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2016 DIGILAW 245 (JK)

Santosh Kumari v. J & K SSB

2016-05-02

B.S.WALIA, DHIRAJ SINGH THAKUR

body2016
JUDGMENT : Thakur, J. Present petition has been filed seeking review of judgment and order dated 03.11.2015, passed in LPA(SW) 27/2003, by virtue of which this court had allowed the appeal of the appellant (respondent herein) by holding that the petitioners-respondents in the appeal, were less meritorious than the last selected candidate in the open merit category and had secured 34.55 and 63.26 points as against 59.50 and 63.54 points respectively, secured by the last candidate in the aforementioned category. 2. This court, thus, held that the writ petitioners-respondents in the appeal had a preferential right of consideration only if the merit obtained by them was same as the last candidate selected in the open merit category. It was in those circumstances that the appeal filed by the Board-respondent had been allowed and consequently, the judgment passed by the writ court was set aside. 3. Counsel for the petitioner urged that this court ought to have upheld the direction passed by the writ court to consider the case of the writ petitioners for appointment which was an innocuous direction. It is on this ground, review is sought of the judgment and order dated 03.11.2015. 4. The scope of powers exercisable by a court in its review jurisdiction is no longer res integra. 5. In Thungabhadra Industries Ltd. v. Govt, of A.P., AIR 1964 SC 1372 , the Apex Court held as under: "..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. 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 characterised 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." 6. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent-error." 6. The above position of law was reiterated in the case reported as Parsion Devi and Ors. v. Sumitri Devi and Ors., (1997) 8 SCC 715 , by holding as under : "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". 7. In Board of Control for Cricket, India and Anr. v. Netaji Cricket Club and Ors., AIR 2005 SC 592 , the Apex Court in paragraphs 89 and 90 of the judgment, held as under:- "89. Order 47, Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason. 90. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefore. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words 'sufficient reason' in Order 47, Rule 1 of the Code is wide enough to include a misconception of fact or law by a court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit". 8. The words 'sufficient reason' in Order 47, Rule 1 of the Code is wide enough to include a misconception of fact or law by a court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit". 8. In Kamlesh Verma v. Mayawati and Ors., (2013) 8 SCC 320 , while dealing with the issue, the Apex Court detailed the grounds on which a review is maintainable and otherwise. In paragraphs 19 and 20 of the judgment, it was held as under:- "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. The words "any other sufficient reason" have been interpreted in Chhajju Ram v. Neki, AIR 1992 PC 112 and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526 , 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 and Iron Ores Ltd., (2013) 8 SCC 337 . 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. (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 views on the subject cannot be a ground of 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." 9. Again in N. Anantha Reddy v. Anshu Kathuria and Ors., (2013) 15 SCC 534, the Apex Court held as under:- "A careful look at the impugned order would show that the High Court had a fresh look at the question whether the appellant could be impleaded in the suit filed by the respondent No. 1 and, in the light of the view which it took, it recalled its earlier order dated 08.06.2011. The course followed by the High Court is clearly flawed. The High Court exceeded its review jurisdiction by reconsidering the merits of the order dated 08.06.2011. The review jurisdiction is extremely limited and unless there is mistake apparent on the face of the record, the order/judgment does not call for review. The mistake apparent on record means that the mistake is self evident, needs no search and stares at its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit rehearing of the matter on merits." 10. In the light of the ratio of the aforementioned judgments of the Apex Court, we cannot persuade ourselves to allow the present review petition as the counsel for the petitioner has failed to project any error apparent on the face of record which could justify, on merits, a review of the judgment and order dated 03.11.2015, passed in LPA(SW) No. 27/2003. 11. For the reasons mentioned above, this petition is found to be without merit and is dismissed.