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2007 DIGILAW 421 (CAL)

ABDUL RASHEED v. UNION OF INDIA

2007-06-12

DEBASISH KAR GUPTA, SADHAN KUMAR GUPTA

body2007
DEBASISH KAR GUPTA, J. ( 1 ) THIS application is filed by the applicant/writ petitioner for review of the judgment dated March 12, 2007 passed in W. P. C. T. (AN) No. 216 of 2006. ( 2 ) THE writ petition being W. P. C. T. (AN) No. 216 of 2006 was filed by the applicant challenging the judgment dated November 24, 2006 passed by the central Administrative Tribunal, Calcutta Bench in O. A. No. 120/ A and N/03. By virtue of the above judgment, the learned Tribunal dismissed the aforesaid application and consequent thereupon rejected the claim of the applicant to extend the benefit of the scale of pay of Rs. 10,000 - 15,200 to him which was the scale of pay fixed for the Senior Programmer appointed elsewhere in the department of Information Technology/national Informatics Centre. The above writ petition was dismissed on contest by Division Bench of this Court as per judgment dated March 12, 2007. ( 3 ) THE subject-matter of review in this application is the above judgment dated March 12, 2007. ( 4 ) APPEARING on behalf of the appellant Ms. Shyamali Ganguly, learned advocate submits that there was an error apparent in the aforesaid judgment dated March 12, 2007. The Division Bench did not consider that it was self-evident from the Government of India Office Memorandum dated September 11,1989 that the applicant was entitled to the pay scale of Senior Programmer @ Rs. 3000-4500 (Pre-revised) and consequently the revised scale of pay of Rs. 10,000-15,200 meant for Senior Programmer which was denied to the applicant. With regard to the maintainability of this review application, Ms. Ganguly relied upon the decisions of Commissioner of Sales Tax, J and K and Ors. vs. Pine chemicals Ltd. and Ors. , reported in 1995 (1) SCC 58 and Rashtriya Panchayati raj Gram Pradhan Sangh and Anr. vs. State of U. P. and Ors. , 2005 (6) SCC 66 . ( 5 ) APPEARING on behalf of the respondent Nos. 2 to 6, Mr. A. K. Ray, learned senior Advocate, raises an objection regarding the maintainability of this review application. According to Mr. Ray, the Division Bench took into consideration the Government of India Office Memorandum dated September 11,1989 at the time of delivering the judgment dated March 12, 2007 and there was no error of inadvertence. Mr. 2 to 6, Mr. A. K. Ray, learned senior Advocate, raises an objection regarding the maintainability of this review application. According to Mr. Ray, the Division Bench took into consideration the Government of India Office Memorandum dated September 11,1989 at the time of delivering the judgment dated March 12, 2007 and there was no error of inadvertence. Mr. Ray further submits that fishing out or searching of an alleged error in a judgment was not permissible for the purpose of reviewing the aforesaid judgment dated March 12, 2007. Mr. Ray relies upon the decisions of Meera Bhanja vs. Nirmala Kumari Choudhury, reported in 1995 (1) SCC 170 and Lily Thomas and Ors. vs. Union of India and Ors. , 2000 (6) SCC 224 , in support of his submissions. ( 6 ) MR. B. K. Das, learned Advocate appearing on behalf of the respondent no. 1 adopts the submissions of Mr. A. K. Ray, learned Senior Advocate, regarding the maintainability of this review application and relies upon the decision of Parison Devi and Ors. vs. Sumitri Devi and Ors. , reported in 1997 (8)SCC 715 . ( 7 ) WE have given our thoughtful considerations to the submissions made on behalf of the respective parties. At the very outset the moot question falls for our consideration is the maintainability of this review applicaiton. ( 8 ) IT appears from the judgment dated March 12, 2007 that the Division bench did not find itself in agreement with the contention raised on behalf of the applicant that by not adhering to the Government of India Office memorandum dated September 11, 1989, the respondents acted illegally and in arbitrary manner. The Division Bench further found that there appeared to be no just reason for the Court to disbelieve the stand of the respondents that scale of pay of the applicant had been fixed in the particular scale having regard to the Recruitment Rules and nomenclature of the posts prevalent in the A and N administration for recruitment of the staff, which was different from those of other Ministries/departments. ( 9 ) IN view of the above facts and circumstances, we are of the opinion that in order to ascertain the possibility of taking a reverse view with regard to the above findings of the earlier Division Bench in its judgment dated March 12, 2007, this Bench is required not only to re-appreciate the Government of India office Memorandum dated September 11, 1989 but also to adopt long drawn process of reasoning after giving the parties opportunity of lengthy and complicated arguments. That is the province of a Court of Appeal. In this review application that is not permissible in accordance with the settled principles of law. ( 10 ) THE law is now well-settled in this regard as decided in the matter of meera Bhanja (supra) and the relevant portions of the above decision are quoted below: 8. 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, cpc. 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, vs. Aribam Pishak Sharma, 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 vs. 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 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 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. " 9. 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 appear 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 Laxminarayan Hegde vs. 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 powers of the Superior court to issue such a writ. ( 11 ) IN a later decision Parsion Devi and Ors. (supra), the Hon'ble Supreme court took the same view and the relevant portions of the above decision are quoted below: "8. Again, in Meera Bhanja vs. Nirmala Kumari Choudhury while quoting with approval a passage from Aribam Tuleshwar Sharma vs. Aribam Pishak sharma this Court once again held that review proceedings are not be way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. Again, in Meera Bhanja vs. Nirmala Kumari Choudhury while quoting with approval a passage from Aribam Tuleshwar Sharma vs. Aribam Pishak sharma this Court once again held that review proceedings are not be way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. 9, 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'. ( 12 ) IN the decision of Lily Thomas (supra), the Hon'ble Supreme Court took identical view and the relevant portions of the aforesaid decision are quoted below: "58. Otherwise also no ground as envisaged under Order 40 of the Supreme court Rules read with Order 47 of the Code of Civil Procedure has been pleaded in the review petition or canvassed before us during the arguments for the purpose of reviewing the judgment in Sarla Mudgal case. It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing of the judgment. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in Sarla Mudgal case. We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. No such error has been pointed out by the learned Counsel appearing for the parties seeking review of the judgment. The only arguments advanced were that the judgment interpreting section 494 amounted to violation of some of the fundamental rights. No other sufficient cause has been shown for reviewing the judgment. The words 'any other sufficient reason appearing in Order 47 Rule 1 CPC' must mean 'a reason sufficient on grounds at least analogous to those specified in the rule' as was held in Chhajju Ram vs. Neki and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose athanasius. Error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. In T. C. Basappa vs. T. Nagappa this Court held that such error is an error which is a patent error and not a mere wrong decision. In Hari Vishnu Kamath vs. Ahmad Ishaque it was held: it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned Counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated. Mr. Pathak for the first respondent contended on the strength of certain observations of Chagla, C. J. in - 'batuk K. Vyas vs. Surat Borough municipality that no error could be said to be apparent on the face of the record if it was not self-evident and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. Therefore, it can safely be held that the petitioners have not made out any case within the meaning of Article 137 read with Order 40 of the Supreme court Rules and Order 47 Rule 1 CPC for reviewing the judgment in Sarala mudgal case. The petition is misconceived and bereft of any substance. " ( 13 ) WE do not find any substance in the submissions made on behalf of the applicant that the decision of Commissioner of Sales Tax, J and K (supra) has any manner of application in this case. The issue involved in that case was the interpretation of the provisions of section 8 (8a) of the Central Sales Tax Act, 1956. In that case the Hon'ble Supreme Court held that the judgment under review was inconsistent with the earlier decisions of a Co-ordinate Bench and a larger Bench of the Apex Court. Such error was an error apparent on the face of record. But in the instant case, the applicant did not rely upon any decision of Co-ordinate Bench of this Court with regard to the applicability of Government of India Office Memorandum dated September 11, 1989 in fixing the scale of pay of the post in question. The other decision relied upon by the appellant being the decision of Rashtriya Panchayati Raj Gram Pradhan Sangh and Anr. (supra) does not relate to the maintainability of review petition and as such the same has no manner of application in the instant case. ( 14 ) ON the basis of the above discussion this application fails. There will be, however, no order as to costs. Application fails.