Ms.Kiran Chawla & Ors. vs Uoi & Anr.
2011 Latest Caselaw 4775 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI


+          Review Petition No. 545/2011 & CM Nos.16262-63/2011
                                     in

                               WP(C) Nos.17473-78/2006


%                            Date of Decision: 26.09.2011

Ms. Kiran Chawla & Ors.                                      .... Petitioners

                         Through Mr. Manu Mridul and Mr. Anant K.
                                 Vatsya, Advocates


                                         Versus

UOI & Anr.                                                  .... Respondents

                         Through Mr. H.K. Gangwani,          Advocate      for
                                 respondent No. 1

                                        Ms. Sweety Manchanda,   CGSC       for
                                        respondent No. 2


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

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.

*

CM No. 16263/2011

This is an application seeking condonation of 105 days of delay in

filing the review application.

The applicants have contended that against the order dated 2nd

May, 2011, the petitioner had filed a special leave petition by diary No.

25359/2011. After filing the special leave petition, the

petitioners/applicants were advised to file a Review Petition before this

Hon‟ble Court and this led to a delay of 105 days.

Apparently, the application lacks any material particulars as no

particulars have been given as to when the Special Leave Petition was

filed by diary No. 25359/2011; when the petitioner felt it wise to file the

review petition; and when was the advice given as well as other

particulars. The application has been filed in a very casual manner

without disclosing any cogent grounds which would make out a

sufficient cause for condonation of delay.

From the averments made in the application seeking condonation

of delay of 105 days, which lacks in material particulars, the

petitioners/applicants have failed to make out a sufficient cause for

condoning the delay in filing the review application.

The learned counsel for the petitioners/applicants has failed to

show that the averments made will constitute sufficient cause and that

the applicants are entitled for condonation of delay of 105 days in filing

the review application in the present facts and circumstances and in

law. Therefore, the application for condonation of delay is without any

merit and thereby it is dismissed.

Review Application No. 545/2011 and CM No. 16262/2011

The application of the petitioners/applicants seeking condonation

of 105 days‟ delay in filing the review application has been dismissed,

however, the merits of the review application are also considered by this

Court after hearing the counsel for the applicants.

The applicants have sought review of the order dated 2nd May,

2011 on the ground that there is an error apparent in holding that the

petitioners were illegally appointed as they had not been appointed

through the Direct Recruitment Examination conducted by the Staff

Selection Commission(SSC) as required under the CSSS and the CSCS

Rules, since according to the applicants the Department of Tourism has

framed its own Recruitment Rules for the Grade „C‟ Post exercising

powers conferred under the proviso to Article 309 of the Constitution. It

is further submitted that under the Recruitment Rules of the Ministry of

Tourism, there is no requirement of SSC examination qualified

candidates so far as the appointment of Lower Division Clerks is

concerned. Therefore, according to the Recruitment Rules for the post

of Junior Stenographers, the Direct Recruitment Examination

(conducted by SSC) qualified candidates are eligible for appointment

but the same remained unavailable throughout before the petitioners

were appointed on ad hoc basis.

The other error apparent alleged by the petitioners/applicants is

that the reliance could not be placed on the ratio of Pankaj Gupta

(supra) relied on in the order dated 2nd May, 2011 since that case is

distinguishable from the facts and circumstances of the present matter,

inasmuch as in that case, the employees were appointed illegally

without following the procedure prescribed under the law. In

contradistinction, the petitioners/applicants were not appointed

illegally or de hors the Recruitment Rules as the first category of

petitioners, i.e. the Junior Stenographers, were requisitioned from the

Employment Exchange in absence of any candidature from the SSC and

therefore, the proviso to Rule 14(1) of the Central Secretariat

Stenographers Services (CSSS) Rules, 1969 were invoked and vacancies

were notified to the Employment Exchange. It is contended that when

sufficient number of candidates are not available from the examination

held by the SSC, then appointments could be made either provisionally

or on regular basis as would be prescribed by DOPT.

Regarding LDCs, it is contended that they were appointed

according to the Recruitment Rules of the Department of Tourism by a

notification of vacancies to the Employment Exchange and even if CSCS

Rules are deemed to be applicable to the LDCs, even then, in case of

dearth of qualified candidates from the SSC, the appointments are to be

made under the proviso to Rule 12 (1) (b) of CSCS Rules.

The applicants have also contended that inadvertently it could

not be brought to the notice of the court that the respondent is a non-

participating office with respect to SSC, as has been remarked by the

then Under Secretary, Tourism.

This cannot be disputed that the power of review is not an

absolute power and is hedged by restrictions as indicated in Order 47 of

the Code of Civil Procedure. 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. The power of review can

also be exercised on account of an error on the face of record or for any

other sufficient reason. In Aribam Tuleshwar Sharma Vs. Aribam

Pishak Sharma, (1979)4SCC389, the Supreme Court had held as

under:-

"........It is true there is nothing in Article 226 of the Constitution to preclude a 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 or 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."

The attempt of the petitioners/applicants in the present review

application is only to re-agitate the issues. In our opinion, no error

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

out by the petitioners/applicants. The learned counsel for the

petitioners has referred to the notification dated 15th January, 1990,

notifying Rules regulating the method of recruitment to the post of

Junior Stenographers in the Department of Tourism (Headquarter

Establishment). The rules contemplate recruitment to the post of Junior

Stenographers and the method of recruitment prescribed is direct

recruitment through SSC on the basis of qualifying the examination to

be held by SSC for departmental vacancies. The said method of

recruitment also states that vacancies caused by the incumbents being

away on transfer, on study leave or under any other circumstances for a

duration of one year or more, shall be filled by transfer on deputation

basis from officials of the Central Government holding analogous post

on regular basis and possessing the qualifications prescribed for direct

recruit. The petitioners, who were appointed as Junior Stenographers,

had neither qualified the examination conducted by the SSC, nor were

they appointed by transfer on deputation and also nor were they

officials of the Central Govt. holding analogous post on regular basis.

The Notification for the appointment was categorical that the

appointments to the post of Junior Stenographers shall purely be on ad

hoc basis against the regular vacancies which was reported to SSC from

time to time during the period 1993-99. The Ministry of Tourism, from

time to time, had reported vacancies to SSC as per Rules so that the

process for appointment to the said post could be initiated and could be

completed by SSC. Admittedly the petitioners were not appointed

pursuant to any examinations conducted by SSC.

The learned counsel for the petitioners/applicants has also

referred to the notification dated 25th February, 1961 notifying the

Recruitment to Class „III‟ Posts Rules, 1961 regarding Lower Division

Clerk. In the Rules, the learned counsel has referred to "100% by

direct recruitment", which appears under the columns and rows of the

recruitment rules and before the appended `Note‟, to contend that the

recruitment is 100% by direct recruitment. However, the method of

recruitment contemplated under the said recruitment rule for Lower

Division Clerk is 25% by promotion on the basis of competitive

examination, limited to Lower Division Clerks and Lower Division Clerks

(Hindi) in the Department of Tourism (Headquarters), and 75% by

promotion on the basis of seniority subject to the rejection of the unfit.

These rules relied on and referred to by the learned counsel do not

reflect any error apparent in the order dated 2nd May, 2011, rather, it is

only an attempt of the petitioners/applicants to re-agitate the issues.

No error, much less an error apparent on the face of the record,

has been pointed out by the applicants. An error which is not evident

and has to be inferred by a detailed process of reasoning can hardly be

said to be an error apparent on the face of the record. This principle

was reiterated by Supreme Court in the case of Lily Thomas etc. Vs.

UOI and Ors., Manu/SC/0327/2000 with a clear caution that in the

exercise of the power of review, Court may correct the mistake but

cannot substitute its earlier view. The mere possibility of two views on

the subject, if any, is not a ground for review. 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.

The ground canvassed in the review petition that in absence of

the sufficient number of candidates qualifying the SSC examination,

they were requisitioned from the Employment Exchange by invoking the

proviso to Rule 14(1) of the Central Secretariat Stenographers Services

(CSSS) Rules, 1969 and, thereafter, vacancies were notified to the

Employment Exchange and that when sufficient number of candidates

are not available from an examination held by SSC, then appointments

could be made either provisionally or on regular basis as may be

prescribed by DOPT, had not been taken either in the writ petition or

before the Tribunal. In any case, no such facts had been alleged that

sufficient numbers of candidates were not available from the

examination held by the SSC and therefore, the petitioners were

appointed on regular basis as per the procedure prescribed by DOPT.

The petitioners, in any case, were not appointed on regular basis which

is apparent from their appointment letters. The appointment letters

categorically incorporated that the appointment shall be purely on

temporary basis and until further orders.

Para 2 of some of the appointment letters, is as under:-

"2. Their appointment will be purely on temporary basis and until further orders."

The petitioners/applicants had also submitted in the

representations made by them that they were of the view that though

they were appointed on ad-hoc basis, yet they would be regularized in

due course as was done previously with other ad hoc employees. The

petitioners/applicants, however, never represented that since sufficient

number of candidates were not available after the examination

conducted by SSC, therefore, they were appointed through the

Employment Exchange and that consequently they could not be

appointed on ad hoc basis but should have been appointed on regular

basis. On perusal of the grounds in the writ petition and the grounds

taken before the Tribunal, it is apparent that the above noted ground

was not taken categorically on behalf of the petitioners nor was it

canvassed by the petitioners and on the basis of the same, it cannot be

held that there is any error apparent on the face of the order dated 2nd

May, 2011.

There is no averment that such a plea was taken by the counsel

for the petitioners and was not adjudicated by the Court. The applicants

are, therefore, not entitled to seek review of the order dated 2nd May,

2011 on the basis of the new plea, which was not taken before the

Tribunal and before this Court and which was not canvassed before the

passing of order dated 2nd May, 2011. The relevant facts for this new

plea were not pleaded and consequently had not been replied to by the

respondents.

For the foregoing reasons, even on merits, this Court does not

find any error apparent in the order dated 2nd May, 2011, or any error

which is evident so as to entail exercise of the power of review by this

Court.

The application for review is without any merit and it is,

therefore, dismissed. The CM No. 16262/2011 for stay is also disposed

of as infructuous, in the facts and the circumstances, as the review

application has been dismissed by this Court on account of delay in

filing the same and on merits.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

SEPTEMBER 26, 2011.

„rs‟