it, in the facts of this case, have wrongly been applied. In Parsion Devi v. Sumitri Devi, (1997) 8 SCC 715, Hon'ble Supreme has held as under
"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".::: Downloaded on - 15/07/2023 20:36:03 :::CIS 14
14. Exercise of power of review, as propounded by the Apex Court and various other High Courts may thus be summarised as hereunder:
.
(i) Review proceedings are not by way of appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.
(ii) Power of review may be exercised when some mistake or error apparent on the fact of record is found. But error on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.
(iii) Power of review may not be exercised on the ground that the decision was erroneous on merits.
(iv) Power of review can also be exercised for any sufficient reason which is wide enough to include a misconception of fact or law by a court or even an advocate.
(v) An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit."
15. In the cases in hand, all the relevant questions had already been considered and decided.
::: Downloaded on - 15/07/2023 20:36:03 :::CIS 15The fact of the matter is that the Clause 7 (iv) of the Policy was challenged in more than one petitions including those filed by the petitioners herein. The .
grounds as were raised in respective petitions were decided. The ground relating to equation with definition of "family" in the Himachal Pradesh Panchayati Raj Act was also considered while deciding CWP No. 4197 of 2022, titled Smt. Khimi Devi vs. State of H.P. and others, decided on 30.06.2022. In such view of the matter, there is no reason to examine the question in light of identical or akin definition of "family" provided in the Himachal Pradesh Tenancy and Land Reforms Act, 1972.
16. The contention of petitioner(s) in the light of judgment passed by a Division Bench of this Court in LPA No. 40 of 2019, titled Sudama Nand vs. State of H.P. and others, is clearly misplaced as the term "family" in that case was considered in the context of a totally different scheme known as "Part Time Water Carrier Scheme". Similarly, the reliance on K.V. Muthu (supra) is baseless for the reasons that in the said ::: Downloaded on - 15/07/2023 20:36:03 :::CIS 16 judgment also the Hon'ble Supreme Court had clearly spelt out that the word "family" is of great flexibility and is capable of different meanings in different .
contexts.
17. It is also more than settled that the review will not be permissible in the situation where the process of re-thinking is involved. The petitioner(s), therefore, cannot have any possible right to assail the judgments passed by this Court on merits under the garb of filing the instant petitions.
18. In result, no ground of review is made out, hence, the petitions are dismissed.
(Tarlok Singh Chauhan) Judge 14th July, 2023.
(Satyen Vaidya)
(GR) Judge
::: Downloaded on - 15/07/2023 20:36:03 :::CIS