Calcutta High Court (Appellete Side)
Alpana Ghosh (Chaki) vs State Of West Bengal & Ors on 12 April, 2021
12.04.2021
18-20
RP Ct.04
R.V.W. 105 of 2020
r
Alpana Ghosh (Chaki)
Vs.
State of West Bengal & Ors.
With
M.A.T. 1621 of 2018
The State of West Bengal & Ors.
Vs.
Alpana Ghosh (Chaki)
With
W.P.A. 17124 of 2010
Alpana Ghosh (Chaki)
Vs.
State of West Bengal & Ors.
Mr. Pratip Kr. Chatterjee....for applicant
Mr. Jahar lal De
Ms. Srilekha Bhattacharyya....for State
Mr. Chatterjee, learned advocate appears on
behalf of review applicant. He submits, a declaration
of law could not be relied upon by him at the time the
appeal was dealt with by coordinate Bench on
impugned order dated 17th December, 2019. He
submits, this be accepted as the ground for review.
The decision is of Supreme Court in Ram Kumar
Gijroya v. Delhi Subordinate Services Selection
Board reported in (2016) 4 SC 754. He relies on
paragraph 18. The important question of law
answered is set out below.
2
"2. The important question of law to be decided
in these appeals is whether a candidate who
appears in an examination under the OBC
category and submits the certificate after the
last date mentioned in the advertisement is
eligible for selection to the post under the OBC
category or not ?"
He submits, judgment under review suffers from error of
law declared in Ram Kumar Gijroya (supra). Hence and
otherwise, there are errors apparent on the face of the
judgment. It should be reviewed.
Mr. De, learned advocate appears on behalf of State.
He places judgment under review and submits, there is
demonstration therein of there having been considered the
facts and law declared and as such it is a good judgment.
Even if it is erroneous, review is not the remedy. Applicant
might find remedy in appeal. He relies on judgments of
Supreme Court on review.
i) Dokka Samuel vs. Dr. Jacob Lazarus Chelly
reported in (1997) 4 SCC 478, paragraph 4, from
which we extract a sentence and reproduce below.
"The omission to cite an authority of law is not a
ground for reviewing the prior judgment saying
that there is an error apparent on the face of the
record, since the counsel has committed an
3
error in not bringing to the notice of the court the
relevant precedents."
ii) Parsion Devi & Ors. vs. Sumitri Devi & Ors.
reported in (1997) 8 SCC 715, paragraph 9,
reproduced below.
"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".
We accept Mr. De's contention, on the
judgment under review being a good one for
adjudication of the case for facts and law. The
advertisement issued invited applications for
appointment as Auxiliary Nurse and Midwife (ANM)
against post reserved for Other Backward Class
4
(OBC) category of candidates. Applications
completed in all respects were required to be
transmitted to the authority by 3rd November, 2006.
Applicant was not possessed of caste certificate as on
3rd November, 2006. She applied for caste certificate
on 21st February, 2007. The authority not having
had received a good application, decided to re-
advertise. The second advertisement was made on
7th August, 2010 with last date of submission being
18th August, 2010. Applicant invoked writ
jurisdiction of this Court on 12th August, 2010. All
these facts have been noted in the judgment,
wherefrom it is clear applicant chose not to submit
her papers in response to second advertisement, she
then being in possession of her OBC certificate. It
also appears from impugned judgment that another
person duly applied. That person was selected and
appointed but applicant obtained interim order in the
writ petition.
Coordinate bench while dealing with the appeal
had considered the law declared in two decisions of
Supreme Court. Ashok Kumar Sharma vs. Chandra
Shekhar reported in (1997) 4 SCC 18 was relied
upon for proposition that when applications are
called for prescribing a particular date as the last
date for filing application, eligibility of candidates
5
have to be judged with reference to that date alone.
The other decision relied upon is Ranjan Kumar vs.
State of Bihar reported in (2014) 16 SCC 187,
laying down the law that no order can be passed
upsetting an appointment without appointee being
arrayed as a party. In this context we reproduce
paragraph 23 and a few sentences from paragraph
24 of the judgment.
"23. We are, thus, of the view that the learned
Judge while disposing of the writ petition of the
respondent with directions upon the appellants
to appoint the former having failed to take into
consideration a very vital factor, i.e., the
respondent was not even eligible to offer her
candidature without having an OBC certificate
in her possession as on 3rd November, 2006,
she was not entitled to any relief whatsoever.
Moreover, in the absence of any clinching
evidence of the respondent's selection in
furtherance of a fair and just procedure, a
direction upon the appellants to appoint her
appears to be clearly without jurisdiction.
24. This is apart from the fact that Bithika
Mondal might have been appointed pursuant to
the selection committee meeting held on 6th
September, 2010 and despite there being a
clear indication in that regard in the affidavit of
6
the district magistrate, no endeavour was made
by the respondent to array her as an additional
respondent in the writ petition. Obviously,
without the appointment of Bithika Mondal
being set aside, there can be no berth where the
respondent could be
accommodated.............................................
.....................................................................
"
In view of the above, we find that on facts and
in law, discussed in the judgment, there is no error
apparent. Dokka Samuel (supra) declared that there
cannot be review on omission to cite an authority of
law while Parsion Devi (supra) gives a clear
interpretation of what can be done under order 47
rule 1 in Civil Procedure Code, 1908.
Before parting with the application we observe
that in Pushpa v. Govt. (NCT of Delhi), available at
2009 SCC Online Del 281, approved by Supreme
Court in Ram Kumar Gijroya (supra), the
application for OBC certificate had been made much
before date of the advertisement. In this case
applicant had not even applied for her OBC
certificate by then and, thereafter having got it did
not apply when there was re-advertisement for the
same post. Adverse presumption of not wanting to
compete must be drawn against her as appears to
have been drawn in the judgment.
On above reasons, we find the review
application to be without merit and same is
dismissed.
(Arindam Sinha, J.)
(Suvra Ghosh, J)
