Devendra Nath Shukla and Another vs State of U.P. and Others

Mahesh Chandra Tripathi, J.—The present Review Application has been filed by the petitioners for review of the order dated 30.9.2005 passed by the Division Bench consisting of Hon''ble Mr. Justice Dr. B.S. Chauhan and Hon''ble Mr. Justice Shishir Kumar, JJ. We have heard Sri T.P. Singh, learned Senior Advocate alongwith Sri Anil Kumar Srivastava and Sri Swarn Kumar Srivastava, learned counsels for the petitioners, Sri Yogendra Kumar Yadav, learned Standing Counsel, appearing for respondent Nos. 1, 2 and 3 and Sri Vikash Budhwar, appearing for respondent Nos. 4, 5.

We have perused the record of the Review Application alongwith accompanying affidavit. It transpires that the present writ petition has been filed for issue of a writ, order or direction in the nature of certiorari to quash the impugned order dated 22.8.1998 cancelling and changing the petitioners date of appointment as also the amended seniority list dated 22.6.1998 cancelling the final seniority and amending the same.

The Hon''ble Court after considering the matter at length and after considering each and every aspects of the matter has dismissed the writ petition vide order dated 29.9.2005. The relevant portion is quoted below:

Undoubtedly the seniority once settled cannot be disturbed after a lapse of several years. In the instant case, the seniority had always been under challenge either before this Court or Tribunal. In none of the cases, all the necessary parties had been impleaded. While deciding the issue of seniority, it is not open for the Court or Tribunal to grant a relief against a person who is not a party and whose seniority is under challenge. A Full Bench of this Court in Farhat Hussain Azad Vs. State of U.P. and Others, , which was delivered by one of us (Dr. Justice B.S. Chauhan), held that ad hoc appointee, if regularised, cannot claim the seniority from the date of initial appointment on ad hoc basis unless it has been made following the procedure prescribed by law, placing reliance upon large number of judgments of the Hon''ble Supreme Court including the judgment in The Direct Recruit Class-II Engineering Officers'' Association and others Vs. State of Maharashtra and others, , Shri T.P. Singh may be right to a certain extent that persons regularised with effect from 3.12.1985 could not claim seniority prior to that date but examining this issue would amount to a futile exercise, as we have already held that petitioners cannot claim seniority over and above the said respondents who had been appointed in substantive capacity by way of regularisation prior to them and if no relief can be granted to them, examining the said issue would be a futile exercise. (Vide Rai Shivendra Bahadur Vs. The Governing Body of the Nalanda College, ; Kumari Chitra Ghosh and Another Vs. Union of India (UOI) and Others, ; Dr. N.C. Singhal Vs. Union of India (UOI) and Others, and Khalid Hussain (Minor), Represented by Father Dr. Akthar Hussain Vs. Commissioner and Secretary to Government of Tamil Nadu, Health Department, Madras and Ors, ).

In view of the above, we do not find any force in the petition. It is accordingly dismissed.

It is also apparent that subsequently writ petition No. 11134 of 2006-(Arun Kumar Srivastava v. State of U.P. and others) had also been filed, challenging and disputing the seniority of Executive Engineers belonging to Minor Irrigation Department and also challenging the seniority list dated 30.8.2005. The Division Bench while considering each and every aspect of the matter specially the judgment dated 29.9.2005 passed in present writ petition, has finally dismissed the writ petition on 26.5.2011. The relevant portion of the order dated 26.5.2011 are quoted below:

After referring to Madan Pal Singh''s case and the same final seniority list dated 30th August, 2005, which is under challenge in this writ petition the Division Bench passed a question as follows:

The controversy involved herein is as to whether the private respondents, whose services stood regularised vide order dated 3.12.1985 against substantive vacancies prior to present petitioners who were appointed in substantive capacity on 18.6.1986 and later, can claim the seniority over and above the said respondents.

As observed the Division Bench held that the U.P. Government Servant Seniority Rules, 1991 had no bearing in the case for the purposes of determining interse seniority as it had to be determined as per law existing prior to that date and further the petitioners (ad hoc appointees recruited later by direct recruitment through Public Service Commission) cannot claim seniority over and above the respondents, who had been appointed in substantive capacity by way of regularisation prior to them.

We find substance in the submission of learned counsel for the respondents that the questions raised in this writ petition are covered by the judgment in Devendra Nath Shukla''s case and that no new ground has been raised. We also agree with reasoning given in the said judgment.

The counsel for the petitioner has not pressed any other point the writ petition is dismissed.

Admittedly, the petitioners had also filed writ petition No. 37608 of 2007 (R.B. Singh and another v. State of U.P. and others). The same is pending. A counter-affidavit has already been filed in the said writ petition by the State of U.P.

Surprisingly, the present writ petition has been decided and the claim of the petitioners had been rejected on 29.9.2005 and earlier the State Government had proceeded for fixation of seniority in response of the direction issued in Special Appeal No. 72(S/B) of 1993, which was finally disposed of by the Division Bench on 16.1.2004 considering another writ petition No. 1663 (S/B) of 2002 (Govind Chandra Gupta v. State of U.P. and others). The State Government exhaustively considered the seniority list, and the Principal Secretary of the Department had considered each and every objections and vide order dated 30.8.2005 had finalized/settled the seniority. It is also relevant to mention at this stage that the main objections which had been filed against the respondents namely Sri P.R. Chaurasia and Sri R.C. Pal which has been mentioned in the order dated 30.5.2005 is being quoted below:

The objections against the fixation of the seniority of respondents as mentioned above had been considered by the Principal Secretary of the Department in order dated 30.5.2005 and the relevant portion is quoted below:

From perusal of the fixation of the seniority list prepared by the State Government on 30.8.2005, it is clear that each and every aspects and objections had been dealt by the State Government thoroughly after giving right for an objection to the aggrieved engineers. The reasons best known to the petitioners, even though the seniority was fixed on 30.8.2005, the same has not been brought into notice while deciding the present matter on 29.9.2005.

On the basis of rejection of present writ petition on 29.5.2005 another Division Bench while deciding the writ petition No. 11134 of 2006 (Arun Kumar Srivastava v. State of U.P. and others), had heavily relied the decision of the present writ petition, while rejecting the claim, vide order dated 26.5.2011. Even though at that point of time, while hearing the writ petition, it had not been brought into the notice of the Division Bench that present Review Application in writ petition No. 18657 of 1999 was pending. At no point of time the present Review Application had ever been pressed, even though the controversy came to at rest by dismissal of the present writ petition on 29.9.2005 and further the another Division Bench while rejecting the claim in writ petition No. 11134 of 2006 (Arun Kumar Srivastava v. State of U.P. and others), had also considered each and every aspect of real dispute and rejected the claim.

For the reasons best known to the applicants the pendency of Review Application has not been brought to the notice to the Division Bench deciding the writ petition No. 11134 of 2006 and has not requested the Bench to dispose of the Review Application and allowed to remain pending for such a long time. This amounts to non bona fide and unfair conduct on the part of applicant.

In the aforementioned facts now at this stage the petitioners are pressing the Review Application for review of the order dated 30.9.2005.

We have perused the ground mentioned in the Review Application and we find that petitioners are seeking to question the correctness of judgment and order dated 30.9.2005 on merits by filing the aforementioned Review Application. It is well-settled that the Court while dealing the Review Application cannot act as a Appellant Court and consider the merits of the judgment sought to be reviewed. It would be appropriate to refer Order XLVII, Rule 1 of C.P.C., which is as follows:

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 Appellant Court the case on which he applies for the review.

It is further relevant to mentioned that Chapter IX Rule 14 of the Allahabad High Court Rules 1952 provides the procedure how the Review Application can be filed. Relevant provision is quoted below:

Contents of review application.-- An application for review on the ground of the discovery of new and important matter or evidence shall state in clear terms what such new or important matter or evidence is, the effect or purpose thereof, how the same after the exercise of the due diligence was not within the applicant''s knowledge or could not be produced by him at the time when the decree was passed or order made and how and when he came to know of it or became able to produce it and the affidavit accompanying it shall be made by the applicant himself.

The claim of the petitioners for review of judgment dated 29.9.2005 does not fall under the ambit of above mentioned provisions.

It would be useful to refer the various decisions of Hon''ble Apex Court wherein the scope of review had been considered, which are as below:

S. Nagaraj and Others Vs. State of Karnataka and Another, and other connected writ petitions:

Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the Courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest Court indicating the circumstances in which it could rectify its order the Courts culled out such power to avoid abuse of process or miscarriage of justice. In Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai, the Court observed that even though no rules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Singh, that an order made by the Court was final and could not be altered:

....nevertheless, if by misprision in embodying the judgments, by errors have been introduced, these Courts possess, by Common law, the same power which the Courts of record and statute have of rectifying the mistakes which have crept in ..... The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.

Basis for exercise of the power was stated in the same decision as under:

It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard.

Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution-makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order XLVII Rule 1 of the Civil Procedure Code. The expression, ''for any other sufficient reason'' in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of Court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice.

Reliance was placed on State of Mysore v. P. Narasinga Rao and State of J & K v. Triloki Nath Khosa and it was urged that different pay scale for some nature of work based on higher qualification was not violative of Articles 14 and 16. In our opinion this question does not arise in these petitions, therefore, it is not necessary to discuss it.

Smt. Meera Bhanja Vs. Smt. Nirmala Kumari Choudhury, .

It is well-settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, C.P.C. In connection with, the limitation of the powers of the Court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and others, speaking through Chinnappa Reddy, J., has made the following pertinent observations (SCC p. 390, para 3).

It is true as observed by this Court in Shivdeo Singh v. State of Punjab, 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 mis-carriage 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 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 merits. That would be the province of a Court of Appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court.

Now it is also to be kept in view that in the impugned judgment, the Division Bench of the High Court has clearly observed that they were entertaining the review petition only on the ground of error apparent on the face of the record and not on any other ground. So far as that aspect is concerned, it has to be kept in view that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. We may usefully refer to the observations of this Court in the case of Satyanarayan Laxmi Narayan Hegde v. Mallikarjun Bhavanappa Tirumale, wherein K.C. Das Gupta, J., speaking for the Court has made the following observations in connection with an error apparent on the face of the record:

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. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the power of the superior Court to issue such a writ.

In the light of this settled legal position let us try to see whether in the present case the latter Division Bench while dealing with the review petition had overstepped the limits of jurisdiction under Order 47, Rule 1, and whether it had resorted to re-appreciation of evidence by almost sitting in appeal over the decision reached by the earlier Division Bench.

Parsion Devi and Others Vs. Sumitri Devi and Others,

Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise".

Considered in the light of this settled position we find that Sharma, J. clearly over-stepped the jurisdiction vested in the Court under Order 47 Rule 1 CPC. The observations of Sharma, J. that "accordingly, the order in question is reviewed and it is held that the decree in question was of composite nature wherein both mandatory and prohibitory injunctions were provided" and as such the case was covered by Article 182 and not Article 181, cannot be said to fall within the scope of Order 47 Rule 1 CPC. There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. While passing the impugned order, Sharma, J. found the order in Civil Revision dated 25.4.1989 as an erroneous decision, though without saying so in so many words. Indeed, while passing the impugned order Sharma, J. did record that there was a mistake or an error apparent on the face of the record which was not of such a nature, "which had to be detected by a long drawn process of reasons" and proceeded to set at naught the order of Gupta, J. However, mechanical use of statutorily sanctified phrases cannot detract from the real import of the order passed in exercise of the review jurisdiction. Recourse to review petition in the facts and circumstances of the case was not permissible. The aggrieved judgment debtors could have approached the higher forum through appropriate proceedings to assail the order of Gupta, J. and get it set aside but it was not open to them to seek a "review" of the order of Gupta, J. on the grounds detailed in the review petition. In this view of the matter, we are of the opinion that the impugned order of Sharma, J. cannot be sustained and we accordingly accept this appeal and set aside the impugned order dated 6.3.1997.

Smt. Savitri Devi v. Lal Chand Agarwal (deceased by LR''s and others), (2004) ALL LJ 3445

The next question, which arises, is as to what are the principles on the basis of which the power of review is to be exercised by the High Court. In this context, certain principles in regard to the power of Court to review its judgments and orders, which are relevant in the present case, are noted below:

Review cannot be granted on the ground that decision is erroneous on merits. Such a ground is an appropriate ground for appeal, but it cannot be made a ground for application for review. Reference in this connection may be made to the following decisions:

(a) Chandmall Chopra and Another Vs. State of West Bengal, .

(b) Raj Kumar Ramavtar Chourasia Vs. Mathew Charian Christian, .

(c) Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma and Others,

In Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma and Others, , their Lordships of the Apex Court laid down as follows (paragraph 3 of the said AIR):

3...................It is true as observed by this Court in Shivdeo Singh and Others Vs. State of Punjab and Others, , 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 be also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with appellate power which may enable an Appellant Court to correct all manner of errors committed by the Subordinate Court.

That there has been wrong exposition of law or wrong decision on question of law, cannot be a ground for review. Reference to this regard may be made to the following decisions:

(a) (1922) ILR 3 LAH 127 (Privy Council) .

(b) Saphar Sitapati Rao Vs. Chittaluri Sitabayamma,

(c) AIR 1938 145 (Nagpur)

(d) AIR 1938 221 (Nagpur)

(d) J.N. Sahani Vs. State, .

(e) Sitaram vs. Kaniram and Another

That an erroneous view of law on a debatable point has been taken cannot be a ground for review. Following decisions may be referred to in this regard:

(a) S.P. Awate Vs. C.P. Fernandes and Another,

(b) Dev Krishna and Another Vs. Dhani Ram Saligram,

(c) Iftikhar Ahmad and Others Vs. Bharat Kumar and Another,

(d) Ram Murti and Others Vs. Bank of Patiala

That there has been wrong application of law, cannot be a ground for review. Reference in this regard may be made to the following decisions:

(a) G.S. Gupta Vs. Basheer Ahamed and Others, .

(b) Raj Kumar Ramavtar Chourasia Vs. Mathew Charian Christian, .

(c) Thakur Kishun Chand Singh Vs. Munshi Makund Sarup and Others, .

(d) Chandra Shekhar Vs. Sri Thakurji Maharaj and Others, .

The error or mistake as a consequence of wrong judgment or wrong inference is not a error apparent on the face of record. Reference in this regard may be made to the following decisions:

(a) Manu Pujhari and Another Vs. State of Orissa,

(b) Dev Krishna and Another Vs. Dhani Ram Saligram, .

In case, a judgment is based on two or more grounds, and each of the said grounds is sufficient to sustain the said judgment independently of the others, the judgment is to liable to be reviewed even through one of the said grounds is erroneous and the error is apparent on the face of the record. Following decisions may be referred to in this regard:

(a) Ramaswami Padayachi Vs. Shanmugha Padayachi, .

(b) Devji Vasta v. Dhanji Nanji, AIR 1952 Kutch 45 (paragraphs 4 and 5 at pages 45, 46).

Union of India (UOI) Vs. Sandur Manganese and Iron Ores Ltd. and Others,

Review jurisdiction:

Article 137 of the Constitution of India provides for review of judgments or orders by the Supreme Court which reads as under:

Review of judgments or orders by the Supreme Court.--Subject to the provisions of any law made by Parliament or any rules made under Article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it.

Further, Part VIII Order 40 of the Supreme Court Rules, 1966 deals with the review and consists of four rules. Rule 1 is important for our purpose which reads as under:

The Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order 47 Rule 1 of the Code and in a criminal proceeding except on the ground of an error apparent on the face of the record.

Order 47, Rule 1(1) of the Code of Civil Procedure, 1908 provides for an application for review which reads as under:

Application for review of judgment.--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.

Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:

12.1. 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.

12.2. Mistake or error apparent on the face of the record.

12.3. 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.

In view of the facts and circumstances and the principle of law referred hereinabove, we do not find any good ground for review. Moreso, when the judgment of this Court dated 30.9.2005 passed by this Court sought to be reviewed has been followed by another Division Bench of this Court involving similar controversy in Writ Petition No. 11134 of 2006 (Arun Kumar Srivastava v. State of U.P. and others) vide order dated 26.5.2011 and the said judgment has not been challenged before any higher Court and has attained finality and as such there remains no scope for review of the earlier order, which has been followed and confirmed by the subsequent Division Bench of this Court. In view of the above, Review Application lacks merit and is, accordingly, dismissed.