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2008 DIGILAW 364 (GAU)

Hage Gumto v. Ninya Bagra

2008-05-21

AFTAB H.SAIKIA, ANIMA HAZARIKA

body2008
JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. D. Mazumdar, the Learned Counsel representing the review petitioners as well as Mr. R.P. Sarma, the Learned Senior Counsel assisted by Mr. M.R. Adhikary, the Learned Counsel on behalf of the respondent Nos. 1 and Mr. B. Banerjee, the Learned State Counsel appearing for the State of Arunachal Pradesh and others/Official Respondents. 2. The judgment and order dated 13.11.2006 passed by the Division Bench of this Court in writ appeal No. 457/2003 has been subjected to review by this review application so filed by the review petitioners contending that the appellant in the said writ appeal who initiated the writ proceeding before the learned Single Judge in WP(C) No. 268(A.P.)/2002/the respondent No. 1 in this review petition (hereinafter referred to as respondent No. 1) was not eligible for regularisation of his promotion from the post of Junior Engineer to the post of Assistant Engineer with effect from 11.8.1997 on completion of continuous 5 years of service as Junior Engineer to which he was initially appointed on 11.8.1992 in terms of the Arunachal Pradesh Administration (Public Works Department) Group 'B' Posts Recruitment Rules, 1983, being notified in the Arunachal Pradesh Official Gazette on 16.8.1984 (conveniently be referred to as 'the Rules of 1984'), being non-existent during the relevant period of 1997 by operation of the Arunachal Pradesh Power Engineering Service Rules, 1993 (for short, 'the Rules of 1993') which has replaced the Rules of 1984. 3. Admittedly the review petitioners herein, though had been arrayed as party respondents before both the writ court as well as writ appellate court, preferred not to contest either the writ petition or the writ appeal. 4. Seeking review of the aforesaid judgment and order, Mr. Mazumdar, learned Counsel, has strenuously contended that the writ appellate court in modifying the earlier judgment and order dated 6.8.2003 passed by the writ court in WP(C) No. 268(AP)/2002 committed an error apparent on the face of the record by relying on a non-existent Rules i.e., the Rules of 1984 in granting relief to the respondent No. 1. According to him, the appellate court resorted to the Rules of 1984 under which the respondent No. 1 was initially appointed as a Junior Engineer on 11.8.1992, for regularisation of his promotion with effect from 11.8.1997. According to him, the appellate court resorted to the Rules of 1984 under which the respondent No. 1 was initially appointed as a Junior Engineer on 11.8.1992, for regularisation of his promotion with effect from 11.8.1997. At the relevant time, the Rules of 1984 was not at all in force; rather the Rules of 1993 was in vogue during the period wherein the respondent No. 1 sought for his regularization in the post of Assistant Engineer. It is contended on behalf of the review petitioners that the respondent No. 1 admittedly was appointed as Junior Engineer on 11.8.1992 and immediately thereafter the Rules of 1993 has come into force. His basic thrust is that as per the Rules of 1984, an incumbent working as Junior Engineer was eligible for promotion to the post of Assistant Engineer on completion of continuous 5 years service as Junior Engineer when the Rules of 1993 provides that a Junior Engineer shall be eligible for promotion only on completion of 8 years service. In the instant case by applying the provision of the Rules of 1993 as mentioned above as regards promotion on completion of 8 years, the respondent No. 1 is eligible only for his promotion on 11.8.2000 taking into account his initial date of appointment on 11.8.1992 but in the case in hand the respondent No. 1 has been given promotion w.e.f. 11.8.1997 wrongly quoting and adopting the Rules of 1984. According to Mr. Mazumdar, this is an error apparent on the face of the record and as such it is a fit case for review of the judgment dated 13.11.2006 and respondent No. 1 needs be declared to be eligible for his regularization only with effect from 11.8.2000 by virtue of the Rules of 1993. 5. In support of the review petition as well as its maintainability, Mr. Mazumdar has relied upon the following decisions of the Apex Court: (1) Surjit Singh and Ors. v. Union of India and Ors. AIR 1997 SC 2693 equivalent to (1997) 10 SCC 592 ; (2) Deva Metal Powders (P.) Ltd. v. Commissioner, Trade Tax, Uttar Pradesh (2008) 2 SCC 439 and (3) Food Corporation of India and Anr. v. Sill Ltd. and Ors. (2008) 3 SCC 440. 6. v. Union of India and Ors. AIR 1997 SC 2693 equivalent to (1997) 10 SCC 592 ; (2) Deva Metal Powders (P.) Ltd. v. Commissioner, Trade Tax, Uttar Pradesh (2008) 2 SCC 439 and (3) Food Corporation of India and Anr. v. Sill Ltd. and Ors. (2008) 3 SCC 440. 6. In Surjit Singh's case (supra) the Supreme Court categorically held that if any patent error was brought to the notice of the Tribunal, the Tribunal was duty bound to correct its mistake of law by way of review of its order/directions. In paragraph 7 it was held as under: In the light of these directions, it is obvious that the Government of India had prepared the seniority list. The contentions of the promotees which was found acceptable to the Tribunal that preceding the date of amendment the Government was devoid of power to carry forward all unfilled vacancies to the direct recruits and that all these vacancies are meant to be thrown open to the promotes, is clearly a misinterpretation of the rules and on that basis the directions came to be issued by the Tribunal. This Court had suggested on earlier occasion that vacancies meant for the direct recruits may be carried forward for two years after the recruitment year and thereafter the unfilled vacancies would be thrown open to the respective cadres. Under these circumstances, the view of the Tribunal is clearly illegal; unfortunately, the Tribunal has wrongly stated that if they commit mistake, it is for this Court to correct the same. That view of the Tribunal is not conducive to the proper functioning of judicial service. When a patent, error is brought to the notice of the Tribunal, the Tribunal is duty bound to correct, with grace, its mistake of law by way of review of its order/directions. 7. The Supreme Court in the case of Deva Metal Powders' case (supra), while dealing with the nature and scope of the words and phrases "Mistake", "apparent" and" mistake appears from the record, relying on the decision of the same court Thungabhadra Industries Ltd. v. Government of A.P. AIR 1964 SC 1372 and in Satynarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale AIR 1960 SC 137 in paragraph 15 held as under: 15. "Mistake" is an ordinary word but in taxation laws, it has a special significance. "Mistake" is an ordinary word but in taxation laws, it has a special significance. It is not an arithmetical error which, after a judicious probe into the record from which it is supposed to emanate is discerned. The word "mistake" is inherently indefinite in scope, as to what may be a mistake for one may not be one for another. It is mostly subjective and the dividing line in border areas is thin and indiscernible. It is something which a duly and judiciously instructed mind can find out from the record. In order to attract the power to rectify under Section 22, it is not sufficient if there is merely a mistake in the order sought to be rectified. The mistake to be rectified must be one apparent from the record. A decision on a debatable point of law or a disputed question of fact is not a mistake apparent from the record. The plain meaning of the word "apparent" is that it must be something which appears to be so ex facie and it is incapable of argument or debate. It, therefore, follows that a decision on a debatable point of law or fact or failure to apply the law to a set of fats which remains to be investigated cannot be corrected by way of rectifications. 8. In another case of Food Corporation of India and Anr. v. Seil Ltd. and Ors. (supra) in exploring the scope of review power under Article 226 of the Constitution, in paragraph 25 the Supreme Court observed as under: We do not, thus, find any substance in the contention of Mr. Sharan that while exercising its review jurisdiction, no interest on the principal sum could have been directed to be granted by the High Court. A writ court exercises its power of review under Article 226 of the Constitution of India itself. While exercising the said jurisdiction, it not only acts as a court of law but also as a court of equity. A clear error or omission on the part of the court to consider a justifiable claim on its part would be subject to review; amongst others on the principle of actus curiae neminem gravabit (an act of the court shall prejudice none). We appreciate the manner in which the learned Judge accepted his mistake and granted relief to the respondents. 9. Countering the submissions of Mr. Mazumdar, Mr. We appreciate the manner in which the learned Judge accepted his mistake and granted relief to the respondents. 9. Countering the submissions of Mr. Mazumdar, Mr. R.P. Sarma, the Learned Senior Counsel assisted by Mr. M.R. Adhikari, the Learned Counsel appearing for the respondent No. 1 advancing his basic argument in support of the judgment and order under review has strongly argued that the judgment and order under review has already been implemented vide order dated 10.5.2007 which has been placed on record by the review petitioners themselves in the review petition itself by annexing the same as Annexure-K to this review petition wherein it was clearly indicated that in compliance of the hon'ble High Court's order dated 13.11.2006 passed in Writ Appeal No. 457/03 Sri Ninya Bagra v. State of Arunachal Pradesh and Ors. (respondent No. 1) the date of promotion of the respondent No. 1 was reckoned with effect from 11.8.1997 for all purposes and as the order under review has since boon given effect to, the instant review petition itself is not maintainable. In support of such submission he has relied on a decision of the Supreme Court State of Nagaland and Anr. v. Toulvi Kibami and Anr. (2003) 8 SCC 671 . 10. In Toulvi Kibami's case (supra) it was observed in paragraph 2 as under: Having heard Learned Counsel for the parties, we are of the view that in view of the subsequent events that had taken place consequent upon the judgment of the Division Bench, the review petition filed by respondent 1 was not maintainable. In fat the judgment of the Letters Patent Bench was acted upon and it stood exhausted and the review petition was futile. Under such circumstances, the review petition ought not to have been entertained and decided on merits. 11. Apart from the primary submission abovementioned on maintainability of the review petition itself, strong argument has been put forward on behalf of the respondent No. 1 to the effect that the review petitioners themselves have no locus to seek such review because of the fact that they have shown their reluctance to appear before the writ court as well as appellate court despite due service of notice upon them for the reasons best known to them. 12. 12. It is also contended on behalf of the respondent No. 1 that no error apparent on the face of the record has been reflected from an ordinary reading of the judgment and order under review and as such, according to Mr. Sarma, the Learned Senior Counsel, review petition is liable to be dismissed in limine. 13. In a case S. Chandra Kanta and Anr. v. Sheik Habib AIR 1975 SC 1500 wherein the Supreme Court in dealing with the scope of review of the Supreme Court's order under Article 137 of the Constitution held as under: Mr. Daphtary Learned Counsel for the petitioners, has argued at length all the points which were urged at the earlier stage when we refused special leave thus making out that a review proceeding virtually amounts to a rehearing. May be, we were not right in reusing special leave right in the first round but, once an order has been passed by this Court, a review thereof must be subject to the rules of the game and cannot be lightly entertained. 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. A mere repetition through different Counsel of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. The very strict need for compliance with these factors is the rationale behind the insistence of counsel's certificate which should not be a routine affair or a habitual step. It is neither fairness to the court which decided nor awareness of the precious public time lost what with a huge back-log or dockets waiting in the queue for disposal, for Counsel to issue easy certificates for entertainment of review and fight over against the same battle which has been fought and lost. The Bench and the Bar, we are sure, are jointly concerned in the conservation of judicial time for maximum use. We regret to say that this case is typical of the unfortunate but frequent phenomenon of repeat performance with the review label as passport. Nothing which we did not hear then has been heard now, except a couple of rulings on points earlier put forward. May be as Counsel now urges and then pressed. We regret to say that this case is typical of the unfortunate but frequent phenomenon of repeat performance with the review label as passport. Nothing which we did not hear then has been heard now, except a couple of rulings on points earlier put forward. May be as Counsel now urges and then pressed. Our order refusing special leave was capable of a different course. The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality. 14. In an another case Parsion Devi and Ors. v. Sumitri Devi and Ors. (1997) 8 SCC 715 the Supreme Court had the occasion to examine the scope of Order 47, Rule 1, CPC read with Section 114, CPC pertaining to review the judgment on the ground of "mistake or error apparent on the face of the record" and accordingly in paragraphs 9 and 10 it was held as under: 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 exorcise 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". 10. Considered in the light of this settled position we find that Sharma, J clearly overstepped the jurisdiction vested in the court under Order 47, Rule1, CPC. The observations of Sharma, J that "accordingly, the order in question in reviewed and it is held that the decree in question was of composite nature wherein both mandatory and prohibitory injunction were provided" and as such the case was covered by Article 182 and not Article181 cannot be said to fall within the scope of Order 47, Rule 1, CPC. There is a clear distinction between an erroneous decision and error apparent on the face of the record. There is a clear distinction between an erroneous decision and 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. 15. In another case Harinagar Sugar Mills Ltd. and Anr. v. State of Bihar and Ors. (2006) 1 SCC 509 the Supreme Court in paragraph 12 ruled as under: With the help of the Learned Counsel for the parties, we have gone through the grounds on which the review had been sought by the appellants of the order dated 30.8.2001. In our opinion, the High Court has rightly rejected the same by observing that the appellants wanted to reargue the points which had been rejected by the High Court by its order dated 30.8.2001 against which the special leave petition, preferred by the appellants, had already been dismissed. Though the review may have been maintainable but the appellants could not be allowed to re-agitate the points which had already been decided by the court. The review could be granted only if there was a mistake apparent on the face of the record. Though the review may have been maintainable but the appellants could not be allowed to re-agitate the points which had already been decided by the court. The review could be granted only if there was a mistake apparent on the face of the record. We do not find any such apparent mistake on the face of the record. The High Court in its order dated 30.8.2001 had taken the view that the amount deposited in the court by the appellants was in lieu of the market fee for the benefit of the Market Committee, and, therefore, the Market Committee was entitled to receive the same. Two views are possible on this point but the same cannot be a ground for reviewing the said order as it does not fall within the scope of review jurisdiction. 16. The Apex Court in the case of Haridas Das v. Usha Rani Banik (Smt) and Ors. (2006) 4 SCC 78 in paragraphs 16, 17 and 18 observed as follows: 16. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR 1979 SC 1047 this Court held that there are definite limits to the exercise of power of review. In that case, an application under Order 47 Rule 1 read with Section 151 of the Code was filed which was allowed and the order passed by the Judicial Commissioner was set aside and the writ petition was dismissed. On an appeal to this Court it was held as under: 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 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 also be exorcise don 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 powers which may enable an appellate court to correct all manner or errors committed by the subordinate court. 17. The judgment in Aribam case has been followed in Meera Bhanja. In that case, it has been reiterated that an error apparent on the face of the record for acquiring jurisdiction to review must be such an error which may strike one on a mere looking at the record and would not require any long-drawn process of reasoning. The following observations in connection with an error apparent on the face of the record in Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale, AIR 1960 SC 137 were also noted (AIR p. 137). 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. 18. It is also pertinent to mention the observations of this Court in Parsion Devi v. Sumitri Devi. Relying upon the judgments in Aribam and Meera Bhanja it was observed as under: 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 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'. 19. We have also heard Mr. In exercise of the jurisdiction under Order 47, Rule 1, CPC 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'. 19. We have also heard Mr. B. Banerjee, learned Senior Government Advocate, representing the State of Arunachal Pradesh. Relying on the statements and submissions made by the then Advocate General at the time of hearing of the related writ appeal which had also been recorded in the judgment itself, Mr. Banerjee, has contended that the review petitioners have failed to make out a clear case for review of the judgment in question. 20. We have given our thoughtful consideration to the extensive submissions so advanced on behalf of the parties and scrupulously gone through the judgment dated 13.11.2006. The plea taken by the review petitioners herein is that this judgment needs to be interfered with as that there is an error apparent on the face of the record due to incorrect application of the Rules of 1984, being non-existent at the relevant time to the exclusion of the Rule of 1993 which has been in operation during that period and the respondent No. 1 has been given the relief having applied the Rules of 1984 which would not have been available to him, had the Rules of 1993 been applied. 21. A close perusal of the judgment and order under review, would manifestly indicate that it was the emphatic and firm stand taken by the Government of Arunachal Pradesh before the writ appellate court to the extent that there was no dispute that the case of the respondent No. 1 was governed by the Rules of 1984. 22. It would be appropriate and apt to quote the submissions of the then learned Advocate General so recorded by the court in the judgment and order itself and the same may be reproduced below: Mr. C.K. Sarma Baruah, learned Advocate General, Arunachal Pradesh pointed out that there is no dispute that the case of the appellant is governed by the rules of 1984 which provides for 5 years experience for promotion to the post of Assistant Engineer. Mr. C.K. Sarma Baruah, learned Advocate General, Arunachal Pradesh pointed out that there is no dispute that the case of the appellant is governed by the rules of 1984 which provides for 5 years experience for promotion to the post of Assistant Engineer. Mr. Sarma Barua submitted that since the appellant as appointed in service as junior Engineer with effect from 11.8.1992, he became entitled for consideration for promotion on regular basis with effect form 11.8.1997. According to Mr. Sarma Baruah, the promotion given on 16.7.1997 permitting the appellant to officiate was premature. 23. Having regard to such submission made by the learned Advocate General, Arunachal Pradesh and also taking note of the entire factual situation of the case at hand, it transpires that the review petitioners has made an attempt by filing this review petition to re-hear and correct the entire decision on merit and thereby this Court has been made to act as a court of appeal in disguise so as to correct the decision on merit. Moreso, the judgment and order dated 13.11.2006 has already been implemented as evident from Annexure 'K' appended to the review petition and as such the entertainment of this review petition would be a futile exercise. Having regard to Toulvi Kibami's case (supra), we are disinclined to accept the review petition. 24. It is settled law that a power of review is not to be confused with the appellate power which may enable the appellate court to correct an erroneous decision by process of "reheard and corrected". It is always to be noted that a review petition has a limited purpose and cannot be permitted to act as an "appeal in disguise". This has exactly happened in the instant case by this review petition. According to us the review petitioners have tried to reopen the entire matter to correct the decision rendered in writ appeal No. 457/2003 which needs no interference. 25. That apart, having meticulously gone through the judgment and order we do not find any error, apparent on the face of the record as strongly pleaded by the review petitioners. 26. In that view of the matter, we are of the considered view that this review petition is bereft of any merit and accordingly the same stands dismissed. No costs. Petition dismissed.