Raj Kunwar vs Delhi Jal Board Through Its ...
2010 Latest Caselaw 5006 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+        RA 377/2010 & CM No.12134/2010 in W.P(C) No.624/2010


%                             Date of Decision: 29.10.2010

Raj Kunwar                                                      .... Petitioner
                          Through Mr. U.Srivastava, Advocate.

                                         Versus

Delhi Jal Board through its Chairman                         .... Respondent
                    Through Nemo.

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

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


ANIL KUMAR, J.

*

This is an application seeking review of order dated 1st February,

2010 passed in WP(C) No. 624/2010 titled as Raj Kunwar Vs. The Delhi

Jal Board dismissing the writ petition against the order of the Tribunal

dated 9th December, 2009 in TA 367/2009 dismissing the application of

the petitioner seeking consideration of his case on the basis of a select

panel of 1983 of 83 persons in which the petitioner was the last person,

on the plea that as per the office memorandum dated 8th February,

1982, it was decided that the select panel would remain in existence

and till such time the entire panel is exhausted even in relation to

future vacancies.

The petitioner/applicant has also sought condonation of delay in

filing the review application by CM No. 12134/2010 on the ground that

though he had received the copy of the order dated 1st February, 2010

on 3rd March, 2010, the copy remained with his counsel Sh. D.P.

Sharma, who ultimately expired in July, 2010 after a long ailment and

after the death of his counsel, the petitioner kept on trying to collect his

file as the next date intimated to him was on 13th August, 2010. It is

contended that later on it transpired that no review application was

filed by his counsel Sh. D.P. Sharma and since the application was not

traceable, therefore, the present application has been filed seeking

condonation of delay of 162 days in filing the review application.

The petitioner/applicant had approached the Central

Administrative Tribunal contending, inter alia, that in 1983, the

respondents had held a selection and had prepared a select list of

General Category and 24 SC/ST Category candidates. The petitioner

also filed an affidavit deposing that in 1983, 64 posts were filled (51 for

General and 13 for reserved). The plea of the petitioner was, however,

not in consonance with Annexure-A which was alleged to be the

minutes of Selection Committee and containing a list of the empanelled

candidates. In 1985, according to the petitioner, on the basis of the

select panel of 1983, 20 vacancies of General candidates and 10

vacancies of SC candidates were filled, however, the case of the

petitioner was not considered. The petitioner, therefore, sought

appointment to any future vacancies after 1985 including the vacancies

which arose in 1987.

The petition was contested by the respondent contending, inter-

alia, that w.e.f. 12th May, 1985, the panel which was prepared in 1983

had become outdated and on that date fresh applications were invited

for appointment to the post of Junior Engineer. The petitioner was

considered, however, he was not found fit. Since, for appointment of the

post in 1985, the petitioner was found unfit, he could not revert to the

select panel prepared in 1983 and could not sought appointment on

that basis. It was categorically contended that the validity of the panel

was for a period of one year and the copy of the extract of a

memorandum of Govt. of India, Cabinet Secretariat, DP & AR OM

22100/6/75-Estt.(D) dated 30th December, 1976 was also relied on.

The Tribunal, relying on the judgment of the Apex Court in

Shankarsan Dash Vs. Union of India 1991 3 SCC 47; State of Madhya

Pradesh Vs. Sanjay Kumar Pathak (2008) 1 SCC (L&S) 207 and SS Balu

& Anr. Vs. State of Kerala & Ors. (2009) 1 SCC (L&S) 388, held that the

selected candidates do not have a legally enforceable right and in any

case on the basis of circular of 1982, the select panel of 1982 could not

be kept alive. It was further held that in any case as the petitioner was

found unfit for selection in 1985, therefore, on the basis of select panel

of 1983, he could not have been appointed and dismissed the petition.

The petitioner aggrieved by the order of the Tribunal dated 9th

December, 2009 in TA 367/2009 had filed the petition being WP(C) No.

624/2010, which was also dismissed after detailed consideration of the

pleas and contentions of the petitioner by order dated 1st February,

2010, which is sought to be reviewed by the petitioner on similar

grounds, that were raised by the petitioner in the writ petition.

The petitioner has contended that the respondent‟s plea that the

select list of 1983 has outlived on 11th May, 1985 in terms of GOI OM

22011/6/75-Estt. dated 30th December, 1976, is misconceived and

misleading as the respondents could not apply an old circular, while

according to the petitioner, his case would be covered under GOI OM

22011/2/79-Estt(D) dated 8th February, 1982. According to the

petitioner the practice invoked in the department is in terms of Circular

dated 8th February, 1982 and in support of his allegation, it is

contended that the applications were invited for filling up the posts of

Junior Accountants and Accountants in the year 1996 and after

completion of selection process, the final merit list was prepared in the

year 1996 itself and appointments were being made up to the year 2000

and thereafter, the select list was declared as not valid and the

respondents by order dated 5th May, 2000 revised the aforesaid panel

for filling up the posts of Junior Accountants and Accountants and

started appointing the remaining persons in the year 2001. Another

example has been given for appointment to the post of LDC in the year

1988 and in the circumstances, it is contended that the Tribunal has

dismissed his TA 367/2009 without appreciating these relevant facts.

We have heard the learned counsel for the applicant in detail. It

is well settled that the review proceedings have to be strictly confined to

the ambit and scope of Order 47 Rule 1 of CPC. 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 stares in the face

without any elaborate arguments being needed for establishing it. In

Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and Ors, (1979) 4

SCC 389 the Supreme Court held that :-

"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 the 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 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.

Attempt of the applicant by filing the present applications is only

to re-agitate the issues. No error much less an error apparent on the

face of the record has been pointed out by the applicant. An error which

is not self evident and has to be dictated by a process of reasoning 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

Thomas, etc. v. Union of India and Ors. MANU/SC/0327/2000 with a

clear caution that in exercise of the power of review the Court may

correct the mistake but not to substitute the view. The mere possibility

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

The pleas raised by the petitioner were considered and rejected.

The petitioner after failing to get selected in 1985 could not contend

that the select panel of 1983 was valid and he should have been

appointed on the basis of same. The plea of the petitioner is without any

merit and has been rejected. There is no error apparent in the order

sought to be reviewed by the petitioner nor any other ground to review

the order dated 1.2.2010.

The petitioner has also not been able to make out sufficient

ground for condonation of delay in filing the review application. The

petitioner is literate and would not have waited till 13.8.2010 to realize

that the review application was not filed by his counsel. The applicant is

trying to capitalize on the fact that his earlier counsel has died. The

petitioner has failed to disclose relevant facts on the basis of which it

can be inferred that his deceased counsel had represented to him that

he had filed an application seeking review of order dated 1.2.2010. In

the circumstances this Court does not find sufficient grounds even to

condone the delay in filing the review application. However, since the

review application has been considered on merit, the application for

condonation of delay becomes infructuous.

In the facts and circumstances the plea of the petitioner for

review of order dated 1.2.2010 is declined and his applications are

dismissed.

ANIL KUMAR, J.

MOOL CHAND GARG, J.

OCTOBER 29, 2010 „rs‟