Delhi High Court

Sh.Sutesh Kumar vs Union Of India & Anr. on 13 January, 2012

Author: Anil Kumar

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            WP(C) No.6625/1998

%                       Date of Decision: 13.01.2012

Sh.Sutesh Kumar                                              .... Petitioner

                      Through Mr.Rajat Malhotra, Advocate


                                    Versus

Union of India & Anr.                                      .... Respondents

                      Through Dr.Ashwani Bhardwaj          and    Mr.Varun
                              Kumar, Advocates

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE J.R.MIDHA


ANIL KUMAR, J.

* CM No.581/2012

Allowed subject to all just exceptions.

Application is disposed of.

CM No.580/2012 & RP No.29/2012

By these applications the petitioner has sought the condonation

of the delay of three years and 301 days in filing the application for the

review of the order dated 29th November, 2007 dismissing the writ

petition of the petitioner, on the ground that the said order is liable to

be reviewed on account of the alleged relaxation of age and other

conditions being granted for the recruitment of drivers.

The petitioner had sought the quashing of order No.DV-1/93-CC-

IV dated 31st May, 1993, whereby the services of the petitioner who had

joined as a constable driver with the CRPF in September, 1991 were

terminated and the appeal against the order of termination was also

dismissed. The writ petition of the petitioner was dismissed and it was

pertinently made note of that the services of 24 persons including the

petitioner were terminated on the ground that the petitioner‟s initial

recruitment was irregular and contrary to the rules. The recruitment of

the petitioner was found to be contrary to the rules as he was over age

by 3 years 4 months and 10 days and his chest measurement was not

according to the minimum standards prescribed for appointment as

driver.

While dismissing the writ petition the original records were

produced and perused by the Court. On behalf of petitioner it had been

contended that there was a relaxation of 5 years for constable drivers,

however, no specific assertion was made by the petitioner in his

rejoinder nor was anything produced to show that the petitioner was

entitled for any relaxation.

By order dated 29th November, 2007 the writ petition was

dismissed not only on the ground that the petitioner was over age but

also on the ground that the chest measurement of the petitioner at the

time of recruitment was not as per the minimum eligibility conditions

since the petitioner‟s chest measurement was 78-79 cms and no

relaxation could be granted for the same.

The petitioner has now sought the review of the order dated 29th

November, 2007 by relying on the telegram dated 11th April, 1991

issued by the DD (Pers) to CENTPOL NW zone which is allegedly

regarding the grant of relaxation to similarly situated persons as the

petitioner. Review is also sought on the ground that the Inspector

General of Police, Northern Sector, CRPF, R.K.Puram, New Delhi had

also issued similar letters providing relaxation in the rules for the

recruitment of Constable drivers and Constable fitters and that even the

Director General, CRPF has issued a letter dated 3rd June, 1992

pertaining to the special recruitment drive for recruitment of CT (DVR)

and CT (FTR) from the open market by providing the relaxation in the

rules for recruitment. The petitioner has also asserted that the other

persons who were appointed under the special recruitment drive by the

relaxation of rules along with the petitioner and juniors to the

petitioners have also been retained in the service, whereas the services

of the petitioner had been terminated without any rhyme or reason.

The petitioner has sought the condonation of 3 years and 301

days on the ground that the petitioner was not having with him these

letters stipulating the relaxation and condonation of rules earlier and

that it was only after visiting the offices of the respondents several times

that he was able to obtain the letters providing the relaxation in the

second week of September, 2011, after which he immediately

approached this Court to bring the same to its notice.

It is pertinent to note that even according to the allegations of the

petitioner/applicant, the relaxation letters are dated 11th April, 1991

and 3rd June, 1992. While the petitioner had filed the writ petition

dated 6th December, 1998 and the writ petition was disposed of only on

29th November, 2007. No cogent reason has been disclosed as to how

the petitioner could not get the knowledge of these alleged letters at that

time. Even after the dismissal of the writ petition on 29th November,

2007 nothing has been disclosed as to what efforts were made by the

petitioner/applicant to obtain these letters except for making the bald

averment that he had visited the offices of the respondents several

times and that he had got this information only in September, 2011.

The learned counsel for the petitioner/applicant cannot dispute

that the discovery of new evidence or material by itself is not sufficient

to entitle a party for the review of a judgment, provided the applicant

had acted with due diligence and that the existence of the evidence,

which he has now discovered, was not within his knowledge. If it is

found that the petitioner/applicant has not acted with due diligence

then it is not open to the Court to admit the evidence on the ground of

sufficient cause. The party seeking a review should prove strictly the

diligence he claims to have exercised. In a review application, a party

cannot be allowed to introduce fresh documents merely to supplement

the evidence which might possibly have had some effect on the result.

This 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. A review is permissible on the ground of discovery of new

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

character that if it had been produced earlier it might possibly have

altered the judgment, further, it must be established that the applicant

had acted with due diligence and that the existence of the evidence,

which he has now discovered, was not within his knowledge when the

order was passed. If it is found that the petitioner has not acted with

due diligence then it is not open to the Court to admit evidence on the

ground of sufficient cause. The party seeking a review should prove

strictly the diligence he 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.

So far as the power of review available to a court is concerned, in

Ajit Kumar Rath v. State of Orissa and Ors., AIR (2000) SC 84 the Court

held thus that this power is not an absolute power and is hedged by the

restriction indicated in Order 47 of the Code of Civil Procedure. Such

power can be exercised on the application of a person, on the discovery

of new and important matter or the evidence which, after the exercise of

due diligence, was not within his knowledge or could not be reproduced

by him at the time when the order was made. This power can also be

exercised on account of some mistake or error apparent on the fact of

the record or for any other sufficient reason. 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 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."

Attempt of the petitioner/applicant is only to re-agitate the

issues. The applicant has also not specifically explained as to how the

letters pertaining to the relaxation could not be produced by him

despite due diligence on his part when the writ petition was filed on 16th

December, 1998 and at the time the Court had dismissed his writ

petition only 29th November, 2007.

In the totality of facts and circumstances, this Court is not

satisfied with the pleas raised by the petitioner that there is sufficient

cause to condone the delay of 3 years and 301 days in filing the review

application nor are there any cogent grounds for reviewing the order

dated 29th November, 2007.

The applications are, therefore, dismissed.