Allahabad High Court
Union Of India Through The Secretary, ... vs Shri Deepak Singh And 5 Others on 1 March, 2024
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:37612-DB
Court No. - 29
Case :- CIVIL MISC REVIEW APPLICATION No. - 358 of 2023
Applicant :- Union Of India Through The Secretary, Ministery Of Defence, New Delhi And 3 Others
Opposite Party :- Shri Deepak Singh And 5 Others
Counsel for Applicant :- Gopal Verma,Sr. Advocate
Counsel for Opposite Party :- Jitendra Kumar Mishra,Manoj Upadhyay,Uma Dutt Shukla
Hon'ble Vivek Kumar Birla,J.
Hon'ble Donadi Ramesh,J.
1. Heard Sri S.P. Singh, learned A.S.G.I assisted by Sri Gopal Verma, learned counsel for the petitioners-Union of India and Sri Manoj Upadhyay, learned counsel for the respondents.
2. Present review application has been filed with a prayer to review the judgment and order dated 24.02.2023 with regard to the grant of notional promotion to the respondents on merits as the same could not be granted to them in terms of the letter dated 8.10.2009 in as much as the HQ has issued the above mentioned letter to enable CEs Command and units to fix the date of notional promotion based on promotion panel published for yester years to implement CAT Earnakulam judgment dated 22 December, 2005 in OAs No. 466/2003 and 974/2003 as upheld by High Court of Kerala order dated 13th August, 2006.
3. The facts of the case are that the respondents were promoted against the vacancies for the panel of the year 2014-15 as Upper Division Clerk (UDC) and their names have accordingly been placed for the panel of the year 2014-15, however, they have been given effective promotion in the year 2016 specifically w.e.f. 01.12.2016 as the respondents are entitled for notional promotion w.e.f. the order when the vacancies accrued i.e. 1st April, 2014. The said original application was allowed based on the averments made in para 13 of the counter affidavit filed by the petitioners herein, wherein they have asserted that the date of notional promotion of the respondents as 1st April, 2014 i.e. the vacancy year against which the respondents have been promoted and the financial benefits to be continued to govern in accordance with the letter of promotion dated 15th November, 2016. Aggrieved by the said order, the petitioners have filed Writ A No. 3580 of 2023, which was disposed of vide order dated 24.2.2023 with the following order:
"Heard Shri Gopal Verma, learned Advocate appearing for the petitioner and Ms. Amrita Verma, learned counsel for the respondent.
Petitioner-Union of India is challenging the judgment and order dated 12 January 2022, passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad (for short 'Tribunal'), passed in Original Application No. 330/418/2019, as well as, the order passed in contempt jurisdiction.
The respondent-original applicants were promoted from the post of Lower Division Clerk (L.D.C.) to Upper Division Clerk (U.D.C.) under 25% quota of limited departmental exam for the year 2014-15 and 2015-16 vide communication dated 15 November 2016.
As per the office memorandum dated 10 April 1989, it provides for preparation of year wise panels by D.P.C. where the D.P.C. has not held for a number of years.
In paragraph 17.10 of the office memorandum, it is provided that the general principle is that promotion of officers included in the panel would be regular from the date of validity of the panel or the date of actual promotion whichever is later. However, the financial benefit will be given to the promotees only from the date of physical assumption of the higher rank on promotion. The respondent-original applicants approached the Tribunal on a limited issue that since the respondents were eligible for the year 2014-15, but the D.P.C. was held later, accordingly, they were given promotion w.e.f. 1 December 2016. The respondents, accordingly, sought notional promotion from the year when the vacancy accrued, i.e., from the year, their names figure, i.e., 2014-15. The learned Tribunal in paragraph 7 of the impugned judgment, noted that the stand of the petitioners in the counter affidavit, wherein they had categorically admitted that financial benefit to the original applicants would accrue from the date of physical assumption of appointment, i.e., 01 December 2015, and not from back date. However, notional promotion and pay fixation will be given w.e.f. 1 April of the vacancy year, i.e., 2014-15. The relevant portion of the paragraph 13 of the counter affidavit is extracted:
"That, in reply to the contents of paragraph 4.14 of the original application, it is submitted that selected panel list of DPC 2013-14, 2014-15 and 2015-16 for promotion LDC to UDC received vide EID (2) Sec of HQ CE CC Lucknow letter No. 909762/LDC/54/E1D(2) dt 30 September 2016. Posting on promotion from LDC to UDC for the DPC year 2013-14, 2014-15 and 2015-16 was consequently issued vide HQ CE CC Lucknow letter No. 9012600/LDC to UDC/111/E1C(1) dt 15 November 2016. Financial benefit is only from the date of physical assumption of appointment and not tenanted backdate. In this regard E-in-C's Branch letter No. B/10601/Gen/Pay Fixation/03/E1B (P&A) dated 08 October 2009 which clearly state that "Date of notional promotion and pay fixation will be w.e.f. 01 Apr of the vacancy year. However, actual pay and allowances will be admissible from the date of actual assumption of promotion on the date of notional promotion whichever is and no arrears for back wages will be paid."
Accordingly, on the stand of the petitioners, the original application came to be allowed directing the respondents to grant notional promotion from the year of vacancy, i.e., 2014-15, accordingly, pay fixation be undertaken, however, the respondents would not be entitled to arrears of backwages and shall receive the enhanced salary from the date of actual promotion. The operative portion of the impugned judgment reads thus:
"7. Accordingly, in accordance with the principle and policy set out in para 13 of the counter affidavit, we allow this OA and direct the respondents to assign the date of notional promotion of the applicants as 1 April of 2014, i.e., the vacancy year against which the applicants have been promoted. The financial benefits be continue to govern in accordance with the letter of promotion dated 15 November 2016. This exercise shall be completed within a period of four weeks from this order."
On specific query, learned counsel for the petitioners failed to show any order/circular, taking a view other than that taken in the Office Memorandum dated 10 April, 1989, or, the stand taken by the petitioners in the counter affidavit.
The learned counsel for Union of India failed to point out any illegality, infirmity or perversity in the impugned order.
In view thereof, the writ petition is, accordingly, dismissed. "
4. Aggrieved by the said order, present review application has been filed.
5. Following grounds are being urged in the review application:
"(i) Because, the letter dated 8.10.2009 was issued by the Engineer in Chief, Branch in pursuance of implementation of Hon'ble Central Administrative Tribunal Ernakulam Branch Judgment dated 22.12.2006 in O.A. No. 466 of 2003 & 794 of 2003 as upheld by Hon'ble High Court Kerala, vide its order dated 13.8.2006 wherein the vacancy occured in the year 1992-93 & 1993-94.
(ii) Because, in the matter above noted the delay was more than 10 years and for this reason it was considered as inordinate delay.
(iii) Because, the letter dated 8.10.2009 which is relied by the learned Tribunal as well as Hon'ble High Court was in relation to the promotion of Surveyor Assistant Grade I to the grade of Assistant Surveyor of Works.
(iv) Because, in view of Para 6.4.4 of the Office Memorandum dated 10.04.1989 and Para 17.10 the promotions will have only prospective effect even in cases where vacancy relate to earlier years.
(v) Because, Director General (Pers) Military Engineering Services further clarified vide its letter dated 06.06.2023 regarding assignment of date of notional promotion w.e.f. 1st April of vacancy year, in which clarifications were issued pursuant to misinterpretation of the letter dated 8.10.2009."
6. Based on the above grounds, learned A.S.G.I. appearing on behalf of the petitioners has contended that the para 6.4.4 of the Office Memorandum dated 10.04.1989 issued by Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions, Government of India clarifies that the promotions will be made in the order of the consolidated select list, such promotions will have only prospective effect even in cases where the vacancies relate to earlier years. Further, he has placed reliance on para 17.10, wherein it is mentioned that promotion of officers included in the panel would be regular from the date of validity of the panel or the date of their actual promotion whichever is later, but the Tribunal as well as this Court has erred in allowing the original application and dismissing the writ petition solely based on the letter addressed to CEs dated 8th October, 2009 is not accordance with the guidelines. Hence, requested to allow the review application.
7. Learned A.S.G.I. further placed reliance on the letter issued by Director General (Pers) Military Engineer Services, which clarifies that the directions contained in the letter dated 8th October, 2009 were case specific and were issued to implement Hon'ble CAT Ernakulam judgment dated 22nd December, 2005 in OAs No. 466/2003 and 974/2003 as upheld by Hon'ble High Court of Kerala order dated 13th August, 2006. In view of the above clarification, it made clear that the letter which was relied by the Tribunal while allowing the original application is only with regard to a particular case and not a general instruction and hence the same will not be applicable to the respondents herein.
8. We have considered the submissions and perused the record.
9. The petitioners have not raised any new ground. Perusal of the record indicates that the grounds raised in the writ petition as well as in the present review application, more or less are same.
10. The Apex Court in the case of Kamlesh Verma Vs. Mayawati and Ors. 2013 (8) SCC 320 and Sanjay Kumar Agarwal and Ors. Vs. State Tax Officer (1) and ors. AIR 2023 SC 5636 has held that the under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions, which have already been addressed and decided.
11. Relevant paragraphs of Kamlesh Verma (supra) are as under:
"10) Review of the earlier order cannot be done unless the court is satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. This Court, in Col. Avtar Singh Sekhon vs. Union of India & Ors. 1980 (Supp) SCC 562, held as under:
"12. A review is not a routine procedure. Here we resolved to hear Shri Kapil at length to remove any feeling that the party has been hurt without being heard. But we cannot review our earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. In Sow Chandra Kante v. Sheikh Habib this Court observed :
"A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.... The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality."
11) 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. A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected, but lies only for patent error. This Court, in Parsion Devi & Ors. vs. Sumitri Devi & Ors., (1997) 8 SCC 715, 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:
"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 characterised 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."
(emphasis ours)
8. Again, in Meera Bhanja v. Nirmala Kumari Choudhury while quoting with approval a passage from Aribam Tuleshwar Sharma v. Aribam Pishak Sharma this 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.
9. 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".
12) Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. The power of review can be exercised for correction of a mistake but not to substitute a view. The mere possibility of two views on the subject is not a ground for review.
This Court, in Lily Thomas & Ors. vs. Union of India & Ors., (2000) 6 SCC 224, held as under:
"54. Article 137 empowers this Court to review its judgments subject to the provisions of any law made by Parliament or any rules made under Article 145 of the Constitution. The Supreme Court Rules made in exercise of the powers under Article 145 of the Constitution prescribe that in civil cases, review lies on any of the grounds specified in Order 47 Rule 1 of the Code of Civil Procedure which provides:
"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,
(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."
Under Order XL Rule 1 of the Supreme Court Rules 11 no review lies except on the ground of error apparent on the face of the record in criminal cases. Order XL Rule 5 of the Supreme Court Rules provides that after an application for review has been disposed of no further application shall be entertained in the same matter.
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 exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment.
58. Otherwise also no ground as envisaged under Order XL of the Supreme Court Rules read with Order 47 of the Code of Civil Procedure has been pleaded in the review petition or canvassed before us during the arguments for the purposes of reviewing the judgment in Sarla Mudgal case, (1995) 3 SCC 635 It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing of the judgment. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in Sarla Mudgal case. We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such which is apparent on the face of the record and not an 12 error which has to be fished out and searched. It must be an error of inadvertence. No such error has been pointed out by the learned counsel appearing for the parties seeking review of the judgment. The only arguments advanced were that the judgment interpreting Section 494 amounted to violation of some of the fundamental rights. No other sufficient cause has been shown for reviewing the judgment. The words "any other sufficient reason appearing in Order 47 Rule 1 CPC" must mean "a reason sufficient on grounds at least analogous to those specified in the rule" as was held in Chhajju Ram v. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526 Error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. In T.C. Basappa v. T. Nagappa, AIR 1954 SC 440 this Court held that such error is an error which is a patent error and not a mere wrong decision. In Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233, it was held:
"[I] It is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated.
Mr Pathak for the first respondent contended on the strength of certain observations of Chagla, C.J. in -- 'Batuk K. Vyas v. Surat Borough Municipality,AIR 1953 Bom 133' that no error could be said to be apparent on the face of the record if it was not self-evident and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another. The fact is that what is an error 13 apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case."
Therefore, it can safely be held that the petitioners have not made out any case within the meaning of Article 137 read with Order XL of the Supreme Court Rules and Order 47 Rule 1 CPC for reviewing the judgment in Sarla Mudgal case. The petition is misconceived and bereft of any substance."
15) Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII 15 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:
16) Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:
(A) 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., (1955) 1 SCR 520, 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., JT 2013 (8) SC 275.
(B) 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 re-heard 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."
12. Relevant paragraphs of Sanjay Kumar Agarwal (supra) are as under:
9. In the words of Krishna Iyer J., (as His Lordship then was) "a plea of review, unless the first judicial view is manifestly distorted, is like asking for the Moon. A forensic defeat cannot be avenged by an invitation to have a second look, hopeful of discovery of flaws and reversal of result. A review in the Counsel's mentation cannot repair the verdict once given. So, the law laid down must rest in peace."
10. It is also well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so.
15. It is very pertinent to note that recently the Constitution Bench in Beghar Foundation vs. Justice K.S. Puttaswamy (Retired) and Others, held that even the change in law or subsequent decision/ judgment of co-ordinate Bench or larger Bench by itself cannot be regarded as a ground for review.
16. The gist of the afore-stated decisions is that:-
(i) A judgment is open to review inter alia if there is a mistake or an error apparent on the face of the record.
(ii) A judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so.
(iii) 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 record justifying the court to exercise its power of review.
(iv) In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be "reheard and corrected."
(v) A Review Petition has a limited purpose and cannot be allowed to be "an appeal in disguise."
(vi) Under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided.
(vii) An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.
(viii) Even the change in law or subsequent decision/ judgment of a co-ordinate or larger Bench by itself cannot be regarded as a ground for review.
13. Noting the above observations of the Apex Court, it is made clear that scope of review is very limited and it is not like an appeal. It is well settled that the party is not entitled to seek a review of a judgment delivered by the Court merely for the purpose of rehearing and a fresh decision. The normal principle is that a judgment pronounced by the Court is final, and departure from the principle is justified only when circumstances of a substantial compelling character except where a glaring omission, patent mistake or like grave error has crept in earlier by judicial fallibility.
14. In the instant case, on perusal of the record, the petitioners have not raised any new ground. In fact, this Court has dismissed the writ petition on the ground that the petitioners have failed to show any order/circular taking a view other than that is taken in the Office Memorandum dated 10 April, 1989. In this case, the petitioners are relying on the subsequent clarification issued by the Director General (Pers) Military Engineering Services vide its letter dated 8.6.2023, cannot be taken into consideration for review of the earlier orders and the same cannot be reviewed.
15. Considering the observations made by the Apex Court in the above noted judgments and perusal of the record, we do not find any good ground of review for interfering with order dated 24.02.2023.
16. The review application is accordingly dismissed.
Order Date :- 01.03.2024
Noman
