Amar Dev Pandey vs The State Of Bihar
2021 Latest Caselaw 4067 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                         CIVIL REVIEW No.123 of 2021
                                         In
                   Civil Writ Jurisdiction Case No.8106 of 2021
     ======================================================

Amar Dev Pandey, S/o Shri Radhey Shyam Pandey, resident of Village Hasanpura, P.O.-Nasirpur P.S.-Gazipur District - Uttar Pradesh, Pin Code - 232339.

... ... Petitioner Versus

1. The State of Bihar through the Principal Secretary, General Administration Department, Bihar, Patna.

2. Secretary, Law Department, Bihar, Patna.

3. Bihar Public Service Commission, Patna through its Secretary.

4. Chairman, Bihar Public Service Commission, Patna.

5. Secretary, Bihar Public Service Commission, Patna.

6. Joint Secretary-cum-Collector of Examinations, Bihar Public Service Commission, Patna.

... ... Opposite Parties ====================================================== Appearance :

     For the Petitioner     :         Ms. Manisha Pandey, Advocate
     For the Opposite Party :         None

====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH and HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH) Date : 11-08-2021

By the present application, the petitioner seeks

review of the order of the Division Bench dated 23.03.2021

passed in CWJC No.8106 of 2021 by which the writ petition of

the petitioner has been dismissed.

2. The brief facts of the case are as follows:-

(a) The Bihar Public Service Commission issued

Advertisement No.4 of 2020 on 09.03.2020 Patna High Court C. REV. No.123 of 2021 dt.11-08-2021

inviting applications from eligible candidates for

participating in the 31st Bihar Judicial Services

(Preliminary) Competitive Examination for

consideration of their cases for appointment

against a total number of 221 seats of Civil Judge

(Junior Division) in different categories as

indicated under the said advertisement.

(b) Clause-4(ka) of the aforesaid Advertisement

No.4 of 2020 dated 09.03.2020 prescribed that in

terms of the provisions contained under

notification dated 08.05.2008 bearing Notification

No.4923 issued by the Personnel and

Administrative Reforms Department of the State

Government, in the event of submission of

application by a large number of candidates, a

Preliminary Tests in the form of Multiple

Objective Choice Test would be conducted by the

Commission and candidates equal to ten times the

number of vacancies would be allowed to

participate in the Main Examination.

(c) The petitioner being eligible in all respects,

amongst other persons, submitted his application Patna High Court C. REV. No.123 of 2021 dt.11-08-2021

form in the prescribed manner for participating in

the process of selection pursuant to the aforesaid

31st Bihar Judicial Services (Preliminary)

Competitive Examination in furtherance of

Advertisement No.4 of 2020.

(d) Thereafter, the petitioner participated in the

31st Bihar Judicial Services (Preliminary)

Competitive Examination, Patna on 06.12.2020

which comprised of Multiple Choice Objective

Test in the subjects of General Studies and Law.

(e) After the examination, the answer key was

published by the Bihar Public Service

Commission in relation to the questions that had

been asked, inter alia, in the subject of Law.

(f) Subsequently, the result of the candidates who

had participated in the 31st Bihar Judicial Services

(Preliminary) Competitive Examination was

published. The petitioner was shown to have

secured a total of 162 marks in the said

examination including the subjects of General

Studies and Law whereas 164 was the cut-off

marks for the candidates belonging to the Patna High Court C. REV. No.123 of 2021 dt.11-08-2021

Unreserved Category.

(g) Since the petitioner belongs to the Unreserved

Category, he failed to qualify in the said

Preliminary Test by a margin of 2 marks.

(h) The case of the petitioner is that after the

result of the 31st Bihar Judicial Services

(Preliminary) Competitive Examination was

published, he analyzed the answer key published

by the Commission. According to him, insofar as

question nos. 58, 126 and 133 of Set-D of the

question booklet were concerned, marks had been

awarded to the candidates while treating incorrect

options to be the correct answers of the said

questions, as a result of which, he has been

subjected to extreme detriments, as he has been

ousted from the zone of the consideration by a

minuscule margin of two marks only.

(i) Being aggrieved by the aforesaid result of the

Preliminary Competitive Examination, the

petitioner filed a writ petition before this Court

vide CWJC No.8106 of 2021 seeking the

following reliefs:-

Patna High Court C. REV. No.123 of 2021 dt.11-08-2021

"(i) Issuance of a direction, order or writ,

including writ in the nature of mandamus

commanding the concerned respondent authorities

under the Bihar Public Service Commission,

Patna (hereinafter referred to as "the

Commission") to take steps towards making

necessary changes in the answer key prepared by

the Commission pursuant to 31st Bihar Judicial

Services (Preliminary) Competitive Examination

in so far as question no. 58, 126 and 133 of Set-D

of the said examination are concerned;

(ii) Issuance of a direction, order or writ,

including writ in the nature of mandamus

commanding the concerned respondent authorities

to redraw the list of successful candidates for

enabling them to participate in the Main

Examination pursuant to advertisement

no.04/2020 with respect to the 31st Bihar Judicial

Services (Preliminary) Competitive Examination

after making necessary correction in the answer

key and devaluation of the performance of the

candidates on the basis of the said correction; Patna High Court C. REV. No.123 of 2021 dt.11-08-2021

(iii) Issuance of a direction, order or writ,

including writ in the nature of mandamus

commanding the concerned respondent authorities

to take steps towards allowing the petitioner to

participate in Main Examination as he has been

wrongly declared to be unsuccessful on account

of marks having been awarded in favour of the

candidates on the basis of erroneous answer key

prepared with respect to the aforesaid questions

no.58, 126 and 133 of Set-D asked in the 31st

Bihar Judicial Services (Preliminary) Competitive

Examination pursuant to advertisement

no.04/2020 issued by the Commission;

(iv) Issuance of an ad interim direction upon the

concerned respondent authorities to refrain from

taking further steps with respect to conducting the

Main Examination in furtherance of

advertisement no.04/2021 regarding the 31st Bihar

Judicial Services (Preliminary) Competitive

Examination for consideration of cases of

candidates for appointment against the posts of

Civil Judge (Junior Division) within the State of Patna High Court C. REV. No.123 of 2021 dt.11-08-2021

Bihar;

(v) Any other relief that the petitioner may be

found to be entitled to in the facts and

circumstances of the present case."

(j) The said writ petition filed on behalf of the

petitioner was dismissed by a Division Bench of

this Court vide order dated 23.03.2021 on the

ground that the petitioner did not object to the

tentative answer keys for the objective type

examination published on the Commission's

website within the stipulated time to file

objections and. hence, he is debarred from raising

objection about the correctness of the answer

keys. The Division Bench was also of the view

that the Court sitting in writ jurisdiction

exercising the power of judicial review, would not

go into the correctness or otherwise of the opinion

of Experts Body unless it is shown to be perverse.

(k) Aggrieved by the dismissal of his writ petition,

the petitioner challenged the order dated

23.03.2021 passed in CWJC No. 8106 of 2021

before the Supreme Court vide Special Leave to Patna High Court C. REV. No.123 of 2021 dt.11-08-2021

Appeal (c) No.5481 of 2021. However, vide order

dated 06.04.2021, the Special Leave Petition was

disposed of as withdrawn by the Supreme Court.

(l) In view of the aforesaid order dated 06.04.2021

passed by the Supreme Court, the petitioner, Amar

Dev Pandey, has filed the present review petition.

3. We have heard Ms. Manisha Pandey, learned

counsel for the petitioner. She submitted that while dismissing

the writ petition this Court failed to consider that despite the

earnest will to raise objection, the petitioner was prevented from

doing so because of the Pandemic situations prevailing at that

time. She contended that the petitioner was prevented from

taking notice of publication of the answer key on the website of

the Bihar Public Service Commission because of the

connectivity issue in the village area where he was staying

during the Covid-19 Pandemic. She contended that the

Commission, for the reasons best known to it, did not insert in

the advertisement no.4/2020 the note to publish the answer key

on its website just after the examination was over. According to

her, the Commission was duty bound to make candidates know

of the publication of the answer key so as to enable them to

raise objections, if any, within the stipulated time. She argued Patna High Court C. REV. No.123 of 2021 dt.11-08-2021

that time bound opportunity of raising objection without prior

notice is a serious mistake on Commission's part. In support of

her submissions, she has relied on a judgment dated 04.10.2016

passed by a Division Bench of this Court in Letters Patent

Appeal No.1235 of 2016 (Ashutosh Kumar Jha and Ors. v.

The State of Bihar and Ors.).

4. We find from the pleadings of the petitioner

in para 3 and 4 of the review application that after the 31 st Bihar

Judicial Services (Preliminary) Competitive Examination was

held on 06.12.2020, the Commission uploaded the answer key

on its website on 19.12.2020 and the objection was to be raised

by 30th December, 2020. Thus, a clear ten days time was given

to the candidates to file claims and objections, if any, to the

Bihar Public Service Commission.

5. The petitioner, admittedly, failed to file any

claim or objection in respect of the tentative answer keys

uploaded on the website of the Commission. He filed the writ

petition before the High Court on 20th March, 2021, i.e. exactly

three months after the uploading of the tentative answer keys on

the website of the Commission. The plea raised by the petitioner

that he was prevented from raising objection in time, as he was

living in a remote village, where there was connectivity issue, Patna High Court C. REV. No.123 of 2021 dt.11-08-2021

was considered by the Division Bench while deciding the writ

petition. However, it did not accept plea of the petitioner. It took

a view that since the petitioner failed to raise objection in terms

of the notice published on the website of the Commission, the

objection raised by him after the publication of the final result

of the preliminary tests cannot be allowed for the reason that the

Court sitting in writ jurisdiction exercising the power of judicial

review cannot go into the correctness or otherwise of the

opinion of Experts Body and it is not required to act as an

appellate body over such decision taken by the Expert Body

unless it appears to be perverse. Apparently, the petitioner is

trying to reagitate the same issue before this Court in the garb of

a review application.

6. It is well settled that a review proceeding

cannot be equated with the original hearing of the case. A party

is not entitled to seek review of a judgment merely for the

purpose of re-hearing and fresh decision of the case. Review of

an earlier order cannot be done unless the Court is satisfied that

the material error, manifest on the face of the order, undermines

its soundness or results in miscarriage of justice. The petitioner

has not been able to even remotely show us any material error,

manifest on the face of the order.

Patna High Court C. REV. No.123 of 2021 dt.11-08-2021

7. In Col. Avtar Singh Sekhon v. Union of

India, [1980 Supp SCC 562], the Supreme Court held as

under :-

"A review is not a routine procedure. Here we resolved to hear Shri Kapil at length to remove any feeling that the party has been hurt without being heard. But we cannot review our earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. In Sow Chandra Kante v. Sheikh Habib, (1975) 1 SCC 674, this Court observed: (SCC p. 675, para 1) "A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.... The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality."

8. The scope of Order XLVII Rule 1 CPC,

dealing with review of a judgment, has been succinctly stated by

the Supreme Court in Parsion Devi v. Sumitri Devi [(1997) 8

SCC 715] as under:-

"It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Patna High Court C. REV. No.123 of 2021 dt.11-08-2021

Thungabhadra Industries Ltd. v. Govt. of A.P. (1964) 5 SCR 174 (SCR at p. 186) this Court opined:

"What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an 'error apparent on the face of the record'. The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an 'error apparent on the face of the record', for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by 'error apparent. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error."

9. The error, which is 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.

10. In the case of Satyanarayan Laxminarayan

Hegde v. Millikarjun Bhavanappa Tirumale [AIR 1960 SC

137], the Supreme Court made following observations in

connection with an error apparent on the face of the record :- Patna High Court C. REV. No.123 of 2021 dt.11-08-2021

"..........An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. As the above discussion of the rival contentions show the alleged error in the present case is far from self evident and if it can be established, it has to be established by lengthy and complicated arguments. We do not think such an error can be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ. ...."

11. In Lily Thomas v. Union of India [(2000)6

SCC 224], the principle was reiterated by the Supreme Court

with a caution that in exercise of power of review, the Court

may correct the mistake but not to substitute the view. The

mere possibility of two views on the subject is not a ground for

review.

12. In the light of the settled legal position, as

discussed above, having gone through the present review

application, we find that no error apparent on the face of the

record has been brought out by the review petitioner warranting

review of the order dated 23.03.2021. A perusal of the review Patna High Court C. REV. No.123 of 2021 dt.11-08-2021

application would make it evident that the same is nothing, but

an appeal in disguise.

13. Thus, we are of the opinion that in the

application, under consideration, the petitioner has failed to

establish that there was an error or a mistake apparent on the

face of the record or there was such other material available

with the petitioner, which, if not taken into consideration, would

cause miscarriage of justice.

14. In view of the above discussion, the present

review application is dismissed.

(Ashwani Kumar Singh, J.)

(Partha Sarthy, J.)

sanjeet/-

AFR/NAFR                AFR
CAV DATE                NA
Uploading Date          18.08.2021
Transmission Date       NA