Jharkhand High Court

Chando Ram vs State Of Jharkhand on 12 February, 2021

                                         1




         IN    THE      HIGH   COURT     OF    JHARKHAND      AT    RANCHI
                          Civil Review Case No. 87 of 2019
     [Arising out of Order dated 06.08.2018, passed in W.P.(S) No. 502/2017]

 1.    Chando Ram
 2.    Pramod Kumar
 3.    Arun Kumar @ Arun Kumar Kushwaha
 4.    Ashok Sharma
 5.    Arun Kumar Sharma
 6.    Damodar Prasad
                                    ...  ... PETITIONERS/PETITIONERS
                           -Versus-
 1.    State of Jharkhand
 2.    Deputy Commissioner, Hazaribagh
 3.    Dashrath Ram
 4.    Indradeo Ram
 5.    Ajeet Kumar Pandey
 6.    Tukheshwar Sharma
 7.    Mansoor Alam
 8.    Ajay Prakash
 9.    Om Prakash Rajak
 10.   Shailesh Kumar Mishra
 11.   Mansoor Alam
 12.   Rupesh Kumar Singh
 13.   Md. Alkana Tarique
 14.   Ashok Kumar Thakur
 15.   Binod Ravi
                                 ...      ... RESPONDENTS/RESPONDENTS

16. Gopi Ravidas ... ... PERFORMA RESPONDENTS/RESPONDENTS

CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK

For the Petitioner : Mr. Sameer Saurabh, Advocate For the Respondents: Ms. Neelam Tiwari, Sr. SC-III

06/12.02.2021 Heard learned counsel for the parties.

2. Present Civil Review has been preferred for reviewing order dated 06.08.2018, passed in W.P.(S) No. 502 of 2017, by which writ petition preferred by the petitioners, was dismissed.

3. Case of the petitioners is that they were working as daily wagers and since they were not being considered for regularisation, they preferred W.P.(S) No. 4508 of 2010 for a direction upon the respondents to consider their cases for regularization in the services in 4th Grade posts in the district of Hazaribagh in view of the fact that they belonged to SC/ OBC category and their names were paneled for the year 2005.

Grievance of the petitioners was that the cases of similarly situated persons, though below in rank, were considered for regularization but they were not being considered. Even some of the persons, who had crossed the maximum age limits, were also given benefits of age relaxation following the Rule-54 of the Bihar/ Jharkhand Service Code whereas case of the petitioners were not at all considered. The said writ petition was disposed of with a liberty to file representation and the Deputy Commissioner, Hazaribagh was directed to consider the same. When the representation of the petitioners was not considered, they preferred Contempt Case (C) No. 363 of 2016, which was however disposed of with liberty to the petitioners to challenge action of the respondents.

4. Being aggrieved, petitioners preferred writ petition i.e. W.P.(S) No. 502 of 2017 with a prayer for quashing the order dated 25.02.2016, issued by the Deputy Commissioner, Hazaribagh, whereby claim for regularization of their services was rejected without considering order dated 04.12.2015, passed in W.P.(S) No. 4508 of 2010. Petitioners had also prayed for a direction upon the respondents to give them exemption of age bar in view of the fact that similarly situated persons had been given benefits of exemption from age bar. After detailed hearing, the said writ petition was dismissed vide order dated 06.08.2018. Being aggrieved, petitioners moved before the Hon'ble Supreme Court vide Special Leave to Appeal (C) No. 3383 of 2019, which was however dismissed vide order dated 04.02.2019. After order of the Hon'ble Supreme Court, petitioner has preferred instant review petition.

5. Mr. Sameer Saurabh, learned counsel appearing for the petitioners submits that though the respondent nos. 3 to 9 had secured less marks than the petitioners but they were appointed by the respondent no. 2. Learned counsel further argues that though the respondent nos. 1 to 15 were absent in cycling test even then they were illegally appointed by the respondent no. 2. All these facts were available in the writ petition but there was no specific reply by the respondent no. 2 on this point and only by

making false submission in the counter affidavit that none of the persons below in rank than the petitioners had been considered for regularization, they have mislead the Court. Respondent nos. 3 to 9 had secured less marks than the petitioners and they were much below in the panel but were appointed and as such, this petition may be allowed. Learned counsel further argues that the petitioners had preferred S.L.P.(C) No. 3383 of 2019 against the order dated 06.08.2018, passed in W.P.(C) No. 502 of 2017, which has however been dismissed vide order dated 04.02.2019 and, thereafter, petitioner has filed instant application. Learned counsel further places reliance in paragraphs 26 and 28 of the Judgment passed by Hon'ble Supreme Court in the case of Khoday Distilleries Limited (Now known as Khoday Indian Limited) and others Vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Limited, Kollegal (Under Liquidation) represented by the Liquidator, reported in (2019) 4 SCC 376.

6. Mr. Sreenu Garapati, learned counsel appearing for the State submits that instead of preferring Letters Patent Appeal before the Hon'ble Division Bench of this Court, petitioners moved before the Hon'ble Supreme Court. After dismissal of said Special Leave Petition, petitioners have no case and as such this application may be dismissed. Learned counsel further argues that the case relates to the advertisement floated in the year 2005 and much water has flown since then.

7. Heard the parties.

8. It appears that the writ petition was dismissed on merits vide order dated 06.08.2018. The panel in question relates to the year 2005 and petitioners have already crossed age of 50 years (approx..). It further appears that after order passed by this Court, petitioners directly moved before the Hon'ble Supreme Court but the said Special Leave Petition was dismissed. However, in the interest of justice it would be appropriate to quote para-26 and 28 of the Judgment relied upon by the petitioners.

"26. From a cumulative reading of the various judgments, we sum up the legal position as under:

26.1 The conclusions rendered by the three-Judge Bench of this Court in Kunhayammed and summed up in para-44 are affirmed and reiterated.

26.2 We reiterate the conclusions relevant for these cases as under: (Kunhayammed case, SCC P. 384] "(iv) An order refusing special leave to appear may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.

(v) If the order refusing leave to appeal is a speaking order i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.

(vi) Once leave to appeal has been granted and appellate jurisdiction of the Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.

(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court, the jurisdiction of the High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Order 47 Rule 1 CPC."

26.3 Once we hold that the law laid down in Kunhayammed is to be followed, it will not make any difference whether the review petition was filed before the filing of special leave petition or was filed after the dismissal of special leave petition. Such a situation is covered in para- 37 of Kunhayammed case.

... ... ...

28. In the instant case, since special leave petition was dismissed in limine without giving any reasons, the review petition filed by the appellant in the High Court would be maintainable and should have been decided on merits. Order dated 12.11.2008, passed by the High Court is accordingly set aside and matter is remanded back to the High Court for deciding the review petition on merits. The civil appeal is disposed of accordingly."

9. Nothing has been brought on record to show that there is any error apparent on face of record. There is limited scope in Civil

Review. Parties are not permitted to argue the review petition as if they are arguing the writ petition. Before adverting to the contentions of learned counsel for the respective parties, it would be apposite to see scope of review application. In this respect, it is relevant to mention herein Order XLVII, Rule 1 of Code of Civil Procedure, which reads as under:

"1. Application for review of Judgment. - (1) Any person considering himself aggrieved -

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred;

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate Court, the case on which he applies for the review."

The ground enumerated in Code of Civil Procedure is specific. The principles for interference in exercise of review jurisdiction are well-settled. The Court passing the order is entitled to review the order, if any of the grounds specified in the aforesaid provision are satisfied.

10. The Hon'ble Apex Court, in the case of Board of Control for Cricket in India and another Vs. Netaji Cricket Club and others, reported in (2005) 4 SCC 741, at paragraphs-89 and 90 has held as under:

"89. Order XLVII, Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.

90. Thus, a mistake on the part of the Court which would

include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason, would depend on the facts and circumstances of the case. The words "sufficient reason" in Order XLVII Rule 1 of the Code are wide enough to include a misconception of fact or law by a Court or even an advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminum gravabit."

11. The Hon'ble Apex Court, in the case of M.M. Thomas Vs. State of Kerala and another reported in (2000) 1 SCC 666, has held in paragraphs-14:

"14. The High Court as a Court of record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A Court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testimony. A Court of record is undoubtedly a superior Court which is itself competent to determine the scope of its jurisdiction. The High Court, as a Court of record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it, the High Court has not only power, but a duty to correct it. The High Court's power in that regard is plenary. In Naresh Shridhar Mirajkar v. State of Maharashtra, a nine-Judge Bench of this Court has recognised the aforesaid superior status of the High Court as a Court of plenary jurisdiction being a Court of record.

In paragraph-16 of the said Judgment, the Hon'ble Apex Court has held as under:

"16. Referring to the said passage and relying on the decision of this Court in Naresh Shridhar Mirajkar, a two- Judge Bench of this Court in M.V. Elisabeth v. Harwan Investment & Trading (P) Ltd., has observed thus (AIR Headnote) :

"The High Courts in India are superior Courts of record. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of the Supreme Court, the High Courts have unlimited jurisdiction."

12. The Hon'ble Apex Court, in the case of Ram Chandra Singh v. Savitri Devi and others reported in 2004(1) JCR 4 SC) : (2003) 8 SCC 319, at para-41, has held as under:

"41. In Rajesh D. Darbar v. Narasingrao Krishnaji Kulkarni, this Court noticed: (SCC p. 223, para-6) "The Courts can take notice of the subsequent events and can mould the relief accordingly. But there is a rider to these well-established principles. This can be done only in exceptional circumstances, some of which have been highlighted above. The equitable principle cannot, however, stand in the way of the Court adjudicating the rights already vested by a statute. This well-settled position need not detain us, when the second point urged by the appellants is focused. There can be no quarrel with the proposition as noted by the High Court that a party cannot be made to suffer on account of an act of the Court. There is a well-recognised maxim of equity, namely, actus curiae neminem gravabit which means an act of the Court shall prejudice no man. This maxim is founded upon jsutice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia i.e. the law does not compel a man to do that what he cannot possibly perform. The appliability of the abovesaid maxims has been approved by this Court in Raj Kumar Dey v. Tarapada Dey; Gursharan Singh v. New Delhi Municipal Committee and; Mohd. Gazi v. State of M.P."

13. In the case of Vikram Singh alias Vicky Walia and Another Vs. State of Punjab and another reported in (2017) 8 SCC 518, the Hon'ble Apex Court has held at para-22 as under:

"22. Summarising the principles when review will be maintainable and review will not be maintainable, the following was held in paras-20.1 and 20.2: (Kamlesh Verma case).

"20.1. When the review will be maintainable:

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason.

The words "any other sufficient reason" have been interpreted in Chhajju Ram v. Neki and approved by this Court in Moran Mar Basselios Catholicos v. Mar Poulose Athanasius to mean 'a reason sufficient on grounds at least analogous to those specified in the rule'. The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd.

20.2 When the review will not be maintainable:

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudictions.

(ii) Minor mistakes of inconsequential import.

(iii) Review proceedings cannot be equated with the original hearing of the case.

(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.

(vi) The mere possibility of two views on the subject cannot be a ground for review;

(vii) The error apparent on the fact of the record should not be an error which has to be fished out and searched;

(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."

14. Be that as it may, having gone through submission of learned counsel for the review petitioners and Judgments referred hereinabove, this Court is of considered view that in the instant case, no case is made out for review. The Hon'ble Apex Court has clearly held that review proceedings cannot be equated with the original hearing of the case and at the stage of review it is not open to the parties to argue same facts which were argued earlier before the Writ Court. Review is by no means an Appeal in disguise whereby erroneous decision is re-heard and corrected. Review is not at all rehearing of the matter all over again and to maintain a review petition, it has to be shown that there has been a miscarriage of justice. Mere possibility of two different views or merely saying that some grounds could not be taken before the writ court, cannot be a ground for review. In the instant case, it can comfortably be said that this Review Petition is not maintainable as the relief sought for earlier at the time of arguments of the main Writ Petition had been negatived and the same relief has been sought for in the present Review Petition. Both parties appeared, affidavits were exchanged and after hearing the respective parties, the writ petition was dismissed and as such, I do not find any illegality or infirmity in the order impugned.

15. From bare perusal of the Judgments relied upon by the petitioners, I find the same is of no help to them. The panel which

already expired in the year 2005, cannot be revived at this stage. Sole ground raised by the petitioners that wrong averments were made in the counter affidavit, cannot be considered at this stage because petitioners did not controvert said statements at the time of hearing of the writ petition nor any reply/ rejoinder were filed to that effect.

16. As a cumulative effect of facts and circumstances enumerated hereinabove, judicial pronouncements and settled principles of law, no case for review is made and this Review Petition has no merits. Consequently, this Review Petition is dismissed.

(Dr. S.N. Pathak, J)