S. Sivaji Ganesan v. The District Revenue Officer, Madurai & Others
2009-11-26
K.CHANDRU
body2009
DigiLaw.ai
Judgment :- Heard both sides. The review application is filed by the original petitioner in W.P.No.14290 of 2006 which arose out of O.A.No.3161 of 1993. The said O.A. was transferred from the Tamil Nadu Administrative Tribunal and renumbered as a writ petition. 2. The writ petition was dismissed by an order, dated 14. 2009. The fourth respondent had challenged the petitioners appointment by filing an appeal to the second respondent (the Revenue Divisional Officer, Usilampatti). The said appeal was allowed and the order passed by the Tahsildar was cancelled by an order, dated 11. 1993. Though the petitioner preferred a revision application before the District Revenue Officer, Madurai, the same was dismissed by him by an order, dated 5. 1993. The authorities found the petitioner was not a resident of Thayaneri, Hamlet of Melakottai village. 3. The petitioner moved the Tribunal with the original application and obtained an interim order. Though reply was filed as early as July, 1993, the matter was not taken up for final hearing. It is under these circumstances, the matter came to this court. This Court upheld the orders of authorities and refused to exercise its power under Article 226 of the Constitution of India to interfere with the findings of fact recorded by the authorities. 4. The petitioner had filed the present review application along with a miscellaneous petition for interim stay. 5. Heard Mr. K. Rajkumar, learned counsel appearing for the petitioner. The review application is not maintainable if it raises a new ground as has been done by the petitioner. In the present circumstances, two grounds were raised. One was that the petitioner had worked for more than 17 years and therefore, he is entitled to continue. Secondly, the residential qualification cannot be taken as a ground for rejection, since such prescription has been disapproved and may be violative of Article 16(2) of the Constitution of India. 6. First of all, these contentions were never urged when the writ petition was heard. Even otherwise, so long as the rule is not under challenge, the petitioner cannot raise the issue. The learned counsel for the petitioner placed reliance upon the judgment of the Supreme Court in AIR 1984 SC 1420 (Dr. Pradeep Jain Vs. Union of India and Others) and 2002 (6) SCC 562 (Kailash Chand Sharma Vs. State of Rajasthan and Others).
Even otherwise, so long as the rule is not under challenge, the petitioner cannot raise the issue. The learned counsel for the petitioner placed reliance upon the judgment of the Supreme Court in AIR 1984 SC 1420 (Dr. Pradeep Jain Vs. Union of India and Others) and 2002 (6) SCC 562 (Kailash Chand Sharma Vs. State of Rajasthan and Others). It is for the purpose of contending that a residential qualification cannot be pressed into service to show preference. Those two cases are not apt for considering such issue as those contentions were never urged earlier. 7. Similarly, the learned counsel also relied upon the judgment of the Supreme Court in D.M. Premkumari Vs. The Divisional Commissioner, Mysore Division and Others reported in 2009 (2) Supreme 271 , to contend that if the petitioner was to seek for an employment at present, it may cause grave hardship to the petitioner. Even that cannot be taken note of, since the petitioner has moved the court for a relief. He has to stand or fall by the decision taken by the Court in accordance with law. 8. In fact, the only apt decision in this regard is the decision of the Supreme Court in Mahavir Singh v. Khiali Ram reported in (2009) 3 SCC 439 . In that case, filling up of post of "Lambadar" which is similar to that of the petitioner in the State of Punjab came to be considered by the Supreme Court. The Supreme Court, after discussing the nature of the post, laid down parameters of judicial review of an appointment such persons by the authorities. The following passages found in paragraphs 20, 21, 26 to 28 of from the said judgment may be usefully extracted below: "20. The High Court while exercising its jurisdiction under Article 226 of the Constitution of India is basically concerned with the correctness of the decision-making process and not the merit of the decision. It has not been found by the High Court that the Collector in expressing his opinion as regards comparative merit of the appellant vis-`-vis Respondent 1 committed an error in his decision-making process. The principles of natural justice have been complied with. Procedure laid down in the Rules had also been complied with.
It has not been found by the High Court that the Collector in expressing his opinion as regards comparative merit of the appellant vis-`-vis Respondent 1 committed an error in his decision-making process. The principles of natural justice have been complied with. Procedure laid down in the Rules had also been complied with. It is also not correct to say, as has been contended by Mr Mahajan that the Collector had not taken into consideration the services rendered by Respondent 1 to the State. He did acknowledge that Respondent 1 had rendered the services to the State as a member of the armed forces. The Collector also took into consideration that the views of the respectables of the village were in favour of the appellant as also the fact that he had participated in the collection work of the village and helped the government officials at the time of their visit. He furthermore took into consideration the fact that the Naib Tahsildar, Hansi had also recommended his name. Even the Circle Revenue Officer had recommended therefor. 21. It is, therefore, not a case where the finding of the Collector can be said to be perverse. It has also not been established that the said statutory authority while taking a decision failed to take into consideration the relevant factors or based its decision on extraneous considerations or on irrelevant factors not germane therefor. 26. There cannot be any doubt or dispute whatsoever that a writ court could interfere with a finding of fact when the same inter alia is found to be perverse. However, neither any such finding has been arrived at by the High Court nor do we find any and as such the decision of this Court relied upon by Mr Mahajan in Bhagat Ram v. State of H.P.9 cannot be said to have any application whatsoever in this case. 27. The High Court furthermore failed to take into consideration that while exercising its power of judicial review, it exercises a limited jurisdiction. The court, it is well settled, is ordinarily concerned with the decision-making process and not the merit of the decision. 28. It also cannot be said that the equity lies in favour of Respondent 1. Even otherwise, when respective merit of the candidates is taken into consideration, equity has hardly any role to play." .....
The court, it is well settled, is ordinarily concerned with the decision-making process and not the merit of the decision. 28. It also cannot be said that the equity lies in favour of Respondent 1. Even otherwise, when respective merit of the candidates is taken into consideration, equity has hardly any role to play." ..... If such yardstick is applied, the contentions raised by the petitioner cannot be countenanced by this Court. 9. Further, the Supreme Court vide its judgment in Meera Bhanja v. Nirmala Kumari Choudhury reported in (1995) 1 SCC 170 held that the review application is maintainable only when there is an error apparent on the face of the record of the Court. The following passage found in paragraph 8 of the said judgment may be usefully extracted 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 v. 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 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 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.
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.” (Emphasis added) 10. In the light of the above, no case is made out by the petitioner. Accordingly, the Review Application will stand dismissed. No costs. Consequently, the connected miscellaneous petition also will stand dismissed.