Calcutta High Court
Dr. Baishaki Pyne Roy vs Union Of India And Ors on 3 February, 2023
OD-5
RVWO/2/2023
APO/19/2022
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
DR. BAISHAKI PYNE ROY
VERSUS
UNION OF INDIA AND ORS.
BEFORE:
THE HON'BLE CHIEF JUSTICE PRAKASH SHRIVASTAVA
THE HON'BLE JUSTICE RAJARSHI BHARADWAJ
DATE : 3RD FEBRUARY, 2023
APPEARANCE:
Mr. Saurabh Guha Thakurata, Advocate
Mr. Bikash Kumar Roy, Advocate
Mr. Nilanjana Sarkar, Advocate
Ms. Prabhleen Bharara, Advocate
....for the review applicant
Mr. Indranil Roy, Advocate
Mr. Sunit Kumar Roy, Advocate
....for the National Medical Commission
Mr. Saibalendu Bhowmick, Advocate
Mr. Biplab Guha, Advocate
Mr. Rajsekhar Basu, Advocate
....for the WBMC/respondent no.6
The Court:- This review petition has been filed by the appellant in
APO/19/2022 seeking review of the order dated 23rd December, 2022. This
Court by order dated 23rd December, 2022 had dismissed APO/19/2022 and
had affirmed the judgment of the learned single Judge dated 22nd December,
2021 passed in WPO/1144/2021 dismissing the said WPO.
Submission of learned counsel for the review petitioner is that on
account of some misconception of law the counsel for the petitioner could not
advance argument based upon Section 14 of the Indian Medical Council Act,
1956 under which the review petitioner had a right of recognition of the Post
Graduate medical decree and the said right is continued under Section 60 of
the National Medical Commission Act, 1990. He further submits that in the
similar circumstances, the degree of one of the candidates namely, Dr.
Biswajit Bhaduri was recognized, therefore, the petitioner is also entitled for
the same relief. In support of his submission, he has placed reliance upon a
judgment of the Hon'ble Supreme Court in the matter of Board of Control for
Cricket in India & Another vs. Netaji Cricket Club & Others, reported in (2005) 4
SCC 741 and in the matter of Medical Council of India vs. J. Saai Prasanna &
Others, reported in (2011) 11 SCC 748. He has submitted that if there is
misconception of law on the part of the counsel that also is a ground of review.
Learned counsel for the respondents has opposed the petition by
submitting that none of the grounds available in the Order 47 of the CPC are
existing in this case and that there is no error apparent on the face of the
order and that no argument based upon Section 14 of the Act of 1956 was
raised at the time of hearing of the appeal and on the contrary, the allegations
made in grounds IV and V of the review petition have been leveled. He further
submits that Section 60 of the Act of 1990 has been brought in force on
25.09.2020 and also almost a year thereafter the first application was filed for
recognition of that decree on 10th August, 2021 which is not permissible. He
has also submitted that no right was created in favour of the review petitioner
under Section 14 of the Act of 1956.
We have heard learned counsel for the parties and perused the
records. The scope of review petition is very limited and in the guise of review,
the entire matter cannot be permitted to be reopened by allowing the counsel
to advance altogether new argument which is outside the purview of Order 47
of the CPC. Supreme Court in the matter of S. Madhusudhan Reddy vs. V.
Narayana Reddy reported in 2022 SCC Online SC 1034 in this regard has
held as under:-
"24. After discussing a series of decisions on review jurisdiction in Kamlesh
Verma v. Mayawati, this Court observed that review proceedings have to be
strictly confined to the scope and ambit of Order XLVII Rule 1, CPC. As long as
the point sought to be raised in the review application has already been dealt
with and answered, parties are not entitled to challenge the impugned
judgment only because an alternative view is possible. The principles for
exercising review jurisdiction were succinctly summarized in the captioned
case as below:
"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 Chajju Ram v.
Neki17, and approved by this Court in Moran Mar Basselios Catholicos v.
Most Rev. Mar Poulose Athanasius 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 v. Sandur Manganese & Iron Ores Ltd.
20.2. 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 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."
In the present case, it is not in dispute that no argument based
upon Section 14 of the Act of 1956 was advanced when the appeal was heard.
In fact, the appeal was confined to the arguments and records of the learned
Single Judge. Learned Single Judge had already considered and dismissed the
writ petition. Whatever arguments were advanced by the appellant at the time
of hearing that had been duly considered. Therefore, we find that there is no
error apparent on the face of record. So far as the arguments advanced by the
learned counsel for the review petitioner based upon Section 14 of the 1956
Act is concerned. Nothing has been pointed out to show from the language of
the said Section that any right in fact had incurred, accrued or was acquired
by the review petitioner under Section 14 of the 1956 Act so as to attract the
provisions of Section 60(2)(b) of the National Medical Commission Act, 1990.
An argument has also been advanced that in another case of Dr.
Biswajit Bhaduri, on the direction of the Court the representation has been
considered and recognition has been granted. It is not in dispute that in that
matter the institution was recognized but the course was not recognized
whereas in the present case, the institution itself is not recognized. Though an
argument has been advanced that there was misconception of law on the part
of the counsel for the review petitioner but we find that the arguments were
advanced on the basis of the records of the case, therefore, such a ground at
this stage cannot be accepted. Reliance in the case of Medical Council of India
(Supra) by counsel for the petitioner is misplaced because that was a case
where the issue was about the recognition of primary medical qualification for
the purpose of sitting in the screening test that too in different factual
scenario. Similarly, there is no dispute to the proposition of law which has
been settled by the Hon'ble Supreme Court in the matter of Board of Control
for Cricket in India (Supra) but the case of the review petitioner does not fall in
one of those conditions which have been mentioned in that judgment.
In these facts and circumstances of the case, we find that no
ground of review is made out. The review petition is, accordingly, dismissed.
(PRAKASH SHRIVASTAVA, C.J.)
(RAJARSHI BHARADWAJ, J.)
akg/
