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2016 DIGILAW 181 (MAN)

Thounaojam Surendra Singh s/o Th. Tombi Singh v. Manipur University

2016-10-24

N.KOTISWAR SINGH, R.R.PRASAD

body2016
JUDGMENT & ORDER : This Review Petition has been filed for review of the judgment and order dated 10.8.2016 passed in W.A. No. 54 of 2015 whereby the appeal, preferred by the appellant-petitioner against the order passed by the learned single Judge, was dismissed. 2. The brief facts leading to this Review Application are that when respondent No.2 was appointed as Lecturer (Hindi) in Manipur University in the reserved category of OBC, her appointment was challenged by the petitioner on the ground that she cannot be a candidate of OBC category as her father, being appointed directly on class-I post, was a person of creamy layer and therefore she should not have been appointed as lecturer in OBC category on the basis of OBC certificate. However, said plea of the petitioner was denied by the respondent before the writ court. The writ court, having taken into account the facts and circumstances brought on record, came to the finding that there has not been any contravention of any rule relating to the appointment of the respondent No.2 and thereby the writ application was dismissed. 3. When the appeal was preferred against the judgment and order passed by the learned Single Judge, same plea was advanced. Upon consideration of the case, when we, in appeal, did find that the writ petitioner/appellant has palpably failed to establish that the father of the respondent No.2 had directly been appointed on Class-I post upheld the judgment and order passed by the learned single Judge and thereby the appeal was dismissed. While dismissing the appeal, this court did find, the stand taken by the writ petitioner-appellant of holding of the class-I post by the father of the respondent quite illogical which was expressed in the following manner: “10. Further, we are quite surprise to note the point being raised relating to creamy layer when the father of the respondent No.2 did hold the post of Joint Director in the year, 1979 whereas office Memorandum was issued in the year, 1993 pursuant to judgment rendered in a case of Indira Sawhney & Ors vs. Union of India upon submission of report of Mandal Commission and thereby criteria laid down for exclusion of socially advanced person under the Office Memorandum dated 8.9.2003 can never relate back to the year 1979 and this ground is sufficient to reject the entire contention of the writ petitioner-appellant. Thus, we do not find any merit in the appeal and hence it is dismissed.” In that event, the appeal was dismissed. Being aggrieved with that judgment and order, Review Petition has been filed 4. Mr. Rarry, instead of pointing error apparent on the face of record, made an attempt to take same pleas which had been advanced before the writ court as well as the appellate court which is never permissible as Review never happens to be an appeal whereby finding of the fact recorded cannot be allowed to be assailed except on the ground of error apparent either on the fact or law on the face of the record. 5. What is the scope of Review that has been delineated in number of cases decided by Hon’ble Supreme Court. In this respect, it be stated that error which is not self evident and has to be detected by process of reasonableness can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review. A review is, by no means, an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. Here, we may refer to a decision rendered in a case of Parsion Devi vs. Sumitri Devi (1997) 8 SCC 715 wherein it has been held in para 7 to 9 as under: “7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P. this Court opined: (AIR p. 1377, para 11) ‘11. 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 an “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 be conclusive, for the earlier order itself might be erroneous. 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 be 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 a 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.’ 8. Again, in Meera Bhanja v. Nirmala Kumari Choudhuri while quoting with approval a passage from Aribam Tuleshwar Sharma v. Aribam Pishak Sharma this Court once again held that 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. 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’.” 6. Further, we may refer to a decision rendered in a case of Kerala SEB vs. Hitech Electrothermics and Hydropower Ltd reported in (2005) 6 SCC 615 wherein at para 10 it has been observed as follows: “10. In a review petition it is not open to this Court to re-appreciate the evidence and reach a different conclusion, even if that is possible. The learned counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. In a review petition it is not open to this Court to re-appreciate the evidence and reach a different conclusion, even if that is possible. The learned counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reasons akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of the evidence would amount to converting a review petition into an appeal in disguise.” 7. Subsequently, the Hon’ble Supreme Court in a case of Kamlesh Verma Vs. Mayawati & Ors reported in (2013) 8 SCC 320 after taking into account number of decisions rendered in different cases were placed to delineate the points as to when review can be maintained and also not maintained which are as follows-: “19. 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 review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction. Summary of the Principles 20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute : 20.1. When the review will be maintainable : (i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; (ii) Mistake or error apparent on the face of the record; (iii) Any other sufficient reason. When the review will be maintainable : (i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; (ii) Mistake or error apparent on the face of the record; (iii) Any other sufficient reason. The words “any other sufficient reason” have been interpreted in Chhajju Ram V. Neki and approved by this Court in Moran Mar Basselios Catholics V. Most Rev. Mar Poulose Athanasius to mean “a reason sufficient on grounds at least analogous to those specified in the rule”. The same principles have been reiterated in Union of India V. Sandur Manganese Iron Ores. Ltd. 20.2. When the review will not be maintainable : (i) A repetition of old and overruled argument is not enough to reopen concluded adjudications. (ii) Minor mistakes of inconsequential import. (iii) Review proceedings cannot be equated with the original hearing of the case. (iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. (v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. (vi) The mere possibility of two view on the subject cannot be a ground for review. (vii) The error apparent on the face of the record should not be an error which has to be fished out and searched. (viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition. (ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived. 8. Keeping in view the principles laid down by the Hon’ble Supreme Court in all the cases as referred to above, we, in absence of a case being made out of error apparent on the face of the record, do find this Review Application being not maintainable and hence it is dismissed.