Research › Search › Judgment

Orissa High Court · body

2010 DIGILAW 61 (ORI)

KISHORE CHANDRA MOHANTY v. UNION OF INDIA (UOI)

2010-01-29

I.MAHANTY, L.MOHAPATRA

body2010
JUDGMENT : L. Mohapatra, J 1. The review Petitioner, who was opposite party No. 1 in W.P.(C) No. 224 of 2003 assails the judgment of this Court delivered in the said case as well as W.P.(C) No. 4493 of 2002. 2. The review Petitioner had approached the Central Administrative Tribunal in an application u/s 19 of the Administrative Tribunals Act vide O.A. No. 542 of 1995 alleging therein that he had served for more than three years as Inspector of Income Tax and appeared in the Departmental Examination held during June/July 1995, but results were published on 12.2.1996. He was allowed two annual increments with retrospective effect, i.e., from 3.7.1995. During the period from June/July 1995 and publication of result on 12.2.1996, five posts of Income Tax Officer (Group-B) were sanctioned for Orissa Region and in order to fill up the said posts, a Departmental Promotion Committee meeting was convened on 13.10.1995. His case was not considered because the result of the Departmental Examination had not been declared by then. His grievance before the Tribunal was that he having already appeared in the Departmental Examination and the Departmental Promotion Committee having convened the meeting before declaration of the results, his case should have been considered for promotion and kept in sealed cover till publication of the Departmental Examination results. In the alternative, a review DPC meeting should have been convened to consider the cases of those Inspectors of Income Tax who cleared the Departmental Examination and promotions on the basis of recommendation of the review DPC should have been given. The Tribunal allowed the Original Application and directed the Department to hold the review DPC within a specified time and grant retrospective promotion to the review Petitioner by extending notional financial benefit for the intervening period. The said judgment of the Tribunal was challenged before this Court in two writ applications vide W.P.(C) No. 224 of 2003 and W.P.(C) No. 4493 of 2002. W.P.(C) No. 224 of 2003 was filed by the Department whereas W.P.(C) No 4493 of 2002 was filed by one Sovesh Chandra Mohanty challenging the said judgment. Both the writ applications were heard together and were disposed of by a common judgment dated 31.10.2008. The order of the Tribunal directing for a review DPC was set aside and all consequential orders passed in pursuance of the order of the Tribunal were directed to be recalled. Both the writ applications were heard together and were disposed of by a common judgment dated 31.10.2008. The order of the Tribunal directing for a review DPC was set aside and all consequential orders passed in pursuance of the order of the Tribunal were directed to be recalled. Challenging the said judgment passed in the aforesaid writ applications, this review has been filed. 3. Before entering into the merits of the review petition, we would like to refer to some judgments of the Hon'ble Supreme Court defining the scope of review. A Constitution Bench of the Hon'ble Supreme Court in the case of Shivdeo Singh and Ors. v. State of Punjab and Ors., reported in AIR 1963 Supreme Court 1909 held that 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. This question again came up for consideration before the Hon'ble Supreme Court in the case of Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh. In paragraph-11 of the judgment, the apex Court defined the scope of review. The said paragraph is quoted below: What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is and 'error apparent on the face of the record'. The fact that on the earlier occasion the court held on an identical state of facts that a substantial question of law arose would not per se conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an 'error apparent on the face of the record', for there is distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which starts one in the face and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out. No question of fact were involved in the decision of the High Court in T.R. Cs. 75 to 77 of 1956. The entire controversy turned on the proper interpretation of Rule 18(1) of the Turnover and Assessment Rules and the other pieces of legislation which are referred to by the High Court in its order of February 1956; nor could it be doubted or disputed that these were substantial questions of law. In the circumstances therefore, the submission of the Appellant that the order of September 1959 was vitiated by 'error apparent' of the kind envisaged by O. XLVII, R.I. Code of CPC when it stated that 'no substantial question of law arose' appears to us to be clearly well founded. Indeed, learned Counsel for the Respondent did not seek to argue that the earlier order of September 1959 was not vitiated by such error. In the case of Northern India Caterers (India) Ltd. Vs. Lt. Governor of Delhi. The Hon'ble Supreme Court observed that a party is not entitled to seek a review of a judgment delivered by the Supreme Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary. The Court further observed that it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except 'where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility'. In the case of Smt. Meera Bhanja Vs. In the case of Smt. Meera Bhanja Vs. Smt. Nirmala Kumari Choudhury interpreting the Order 47, Rule 1 of the Code of CPC and the term "error apparent on face of record", the Hon'ble Supreme Court observed that "error apparent on face of record" means an error which strikes one on mere looking at record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. The meaning of the term "error apparent on face of record" again came up for consideration before the Hon'ble Supreme Court in the case of Parsion Devi and Others Vs. Sumitri Devi and Others. The Hon'ble Supreme Court in the said case observed that under Order 47, Rule 1, Code of 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 Code of Civil Procedure. In exercise of jurisdiction under Order 47, Rule 1, Code of CPC it is not permissible for an erroneous decision to be "reheard and corrected". There is a clear distinction between an erroneous decision and an 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. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise". A similar view was also expressed earlier by the Hon'ble Supreme Court in the case of Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma and Others. In the case of Haridas Das Vs. Smt. Usha Rani Banik and Others the scope of review was again reiterated. A similar view was also expressed earlier by the Hon'ble Supreme Court in the case of Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma and Others. In the case of Haridas Das Vs. Smt. Usha Rani Banik and Others the scope of review was again reiterated. In paragraph-15 of the judgment, the Court held as follows: A perusal of the Order XLVII, Rule 1 show that review of a judgment or an order could be sought: (a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the Applicant; (b) such important matter or evidence could not be produced by the Applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of record or any other sufficient reason. While coming to such a finding, the Hon'ble Supreme Court also referred to some of the cases referred in this judgment earlier. 4. On analysis of all these decisions, one would find that power of review is available to a court only when there is a mistake or an error apparent on the face of the record and the power of review cannot be exercised to correct an erroneous decision. The reasons for the Hon'ble Supreme Court to lay down this law is that an erroneous decision is to be challenged in appeal and the review power under Order 47, Rule 1, Code of CPC can only be exercised for correction of a mistake or an error which is apparent on the face of the record. An illegal and erroneous finding whether on fact or law cannot also be a ground for review. The power of review cannot be exercised for rehearing on fact and law to correct an erroneous decision. If there has been an erroneous decision, the only remedy available to the party is to assail such decision in appeal. The scope of review is only to correct a mistake which has crept in to the judgment and apparent on the face of the record or in cases where some materials though available on record, escaped the notice of the Court for some reason or other affecting in merits of the case. The scope of review is only to correct a mistake which has crept in to the judgment and apparent on the face of the record or in cases where some materials though available on record, escaped the notice of the Court for some reason or other affecting in merits of the case. In the light of the scope of review as stated above, we now proceed to examine the grounds taken in the review petition and find out as to whether the impugned judgment can be reviewed. 5. The review Petitioner after serving as Inspector of Income Tax for more than three years appeared in the Departmental Examination held during June/July 1995 but the results were published on 12.2.1996. During the period from June/July 1995 and 12.6.1996 that is the date of publication of result, five posts of Income Tax Officer (Group-B) were sanctioned for Orissa Region and a DPC was convened on 13.10.1995 to select Officers for promotion to the above five posts. The Departmental Examination result having not been published, the case of the review Petitioner was not considered It is the case of the review Petitioner that he having already appeared in the Departmental Examination by the time the DPC was convened, his case should have been considered by the DPC and kept in sealed cover till publication of results of the Departmental Examination. It is also the case of the review Petitioner that on earlier occasions also whenever any DPC had been convened in between the last date of examination and publication of results thereof, the Department used to convene review DPC to consider the cases of those Inspectors of Income Tax who clear the examination and allow them promotion on recommendation of DPC with retrospective effect, i.e., from the date on which the last examination was held. However, such practice was not adopted by the Department even after publication of results on 12.2.1996. For the above reason, the review Petitioner had approached the Tribunal claiming promotion to the post of Inspector, Group-B with effect from the date on which the last examination was held. However, such practice was not adopted by the Department even after publication of results on 12.2.1996. For the above reason, the review Petitioner had approached the Tribunal claiming promotion to the post of Inspector, Group-B with effect from the date on which the last examination was held. The opposite parties contested the proceeding before the Tribunal and relied upon two earlier decisions of the Tribunal by taking a ground that the date on which DPC is convened only those Inspectors of Income Tax who were eligible for consideration could be considered and the Petitioner who had not cleared the Departmental Examination by then could not have been considered by the DPC. The Tribunal referring to a decision of this Court in the case of Ajaya Kumar Das v. Union of India and Ors., disposed of on 28.3.2001 in O.J.C. No. 1594 of 1999 decided the case and directed the Department to conduct a review Departmental Promotion Committee meeting within a specified time, consider the case of the review Petitioner and grant him retrospective promotion by giving notional financial benefit for the intervening period till his actual promotion. During pendency of the Original Application before the Tribunal, one Sovesh Chandra Mohanty intervened in the Original Application and contested. Against the judgment of the Tribunal, the Department filed W.P.(C) No. 224 of 2003 and the said Sovesh Chandra Mohanty filed W.P.(C) No. 4493 of 2002 before this Court. Both the writ applications were hard together and were also disposed of in a common judgment which is the subject matter of review. This Court while disposing of both the writ applications allowed the same on a finding that on the date the DPC was convened only eligible Officers could considered and a person who acquires the prescribed qualification subsequent to that cannot be considered by the DPC and therefore, the DPC convened on 13.10.1995 rightly did not consider the case of the review Petitioner. 6. In this review petition, all the grounds taken relate to merits of the case. Reliance is again placed on the decision of this Court in the case Ajaya Kumar Das v. Union of India and Ors. 6. In this review petition, all the grounds taken relate to merits of the case. Reliance is again placed on the decision of this Court in the case Ajaya Kumar Das v. Union of India and Ors. where the Court held that the qualification of the Petitioner therein shall relate back to the date of examination and such finding of this Court was up set by the Hon'ble Supreme Court in Civil Appeal No. 6295 of 2001 and the Hon'ble Supreme Court made the following observation while setting aside the aforesaid judgment: The High Court held that the results which were declared in March 1990 will relate back to the date of the examination in 1989. This, in our opinion is an incorrect preposition of law. There can be no question of relating back. The condition of eligibility was very clear. It had to be five years' service after qualifying as on 1st January, 1995 and in this view we are supported by a decision of this Court in Ashok Kumar Sharma and Others Vs. Chander Shekhar and Another, . Therefore, the ground taken in this regard is only reiteration of what had been argued before the Bench when the writ applications were heard and such point has been elaborately dealt with in the impugned judgment. The other ground taken in course of argument is that the review Petitioner having been granted two annual increments with retrospective effect, I.e., from 3.7.1995, his case could not have been ignored by the DPC even though the results were published after the DPC was convened. This question was never argued before the Court when the writ applications were being heard and therefore, there was no scope for the Court to examine this question. By raising such a question, the review Petitioner now calls upon the Court to reconsider the issue afresh on a point which was never argued earlier. We are afraid, in a review petition the Court cannot permit a new ground to be taken for reconsideration of the entire issue specially when the same was available to be argued when the writ applications were heard. We are afraid, in a review petition the Court cannot permit a new ground to be taken for reconsideration of the entire issue specially when the same was available to be argued when the writ applications were heard. The decisions referred to earlier with regard to scope of review clearly lay down that the power of review under Order 47, Rule 1, Code of CPC could only be exercised for correction of a mistake or an error which is apparent on the face of the record. Even an illegal or erroneous finding whether on fact or law cannot also be a ground for review. The power of review cannot be exercised for a rehearing on fact and law to correct an erroneous decision. If there has been an erroneous decision, the only remedy available to the party is to assail such decision in appeal. We are, therefore, of the view that the new ground taken by the learned Counsel for the Petitioner in this review petition cannot be considered for deciding the case afresh on merit. 7. For the reasons stated above, we find no merit in the review petition and accordingly dismiss the same. Final Result : Dismissed