Allahabad High Court

Satyendra Singh vs State Of U.P. And 2 Others on 8 May, 2024

Author: Mahesh Chandra Tripathi

Bench: Mahesh Chandra Tripathi





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:82942-DB
 
Court No. - 40
 

 
Case :- CIVIL MISC REVIEW APPLICATION No. - 157 of 2024
 

 
Applicant :- Satyendra Singh
 
Opposite Party :- State Of U.P. And 2 Others
 
Counsel for Applicant :- In Person
 
Counsel for Opposite Party :- C.S.C.
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Hon'ble Anish Kumar Gupta,J.

1. Heard Mr. Satyendra Singh, review-applicant, who appeared in person, Mr. F. A. Ansari, learned Standing Counsel for the State-respondents and perused the record.

2. The instant review application along with delay condonation application has been preferred by the applicant for reviewing the judgement and order dated 14.11.2008 passed by Division Bench of this Court in Special Appeal No.1267 of 2002 (Satyendra Singh Vs. Zila Basic Shiksha Adhikar, Moradabad & another) by which the special appeal was dismissed with detailed observations as under:-

"Heard Sri V. Sahai, learned counsel for the petitioner-appellant (hereinafter referred to as the 'appellant') and leaned Standing Counsel for respondents no. 1 and 3.

This intra Court Appeal has been filed against the judgement dated 5.9.2002, whereby the Hon'ble Single Judge has dismissed the writ petition no. 9408 of 1998 of the appellant. It appears that the father of the appellant, working as Assistant Teacher, died on 15.12.1993, leaving behind his widow Smt. Rambeti, four sons and two daughters. His elder son Sri Veer Bhan Singh applied for appointment on compassionate basis and the authorities concerned, after considering his application, appointed him under the Rules. In the meantime, the appellant, it appears, had also submitted his application on 29.7.1995, i.e. after more than one and half year from the death of his father, seeking compassionate appointment and in pursuance of the same his appointment was also made on 29.10.1997. The authorities, however, cancelled the said appointment of the appellant vide order dated 14.1.1998 on the ground that his elder brother was already given benefit of Dying- in-Harness Rules, and since one member of the family has already been appointed, the appellant could not have been appointed. It is this order, which was challenged by the petitioner in the writ petition and the Hon'ble Single Judge did not find anything wrong therein, dismissed the writ petition.

Learned counsel for the appellant contended before us that the order of cancellation was passed without affording any opportunity to the appellant and, therefore, is in utter violation of the principles of natural justice. He also contended that the appellant's elder brother could not have been appointed on compassionate basis and his appointment was illegal, therefore, the appointment of the appellant ought not to have been cancelled. He lastly stated that there was no concealment of fact on his part.

After considering the matter in its entirety, we, however, do not find any reason to interfere with the judgment of the Hon'ble Single Judge. On the query made by this Court, learned counsel for the appellant did not dispute the fact that the appellant's elder brother was given appointment on compassionate basis prior to the appointment of the appellant. It is also not disputed by him that he did not challenge the said appointment of his elder brother before any appropriate Forum at any point of time. That being so, once a member of the family of the deceased employee has been given benefit of compassionate appointment, the second appointment, if any, made by the authorities would ex facie be illegal and void-ab-initio. In these circumstances, if the authorities have cancelled the subsequent appointment, it is not a fit case warranting interference under Article 226 of the Constitution of India.

Even if the learned counsel for the appellant is correct that no opportunity before passing the impugned order was afforded to him, in the facts and circumstances of the case, where it is not disputed that one member of the family was already given benefit of compassionate appointment, the order cancelling the subsequent appointment to another family member, only on the ground of not giving opportunity would not be bad inasmuch in such a case, affording opportunity would amount to mere formality and that too futile. It is well settled if in the facts and circumstances of the case, only one conclusion is possible, this Court would not exercise its extraordinary equitable jurisdiction under Article 226 of the Constitution. Even otherwise, it is not always necessary to interfere with an order, even if it is illegal, if it would result in revival of another order, which is also illegal.

In the facts and circumstances, therefore, we do not find any reason to interfere with the order of the Hon'ble Single Judge since, in our view, the appellant is not entitled for any relief.

The special appal is, accordingly, dismissed."

3. The record reflects that the petitioner again preferred Writ-A No.2430 of 2023, which was dismissed vide order dated 20.2.2023. The order dated 20.2.2023 was challenged in Special Appeal No.157 of 2023, which was also dismissed vide order dated 28.3.2023 with following observations:-

"Sri Satish Chandra Yadav, who appears for respondent nos. 4 and 5 is present.

It is argued by Sri Satendra Singh in person that in the first round of litigation in Writ Petition No. 9408 of 1998 and the Special Appeal No. 1267 of 2002, the correct facts were not brought on record by the concerned department, which has resulted in dismissal of the writ petition and the special appeal. The submission is that injustice has been caused to the appellant in view of concealment of material facts by the department in both the above rounds of litigation and as such the appellant did not approach the Apex Court.

Noticing this submission, we may record that there is no infirmity in the order of the learned Single Judge in dismissing the writ petition out of which the present appeal arises, being the second writ petition. It was further noted by the learned Single Judge that the documents appended along with the writ petition filed in the second round of litigation were obtained by the writ petitioner/appellant herein under Right to Information Act and the said evidences would not give any new cause of action to file successive writ petition for the same relief.

However, in view of the contention of the petitioner that the correct facts were not brought on record by the department, which has resulted in dismissal of the writ petition and the special appeal, it is open for him to file a review application by giving explanation for the delay in filing the same. In any case, the writ petition, out of which the present appeal arises, being the second writ petition for the same cause of action cannot be entertained. The appeal is accordingly, dismissed."

4. Thereafter, the petitioner had preferred Review Application No.269 of 2023 against the order dated 5.9.2002 passed by learned Single Judge, which was under challenge in Special Appeal No.1267 of 2002. The Review Application No.269 of 2023 was disposed of by learned Single Judge on 6.3.2024 with following observations:-

"1. Heard applicant Satyendra Singh in person and Sri Nagendra Kumar Pandey as well as Sri Ashish Kumar Nagwanshi, Advocates for respondents.

2. This review application has wrongly been filed by the applicant in person since the order under review has already been affirmed by the Division Bench of this Court vide order dated 14.11.2008. The review applicant will have firstly to take appropriate remedy to file review application to review the order dated 14.11.2008.

3. A second attempt to raise similar controversy was rejected by co-ordinate Bench on 20.02.2023 affirmed by Division Bench on 28.03.2023, with liberty to file review application.

4. This review application is disposed of with the aforesaid liberty."

5. Taking shelter of the aforesaid orders dated 28.3.2023 and 6.3.2024, the present review application has been pressed by the applicant for reviewing the judgement and order dated 14.11.2008 passed by Division Bench of this Court in Special Appeal No.1267 of 2002 with further prayer to condone the delay. In support of the delay condonation application, it is being pressed that since 2008 to 2014, the review petitioner preferred various applications under RTI Act for obtaining relevant documents from the department and after much persuasion the department provided the documents in the year 2014. Even thereafter, he continued to make representation to the authority concerned but inspite of repeated requests the Authority had not taken any decision. As such it is contended that in the interest of justice present delay condonation application may be allowed and review application may be decided on merits otherwise the petitioner would suffer irreparable loss and injury.

6. Considering the facts and circumstances of the case, we do not find any good ground to condone the delay in preferring the review application. The delay condonation application is accordingly rejected.

7. So far as merit of the review applications is concerned, we find that the scope and ambit of the review under Article 226 of the Constitution of India, in reviewing its own order is very limited. The review application can be allowed only on (1) discovery of new and important matter of evidence which, after exercise of due diligence, was not within the knowledge of the person seeking review, or could not be produced by him at the time when the order was made, or (2) when some mistake or error on the face of record is found, or (3) on any analogous ground. Review is not permissible on the ground that the decision was erroneous on merits as the same would be the province of an Appellate Court.

8. In the case of Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909, Hon'ble Apex Court took the view that there is nothing under Article 226 of the Constitution of India, which precludes 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. It was held that the power of review under Article 226 of the Constitution of India, in reviewing its own orders is very limited. Every Court including High Court inheres plenary jurisdiction, to prevent miscarriage of justice or to correct grave and palpable errors committed by it.

9. Hon'ble Apex Court in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and others, 1979 (4) SCC 389, has cautioned that power of review of the High Court is not the same as appellate powers and review on the ground that certain documents have not been considered, which formed the record, cannot be ground of Review. Hon'ble Apex Court in the case of Meera Bhanja v. Nirmla K. Chaudhary, 1995 (1) SCC 170, has taken the view that review must be confined to error apparent on the face of record, error must be such as would be apparent on mere looking without any long drawn process of reasoning, and reappraisal of evidence on record for finding out error would amount to exercise of appellate jurisdiction, which is not at all permissible.

10. In the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137, Hon'ble Supreme Court has made the following observations in connection with an error apparent on the face of the record :-

"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 our view the aforesaid approach of the Division Bench dealing with the review proceedings clearly shows that it has overstepped its jurisdiction under Order 47, Rule 1, C.P.C. By merely styling the reasoning adopted by the earlier Division Bench as suffering from a patent error. It would not become a patent error or error apparent in view of the settled legal position indicated by us earlier. In substance, the review Bench has re appreciated the entire evidence, sat almost as Court of appeal and has reversed the findings reached by the earlier Division Bench Even if the earlier Division Bench findings regarding C.S. Plot No. 74 were found to be erroneous, it would be no ground for reviewing the same, as that would be the function of an appellate Court. Learned counsel for the respondent was not in a position to point out how the reasoning adopted and conclusion reached by the Review Bench can be supported within the narrow and limited scope of Order 47, Rule 1, C.P.C. Right or wrong, the earlier Division Bench judgment had become final so far as the High Court was concerned. It could not have been reviewed by reconsidering the entire evidence with a view to finding out the alleged apparent error for justifying the invocation of review powers. Only on that short ground, therefore, this appeal is required to be allowed. The final decision dated 8th July, 1986 of the Division Bench dismissing the appeal from appellate decree No.569 of 1973 insofar as C.S. Plot No. 74 is concerned as well as the review judgment dated 5th September, 1984 in connection with the very same plot, i.e. C.S. Plot No. 74 are set aside and the earlier judgment of the High Court dated 3rd August, 1978 allowing the Second Appeal regarding suit plot No. 74 is restored. The appeal is accordingly allowed. In the facts and circumstances of the case, there will be no order as to costs."

11. In Parsion Devi and others v. Sumitri Devi and others, 1997 (8) J.T. SC 480, Hon'ble Supreme Court has taken the view that review proceeding has to be strictly confined to the ambit and scope of Order 47, and therein the two earlier judgments referred to above have been relied upon. Again in Smt. Meera Bhanja v. St. Nirmala Kumari Choudhary, 1985 (1) SCC 170, while quoting this approval a passage from Aribam Tuleshwar Sharma v. Aribam Pishak Sharma & Ors. (1979 (4) SCC 389, Hon'ble Supreme 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.

12. Hon'ble Apex Court, in the case of Lily Thomas v. Union of India, AIR 2000 SC 1650, after considering the dictionary meaning of word "review" has taken the view that power of review can be exercised for correction of mistake and not to substitute a view. Such powers can be exercised within the limits of the statute, dealing with exercise of power; the review cannot be treated as an appeal in disguise, and mere possibility of two views on the subject is not a ground of Review.

13. Hon'ble the Apex Court in Subhash Vs. State of Maharastra & another, AIR 2002 SC 2537, the Apex Court emphasized that Court should not be misguided and should not lightly entertain the review application unless there are circumstances falling within the prescribed limits for that as the Courts and Tribunal should not proceed to re-examine the matter as if it was an original application before it for the reason that it cannot be a scope of review. In State Haryana v. Mohinder Singh, JT 2002 (1) 197, the Apex Court disapproved the judgment of High Court,wherein earlier writ petition was disposed of by High Court being infructuous and giving some directions, and subsequent to the same, Review was sought, which was allowed, same was clearly termed to be overstepping of jurisdiction, and amounting to giving of one more chance of hearing.

14. In the case of Union of India v. B. Valluvar, 2006 (8) SCC 686, Hon'ble Apex Court has again considered the parameters of review jurisdiction of High Court, that same shall be exercised within the limitations as provided under Section 114 read with Order 47 Rule of C.P.C.,and without recording finding as to there existed error apparent on the face of the record, merit cannot be gone into. Hon'ble Apex Court in the case of State of Haryana and others v. M.P. Mohila, 2007 (1) SCC 457, has taken the view that in the garb of clarification application, recourse to achieve the result of review application, cannot be permitted, as what an not be done directly,cannot be done indirectly.

15. In Kamlesh Verma Vs. Mayawati and others 2013 (8) SCC 320, the Apex 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)

16. On the touchstone of the dictum noted above, the review is permissible only when there is error apparent on the face of record i. e. error should be grave and palpable, and the error must be such as would be apparent on mere looking of record, without requiring any long drawn process of reasoning, and reappraisal of entire evidence for finding the error, as same would amount to exercise of appellate jurisdiction. Further, the review lies only on the grounds mentioned in Order 47, Rule 1 read with Section 141 CPC. The party must satisfy the Court that the matter or evidence discovered by it at a subsequent stage could not be discovered or produced at the initial stage though it had acted with due diligence. A party filing a review application on the ground of any other "sufficient reason" must satisfy that the said reason is analogous to the conditions mentioned in the said provision of C.P.C.

17. Perusal of judgment under review passed by us shows that each and every aspect of the matter has been considered initially by learned Single Judge and which was affirmed by the Division Bench which is under review. There appears no apparent mistake in the judgment under review. Neither review court can examine the merits of the judgment as an appellate court nor in the garb of review petition, a re-hearing of the matter can be permitted by this Court.