Union Of India vs Shekhar Suman
2010 Latest Caselaw 2251 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI


+             Review Petition No.142/2010 in WP(C) No.163/2010


%                            Date of Decision: 28.04.2010


Union of India                                                .... Petitioner
                           Through Ms.Geetanjali Mohan, Advocate.


                                       Versus


Shekhar Suman                                                .... Respondent
                           Through   Nemo.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether reporters of Local papers may be               YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                  NO
3.     Whether the judgment should be reported                 NO
       in the Digest?



ANIL KUMAR, J.

*

This is an Application by the petitioner seeking review of order

dated 12th January, 2010 under Section 114 of the Code of Civil

Procedure. The petitioner/applicant has contended that there is an

error apparent on the face of the record in holding that the Railway

Administration was required to give job on completion of course to the

respondent.

It is contended that the review of order dated 6th July, 2004

before the Central Administrative Tribunal was sought on the ground

that the job could not have been given to the respondent as the scheme

had already been elapsed and the petitioner/applicant had only

undertaken to reimburse the money spent on the course to the

respondent without giving any undertaking to give him the job after the

completion of the course.

For seeking the review of order dated 12th January, 2010 and to

contend that the petitioners are not liable to give the job to the

respondent, the petitioners have also relied on the copy of review

application filed in O.A No.2431/2003 which was not filed by the

petitioners earlier.

This cannot be disputed by the petitioners that despite

discontinuation of the course, on the application for contempt filed by

the respondent and an application for review filed by the petitioners, it

was directed that the respondent will be allowed to complete the course

from any institution and the petitioners were directed to reimburse the

cost of the course. The respondent had to complete the course with a

view to get a job and not as an educational qualification. The order

passed on the application of the petitioners for review and the

application of the respondent for Contempt of Court by the petitioners,

therefore, was disposed of without taking any contempt proceedings

against the petitioners as the respondent had to complete the course

and the petitioner had to reimburse the cost and petitioner thereafter

was liable to offer the job despite discontinuation of the scheme. The

said order dated 6th July, 2004 was not challenged by the petitioners,

directing petitioners to allow respondent to complete the vocational

course in Railway commercial in any Railway zone and to give benefit of

completion of Railway course was not challenged by the petitioners. The

respondent had to complete the Railway course only with the object to

get an appointment to the post of Commercial Clerk and in the

circumstances the petitioners cannot deny their liability to offer the

post of Commercial Clerk to the respondents. The order dated 2nd

August, 2005, disposing of the review application and the contempt

application filed by the respondent was also not challenged by the

petitioners and in the circumstances the petitioners cannot contend

that beside reimbursing the cost of completing the vocational course in

Railway commercial, they do not have the liability to offer the post of

Commercial Clerk to the respondent. The order dated 2nd August, 2005

was passed after the scheme was closed and, therefore, the petitioners

cannot be allowed to take shelter again under the plea that the scheme

was closed and therefore, despite lapse on their part they are not bound

to offer post of Commercial Clerk to the respondent.

In any case in the facts and circumstances, there is no error

apparent on the face of record nor on the basis of the copy of review

application filed by the petitioner now, it can be accepted that there was

error in the order dated 2nd August, 2005 disposing of the review

application of the petitioners along with the application for Contempt by

the respondent. The applicant in any case has not sought review of the

said order. Whether the petitioners can seek review of order dated 12th

January, 2010 on the basis of the application for review filed for the

review of order dated 6th July, 2004 directing the petitioner to allow the

respondent to complete the vocational course in any of the Railway

zones and to give the benefit of completion of railway course and then to

give an appointment to the post of commercial clerk.

The petitioners/applicant cannot seek review of order dated 12th

January, 2010 on the basis of the application for review of order dated

6th July, 2004 which was disposed of by order dated 2nd August, 2005

as this application was not produced by the petitioners before the

Tribunal in O.A No.2684/2008 titled as Sh.Shekhar Suman v. Union of

India which was disposed of by order dated 5th August, 2009. Against

the said order, the writ petition No.163/2010, Union of India v. Shekhar

Suman was filed, which was also dismissed by order dated 12th

January, 2010, review of which order is sought by the petitioner.

A review is permissible on the ground of discovery of new

evidence only when such an evidence is relevant and of such character

that if it had been produced earlier it might possibly have altered the

judgment, however, it must be established that the petitioner had acted

with due diligence and the existence of the new evidence which is

sought to be relied on, was not within the knowledge of the applicant

when the order was passed. The application for review now relied on by

the petitioner was always within their knowledge and consequently no

such ground has been disclosed in the application which will entitle the

petitioner to review the order after consideration of the contents of the

application in support of the plea for review. In any case even by

considering the application, the order dated 2nd August, 2005 cannot be

interpreted differently so as to mean that the liability of the petitioner

was not to offer the post of Commercial Clerk to the respondent. The

order dated 6th July, 2004 directing the petitioner to allow the

respondent to complete the vocational course from any Railway zone

was modified to the extent that the respondent could complete the

vocational course from any institution as the scheme of the petitioner

had expired and the petitioner was further directed to reimburse the

expenses of the course. Except to his extent the order dated 6th July,

2004 was modified and other directions of the said order had not been

modified by order dated 2nd August, 2005 nor the order dated 6th July,

2004 can now be modified on the basis of the contents of the

application, now relied on by the petitioner.

The petitioner is not entitled for review of the order dated 12th

January, 2010 because a review cannot be sought merely for fresh

hearing or arguments or correction of an erroneous view taken earlier.

The power of review can be exercised only for correction of a patent

error of law or fact which stays in the face without any elaborate

argument being needed for establishing it. In Aribam Tuleshwar

Sharma v. Aribam Pishak Sharma , AIR 1979 SC 1047, the Supreme

Court had held as under:-

"It is true 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 be exercise of the power of review. The power of review may be exercised on the discovery of new and important matter of evidence which, after the exercise of due diligence was not within the knowledge of the person 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 merit."

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 suggesting the Court to exercise its power of review

under Order 47 Rule 1 read with Section 114 of the Code of Civil

Procedure. In exercise of review jurisdiction it is not permissible for an

erroneous decision to be reheard and corrected, as jurisdiction under a

review petition is for limited purpose and cannot be allowed to be an

appeal in disguise. In any case the order dated 2nd August, 2005

disposing of the application of review and the contempt petition of the

respondent whereby the respondent was allowed to complete his

Railway commercial course from any institution which was to be

reimbursed by the petitioner, the intention was that after the

completion of the course which the respondent could not do on account

of lapse on the part of the petitioner, the post of Commercial Clerk be

offered to him. The order dated 6th July, 2004 was not completely

reviewed by order dated 2nd August, 2005 and only change in the

direction given to the petitioner was that the respondent was allowed to

complete the vocational course from any of the institutions in place of

any of the institutions of the petitioner. In the circumstances, there is

no error apparent in the order dated 12th January, 2010 and in any

case the alleged error on the basis of a new document cannot be

corrected in the facts and circumstances.

The application for review is otherwise also barred by time as it

has been filed on 17th March, 2010, 62 days after the order was passed

and the time taken for certified copy was 6 days whereas the limitation

for filing the review is 30 days.

In the entirety of facts and circumstances, there are no grounds

to allow the application for review of order dated 12th January, 2010.

The application in the facts and circumstances is without any merit and

it is, therefore, dismissed. However, at the request of learned counsel

for the petitioner four weeks time more is granted to the petitioner to

comply with the orders of the Tribunal to offer the appointment to the

post of commercial clerk to the respondent.

ANIL KUMAR, J.

APRIL 28, 2010                                  MOOL CHAND GARG, J.
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