K.N. Sharma vs Sports Authority Of India & Ors.
2010 Latest Caselaw 5640 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+          RA No. 346/2010 and CM Nos. 11211 & 11212/2010 in
                         WP(C ) No. 1259/2006

%                           Date of Decision: 10.12.2010


K.N. Sharma                                                   .... Petitioner

                           Through Ashutosh Dubey, Advocate

                                     Versus


Sports Authority of India & Ors.                           .... Respondents


                           Through Ms. Noopur Singhal, Advocate for Mr.
                                   Anil Grover, Advocate for respondent
                                   No. 1

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE VIPIN SANGHI

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 in                NO
      the Digest?


ANIL KUMAR, J.

*

CM No. 11211/2010

This is an application seeking exemption from filing the certified

copies.

Allowed subject to just exceptions.

CM No. 11212/2010

This is an application by the applicant seeking condonation of

delay in filing the review petition against the order dated 26th November,

2009 passed in WP(C ) No. 1259/2006 dismissing the writ petition.

The applicant has contended that against the order dated 26th

November, 2009, he had filed a special leave petition being SLP(C) No.

4865/2010, which was disposed of by the Supreme Court by order

dated 5th April, 2010. While disposing the special leave petition,

according to the applicant, the applicant was given liberty to file a

review petition and consequently, the special leave petition was

withdrawn.

The applicant has asserted that on account of filing the special

leave petition in the Supreme Court, the review application could not be

filed earlier and has been filed after the order dated 5th April, 2010 was

passed. In the circumstances, it is contended that inadvertent delay is

on account of pursuing the remedy by the applicant before the Supreme

Court and in the circumstances condonation of delay of 88 days in filing

the review petition is sought.

Considering the averments made in the application and in the

facts and circumstances, there is sufficient cause for condoning the

delay in filing the review petition. Therefore, the application is allowed

and delay of 88 days in filing the review petition is condoned.

RA No. 346/2010

This is an application seeking review of order dated 26th

November, 2009 passed in WP(C) No. 1259/2006 dismissing the writ

petition against the respondent.

The petitioner had filed a special leave petition against the order

dated 26th November, 2009 and the Supreme Court was pleased to

dispose of the special leave petition by order dated 5th April, 2010

observing as under:-

" Learned counsel appearing on behalf of the petitioner prays for withdrawal of his petition in order to file a review petition before the High Court. Leave, as prayed for, is granted.

The special leave petition is dismissed as withdrawn."

The applicant has sought review of order dated 26th November,

2009 on the ground that the resignation of respondent No. 3 could not

be accepted retrospectively by the parent department in order to suit

the promotion of respondent no. 3; he could not be absorbed in different

department/organization without resignation from parent department

as the same would amount to having lien on two posts at the same

time; the appointment of respondent No. 3 was in violation of service

byelaws as the person/officer appointing him was not having power to

do so; absorption of respondent No. 3 in Sports Authority of India was

against the byelaws of Sports Authority of India and other statutory

rules and that the petitioner could not have held two posts, i.e., Dy.

Director and Director on the same date, i.e., 5th August, 1991 as

allegedly shown in the combined seniority list prepared by the

respondents on the orders of the Court.

The applicant has also sought review of order dated 26th

November, 2009 on the ground that respondent No.3 was to be

appointed by the governing body which was Personal Advisory

Committee, Sports Authority of India and not the Director General and

therefore, appointment and absorption of respondent No.3 was invalid.

According to the applicant, the finding of this Court that power to

permit permanent absorption of deputationist against the post which

was outside the purview of Personal Advisory Committee shall vest in

the Director General, is erroneous. According to him, it was the

governing body of Sports Authority of India, which was authorized and

had power under the old and new byelaws to appoint the person in

such pay scale and thus, the findings of this Court are erroneous.

The petitioner/applicant has further sought review of order on the

ground that respondent No. 3 was not a cadre officer of Sports

Authority of India and thus, could not have been promoted as Regional

Director on 12th January, 1995 and Executive Director on 27th

November, 2001. Absorption of respondent No. 3 in Sports Authority of

India is also challenged on the ground that he was continuing to draw

the deputation allowance from the parent office till July, 1992 and this

Court, while dismissing the writ petition has wrongly relied on the

explanation of respondent No. 3 that the pay of respondent No. 3 was

fixed in the pay scale of Rs.3700-5000/- and his total emoluments in

the said pay scale was higher than the emoluments, he was drawing

while on deputation and thereafter, the deputation allowance got

adjusted on pay fixation after absorption into Sports Authority of India.

Review of order dated 26th November, 2009 is also sought on the

ground that respondent No. 3 could not have given "No Objection" by

his parent department on 28th October, 1988 for absorption, i.e., after

the date of his joining Sports Authority of India and in the

circumstances, this Court erred in construing that technical resignation

of respondent No. 3 was accepted by his parent department on 5th

March, 1992 w.e.f. 1st June, 1991 and Sports Authority of India, by its

order dated 8th January, 1992, absorbed respondent No.3 w.e.f. 1st

June, 1991. The review of order dated 26th November, 2009 is also

sought on the ground that absorption of respondent no. 3 has resulted

in causing financial loss to the petitioner and denial of timely promotion

as every time the petitioner was promoted, he was given notional

benefits. In the circumstances, the petitioner has prayed for review or

recall of order dated 26th November, 2009 passed by this Court in writ

petition bearing no. WP(C) No. 1259/2006.

The learned counsel for the petitioner has now produced the

minutes of the governing body of Sports Authority of India dated 18th

January, 1991; circular dated 11th February, 1991 of the Sports

Authority of India; minutes of 16th meeting of the governing body of

Sports Authority of India held on 27th January, 1992; a letter dated

October, 1992 from the Member Secretary to all members of the

Governing Body of Sports of Sports Authority of India and the minutes

of 17th meeting of governing body of Sports Authority of India held on

5th September, 1992. These documents have been handed over in the

Court without any application and without disclosing any reason as to

why these documents could not be produced by the

petitioner/applicant earlier.

It is no more res integra that discovery of new evidence or

material by itself is not sufficient to entitle a party for review of a

judgment/order. A review is permissible on the ground of discovery of

new material only if, it is established that the applicant had acted with

due diligence and that the existence of the material, which the applicant

now seeks to rely on, was not within his knowledge and could not be

produced when the order was passed. If it is found that the petitioner

has not acted with due diligence then it may not be open to the Court to

admit this fresh material on the ground of sufficient cause. The party

seeking review should prove the diligence which the party claims to

have exercised. In a review application, a party cannot be allowed to

introduce fresh documents merely to supplement evidence which might

possibly have had some effect on the result.

The leaned counsel for the petitioner is unable to disclose any

reason for not producing these documents as detailed herein at the time

of hearing of the writ petition or at the time of filing the writ petition or

even before the decision was taken by this Court on the writ petition.

Even now, though an application for review of order dated 26th

November, 2009 was filed on 9th August, 2010, no reason has been

given for not filing these documents along with an application disclosing

sufficient cause for non-production of these documents or filing these

documents with the application for review and disclosing sufficient

cause in the application for review. In the circumstances, it will be just

and appropriate not to consider these documents and to consider the

prayer of the applicant for review on the basis of alleged documents.

The petitioner, while seeking review of order dated 26th November,

2009, has raised various grounds which were raised even at the time of

passing of the order dated 26th November, 2009.

This Court, while dismissing the writ petition vide Order dated

26th November, 2009, has considered the plea of the petitioner in para-

16 that respondent No.3 could not be absorbed as Director w.e.f. 1st

June, 1991. It has been held that respondent No.1 had revised the

service byelaws in 1992 and had also framed the recruitment rules for

all posts including the administrative cadre and therefore, the

absorption of the respondent No. 3 could not be challenged by the

petitioner on the basis of revised service byelaws. While dismissing the

writ petition, this Court has also considered the plea of the petitioner

that respondent No. 3, being on deputation, could not be absorbed from

1st June, 1991 as according to him on that date absorption was not the

method of recruitment. This Court had repelled the plea of the

petitioner on the ground that his contention is based ignoring the

circular dated 11th February, 1991, which was pursuant to the meeting

of the governing body held on 18th January, 1991, approving

amendments to the Sports Authority of India Service Byelaws, 1987

including byelaw No. 6 relating to absorption of deputationist in Sports

Authority of India, respondent No.1 on permanent basis.

It was also observed and noticed that the amendment had also

sought modification in Rule 36 regarding seniority of deputationist

described in Sports Authority of India, respondent No. 1 contemplating

that the appointing authority shall determine the number of vacancies

in each recruitment year marked for absorption of a deputationist on

permanent basis with due regard to the claims of cadre employee in

feeder grade. The reliance was also placed on the power to permit

permanent absorption of deputationist against the post which was

outside the purview of Personal Advisory Committee vesting with

Director General. The petitioner has raised the same grounds and pleas

which were raised at the time of decision of his writ petition on 26th

November, 2009.

It is also no more res integra that the 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. This power can

also be exercised on account of some mistake or error apparent on the

face of record or for any other sufficient reason. In Aribam Tuleshwar

Sharma vs. Aribam Pishak Sharma AIR 1979 SCC 1047, the Apex Court

has held as under:-

"It is true that 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 exercised on 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."

In exercise of the jurisdiction for review, it is not permissible for

an erroneous decision to be re-heard and corrected by a review petition

as it must be remembered that review has a limited purpose and cannot

be allowed to be an appeal in disguise. Attempt of the petitioner by

filing the present review petition is only to re-agitate the issues which

were raised at the time of decision of the writ petition. No error, much

less an error apparent on the face of the record, has been pointed out

by the learned counsel for the applicant. An error which is not self

evident and has to be deducted and inferred by process of reasoning

and re-appreciation of the entire matter can hardly be said to be an

error apparent on the face of the record. This principle was reiterated

by the Supreme Court in the case of Lily Thomus etc. vs. Union of India

and Ors., Manu/SC/0327/2000 with a further caution that in exercise

of power of review, the Court does not have to substitute its view on

review with the view already taken by it. It was also held that the mere

possibility of two views on the subject is not a ground for review.

The petitioner appears to be a chronic litigant. The petitioner had

made representations seeking directions for holding a review DPC as

per the position prevailing on 5th August, 1991 for considering his case

and thereafter had filed a writ petition being CWP No.2187 of 1992 in

the High Court of Delhi at New Delhi which was later transferred to

Central Administrative Tribunal and was numbered as TA No.7 of 1996.

The said petition, TA No.7 of 1996 was disposed of by the Tribunal vide

order dated 15th September, 1997 with a direction for preparation of

conjoint eligibility list of those who had to be posted/promoted as

Director and for holding a review DPC for giving the notional promotion.

Before granting notional promotion another writ petition being CWP No.

5298 of 1997 was filed which was also disposed of by an order dated 1st

May, 2000. Pursuant to the order dated 15th September, 1997 in TA

No.7 of 1996, the review DPC was held and the petitioner was promoted

as director and notional promotion was given from 5th August, 1991.

Against the implementation of the order passed in the TA no. 7 of 1996

dated 15th September, 1997, the petitioner filed a contempt petition no.

CCP No. 130 of 2001. The petitioner had claimed that in the combined

seniority list, the order passed by the Court was not complied with, as

he was assigned the seniority with effect from 1st January, 1986 as

Assistant Director though he was entitled for promotion as Assistant

Director as on 1st October, 1984 and was promoted to the post of

Deputy Director with effect from 1st August, 1986. The Contempt

petition filed by the petitioner was dismissed as not maintainable as the

High Court in its interim order dated 7th March, 1994 had not fixed any

time limit for holding the DPC meeting. However, review DPC was held

on 16th April, 2001 and the petitioner was promoted as a Director along

with others w.e.f 5th August, 1991. The contempt petition filed by the

petitioner was therefore, dismissed. The petitioner thereafter, filed

another original application in the Central Administrative Tribunal

being OA no. 949 of 2002 seeking directions to hold a review DPC on

5th August, 1991 by including those officers also who had fulfilled the

eligibility criteria of 5 years of service as Deputy Director or 10 years of

combined service as Deputy Director and Assistant Director and to seek

that deputation of respondent no.3 on promotion post of director and

subsequent absorption with respondent no.1 be declared as illegal and

contrary to the service byelaws of respondent no.1 and to grant

promotion to the petitioner as Regional Director from 1995 and as

Executive Director from 2001 and to grant financial benefits and

arrears from 1986 to 1991 as Deputy Director and from 1991 to 2000

as director. The petition being O.A No. 949 of 2002 was disposed of by

the Central Administrative Tribunal directing respondent No.1 to

consider the representations made by the petitioner. Pursuant to the

order of the Tribunal the representations of the petitioners were decided

by order dated 7th October, 2002. Against the order dated 7th October,

2002 the petitioner filed yet another O.A No.3192 of 2002 which was

disposed of by order dated 2nd March, 2005 declining the claim of

seniority in the grade of Director over respondent No.3 and grant of

financial relief and arrears from 1st August1986 in the rank of Deputy

Director and from 5th August, 1991 in the rank of Director and

declining to declare that the absorption of respondent no.3 in

respondent no.1 was against the bye laws of respondent no.1 and other

statutory rules and also declining to grant promotion to the petitioner

as Regional Director from 1995 and as the Executive Director from

2001. Against the said order dated 2nd March, 2005 the petitioner had

filed the above noted writ petition which was disposed of by order dated

26th November, 2009. Against the said order the petitioner filed special

leave petition which was withdrawn by order dated 5th April, 2010 and

thereafter the present review petition has been filed.

The petitioner in the facts and circumstances is not entitled for

rehearing of the matter in the garb of review on the basis of the material

which is sought to be produced now without disclosing any reason for

its non-production earlier. In any case the learned counsel for the

petitioner has not been able to make out any ground for review of order

dated 26th November, 2009. In the circumstances the review petition is

without any merit and is liable to be dismissed.

The application for review is therefore, dismissed. Parties are

however, left to bear their own costs.

ANIL KUMAR, J.

DECEMBER 10,2010                               VIPIN SANGHI, J.
„rs‟