Director Of Education & Anr. vs Smt.Krishna Kumari
2011 Latest Caselaw 94 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                WP(C ) No. 13987/2009

%                           Date of Decision: 07.01.2011

Director of Education & Anr.                                .... Petitioners

                           Through Mr. Somdutt Kaushik, Advocate

                                        Versus

Smt. Krishna Kumari                                        .... Respondent

                           Through Nemo
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.

*

RA No. 2/2011 & CM No. 119/2011

These are the applications seeking condonation of delay in filing

the review application seeking review of order dated 21st December,

2009 dismissing the writ petition and upholding the order of the

Tribunal dated 15th May, 2009 passed in OA No. 1790/2008 allowing

the original application of the respondent and issuing a direction to the

petitioner to accord notional pay fixation to the respondent TGT from

1984.

For seeking condonation of delay of 335 days in filing the review

application, it is contended by the petitioner/applicant that the file was

sent to the Directorate of Education for necessary action on 19th

January, 2010 and thereafter, the file was sent to OS(III), Litigation on

27th January, 2010.

According to the averments of the petitioner/applicant, from 27th

January, 2010 up to 8th September, 2010, the file remained in the

concerned department for observation. The applicant has further

contended that the Department of Personnel and Training Office, North

Block, issued an Office Memorandum dated 9th September, 2010

whereby reference to the Department of Personnel and Training Office

Memorandum of even number dated 19th May, 2009 was invited

regarding the Modified Assured Career Progression Scheme (MACPS).

Thereafter, on 25th November, 2010, OS (ACP) Cell sent the file to DDE

(NWA) to file review application before the Court and DDA (NEW) by

letter dated 7th December, 2010, had sent the file to Government for

further action. Thereafter, the review application was filed on 21st

December, 2010 after a delay of 335 days.

The learned counsel for the petitioner/applicant is unable to

explain the delay from 27th January, 2010 up to 8th September, 2010

when the file allegedly remained in the concerned department. Merely

stating that the file remained in the concerned department from 27th

January, 2010 to 8th September, 2010 will not constitute sufficient

cause for condoning such a long delay of about 9 months. Neither any

particulars have been given nor has any averment been made as to why

the file remained with the concerned department and what was done on

the file during this period. Thought, it has been alleged that the file

remained for observation, however, the learned counsel is not in a

position to disclose as to what observation had to be made by the

department for keeping the file nor is the learned counsel able to show

any such fact, which will constitute sufficient cause for condonation of

delay in the facts and circumstances.

Therefore, the petitioner/applicant has not been able to make out

sufficient cause for condonation of delay in filing the review application

and the application is liable to be dismissed. The application for

condonation of delay of 355 days is therefore, dismissed

Even on merits, the petitioner/applicant is not entitled for review

of order dated 21st December, 2009. While dismissing the writ petition

of the petitioner against the order dated 15th May, 2009, passed by the

Central Administrative Tribunal, Principal Bench, New Delhi in OA

1790/2008 issuing the direction to the petitioner to accord notional pay

fixation to the respondent TGT from 1984, the judgment of the Supreme

Court in the matter of Union of India Vs. Ishwar Singh Khatri & Ors.,

1993 (2) SCALE 730 was taken into consideration in which the

petitioners had sought to deny the notional pay fixation on the ground

that the order was passed directing the Directorate of Education to

assign proper seniority as per ranking, but had not granted the relief of

notional pay fixation.

This Court had held that once the respondent has been granted

notional seniority from 1984, i.e., she had to be treated as being in

service from 1984 onwards, the said fiction has to be given its full

effect, including for the purposes of pay fixation and therefore, it was

held that the order of the Tribunal fixing the notional pay of the

respondent TGT from 1984 cannot be faulted and she had to be

notionally given increments and benefit of wage revision, which had

taken place in the meantime.

For seeking review of the order, the learned counsel for the

petitioner/applicant has relied on the office memorandum dated 9th

September, 2010, item No. 4 dealing with whether the benefits of

MACPS would be granted from the date of entry grade or from the date

of their regular service/approved service counted under various service

rules. The said memorandum clarifies that benefits under the MACPS

would be available from the date of actual joining of the post in the

entry grade.

Considering the facts and circumstances, it is apparent that the

said clarification is not applicable to the case of the respondent as she

was granted notional seniority from 1984. The plea of the petitioner

was that she has only been assigned seniority but had not been granted

relief of notional pay fixation. This Court had held that if she has been

granted notional seniority from 1984, then the fiction has to be given

full effect including for the purpose of pay fixation. In the

circumstances, in the garb of alleged clarification, which is also not

applicable to the case of the petitioner/applicant, the applicant is not

entitled for review of order dated 21st December, 2009.

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. This power can also be exercised on account of some

mistake or error apparent on the face of the record or for any other

sufficient reason. In Aribam Tuleshwar Sharma v. Aribam Pishak

Sharma, AIR 1979 SC 1047 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 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."

It is well settled that review proceedings have to be strictly

confined to the ambit and scope of Order 47 Rule 1 CPC. Under Order

47 Rule 1 CPC a judgment may be open to review inter alia if there is a

mistake or an error apparent on the face of the record. 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 further

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

correct the mistake but not to substitute the view.

In the circumstances, this Court does not find any ground for

review of order dated 21st December, 2009. In any case, the application

of the petitioner/applicant seeking condonation of delay has also been

dismissed.

The applications of the petitioners/applicants are therefore,

dismissed, leaving the parties to bear their own costs.

ANIL KUMAR, J.

JANUARY 7th, 2011                              VIPIN SANGHI, J.
 „rs‟