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1998 DIGILAW 293 (GAU)

Subhash Kumar Roy and Ors. v. State of Assam and Ors.

1998-09-17

D.N.CHOWDHURY, M.SHARMA

body1998
D. N. Chowdhury, J.— This review application has been filed for review of the judgment and order dated 1.4.97 passed by this Court in Writ Appeal No 26 of 1996 and others. 2. Briefly stated the facts are that the legality and validity of the notification No. VFV 152/89/92 dated 27.1.92 issued by the Commissioner and Secretary to the Govt of Assam, Veterinary Department was under challenge in the civil rules. By the said notifications seven officers, who were working as Assistant Rural Dairy Extension Officers were promoted to the post of Rural Dairy Extension Officers and other equivalent grades. The learned Single Judge after hearing the parties disposed of those writ petitions on 21.11.95, quashed the aforesaid notification and directed the authorities to consider the case of the petitioners for promotion giving due consideration to his seniority and merit. Review applicants were all parties to the above civil rules on whom notices were served. Review applicants being aggrieved by the said order of the learned Single Judge preferred appeals before this Court and this Court by judgment and order dated 1.4.97 dismissed the writ appeals. Review applicants/writ appellants, who were respondents in the writ petition were selected for promotion and in the above selection process writ appellants were also found unsuitable. No record was produced by the Govt, on the contrary, the learned Govt Advocate on the date of hearing produced a copy of the affidavit-in opposition filed on 4.4.96 on behalf of respondents 1 to 3. This Court accepted the said copy to be a copy filed before this Court. In that affidavit a statement was made by one AB Roychowdhury, whose identity was not disclosed. In the affidavit, said respondents made the following statement: “5. That with regard to the statements made in paragraphs 17, 18 and 23 of the writ petition the deponent states that the records relating to the receipt of the representation of the petitioner stated to have been forwarded by the Director, Diary Development Department Assam, in January, 1992 are not available in the Department and hence no comment can be furnished and action, if any, taken on the representation cannot be ascertained in absence of record. The deponent further states that as regards promotion, it appears from the records available that there was a meeting of the Selection Board on 6.4.91, in pursuance of which 7 (seven) officers were promoted. The deponent further states that as regards promotion, it appears from the records available that there was a meeting of the Selection Board on 6.4.91, in pursuance of which 7 (seven) officers were promoted. But in absence of minutes of that meeting in the relevant S file the position could not be ascertained and in absence of essential records relating to the promotion referred to by the petitioner no verification could be made and hence no comment can be furnished.” This Court in the absence of the record after examining the affidavit-in-opposition dismissed the appeal on 1.4.97 as stated above. Hence the review application. 3. The review applicants sought to rely upon a document dated 27.12.90, a communication between the Director, Diary Development Department, Assam and the Secretary to the Govt of Assam, Veterinary Diary Department, Gu wahati forwarding two lists of officers from panel of the provisional gradation list for promotion to the rank of Assistant Director/SMS. According to the review applicants this documents was not available to them at the time of hearing hence they could not produce the same before this Court at the time of hearing of the writ appeals. As stated earlier, no reason was assigned as to why the above documents could not be procured by them since the Govt already indicated by its affidavit that in the absence of essential records relating to promotion no verification could be made. Admittedly, the review applicants have knowledge about the statements made by the Govt respondent but no reason or description was given as to why the above documents could not be produced before hearing of the appeal. 4. We have heard Mr. A. Roy, learned counsel for the review applicants, Mr. AK Bhattacharyya, senior counsel for respondents and Mr. BP Borah, Senior Govt Advocate, Assam. 5. A review is not an appeal in disguise. A proceeding under Article 226 of the Constitution of India though cannot be termed as a civil proceeding, a review of a judgment of the High Court arising out of such proceeding is permissible in some exception case in aid of the accepted principles laid down in Order 47 Rule I of the Civil Procedure Code. There is a characteristic distinction between an error apparent on record justifying review of the decision. There is a characteristic distinction between an error apparent on record justifying review of the decision. The review applicants have sought review of the judgment of this Court on the ground of discovery of new and important matter or evidence which was not within the knowledge. Admittedly, the State Govt already indicated in their affidavit-in-opposition filed on 4.4.96 about the above selection process in their presence and the review applicants were very much aware of filing of this affidavit. At any rate, the review applicants even after its knowledge from the affidavit-in-opposition did not come forward to obtain the document/materials now they are trying to rely on. As stated above, a review is permissible when a 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 order was passed or on account of some mistake or error apparent on the face of the record. Provisions of Code of Civil Procedure, no doubt, permit an application for review on ground of such discovery but it insist strict conditions so as to prevent litigants lying on its oar when it ought to have foraged for evidence. Public interest enjoins the Judge to insist facts as to the absence of negligence to be strictly proved. It is worthwhile to recall the maxim interest reipublicae ut sit finis litium - it concerns the state that there be an end of law suits. A party seeking a review on the ground of discovery must show that there was not remissness on its part. A review application cannot be entertained for giving another round of hearing. Argument of the learned counsel for the review applicants was basically focussed on the merit of the case, which cannot be reopened at this stage for correcting mere error of judgment. 6. In view of the above, we do not find merit in the review application and accordingly it stands dismissed. Interim order, if any, also stands vacated.