Calcutta High Court (Appellete Side)
Binita Mitra Nee Roy vs State Of West Bengal & Ors on 19 March, 2021
22 - 28
19.03.2021
rrc
RVW 19 of 2021
with
IA No. CAN 1 of 2021
Binita Mitra nee Roy
- Versus -
State of West Bengal & Ors.
With
RVW 22 of 2021
with
IA No. CAN 1 of 2021
Rajib Halder and Ors.
- Versus -
State of West Bengal & Ors.
With
RVW 23 of 2021
With
IA No. CAN 1 of 2021
Md. Motlubbar Rahaman & Ors.
- Versus -
State of West Bengal & Ors.
With
RVW 24 of 2021
With
IA No. CAN 1 of 2021
Achinta Kumar Biswas & Ors.
- Versus -
State of West Bengal & Ors.
With
RVW 25 of 2021
With
IA No. CAN 1 of 2021
Amjed Ali Gazi & Ors.
- Versus -
State of West Bengal & Ors.
With
2
RVW 26 of 2021
With
IA No. CAN 1 of 2021
Mrinmay Barman & Ors.
- Versus -
State of West Bengal & Ors.
With
RVW 28 of 2021
With
IA No. CAN 1 of 2021
Sayed Sultan Ali
- Versus -
State of West Bengal & Ors.
(Through Video Conference)
Ms. Usha Maity
......For the applicant (in RVW 19/21)
Mr. Akashdeep Mukherjee
......For the applicants (in RVW 22/21,
RVW 23/21, RVW 24/21, RVW 25/21,
RVW 26/21)
Ms. Saloni Bhattacharya
......For the applicant (in RVW 28/21)
Mr. Joytosh Majumder, Ld. G.P.
Ms. Kakoli Samajpati
Mr. Sayan Ganguly
.....For the State (in RVW 24/21
& RVW 25/21)
Mr. Bhaskar Prasad Vaisya
Mr. Ranjan Saha
......For the State (in RVW 22/21
& RVW 26/21)
Dr. Chapales Bandyopadhyay
Ms. Anandamayee Dutta
.....For the respondent nos. 4, 5 & 6
(in RVW 22/21, RVW 23/20,
RVW 24/21, RVW 25/21 &
RVW 26/21)
Re : RVW 19 of 2021
There are applications for review of the judgment and
order dated 12th January, 2021. A group of matters
involving common questions of law and fact was decided
by the aforesaid order.
The rights of the first petitioner are similar to the
rights of the other appellants whose case we have decided
on 12th January, 2021. In fact, the appeal and the stay
petition filed by the first petitioner were not initially
appearing in the list, but subsequently since the issues
involved in the appeal was conclusively decided by us on
12th January, 2021, the appeal of the present applicant
was also disposed of in terms of our order dated 12th
January, 2021.
The review applications are based on four grounds. To
sum up, the grounds are (i) non-consideration of an
affidavit filed by the Joint Secretary, School Education
Department before the Hon'ble Supreme Court with regard
to the requisite qualification of the teachers eligible for
appointment, paragraphs 16 to 27 of the supplementary
affidavit filed by the present applicant demonstrating
discrepancies, (ii) illegalities and irregularities in the
recruitment process, (iii) acceptance of the opinion of the
expert committee by us in the order under review
disregarding certain observations made by the learned trial
Judge with regard to the preparation of the panel and (iv)
non consideration of the observation of the Audit
Department with regard to the manner of preparation of
the panel.
In addition to the aforesaid, it is contended that the
Division Bench has wrongly recorded that the appellants
have argued that once the Regional Commission prepared
the merit list followed by counselling, the contention of the
Commission that it had published a panel in exercise of its
power of Rule 12(10) is insignificant and the legitimate
right of the petitioners to seek appointment on the basis of
the merit list prepared under Rule 12(8) of the
Recruitment Rules cannot be denied.
In the order under review, we have relied upon Rule
12 of the West Bengal School Service Commission
(Selection to the Post of Teachers) Rules, 2007 and
summarized the factual aspect keeping in mind the
relevance of Rule 12. We have also relied upon the affidavit
of the Commission affirmed on 25th March, 2020 to the
supplementary affidavit filed by the appellant on 19th
February, 2020 while similar discrepancies were
considered and addressed by the Commission. On
consideration of Rule 12(8) and Rule 12(10) and on a
satisfaction being recorded that in the facts and
circumstances of the case, we do not find any illegality in
the decision of the expert body for not filling up remaining
vacancies, we dismissed the appeal.
On consideration of the materials on records, we
recorded that the writ petitioners/appellants could not
substantiate any malafide or discrimination or illegality
with regard to the candidates who were so far selected. We
have also recorded that all the candidates had the
opportunity to scrutinize the list and to find out if there
have been any irregularity but none of them were able to
show any illegality as discrepancy in respect of the
candidates so far selected. The reliance upon the audit
report does not advance the case of the petitioner as they
have participated in the selection process and just because
they are unsuccessful now at this stage they cannot rely
upon such report to substantiate their claim.
These findings are now sought to be reopened and
reargued on merits under the guise of review. It is well
settled that under the garb of review re-hearing of appeal
cannot be claimed. Otherwise, it would be an endless
process. As rightly pointed out by Dr. Bandyopadhyay,
learned advocate appearing for the respondents 4, 5 and 6
that the grounds are in the nature of argument based on
facts dealt with by us. The conclusion arrived at by us on
merits may not be to the satisfaction of the applicant.
The power of the Court to review its decision is well-
settled. If any reference is required to be made, one can
safely refer to Aribam Tuleshwar Sharma Vs. Aribam
Pishak Sharma reported in 1979 (4) SCC 389. In the said
decision it is stated:
"It is true as observed by this Court in Shivdeo
Singh Vs. State of Punjab reported in AIR 1963 SC
1909, there is nothing in Article 226 of the
Constitution to preclude the 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 power 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 power which may enable an
appellate Court to correct all manner or errors
committed by the subordinate court."
The said decision was subsequently considered in
Meera Bhanja Vs. Nirmala Kumari Choudhury case
reported in 1995 (1) SCC 170 in which Their Lordships
held, while entertaining a review only on the ground of
error apparent on the face of the record, it has to be kept
in mind that an error apparent on the face of record must
be such an error which must strike one on mere looking at
the record and would not require any long-drawn process
of reasoning on points where there may conceivably be of
two opinions. We may also usefully refer to the
observations of the Hon'ble Supreme Court in case of
Satyanarayan Laxminarayan Hegde V. Mallikarjun
Bhavanappa Tirumale reported in AIR 1960 SC 137
wherein, K. C. Das Gupta, J., speaking for the 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."
It is also well-settled that mistake or error apparent
on the face of the record has to be self-evident and does
not require a process of reasoning and the same is clearly
distinct from erroneous decision as has been held in
Parsion Devi & Ors. reported in 1997 (8) SCC 715. In the
said decision, the Hon'ble Supreme Court was considering
the phrase "mistake or error apparent on the face of
record". It was held, 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". There is
a clear distinction between an erroneous decision and an
error apparent on the face of the record. While the first can
be corrected by the higher forum, the latter can only be
corrected by exercise of the review jurisdiction. A review
petition has a limited purpose and cannot be allowed to be
"an appeal in disguise".
In the instant case, we do not find that there is any
error apparent on the face of the record or any mistake
committed by us. The basis of the review seems to
erroneous interpretation and/or appreciation of the
relevant documents and Rules relied upon by the
applicants. We have in our judgment dealt with the issues
relevant for the purpose of deciding the appeal. In view of
the fact that there is no error apparent on the face of
record, we are unable to allow this application for review.
The applications for review are, accordingly
dismissed.
There shall, however, be no order as to costs.
Urgent photostat certified copy of this order, if
applied for, be given to the parties on the usual
undertakings.
(Saugata Bhattacharyya, J.) (Soumen Sen, J.)
