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2007 DIGILAW 83 (GUJ)

KUMUDKUMARI VISHNUPRASAD SADHU v. GANDHINAGAR DIST. PANCHAYAT

2007-02-07

ABHILASHA KUMARI

body2007
( 1 ) RULE. Mr. J. M. Barot, learned counsel appearing for Mr. H. S. Munshaw, learned advocate for the respondents No. 1 and 2, waives service of Rule on behalf of the respondents No. 1 and 2. Since the respondent No. 3 herein was the original petitioner No. 1 in Special Civil Application No. 8087 of 1997 and her interest does not conflict with that of the present applicants, who were also the original petitioners in the Special Civil Application, this Court is of the opinion that it is not necessary to serve notice of Rule of this review application upon the respondent No. 3. With the consent of the learned counsel for the parties, this review application is being finally heard today. ( 2 ) BY filing the present application for review of the judgment dated 19. 4. 2006 rendered in Special Civil Application No. 8087 of 1997, the applicants, who were the original petitioners No. 2 to 7 in the abovementioned petition, have prayed in para-4 of the application as under: " (A) Your Lordship be pleased to admit and allow this Misc. Civil Application. (B) Your Lordship be pleased to recall the order dtd 19/4/2006 and kindly be further pleased to directing to the Respondents/ Committee to consider a case of the Applicants afresh by considering the Resolution dtd 26/3/1992 and Resolution dtd 29/7/92 and regularize all the applicants by complying the said Resolution. (C) such other and further relief in the necessary and interest of Justice be granted. " ( 3 ) BRIEFLY stated, the facts leading to the filing of the present application, as gathered from the record, are that the applicants herein are Female Health Workers serving under the Gandhinagar District Panchayat. After undergoing training for a period of one year and six months, they were appointed as Female Health Workers with effect from different dates and in different pay-scales on adhoc basis. These adhoc appointments were continued from time to time and no regular selection procedure was resorted to by the respondents No. 1 and 2 due to certain administrative exigencies, upto the year 1997. Ultimately, the respondents No. 1 and 2 issued a public advertisement dated 1. 2. 1997 for the regular selection of Female Health Workers. These adhoc appointments were continued from time to time and no regular selection procedure was resorted to by the respondents No. 1 and 2 due to certain administrative exigencies, upto the year 1997. Ultimately, the respondents No. 1 and 2 issued a public advertisement dated 1. 2. 1997 for the regular selection of Female Health Workers. The applicants applied for the regular post of Female Health Workers and participated in the oral interview which was held as per the recruitment rules. However, they did not qualify in the regular selection. They, therefore, filed Special Civil Application No. 8087 of 1997 challenging the selection process as well as seeking a declaration from this Court to declare the petitioners as having passed the Selection Committee Test and also to declare the entire selection procedure adopted by the respondents in the selection of Female Health Workers as violative of Articles 14 and 16 of the Constitution of India. ( 4 ) THE Writ Petition filed by the applicants (original petitioners No. 2 to 7) and respondent No. 3 herein was dismissed by this Court vide judgment dated 19. 4. 2006. However, in the peculiar facts and circumstances of the case, since the petitioners were working for many years and had crossed the age bar, disentitling them from seeking any other employment, this Court observed that in case the respondents take any action detrimental to the petitioners after the dismissal of the Writ Petition, the petitioners should also be considered in case any selection/ recruitment process is initiated by the respondents. It was also observed that in the facts and circumstances of the case, if the respondents feel that it would be in the fitness of things to allow the applicants to work in the same capacity as they are working and not take any action detrimental to them, then it is open for the respondents to do so. ( 5 ) IT is relevant to notice that after the dismissal of the Writ Petition, the applicants filed Letters Patent Appeal No. 708 of 2006 challenging the legality and validity of the judgment dated 19. 4. 2006 along with Civil Application No. 5080 of 2006 for stay of the judgment dated 19. 4. 2006. ( 5 ) IT is relevant to notice that after the dismissal of the Writ Petition, the applicants filed Letters Patent Appeal No. 708 of 2006 challenging the legality and validity of the judgment dated 19. 4. 2006 along with Civil Application No. 5080 of 2006 for stay of the judgment dated 19. 4. 2006. The said Letters Patent Appeal alongwith the Civil Application was withdrawn by the appellants with liberty to file a review application since, according to the submission made by the learned counsel for the appellants, Government Circulars dated 12. 3. 1992 and 29. 6. 1992 which were produced alongwith the memorandum of Appeal vide Annexure-C on running page No. 105 to 109, were not brought to the notice of the learned Single Judge. This is evident from a perusal of the order dated 29. 4. 2006 of the Division Bench in the Letters Patent Appeal. It is in this factual background that the present review application has been filed. ( 6 ) THIS Court has heard Mr. B. S. Brahmbhatt, learned counsel for the applicants and Mr. J. M. Barot, learned counsel for the respondents No. 1 and 2 at length and has gone through the averments made in the application as well as the entire material on record including record of the Special Civil Application and Appeal, as also the abovementioned Government Circulars dated 12. 3. 1992 and 29. 6. 1992. The learned counsel for the applicants has contended that the judgment dated 19. 4. 2006 deserves to be recalled on the grounds which this Court will deal with in seriatim hereafter. However, the learned counsel for the respondents No. 1 and 2 has submitted that the review application be dismissed since no grounds have been made out which would necessitate the review of the said judgment. ( 7 ) THE first submission at the Bar urged by Mr. B. S. Brahmbhatt, learned counsel for the applicants, is that the Government Circulars dated 12. 3. 1992 and 29. 6. 1992, annexed at page-38 and 41 of the present application, were not produced on the record of Special Civil Application No. 8087 of 1997 by either of the parties and therefore, the Court did not have an opportunity to take them into consideration. Had the same been produced, the decision in the Writ Petition would have been different. 6. 1992, annexed at page-38 and 41 of the present application, were not produced on the record of Special Civil Application No. 8087 of 1997 by either of the parties and therefore, the Court did not have an opportunity to take them into consideration. Had the same been produced, the decision in the Writ Petition would have been different. Therefore, the Court should grant the prayer made by the applicants and recall the judgment dated 19. 4. 2006. ( 8 ) ON the very face of it, this submission of the learned counsel for the applicants is not only factually incorrect but is also highly misleading. A perusal of the record of Special Civil Application No. 8087 of 1997 reveals that the Court, vide order dated 30. 10. 1997, had issued notice in the Writ Petition and by way of interim relief, had directed that the services of the petitioners be not terminated till 17. 11. 1997. On 17. 11. 1997, the ad-interim relief granted earlier was ordered to continue till further orders. Thereafter, on 28. 1. 1998, this Court made the interim relief granted to the petitioners absolute till the final disposal of the Special Civil Application. The record of the Writ Petition further reveals that the respondents in the Writ Petition had therefore filed Civil Application No. 2208 of 1998 in Special Civil Application No. 8087 of 1997, with a prayer to vacate the ad-interim relief granted by this Court. The applicants (original petitioners) filed a reply-affidavit to said Civil Application on 24. 3. 1998. Alongwith the said reply, the applicants annexed a copy of the Government Circular dated 26. 3. 1992 at Annexure-II on running page 41 and a copy of the Government Circular dated 29. 6. 1992 as Annexure-III on running page 44 of the said paperbook of the Civil Application, which was disposed of vide order dated 15. 6. 2001. The above narration of facts, as culled out from the record, indicates that not only were the Government Circulars dated 26. 3. 1992 and 29. 6. 1992 very much in the knowledge and possession of the applicants (original petitioners), but that they were also produced by them alongwith the reply filed by them to the Civil Application No. 2208 of 1998. ( 9 ) DESPITE the fact that the abovementioned Government Circulars dated 26. 3. 1992 and 29. 6. 3. 1992 and 29. 6. 1992 very much in the knowledge and possession of the applicants (original petitioners), but that they were also produced by them alongwith the reply filed by them to the Civil Application No. 2208 of 1998. ( 9 ) DESPITE the fact that the abovementioned Government Circulars dated 26. 3. 1992 and 29. 6. 1992 were produced on the record by the applicants themselves, the same documents were again produced by the applicants (appellants) alongwith the memorandum of Appeal, as if for the first time, and a submission was made before the Division Bench that they were not brought to the notice of the Single Judge and on this ground, permission was sought to withdraw the Letters Patent Appeal with liberty to move the present review application. It is in view of this statement that the Appeal was permitted to be withdrawn with liberty as prayed for. This is evident from a perusal of the order dated 29. 4. 2006 passed by the Division Bench in Letters Patent Appeal No. 708 of 2006 with Civil Application No. 5080 of 2006. The Government Circulars dated 12. 3. 1992 and 29. 6. 1992 annexed with the Appeal have been produced at running pages No. 38 and 41 of the review application. However, there is an overwriting on the dates in these documents produced with the review application. The dates have been corrected to read 26. 3. 1992 and 29. 7. 1992 respectively, although the contents of the documents are the same. The same documents have been produced with the reply to the Civil Application in the Writ Petition. ( 10 ) IT is quite evident that the applicants have not stated the correct facts before the Division Bench and have misled the Court into believing that the Government Circulars dated 12. 3. 1992 and 29. 6. 1992 could not be brought to the notice of the Writ Court. The Court, while hearing and deciding the Writ Petition, had the benefit of perusing the entire available record, including the record of the Civil Application and reply thereto, along with the said Government Circulars which were annexed therewith. The ground taken that the said Circulars were not brought to the notice of the Court at the time of the hearing of the Writ Petition is incorrect and unsustainable. The ground taken that the said Circulars were not brought to the notice of the Court at the time of the hearing of the Writ Petition is incorrect and unsustainable. The attempt on the part of the applicants to mislead not only the Division Bench but this Court as well, by filing the present review application on the ground that the above Circulars were not in the knowledge of the Court is to be deprecated, as it is nothing but an abuse of the process of the Court. The review application deserves to be rejected on this ground alone. ( 11 ) THE second submission advanced at the Bar by the learned counsel for the applicants is that the selection process undertaken by the Selection Committee was a mere formality and since the applicants had completed the training of Female Health Workers and were appointed on adhoc basis, their services are not liable to be terminated and therefore, the judgment dated 19. 4. 2006 is required to be modified. ( 12 ) BEFORE this Court deals with the above contention of the learned counsel for the applicants, it is relevant to take note of the statement of Mr. B. S. Brahmbhatt made at the Bar that the services of the applicants have not been terminated by the respondents No. 1 and 2. This fact has been confirmed by Mr. J. M. Barot, learned counsel for the respondents No. 1 and 2. In the light of this statement, the ground taken by the learned counsel for the applicants is absolutely baseless and untenable. It must be remembered that a review application is not an appeal in disguise, inasmuch as that the merits of the case can be adjudicated upon in these proceedings. A perusal of the grounds from A to E in the memorandum of the review application reveals that the applicants have tried to convert the review application into an appeal and have tried to persuade this Court to exercise appellate jurisdiction, which is not in accordance with law. On the one hand, the review application appears to be nothing but an appeal in disguise, whereby an attempt to re-argue the matter afresh on merits is made whereas, on the other hand, several grounds are taken, which were never taken in the Writ Petition, as though these are original proceedings. On the one hand, the review application appears to be nothing but an appeal in disguise, whereby an attempt to re-argue the matter afresh on merits is made whereas, on the other hand, several grounds are taken, which were never taken in the Writ Petition, as though these are original proceedings. ( 13 ) THE scope of review proceedings is limited and by now, the law is well settled by a catena of judicial pronouncements. ( 14 ) IN Smt. Meera Bhanja v. Smt. Nirmala Kumari Choudhury " AIR 1996 SC 455, the Supreme Court has observed as under: "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, 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, AIR 1979 SC 1047 , speaking through Chinnappa Reddy, J. , has made the following pertinent observations (para 3) : "it is true 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. 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," ( 15 ) 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 the two opinions. We may usefully refer to the observations of this Court in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137 , 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. " ( 16 ) IN view of the abovequoted observations of the Supreme Court, the present review application does not deserve acceptance since it has travelled well beyond the established legal parameters regarding the scope of review jurisdiction. ( 17 ) IT is also relevant to notice that in the memorandum of the review application, it is nowhere stated that there is an error apparent on the face of the judgment which would necessitate its review. ( 17 ) IT is also relevant to notice that in the memorandum of the review application, it is nowhere stated that there is an error apparent on the face of the judgment which would necessitate its review. In fact, if the prayer clause is perused, it is evident that it contains no prayer for the review of the judgment. The only prayer made is for recalling the judgment dated 19. 4. 2006 and for directions to the respondents to reconsider the case of the applicants afresh by considering the Resolutions dated 26. 3. 1992 and 29. 7. 1992 (29. 6. 1992) and further, to regularize the services of the applicants. The prayers made indicate that the applicants have travelled well beyond the parameters of the reliefs claimed in the Special Civil Application, which is impermissible in law. ( 18 ) IN Lily Thomas etc. etc. v. Union of India and others " AIR 2000 SC 1650 , the Supreme Court observed that: "the dictionary meaning of the word "review" is "the act of looking, offer something again with a view to correction or improvement". It cannot be denied that the review is the creation of a statute. The power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated as an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. " ( 19 ) IN the present application, no error apparent on the face of the record has been pointed out by the learned counsel for the applicants and none has been stated in the memorandum of the application. Further, in Gujarat University v. Miss Sonal P. Shah and Ors.- 1982 (1) GLR 171 , a Full Bench of this Court has held in paragraph-8 as under: " (1) The provisions of the Civil Procedure Code in order 47 are not applicable to the High Court s power of review in proceedings under Article 226 of the Constitution. (2) the said powers are to be exercised by the High Court only to prevent miscarriage of justice or to correct grave and palpable errors. (2) the said powers are to be exercised by the High Court only to prevent miscarriage of justice or to correct grave and palpable errors. (The epithet "palpable" means that which can be felt by a simple touch of the order and not which could be dug out after a long drawn out process of argumentation and ratiocination) (3) The inherent powers, though ex facie plenary, are not to be treated as unlimited or unabridged, but they are to be invoked on the grounds analogous to the grounds mentioned in Order 47 Rule 1: namely; (i) discovery of new and important matter or evidence which the party seeking the review could not produce at the time when the earlier order sought to be reviewed was made, despite exercise of due diligence; (ii) existence of some mistake or error apparent on the face of the record; and (iii) existence of any analogous ground. (these are the very three grounds referred to in Order 47 Rule 1 of the Civil Procedure Code and by declaration of law at the hands of the Supreme Court in the above case, they are the hedges or limitations of the High Courts power.)" ( 20 ) THE above legal position, as expounded in the decisions quoted hereinabove makes it very clear that review proceedings cannot be treated as an appeal in disguise and nor can they be equated with the original hearing of the case. The powers of review are not untrammeled but are to be invoked and exercised on the grounds analogous to those mentioned in Order 47, Rule 1 of the Code of Civil Procedure, 1908. In the present review application, no legal or valid grounds exist, necessitating the review of the judgment dated 19. 4. 2006. As mentioned earlier, the applicants have not placed the correct facts before the Courts regarding the grounds on which the judgment is sought to be reviewed. By taking recourse to the review application, the applicants are seeking to achieve indirectly what cannot be directly done by them, which position is not sustainable in law. 4. 2006. As mentioned earlier, the applicants have not placed the correct facts before the Courts regarding the grounds on which the judgment is sought to be reviewed. By taking recourse to the review application, the applicants are seeking to achieve indirectly what cannot be directly done by them, which position is not sustainable in law. ( 21 ) LASTLY, the applicants have not complied with the provisions of Rule 50 of the Gujarat High Court Rules, 1993, whereby, the provision of law under which an appeal or application is to be made is to be stated prominently at the top of the memorandum of appeal or application at the time of its presentation. Although the present application has been styled as "application for Review" a perusal of page-2 of the compilation shows that it has been given the nomenclature of an appeal and the provision of law under which the application has been filed has not been quoted, which is the requirement of Rule 50 of the Gujarat High Court Rules, 1993. ( 22 ) IN the totality of the facts and circumstances and for the reasons stated hereinabove, this Court is of the considered view that the judgment dated 19. 4. 2006 rendered in Special Civil Application No. 8087 of 1997 does not require to be reviewed or recalled. The review application is not only lacking in merits but is thoroughly misconceived and deserves to be rejected outright. Accordingly, the review application is dismissed. Rule is discharged. There shall be no orders as to costs.