C/M Sri Baba Mohan Das Laghu ... vs State Of U.P. Thru Secy.Basic Edu. ...
2023 Latest Caselaw 1850 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
(Review Application No.30 of 2020)
 
In Re:-
 
Case :- WRIT - A No. - 17758 of 2019
 
Petitioner :- C/M Sri Baba Mohan Das Laghu Madhyamik Vidyalaya Hathiyagarh
 
Respondent :- State Of U.P. Thru Secy.Basic Edu. Lucknow And Ors.
 
Counsel for Petitioner :- Dinesh Kumar Mishra
 
Counsel for Respondent :- C.S.C.,Ajay Kumar
 

 
Hon'ble Rajesh Singh Chauhan,J.

1. Heard Sri Ran Vijay Singh, learned counsel for the review petitioner/ Additional Chief Standing Counsel for the State and Sri H.G.S. Parihar, learned Senior Advocate assisted by Sri Dinesh Kumar Mishra, learned counsel for the respondents/ writ petitioner.

2. By means of the present review application, the applicant/ review petitioner has sought the review of order dated 01.07.2019 passed by me (Justice Rajesh Singh Chauhan) in Writ Petition No.17758 (S/S) of 2019 (Committee of Management, Sri Baba Mohan Das Laghu Madhyamik Vidyalaya, Hathiyagarh, Patarihawa, Maharajganj through its Manager Sri Moti Chandra Jaiswal vs. State of U.P. & others). For convenience, the order dated 01.07.2019 is being reproduced here-in-below.

"Heard Shri D.K. Mishra, learned counsel for the petitioner and Sri Ran Vijay Singh, learned Addl. Chief Standing Counsel for the State-respondents as well as Sri Ajay Kumar, learned counsel for opposite party no.4.

Learned Addl. Chief Standing Counsel has submitted that the impugned order dated 8.1.2019 (Annexure No.8 to the writ petition) has been passed in view of the provision of Rule 3 of the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules, 1978, (for short "the Rules, 1978") which categorically mandates that in the matter of appointment it shall be the responsibility of the Management to fill a vacancy in the post of Headmaster or Assistant Teacher, as the case may be, of a recognised school by 31st July every year. He has further submitted that Rule 8 of the aforesaid Rules, 1978 prescribes the age limit and as per the aforesaid Rule, the minimum age shall, on the first day of July of the academic year following next after the year in which the advertisement of the vacancy is made under Rule 7, be - (i) in relation to the post of Assistant Teacher, 21 years and (ii) in relation to the post of Headmaster, 30 years.

The authority concerned has passed the order on the basis of the aforesaid provision of law treating the vacancy in question for the year 2019 and therefore, it has been decided that the advertisement in question is erroneous as the names of the persons sent for appointment are under age. However, the vacancy in question was for the year 2018 and therefore, in the light of the aforesaid Rules, the advertisement has properly been issued.

Learned Addl. Chief Standing Counsel has also submitted that considering the vacancy position and the year thereof and also the provisions of law as per Rule 8 of the Rules, 1978, the advertisement in question may be acted upon.

Accordingly, the writ petition is disposed of finally directing the Director, Basic Education, Lucknow to ensure the compliance of own order/ direction dated 27.3.2018, which is contained in Annexure No.2 to the writ petition, whereby the District Basic Education Officer was directed for filling up four posts of Assistant Teacher in the institution in question, which were lying vacant under the minimum standard. Accordingly, opposite parties no.3 and 4 are directed to make appointment of four Assistant Teachers in pursuance of the aforesaid order dated 27.3.2018 passed by the Director, Basic Education, Lucknow ignoring the order dated 8.1.2019 passed by the District Basic Education Officer, Maharajganj.

The aforesaid direction shall be complied with by opposite parties no.3 & 4 within a period of four weeks from the date of production of certified copy of this order. "

3. The following grounds have been taken seeking review of the aforesaid order, which reads as under:-

(A) Because, during the course of arguments when the validity of the order impugned dated 08.01.2019 was being discussed it appears that it was not pointed out that the educational qualification mentioned in the advertisement was not in consonance with the provisions of the Rule 4 of the Rules, 1978, which provides for minimum qualification for being eligible to apply for the post of Assistant Teacher and thus the advertisement was per se illegal as it was contrary to the provisions of the Rules and many such participants who otherwise could have been eligible as per the Rules would not have applied on the basis of advertisement.

(B) Because, the Hon'ble Court could not be persuaded regarding the major infirmity in the advertisement in which during course of advertising the four posts, the reservation applied on the said post has been bifurcated subject wise, though, as per the provisions of law it is not permissible to advertise the posts o the basis of subjects, rather, it shall be done only on the basis of required percentage of reservation post-wise.

(C) Because, though the scope of review as provided under Rule-XLVII of the C.P.C. is very limited, but the Hon'ble Court can entertain the review petition, if the judgment pronounced is final and departure from the principle is not drawn to a material statutory provision during the original hearing and with due regard to the Hon'ble Court, it is respectfully submitted that it appears that it could not be persuaded to the Hon'ble Court during the course of argument regarding the infirmities in the advertisement in respect of the education qualification and the bifurcation of the posts applying the reservation policy.

(D) Because, since the opportunity of filing response could not come and the matter was finally heard, it appears that the Hon'ble Court could not be persuaded regarding the major infirmities in the advertisement and thus though the advertisement was cancelled, but entire aspect of the same could not be brought to the kind notice of this Hon'ble Court and due to some reasons it also does not find mention in the order impugned.

(E) Because, as per Section 23 of the Right to Education Act, qualifications for appointment and terms and conditions of service of teachers has been prescribed as per the provisions of the Notification dated 31.03.2010 & 28.03.2010, minimum qualification for appointment on the post of Teachers has been duly prescribed for Classes-I to V as well as for the Classes VI to VIII and the issue in respect of grant of powers with the NCTE to prescribe the Rules as per Section 12 of the NCTE Act has been validated by the Hon'ble Supreme Court in the case of State of U.P. vs. Shiv Kumar Pathak reported in 2012 (12) SCC 595.

(F) Because, the advertisement issued should always be in consonance with the provisions of law and as per the observations made by the Hon'ble Supreme Court in the case of State of Rajasthan vs. Lata Arun reported in 2002 (6) SCC 252, what is not provided under the Rules cannot be allowed to be given.

4. Sri H.G.S. Parihar, learned Senior Advocate assisted by Sri D.K. Mishra, learned counsel for the opposite party/ writ petitioner has raised an objection regarding maintainability of the review application by submitting that neither the question regarding the reservation nor of educational qualification was raised by the Assistant Director of Education, Basic or the District Basic Education Officer in the order impugned in the writ petition. No such points were raised or argued by the counsel for the State Government before the Hon'ble High Court and, as such, the present review application is not maintainable.

5. He has also stated that since in the impugned order the education authorities had not taken ground for the cancellation of advertisement that in advertisement there was any flaw in description of reservation or training qualification, therefore, in view of the order of Hon'ble Supreme Court rendered in Mohinder Singh Gill vs. The Chief Election Commissioner, New Delhi and others (1978) 1 SCC 405, para-8. It cannot be substituted by counter affidavit or argument, as such, even the grounds which are not available in the writ petition, is not available at all in he review application and, as such, the review application is not maintainable.

6. Sri Parihar has further submitted that there is nothing to indicate that there is any error apparent on the record in the judgment of the Hon'ble High Court in the review application and, as such, the review application is not maintainable. The arguments which were not raised before the writ court, cannot be raised for the first time in review application/ Intra Court Appeal, as such, the arguments made in the review application regarding reservation and training qualification cannot be raised in review petition and as such also the review application is liable to be dismissed.

7. Sri Parihar has also submitted that since 4 posts of Assistant Teacher are available and advertisement issued by the Institution is as per reservation rules as 1 post was to be reserved for OBC candidate and as such, there is no illegality in the advertisement. So far as training qualification of the candidate like B.T.C., E.Ed., C.T., J.T.C., H.T.C. and the Teachers Eligibility Test for Junior High School are concerned, the same was mentioned in the advertisement as has been mentioned by the District Basis Education Officer in the letter of permission and which was training qualification mentioned in the service rules.

8. Sri Parihar has further submitted that no candidate had raised any objection against the advertisement before any of the forum alleging that he/ she could not apply for not mentioning of other training qualifications in the advertisement or any ineligible candidate applied or could have applied against the advertisement in question, as such, at such a belated stage, the objection cannot be raised by the State Government and as such also the review application is not maintainable.

9. Having heard learned counsel for the parties and having perused the material available on the record, what I find is that the aforesaid writ petition was disposed of finally at the admission stage giving liberty to the review application/ State-respondents to make an appointment of 04 Assistant Teachers in pursuance to order dated 27.03.2018 passed by the Director, Basic Education, Lucknow ignoring the order dated 08.01.2019 passed by the District Basic Education Officer, Maharajganj.

10. So far as the order of cancellation of the advertisement vide order dated 08.01.2019 is concerned, the impugned in the writ petition, the same was relating to the determination of the minimum age which has been clarified under Rule 8 of the Uttar Pradesh Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules, 1978 (here-in-after referred to as the "Rules, 1978") and such ground was permitted to be considered vide order dated 01.07.2019. Further, the order dated 27.03.2018 itself provides that the selection in question shall be conducted strictly in accordance with law. Even otherwise, no one can say to complete any selection or to do any needful exercise ignoring the relevant provisions of law. Therefore, such direction need not be issued for the satisfaction of the applicant.

11. The Division Bench of this Court in Review Application No.96775 of 2019 relating to Writ Petition No.8650 (MB) of 2008 (Ram Das S/o Lakshmandas vs. State of U.P. & others) vide judgment and order dated 12.02.2020 has observed as under:-

"23. Further, an application for review cannot be treated to be an opportunity to argue the case on merits afresh. In the garb of a review application reargument on merits of the case cannot be allowed.

24. In Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh AIR 1964 SC 1372 the Court said:

"A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error."

25. In Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma 1979 (4) SCC 389 the Court said:

"... 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 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."

26. Again, in Meera Bhanja v. Nirmala Kumari Choudhury AIR 1995 SC 455 while quoting with approval the above passage from Abhiram Taleshwar Sharma Vs. Abhiram Pishak Shartn (supra), the Court once again held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.

27. In Parsion Devi and others Vs. Sumitri Devi and others 1997 (8) SCC 715 it was held that an error, which is not self evident and has to be detected by process of reasoning, can hardly be said to be error apparent on the face of the record justifying the court to exercise powers of review in exercise of review jurisdiction.

28. In Rajendra Kumar Vs. Rambai, AIR 2003 SC 2095, the Apex Court has observed about limited scope of judicial intervention at the time of review of the judgment and said:

"The limitations on exercise of the power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgement/order cannot be disturbed."

29. Thus, Review is not an appeal in disguise. Rehearing of the matter is impermissible in the garb of review. It is an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. In Lily Thomas Vs. Union of India AIR 2000 SC 1650, the Court said that power of review can be exercised for correction of a mistake and not to substitute a new. Such powers can be exercised within limits of the statute dealing with the exercise of power. The aforesaid view is reiterated in Inderchand Jain Vs. Motilal (2009) 4 SCC 665.

30. In Kamlesh Verma Vs. Mayawati and others 2013 (8) SCC 320, the Court said:

"19. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 of CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction.

Summary of the Principles:

20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:

20.1. When the review will be maintainable:-

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason.

The words "any other sufficient reason" has been interpreted in Chhajju Ram vs. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius & Ors., AIR 1954 SC 526, to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India vs. Sandur Manganese & Iron Ores Ltd. & Ors., 2013 (8) SCC 337.

22.2. When the review will not be maintainable:-

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

(ii) Minor mistakes of inconsequential import.

(iii) Review proceedings cannot be equated with the original hearing of the case.

(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.

(vi) The mere possibility of two views on the subject cannot be a ground for review.

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."

(emphasis supplied)"

12. Sri Ran Vijay Singh, learned Additional Chief Standing Counsel for the review applicant/ State-respondents has stated that the correct position of law could not be cited on the first date of admission as the writ petition was decided on the first date, however, those facts were well within the knowledge of the review applicant but could not be produced properly. He has further submitted that if any selection is made dehors the rules, such selection may not sustain in the eyes of law. Therefore, review applicant/ State-respondents may be permitted to complete the selection process by following due process of law.

13. This is a trite law that if the selection process or any needful exercise, which is to be carried on by the State or its instrumentality or by any person, the same shall be carried out and concluded strictly in accordance with law which is applicable at a particular point of time in its letter and spirit. Therefore, there is no need to grant such liberty to the review applicant/ State-respondents as they are duty bound to complete the selection process strictly in accordance with law.

14. Law is trite that the review is not maintainable unless a material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. Further, a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for apparent error.

15. Lastly, the error apparent on the face of record should not be an error which has to be searched and fixed out.

16. In view of what has been considered above including the case laws, the review application is rejected.

Order Date :- 18.01.2023            [Rajesh Singh Chauhan,J.]
 
Suresh/