Jharkhand High Court
Prerna vs Jharkhand State Electricity ... on 7 August, 2023
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Civil Review No.5 of 2022
----
1. Prerna, aged about 40 years, daughter of Late Lalan
Prasad, resident of Qtr. No.E.O/80, Block No.7, Janta
Nagar, PTPS, Patratu, P.O. and P.S. Patratu, District
Ramgarh (Jharkhand).
2. Amar Kumar, aged about 41 years, son of late Parash
Nath Sharma, resident of Kusai Colony, Qr. No. F/111,
Doranda, P.O. & P.S. Doranda, District Ranchi.
3. Hemant Kumar Choubey, aged about 48 years, son of late
Subhash Choubey, resident of Kusai Colony, Qr. No.F/99,
Doranda, P.O. & P.S. Doranda, District Ranchi.
... ... Respondents/Review petitioners
Versus
1. Jharkhand State Electricity Board, through its Chairman,
Jharkhand State Electricity Board, Engineering Building,
HEC, Dhurwa, P.O. and P.S. Dhurwa, District Ranchi
(Jharkhand).
2. The Chairman, Jharkhand State Electricity Board (now
Jharkhand Urja Vikas Nigam Limited), Engineering
Building, HEC, Dhurwa, P.O. and P.S. Dhurwa, District
Ranchi (Jharkhand).
3. The Secretary, Jharkhand State Electricity Board (now
Jharkhand Urja Vikas Nigam Limited), Engineering
Building, HEC, Dhurwa, P.O. and P.S. Dhurwa, District
Ranchi (Jharkhand).
4. The Director, Personnel, Jharkhand State Electricity Board
(now Jharkhand Urja Vikas Nigam Limited), Engineering
Building, HEC, Dhurwa, P.O. and P.S. Dhurwa, District
Ranchi (Jharkhand).
5. The Joint Secretary, Jharkhand State Electricity Board
(now Jharkhand Urja Vikas Nigam Limited), Engineering
Building, HEC, Dhurwa, P.O. and P.S. Dhurwa, District
Ranchi (Jharkhand).
... ... Appellants/Opposite Parties
6. Ranjeet Kumar, son of late Rabindra Lal Karan, resident of
C-105, Narayan Tower, Mahuwa Toli, near Gas Godown
Namkum, P.O. & P.S. Namkum, District Ranchi.
7. Pradeep Kumar Chatterjee, son of late Panchanan
Chatterjee, resident of Kusai Colony, Qr. No. F/110, P.O.
& P.S. Doranda, District Ranchi.
8. Rajesh Kumar Singh, son of late Harakh Narayan Singh,
resident of Kusai Colony, Qr. No. F/110, Doranda, P.O. &
P.S. Doranda, District Ranchi.
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9. Pawan Kumar Tiwary, son of late Radha Kant Tiwary,
resident of 33/11 KV Power Sub Station, Ratu, P.O. & P.S.
Ratu, District Ranchi.
10. Ram Prakash Raj Sinku, son of late Shailesh Kumar Raj
Sinku, C/o Sanjay Ming, Bara Ghagra, near Shanti Rani
School, Doranda, P.O. & P.S. Doranda, District Ranchi.
11. Kashi Nath Kumhar, son of late Suken Kumhar, resident
of Qr. No.F/2, Grid Sub Station Colony, Adityapur near
Sudha Dairy, P.O. & P.S. Gamharia, District Seraikella
Kharsawan.
... ... Respondents/Opposite Parties
With
Civil Review No.6 of 2022
----
1. Ram Prakash Raj Sinku, aged about 37 years, son of Late
Shailesh Kumar Raj Sinku, C/o Sanjay Ming, Bara Ghagra,
Near Shanti Rani School, Doranda, Post Doranda, Police
Station Doranda, District Ranchi.
2. Pawan Kumar Tiwary, aged about 34 years, son of Late
Radha Kant Tiwary, Resident of 33/11 KV, Power Sub-
Station, Ratu, Post Ratu, Police Station Ratu, District
Ranchi.
... ... Appellant Nos. 7, 6/Petitioners
Versus
1. Jharkhand State Electricity Board (now Jharkhand Urja
Vikas Nigam Limited), through its Chairman, Jharkhand
State Electricity Board, Engineering Building, HEC,
Dhurwa, Post Dhurwa, Police Station Dhurwa, District
Ranchi (Jharkhand).
2. The Chairman, Jharkhand State Electricity Board (now
Jharkhand Urja Vikas Nigam Limited), Engineering
Building, HEC, Dhurwa, Post Dhurwa, Police Station
Dhurwa, District Ranchi (Jharkhand).
3. The Secretary, Jharkhand State Electricity Board, (now
Jharkhand Urja Vikas Nigam Limited), Engineering
Building, HEC, Dhurwa, Post Dhurwa, Police Station
Dhurwa, District Ranchi (Jharkhand).
4. The Director, Personnel, Jharkhand State Electricity Board
(now Jharkhand Urja Vikas Nigam Limited), Engineering
Building, HEC, Dhurwa, Post Dhurwa, Police Station
Dhurwa, District Ranchi (Jharkhand).
5. The Joint Secretary (IV), Jharkhand State Electricity Board,
(now Jharkhand Urja Vikas Nigam Limited), Engineering
Building, HEC, Dhurwa, Post Dhurwa, Police Station
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Dhurwa, District Ranchi (Jharkhand).
6. Manoj Kumar, Son of Late Jag Narayan Rai, resident of Jag
Narayan Bhawan, Road No. 3, Prem Nagar, P.O. Hatia, P.S.
Jagarnathpur, District-Ranchi.
7. Sohrai Kachhap, Son of Late Bandhu Kacchap, resident of
Bara Ghagra (Nichay Toli), Doranda P.O. and P.S. Doranda,
District-Ranchi.
8. Ajay Kumar Jha, Son of Late Sudhir Jha, resident of
J.S.E.B. Colony near Shiv Mandir, Kokar, P.O. and P.S.
Kokar, District Ranchi.
9. Hemant Kumar, Son of Late Ram Bilas Sah, resident of Qr.
No.E/79, Road No. 12, Patratu, P.O. and P.S. Patratu,
District Ramgarh.
10. Subhash Rawani, Son of Late Modi Rawani, resident of
Patel Nagar, Road No.6B, P.O. - Hatia, P.S. - Jagarnathpur,
District Ranchi.
11. Ranjeet Kumar Gupta, Son of Sri Balram Prasad Gupta,
resident of Qr. No.B/100, Sector-II H.E.C., P.O. and P.S.
Jagarnathpur, Dhurwa, District- Ranchi.
12. Rishikesh Son of Late Sudama Singh, Resident of behind
Dr. Shyam Homeo Clinic, Purulia Road, Old Lowadih, P.O.
and P.S. Namkum, District- Ranchi.
... ... Respondents/Opposite Parties
13. Prerna, daughter of Late Lalan Prasad, Resident of Qr.
No.E.O/80, Block No.7, Janta Nagar, P.T.P.S., Patratu, Post
Patratu, Police Station Patraty, District Ramgarh
(Jharkhand).
14. Amar Kumar, Son of Late Parash Nath Sharma, Resident of
Kusai Colony, Qr. No. F/111, Doranda, Post Doranda,
Police Station Doranda, District Ranchi.
15. Ranjeet Kumar, Son of Late Rabindra Lal Karan, resident of
C-105, Narayan Tower, Mahuwa Toli, Near Gas Godown
Namkum, Post Namkum, Police Station Namkum, District
Ranchi.
16. Rajesh Kumar Singh, aged about 36 years, son of Late
Harakh Narayan Singh, Resident of Kusai Colony, Qr. No.
F/110, Doranda, P.O. and P.S.- Doranda, District- Ranchi.
17. Hemant Kumar Choubey, Son of Late Subhash Choubey,
resident of Kusai Colony, Qr. No.F/99, Doranda, Post
Doranda, Police Station Doranda, District Ranchi.
18. Kashi Nath Kumhar, aged about 35 years, Son of Late
Suken Kumhar, Resident of Qr. No.F/2, Grid Sub-Station
Colony, Adityapur near Sudha Dairy, P.O. and P.S.
Gamharia, District Seraikella Kharsawan.
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19. Pradeep Kumar Chatterjee, aged about 48 years, S/o Late
Panchanan Chatterjee, R/o Kusai Colony, Qr. No. F/110,
P.O. + P.S. Doranda, Ranchi, Jharkhand.
... ... Proforma Respondents/Opposite Parties
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
------
For the Petitioners : Mrs. Ritu Kumar, Advocate
Mr. Indrajit Sinha, Advocate
For the Respondents : Mr. Sachin Kumar, Advocate
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th
Order No.06/Dated 7 August, 2023
Per Sujit Narayan Prasad, J.
I.A. No.4366 of 2023 in Civil Review No.05/2022
This interlocutory application has been preferred
under Section 5 of the Limitation Act for condoning the delay of
136 days in preferring Civil Review No.05 of 2022.
2. Heard learned counsel for the parties.
3. Having regard to the averments made in the
application and submissions made on behalf of the review
petitioners, we are of the view that the review petitioners were
prevented from sufficient cause in filing the review within the
period of limitation. As such, the delay of 136 days in preferring
the instant review petition is hereby condoned.
4. I.A. No. 4366 of 2023 stands allowed.
Civil Review No.5 of 2022 with Civil Review No.6 of 2022
5. Both the review petitions have been heard together
and are being disposed of by this common order since the order
under review is a common order passed by the Division Bench
of this Court in intra-court appeal being L.P.A. No.512 of 2018
with L.P.A. No.647 of 2018 disposed of on 22.12.2021.
6. The brief facts of the case which are required to be
enumerated reads as under :-
7. The writ petitioners were appointed on Class IV posts
in Jharkhand State Electricity Board (hereinafter to be referred
to as J.S.E.B.), now Jharkhand Urja Vikas Nigam Limited
(hereinafter to be referred to as JUVNL). The JUVNL came out
with a Standing Order No. No.812 dated 07.01.1999 providing
therein the process of appointment on non-technical Class-III
posts through internal advertisement. The JUVNL decided to fill
up the vacant posts of non-technical Class-III post vide
Resolution No.7305 dated 02.12.1998 against the sanctioned
strength through internal advertisement in pursuance to the
decision of the Apex Board and the percentage of vacancies in
non-technical Class-III posts would be filled up by the
departmental candidates through selection as shown against
each post.
8. The Director, Personnel, J.S.E.B. (now JUVNL) issued
a letter being letter No.1341 dated 25.06.2008 for appointment
on the post of Junior Accounts Clerk, Lower Division Assistant
and Routine Clerks and other posts through internal process
who are having the qualification of Matriculation and above;
and minimum educational qualification for Junior Accounts
Clerk and Lower Division Assistant is Graduate
(Science/Arts/Commerce) and for Routine Clerk, it is
Matriculation. It has further been stated that application from
interested persons having requisite qualification should be
forwarded to the office of Director, Personnel by 31.08.2008 in
prescribed format enclosed with the letter.
9. Subsequently, vide letter No.144 dated 19.01.2009 it
has been notified that the candidates who have applied for
Correspondence Clerk/Junior Accounts Clerk, if interested,
they may also apply for appointment on the post of Lower
Division Assistant.
10. Thereafter, the writ petitioners, claiming themselves
to be eligible, applied in prescribed format for the posts of
Junior Accounts Clerk, Lower Division Assistant and Routine
Clerk. In the examination they had appeared and after being
declared successful in the result published on 15.02.2009, they
were issued the Offer of Appointment and accordingly they
joined on the respective posts at the place and started working
but the J.S.E.B. cancelled the order of appointment vide order
No. 860 dated 07.05.2009 whereby implementation of different
orders by which the persons appointed on the post of Junior
Accounts Clerk, Lower Division Assistant and Routine Clerks
including the petitioners, without assigning any reason.
11. The Association made due representation protesting
against such decision of the Board/Nigam but to no effect and,
therefore, the aggrieved appointees approached this Court by
filing writ petitions being W.P.(S) Nos. 1248 of 2010 and 1269
of 2010.
12. The respondents-appellants, JUVNL appeared and
contested the case by filing counter affidavit taking the plea
that -
(i) The posts have been filled up without following the
circular dated 07.01.1999 as the posts have been filled up
beyond the sanctioned strength earmarked to be filled up from
amongst the in-service candidates and thereby encroaching the
quota of the post to be filled up through direct recruitment by
inviting applications from open market.
(ii) As per the advertisement, two years' experience was
required to be possessed by one or the other candidates for
their appointment through promotion.
(iii) The entire appointment is without any approval by the
Board and even the posts have been filled up beyond the
sanctioned strength of the posts of entire cadre irrespective of
the vacancies to be filled up by way of promotion or through
direct recruitment.
(iv) Immediately after the aforesaid filling up of the posts
through promotion, an enquiry committee was constituted
which has submitted its report alleging serious
irregularities/illegalities in such appointment and, therefore,
the filling up of the post by way of promotion has been held to
be illegal and accordingly, they have been reverted to their
original posts.
13. Learned Single Judge, after hearing the learned
counsel for the parties, has quashed the impugned decision of
the authority pertaining to their reversion from service with a
direction to come out with a fresh order of appointment which
was the subject matter of the appeals.
14. The aforesaid order was challenged by filing Letters
Patent Appeals wherein the order passed by the learned Single
Judge has been quashed and set aside, which has been sought
to be reviewed in these review petitions.
15. The ground has been taken as would appear from the
review petitions that the consideration which has been made
while dismissing the intra-court appeal that the petitioners do
not fulfill the requirement of having two years' experience, the
same is incorrect finding since the petitioners do fulfill the
requirement of having two years' experience as in-service
candidate.
16. This Court, before dealing with the aforesaid ground
to be a just ground for review of the order passed by this Court,
deems it fit and proper to refer the position of law so far as the
power of review is concerned.
17. The Hon'ble Apex Court has considered the width
and scope of power of review in Moran Mar Basselios
Catholicos and Anr. Vrs. Most Rev. Mar Poulose Athanasius
and Ors., reported in AIR 1954 SC 526 particularly at
paragraph-32 which read as hereunder:-
"32. Before going into the merits of the case it is as well to bear
in mind the scope of the application for review which has given
rise to the present appeal. It is needless to emphasis that the
scope of an application for review is much more restricted than
that of an appeal. Under the provisions in the Travancore Code
of Civil Procedure which is similar in terms to Order XL VII,
Rule I of our Code of Civil Procedure, 1908, the Court of review
has only a limited jurisdiction circumscribed by the definitive
limits fixed by the language used therein. It may allow a review
on three specified, grounds, namely (i) discovery of new and
important matter or evidence which, after the exercise of due
diligence, was not within the applicant's knowledge or could not
be produced by him at the time when the decree was passed,
(ii) mistake or error apparent on the face of the record and (iii)
for any other sufficient reason."
18. In the case of Shivdev Singh and Others v. State of
Punjab and Others, reported in AIR 1963 SC 1909, in a
review petition filed under Order 47, Rule 1 C.P.C., the
Supreme Court held that the power of review of its own order
by the High Court inheres in every Court of plenary
jurisdiction, to prevent miscarriage of justice or to correct grave
and palpable errors committed by it. In doing so, the Court was
only upholding the principles of natural justice. This decision
indicates that the Court's power of review while exercising
jurisdiction under Article 226 of the Constitution extends to
correct all errors to prevent miscarriage of justice. The
judgment rendered by Hon'ble Apex Court in the case of Sow.
Chandra Kanta and Anr. Vrs. Sheikh Habib, reported in AIR
1975 SC 1500 wherein it has been held that:-
"A review of a judgment is a serious step and reluctant resort to
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it is proper only where a glaring omission or patent mistake or
like grave error has crept in earlier by judicial fallibility. A mere
repetition through different counsel of old and overruled
arguments, a second trip over ineffectually covered ground or
minor mistakes of inconsequential import are obviously
insufficient."
19. It is the settled proposition as has been settled by
Hon'ble Apex Court in the judgment discussed hereinabove that
the scope of review can only be done in case of discovery of new
and important matter or evidence which, after the exercise of
due diligence, was not within the applicant's knowledge or
could not be produced by him at the time when the decree was
passed, mistake or error apparent on the face of the record and
for any other sufficient reason and in the light of this legal
position the fact of these review petitions need to be
appreciated.
20. It is thus evident that the power of review can only be
exercised on the following conditions :-
(i) Discovery of new and important matter or evidence
which, after the exercise of due diligence, was not
within the applicant's knowledge or could not be
produced by him at the time when the decree was
passed,
(ii) Mistake or error apparent on the face of the record
and
(iii) For any other sufficient reason.
21. This Court is now proceeding to deal with as to
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whether the ground which has been agitated can be said to be a
ground of review as per the principle to be followed by the
review court while reviewing the order.
22. The first ground has been taken that the writ
petitioners are holding the experience but as would appear from
the submission made by learned counsel appearing for the
review petitioners, that the condition about possessing of two
years' experience by in-service candidate is not the requirement
under the circular dated 07.01.1999 and merely on the ground
that such condition is available in the advertisement, does not
debar the writ petitioners from consideration on the principle
that in case of any discrepancy in between the rules of
recruitment or the advertisement, rules of recruitment will
prevail and thereby even though such experience is not
available the appointment made to the post of Routine Clerk
cannot held to be illegal.
For ready reference, the submission made on behalf of the
writ petitioners in the appeal which has been recorded at
paragraph-9 of the order under review is being referred and
quoted as under :-
"9. In response, Mr. Indrajit Sinha, learned counsel
appearing for the writ petitioners-respondents, submits that
such condition about possessing of two years' experience by in-
service candidates is not the requirement under the circular
dated 07.01.1999 and merely on the ground that such
condition is available in the advertisement does not debar the
writ petitioners from consideration on the principle that in case
of any discrepancy in between the Rules of Recruitment or the
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advertisement, the Rule of Recruitment will prevail and thereby
even though such experience is not available, the appointment
made to the post of Routine Clerk cannot be held to be illegal."
23. It further appears from the order sought to be
reviewed as under paragraph 11(ii) wherein the issue was
framed that the condition although not stipulated in the rules
of recruitment but stipulated in the advertisement pertaining to
possessing of two years' experience before consideration to the
post in question, if not fulfilled, such appointment can be held
to be illegal?
24. This Court has proceeded to answer the aforesaid
issue by considering the terms and conditions of the
advertisement which was annexed as Annexure-2 to the
Memorandum of appeal whereby and whereunder the
mandatory condition was provided to have the minimum
educational eligibility condition which was mandatorily to be
possessed by the in-service candidates with the further
stipulation that such candidates who have completed two years'
experience as on 30th September, 2008 will only be eligible to
make application in the internal recruitment process.
25. The writ petitioners have applied and after having
been selected, offer of appointment was issued and they have
started discharging the duty. But the Board, after finding
violation of the rules of recruitment, as per the standing order
dated 07.01.1999, set up a committee as to whether any
illegality has been committed in the matter of appointment or
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not. The committee has found out that so far as it relates to the
possessing of the experience certificate is concerned, this Court
while dealing with the issue has dealt with the issue regarding
the nature of appointment said to be illegal or not, as per the
argument advanced on behalf of the review petitioners, the
appellant in the intra-court appeal, but we had not considered
basing upon the submission of Mr. Sinha wherein he has
admitted the fact that the appointees are required to possess
two years' working experience as per condition stipulated in the
advertisement which is mandatory for the candidate even for
the post of Routine Clerk.
26. He has defended such appointment on the ground
that the condition about possessing two years' experience was
not available in the rules of recruitment as contained in the
standing order dated 07.01.1999 but such argument was
rejected on the ground that while making application which
was in pursuant to the condition of advertisement, the
candidates have seen such conditions with naked eyes and
thereafter made their applications and since they were not
possessing the required eligibility criteria, as per advertisement,
their candidature ought to have been rejected at the threshold
on the ground of non-fulfilment of condition as has been
stipulated in the advertisement.
27. It is, thus, evident that the issue of possessing the
experience certificate has well been considered while dealing
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with the intra-court appeal, as would appear from paragraph
No.13 of the order sought to be reviewed.
28. The ground has been taken that all the appellants
fulfill the eligibility and experience as per the advertisement
and circular in force and the other ground regarding the
propriety of the enquiry report, basis of the decision taken by
the Administrative Authority are concerned, as would appear
from the order sought to be reviewed that the aforesaid aspect
of the matter has also been considered in detail.
29. This Court, after going through the
grounds/argument advanced on behalf of the review petitioners
for review of the order passed by this Court in L.P.A. No.512 of
2018 and L.P.A. No.647 of 2018, is of the view that the issue
which has already been dealt with and decided has now again
been sought to be reopened by taking the same points which
were already argued and considered by this Court in intra-court
appeal.
30. It is, thus, evident that it is not a case where the
review petitioners have come on the ground of a new fact said
to have not brought into the notice of the Court at the time of
hearing of intra-court appeal in spite of due diligence or it is not
a case where the error is apparent on the face of the record,
rather, the case is on the basis of material which has already
been considered for its re-consideration.
31. This Court, on the basis of the position of law as
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referred hereinabove, wherein the parameters have been fixed
to exercise the power of review, i.e., (i) discovery of new and
important matter or evidence which, after the exercise of due
diligence, was not within the applicant's knowledge or could not
be produced by him at the time when the decree was passed, (ii)
mistake or error apparent on the face of the record and (iii) for
any other sufficient reason, but has not found any of the
conditions for review. As such, this Court is of the considered
view that the instant case is not coming under the fold so as to
exercise the power of review.
32. This Court, on the basis of the discussions made
hereinabove, so far as the fact and law is concerned, is of the
view that it is not a fit case where the power of review can be
exercised.
33. Accordingly, both the Review Petitions (Civil Review
No.5 of 2022 and Civil Review No.6 of 2022) stand dismissed.
34. Pending interlocutory applications also stand
disposed of.
(Sanjaya Kumar Mishra, C.J.)
(Sujit Narayan Prasad, J.)
Birendra/ A.F.R.
