Allahabad High Court
Sanjay Shankar Pandey vs State Of U.P. And 6 Others on 25 September, 2023
Bench: Siddharth, Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2023:AHC:188023-DB
Reserved on 11.08.2023
Delivered on 25.09.2023
Court No. - 64
Case :- CIVIL MISC REVIEW APPLICATION No. - 340 of 2023
Applicant :- Sanjay Shankar Pandey
Opposite Party :- State Of U.P. And 6 Others
Counsel for Applicant :- Vibhu Rai,Abhinav Gaur,Sr. Advocate
Counsel for Opposite Party :- C.S.C.,Ashish Mishra
Hon'ble Siddharth,J.
Hon'ble Ajit Kumar,J.
(Delivered by Hon'ble Ajit Kumar, J.)
1. The petitioner-applicant has filed this review application in respect of judgment and order of this Court dated 20.09.2022 dismissing the writ petition on merits.
2. In the writ petition, the claim set up by the petitioner, the then member of Higher Judicial Service (H.J.S.), was that one Ravindra Nath Yadav, senior to him, though was appointed by promotion in the H.J.S. Cadre under the order issued by the Governor on 11th August, 2008, published in official gazette on 11.04.2009, but was never appointed as such by giving him charge of the post in the cadre and, therefore, petitioner-applicant being the next man in seniority, deserved promotion in his place and so consequential benefits in seniority in the said cadre.
3. The above plea was turned down by this Court on the ground that "the notification of appointment of Sri Yadav was not cancelled, recalled or varied by the appointing authority". The petition stood dismissed on 20th September, 2022 against which special leave petition was preferred by the petitioner being Special Leave to Appeal (C) No.18952 of 2022 on 14.11.2022. Now this review application is filed on various grounds but basically following two grounds were pressed:
(i) The request letter of the Registrar General dated 26th February, 2021 sent to the Additional Chief Secretary, Department of Appointment and Personnel, Government of UP, Lucknow and the communication letter sent by the Special Secretary, Government of U.P., Lucknow dated 24th September, 2021, though were in possession of the High Court but were not produced before the Court and had these documents been produced, they would have certainly affected the final conclusion drawn by the Court in its judgment; and
(ii) The State Government having issued finally an order dated 08.06.2023 cancelling the appointment by promotion of Ravindra Nath Yadav in supersession to the letter dated 24.09.2021, it will relate back to the date of initial appointment and promotion and thereby petitioner would get an opportunity to be placed in the seniority list.
4. In respect of the first ground, learned Senior Advocate, Mr. Anoop Trivedi submitted that the Registrar General in fact had made request to the State Government to cancel the appointment of Sri Ravindra Nath Yadav. It is indicated in his letter dated 26.02.2021 "as desired by the High Court" and so the only inference could have been drawn that Sri Ravindra Nath Yadav was never given formal appointment after appointment order was issued on 11.08.2008 and the consequential communication dated 24.09.2021 by Special Secretary, Government of UP, clearly disclosed that the post in question would be taken to have fallen vacant on 01.03.2013.
5. Stressing upon the above argument, learned Senior Advocate has drawn the attention of the Court to the notified chart of vacancies in the H.J.S. cadre for the period 21.12.2011 to 31.12.2012, 01.01.2013 to 31.12.2013 and 1.1.2014 to 21.2.2014, to demonstrate that there existed no such vacancy, otherwise a vacancy so falling vacant on 01.03.2013, would have been shown with remarks as such. It is, therefore, argued that if appointment of Ravindra Nath yadav is taken to have been cancelled since the very inception as he was never given joining and was ultimately made to retire compulsorily on 01.03.2013, petitioner ought to have been adjusted against the said vacancy itself as he was next in line of seniority and so consequential seniority in HJS Cadre. The post was claimed to have remained vacant until the order was passed on 24.09.2021.
6. In respect of the second ground, learned Senior Advocate argued that the the State Government having issued another order on 08.06.2023, formally cancelling the promotion and appointment of Rvaindra Nath Yadav, whose promotion was formally being cancelled in supersession to the earlier letter dated 24.09.2021, the petitioner would get an opportunity to be placed in seniority accordingly for the same reason as argued in respect of the first ground. Vacancy was thus claimed to have been made to exist in 2023 first time.
7. Sri Ashish Mishra, learned Advocate appearing on behalf of respondent Nos.2 & 3 has submitted that the petitioner having already challenged the judgment of this Court unsuccessfully in a Special Leave to Appeal (C) No.18952 of 2022, cannot reopen the controversy by way of review even though he had the opportunity to raise all these grounds in SLP as these two documents which he was relying upon, dated 26.02.2021 and 24.09.2021, were well within his knowledge and as per his own admission were raised/pleaded previously during hearing.
8. Sri Mishra has further argued that two documents would not have changed the situation in favour of the petitioner either. It is submitted that there was no cancellation order of appointment order dated 11.08.2008 formally passed on behalf of the Governor and, therefore, in absence of any such cancellation, petitioner could not have been offered promotion from that date, nor could have been placed in seniority accordingly. He argued that the Court had considered every aspect of the matter in its judgment in so far as the claim of the petitioner was concerned and rejected the same. He submitted that there was no error apparent on the face of record even if the contents of two letters were to be taken into account and, therefore, no good ground was made out for review.
9. In so far as the vacancy issue is concerned, learned counsel appearing for the respondent, Sri Mishra has argued that this was neither pleaded in the writ petition, nor any ground was raised, therefore this argument was not to be raised by way of review application.
10. Shri Mishra has further placed the resolution of HJS Recruitment and Promotion Committee dated 12.04.2016 which showed the vacancy caused by compulsory retirement of Sri Ravindra Nath Yadav on 01.03.2013. No doubt, Sri Yadav though was promoted in HJS cadre but as a matter of fact was never given appointment by joining. The vacancy was notified for the first time in the recruitment year 2016-17 in the category of 'unforeseen vacancies'. This resolution of the committee and consequential notification of vacancy was never challenged. The vacancy was thus filled up and now the clock cannot be put back today.
11. In reply to the second argument, Sri Mishra has argued that the order having been passed on 08.06.2023 cancelling the appointment order dated 11.08.2008 would not benefit the petitioner/applicant as the above fact situation qua vacancy would not get altered. The vacancy caused on 01.03.2013 was notified first time in 2016 and recruitment has already been held. Thus, the earlier order passed by the State government was a mere acknowledgement of a legal position as naturally with the retirement of Shri Yadav on 01.03.2013 vacancy arose but was identified and notified as such in the year 2016 only. And so now a formal order of cancellation of vacancy was of no help to the petitioner who has already attained the age of superannuation and he is no more member of the service. He does not have stake in the matter of seniority now, at this stage, when he is not member of service.
12. Sri Mishra has further argued that this above order has been passed by the State Government on an application made by the petitioner himself that some formal order be passed and this is how the State Government has issued an order in supersession to the earlier order dated 24.09.2021. He, therefore, submitted that it was an effort to create evidence to seek review which was not equitable while litigating the matter under Article 226 of the Constitution.
13. Having heard learned counsel appearing for the respective parties, having perused the records, this Court finds that the only issue to be considered as to whether a case for review of judgment of this Court dated 20.09.2022 is made out or not.
14. However, before this Court proceeds to examine the grounds raised and test them on the issue of maintainability of review petition, this Court finds it pertinent to mention here and take judicial notice of the fact that petitioner has already attained age of superannuation on 30.06.2023 and is no more member of service. He has retired as a District Judge, Judgeship of Lucknow, the highest post in H.J.S. Cadre.
15. Coming to the first argument as advanced by the learned Senior Counsel appearing for the review applicant, this Court is of the considered view that request letter dated 26.02.2021 demanded a formal order from the State Government cancelling the appointment of Ravindra Nath Yadav made on 11.08.2008. The consequential communication dated 24.09.2021 by the State Government shows that the appointment order dated 11.08.2008 got rendered otiose as no resultant action to give joining to Ravindra Nath Yadav had taken place and that Ravindra Nath Yadav had been compulsorily retired on 01.03.2013. Thus, it is clear that in respect of the vacancy of the relevant year upon which Ravindra Nath Yadav was appointed by promotion on 11.08.2008, did not fall vacant 01.03.2013. The State Government chose not to pass formal order only on the ground that Ravindra Nath Yadav had been made to compulsorily retire and so the resultant vacancy on 01.03.2013.
16. Vacancies notified in the recruitment year 2014 could not have included the vacancy of Ravindra Nath Yadav in HJS cadre for the year 2012-13 for the simple reason that there was no resolution/order of the H.J.S. Committee to identify the vacancy and make notification thereof, inasmuch as, in the matter of seniority, the HJS Committee adopted a resolution on 12.04.2016 for the supplementary report holding that the vacancy caused by Ravindra Nath Yadav due to compulsory retirement would now be taken up in the next recruitment year. So until 1st March, 2013 when Ravindra Nath Yadav retired compulsorily, there was no cancellation of appointment in HJS cadre dated 11.08.2008, nor was there any resolution as to the existence of the vacancy. Interestingly, the order of State Government dated 24.09.2021 does require vacancy as out of retirement of Shri Yadav only on 01.03.2013. Hence, there could have been no vacancy prior to 1st March, 2013, and it is rightly argued that now clock could not be put back to treat the vacancy as available in the year 2008 to accommodate the petitioner and give him notional promotion and seniority accordingly. The resolution of the HJS Committee came to be approved by the full court on 14.04.2016. This vacancy is accordingly shown in the recruitment year 2016 to have caused between 4th February, 2014 to 31.12.2015 in the category of 'unforeseen vacancies'.
17. Thus, this Court does not find any force in the argument of learned Senior Advocate appearing for the review applicant to find any error apparent on the face of judgment of this Court in not treating the vacancy available to accommodate the petitioner to give him notional promotion and consequential seniority.
18. Sri Mishra, learned Advocate had rightly put it that vacancy in question having been identified to be notified by the HJS committee for the recruitment year 2016 vide its resolution dated 12.04.2016 approving revised report dated 11.04.2016 and approval thereof by Full Court on 14.04.2016, has never been questioned by the petitioner and the said vacancy having been notified and filled up, the altered situation now cannot be re-altered. The report qua notification of number of vacancies for the recruitment of UP H.J.S., 2016 included the vacancy of Ravindra Nath Yadav with remarks:
Sl.
Cause of vacancy
Date of vacancy
Date of recruitment
Date of Govt. appointment u/r 22(1)
1.
Comp. Retirement of Sri Ravindra Nath Yadav*
01.03.2013
11.08.2008
2.
Death of Sri Ram Raj
26.08.2014
31.08.2017
11.08.2008
3.
Elevation to bench of Sri Mukhtar Ahmad
18.02.2015
31.10.2016
05.12.1998
4.
Elevation to bench of Sri Amar Singh Chauhan
18.02.2015
30.06.2016
05.12.1998
5.
Elevation to bench of Sri Vinod Kumar Mishra
18.02.2015
31.01.2016
03.02.1999
6.
Elevation to bench of Sri Raghvendra Kumar
18.02.2015
31.03.2016
03.02.1999
7.
Elevation to bench of Sri Pratyush Kumar
18.02.2015
31.01.2016
03.02.1999
8.
Voluntary Retirement of Sri Raghavendra Prasad (Pandey)
28.04.2015
30.04.2017
11.08.2008
9.
Voluntary Retirement of Sri Deepak Raj
29.04.2015
30.11.2016
11.08.2008
10.
Cancellation of appointment of Sri Nalin Kumar Pandey
15.06.2015
30.11.2034
05.08.2013
11.
Cancellation of appointment of Smt. Yogeeta Chandra
15.06.2015
30.04.2033
05.08.2013
12.
Death of Sri Kulvinder Singh Jaggi
15.09.2015
31.01.2025
08.06.2005
13.
Resignation of Sri Mohd. Farrukh
05.12.2015
31.08.2035
26.06.2015
14.
Death of Sri Israr Ahmad
25.12.2015
31.10.2017
11.08.2008
15.
Recommendation for cancellation of appoitment of Sri Nirvikar Singh Bhaduaria of UPHJS 2014
30.09.2015
26.06.2015
Note: *The vacancy of Sri Ravindra Nath Yadav has not been taken into consideration in any of the subsequent recruitment of UPHJS in view of the fact that Court's notification was never issued for Sri Ravindra Nath Yadav appointing him under Rule 22(1) of UPHJS Rules, 1975 and even, at the time of his compulsory retirement on 01.03.2013, he was working under Rule 22(3) of UPHJS. Therefore, it would be proper that his vacancy may be taken into account w.e.f. 01.03.2013 as unforeseen."
19. In view of the above, therefore, findings returned in the judgment dated 20.09.2022 that the notification of appointment of Sri Yadav was neither cancelled, nor recalled, nor varied by the appointing authority did not suffer from any manifest error of law or fact so as to render it as an error apparent on the face of record for having not noticed or referred to the two documents dated 26.02.2021 and 24.09.2021. Defining the principle of 'error apparent on the face of record', in the case of S. Madhusudhan Reddy vs. Narayana Reddy & ors; 2022 SCC OnLine SC 1034, Supreme Court referred to its earlier judgment in the case of Parsion Devi vs. Sumitri Devi; 1997 8 SCC 715 vide paragraph 20 that runs as under:
"20. In Parsion Devi v. Sumitri Devi, stating that an error that is not self-evident and the one thathas to be detected by the process of reasoning, cannot be described as an error apparent on the face of the record for the Court to exercise the powers of review, this Court held as under:
7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt of A.P. this Court opined:
11. What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an 'error apparent on the face of the record'. The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an 'error apparent on the face of the record', for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.'"
20. As this Court has discussed above the supplementary report dated 11.04.2016 that had shown vacancy of Sri Yadav as on 01.03.2013 as unforeseen vacancy to be notified for the recruitment year 2016 and this report had the approval of HJS promotion and appointment committee whether under its resolution dated 12.04.2016 affirmed and approved by Full Court on 14.04.2016 couple with the fact that selection and appointment already made against the vacancy, in the absence of challenge to said selection, the two documents would not change the situation either. This view of non existence of vacancy is sought to be argued as erroneous. On the principle of the above judgement, this Court may observe that knowing the fact and not finding it to be relevant enough to record in the order may render a decision to be erroneous but not error apparent so as to compel us to review our earlier decision. Understanding of fact, appreciation of document and resultant findings may call for an interference in appeal for the view being erroneous but would certainly not render a judgment reviewable by the same Court.
21. Relating to the scope of power of review of High Court in respect of its judgment under Article 226 of the Constitution, Supreme Court has very clearly held that a decision taken by the Court in its plenary jurisdiction would not become a subject matter of review on the ground that the decision is erroneous on merits as it would be the province of the Court of appeal only. Vide paragraph 7.1, in the case of Shri Ram Sahu (Dead) Thru. & ors vs. Vinod Kumar Rawat & ors; 2021 13 SCC 1, the Apex Court has observed thus:
"7.1. ....................
16. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR 1979 SC 1047, this Court held that there are definite limits to the exercise of power of review. In that case, an application under Order 47 Rule 1 read with Section 151 of the Code was filed which was allowed and the order passed by the Judicial Commissioner was set aside and the writ petition was dismissed. On an appeal to this Court it was held as under:
"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 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."
22. In view of the above facts and circumstances, therefore, again vacancy or no vacancy in the relevant year, the notification of vacancy for the years 21.12.2011 to 31.12.2012, 01.01.2013 to 31.12.2013 and 1.1.2014 to 21.2.2014 do not count for any relevance for the determination of issue in question already determined by the Court in its judgment.
23. Still further, this Court may notice that these two letters were available with the petitioners when he filed SLP and had annexed written argument in SLP (vide Annexure- 'P') that contained recitals about these two letters and yet the Supreme Court refused to entertain special leave petition under Article 136 of the Constitution and dismissed the same. This Court may also observe here that approval of revised report by HJS Appointment & Promotion committee and approval thereof by the Full Court and notification of vacancy as 'unforeseen vacancies' were also filed with the SLP before the Supreme Court but this Court does not see any challenge ever made to them, neither before this Court, nor before Supreme Court.
24. Coming to the second argument, the order of cancellation of appointment of Ravindra Nath Yadav dated 11.08.2008 by the State Government vide its order dated 08.06.2023 in supersession to the order dated 24.09.2021 earlier issued by it, this Court does not see it be of any aid to the petitioner to get judgment of this Court reviewed.
25. This Court is not going into the question as to how the petitioner pursued the State Government to pass such an order but any cancellation of the earlier order of appointment of Ravindra Nath Yadav would now not help out the petitioner to gain any advantage today in the matter of seniority when on the relevant date as to the claim of petitioner, vacancy was not at all in existence and he has now stood superannuated.
26. Furthermore, this Court finds that the order having been passed on 08.06.2023, would still be not a good ground for review of judgment of this Court as on the date of judgment there was no cancellation of the appointment order darted 11.08.2008 and the judgment was passed on the material available on record. While subsequent development may be a case made out to review a judgment but that would depend upon the facts of each case.
27. What this Court finds in this review application that entire approach of the petitioner has been to make an attempt for hearing of the matter again on merits. The basic issues that have been decided by this Court in its judgment which is sought to be reviewed, are sought to be raised again with the plea that, had the two documents been placed, it would have changed the conclusion drawn by the Court. This Court is neither impressed by these documents, nor we find any such cogent material to have surfaced out which would be changing the ultimate conclusion already reached by this Court as to the existence of vacancy so as to accommodate the petitioner.
28. We cannot do re-hearing of the matter as it lies clearly outside the scope of review and we see that this attempt has consumed immensely valuable time of Court. In the case of T.N. Electricity Board and anr. vs. N. Raju Reddiar & anr.; AIR 1997 SC 1005, the Supreme Court has observed that "it is salutary to note that Court spends valuable time in deciding a case. Review petition is not, and should not be, an attempt for hearing the matter again on merits."
29. This Court is also reminded of a very celebrated judgment of Privy Council in Rajah Kotagiri Venkata Subbamma Rao v. Rajah Vellanki Venkatrama Rao; (1899-1900) 27 IA 197 where it was observed that "the ground of amendment must at any rate be something which existed at the date of the decree, and the section does not authorise the review of a decree which was right when it was made on the ground of the happening of some subsequent event."
30. This Court may further observe that the principles that are outlined by the Supreme Court to govern the scope of review in the matter of Union of India vs Sandur Maganese & Iron Ores Ltd. & ors.; 2013 (8) SCC 337 and the factual and legal pleas taken in this review application do not stand exception to the principles laid down vide paragraph 22.2 of the judgement (supra) that runs as under:
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."
31. Testing the review petition upon the above principles, this Court do not find the order passed by the State Government on 08.06.2023 in any manner helps the petitioner to render findings in the judgment sought to be reviewed, to be erroneous. The appreciation of material in the judgment of this Court under which this Court had dismissed the writ petition on merits, would not make such appreciation questionable on account of this order being passed by the State Government today on 08.06.2023, admittedly subsequent to judgment of this Court. This rather, appears to be a case where a ground is sought to be fished out and searched in the name of this new document to compel us to see there to be some error apparent on the face of record. Review of a judgment on the basis of document coming into existence after passing of the judgment is not permissible in law. The relief that has been refused previously in the judgment of this Court, this Court does not find that it deserves reconsideration by way review and we find the case to be covered by clause (ix) of the above principles.
32. Thus, review application lacks merit and is, accordingly, dismissed.
Order Date :- 25.09.2023
P Kesari
