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2016 DIGILAW 3587 (ALL)

Prof. MADAN MOHAN RAJPUT v. STATE OF U. P.

2016-10-27

MAHESH CHANDRA TRIPATHI, V.K.SHUKLA

body2016
JUDGMENT (Civil Misc. Delay Condonation Application No. 183212 of 2016 and Civil Misc. Review Application No. 183215 of 2016) By the Court.—The review application has been filed by Professor Madan Mohan Rajput (petitioner) for reviewing the judgement and order dated 5.2.2016 passed in Writ A No. 63424 of 2015 (Prof. Madan Mohan Rajput v. State of U.P. and others) wherein the orders dated 6.7.2015, 18.8.2015 and 28.9.2015 passed by the Vice Chancellor, Bundelkhand University, Jhansi-respondent No. 2 and the Executive Council of Brahma Nand Post Graduate College, Rath, Hamirpur-respondent No. 4 were affirmed and the writ petition was dismissed in following terms : “15. We have occasion to peruse the aforesaid Government Orders and this much is reflected that UGC Regulation 2010 stands adopted by the State Government and bare perusal of the Government Order dated 31.12.2010 would go to show that as far as teachers and other non-teaching staff are concerned, qua then the UGC Regulation 2010 has to be adhered to and same is the language that has been so used in the letter dated 3.10.2013. We have also perused the details regarding minimum score as stipulated in the Academic Performance Indicator (API) based Performance Based Appraisal System (PBAS) as set out in this Regulation in Appendix-III for direct recruitment of Professor in Colleges. 16. It has also been brought on record that in pursuance of the order dated 28.9.2015 passed by the Vice Chancellor, Dr. R.D. Mahan-respondent No. 6 has been given the charge of officiating Principal of the institution and consequently vide order dated 15.10.2015 the Regional Higher Education Officer, Jhansi has also attested the signatures of respondent No. 6 as Officiating Principal of the institution in question. The respondent No. 6 possesses the requisite qualification for the post of Principal and fulfils the conditions/qualifications given in Regulation 4.2.0 of UGC Regulation 2010. Details have also been furnished regarding the minimum score of respondent No. 6 with regard to Academic Performance Indicator (API) and Performance Based Appraisal System (PBAS). The same has been certified by Registrar, Bundelkhand University, Jhansi, which clearly gives an impression to the Court that the documents in question had been thoroughly scrutinized by the competent authority. Details have also been furnished regarding the minimum score of respondent No. 6 with regard to Academic Performance Indicator (API) and Performance Based Appraisal System (PBAS). The same has been certified by Registrar, Bundelkhand University, Jhansi, which clearly gives an impression to the Court that the documents in question had been thoroughly scrutinized by the competent authority. The record in question clearly reflects to this Court that the respondent No. 6 possess the qualification for the post of Principal as provided in UGC Regulations, 2010 and thus he is qualified for the post of Principal and has rightly been given the charge of officiating Principal of the institution. 17. The writ petition sans merit and is dismissed.” 2. In support of present review application, it is sought to be contended that for appointment on the post of officiating Principal of the College, a candidate requires to fulfil the eligibility criteria as laid down by the First Statutes of Bundelkhand University and the petitioner-applicant is qualified for appointment on the post of officiating Principal of the College in question. There is a difference in the eligibility criteria for the post of Principal and the post of officiating Principal as laid down in Statutes 10.02 and 12.20 of the First Statutes of Bundelkhand University whereby two posts are differentiated from each other, therefore, separate qualifications have been provided in the Statute. It has also been urged that a candidate for appointment on the post of officiating Principal requires to fulfil the eligibility criteria as laid down under Statute 12.20 only and not required to fulfil the criteria laid down under Statute 12.02 of the First Statutes of Bundelkhand University. The UGC Regulations 2010 do not deal with the post of officiating Principal at all and it provides the qualifications for the post of regular Principal whereas the present matter relates to the appointment of officiating Principal and not regular Principal and as such, UGC Regulations 2010 would not be applicable to the appointment on the post of Principal to a Degree College in view of the exclusion carved by the Government order dated 31.12.2010 whereby the selection of the Principal in Degree Colleges is to be conducted by the existing provisions only i.e. the First Statutes of Bundelkhand University. Various other grounds have been also been taken. 3. Various other grounds have been also been taken. 3. At the very outset, Shri Rahul Jain, learned counsel for the private respondent has vehemently opposed the review application precisely on the ground that the judgement and order passed by this Court dated 5.2.2016 was subjected to challenge in Special Leave to Appeal (C) No. 9729/2016 and Hon’ble Apex Court vide order dated 18.4.2016 had proceeded to dismiss the aforesaid SLP with following observations : “Application for exemption from filing official translation is allowed. The special leave petition is dismissed.” 4. Shri Rahul Jain further makes submission that once the order passed by this Court has been assailed by the petitioner-applicant in the aforesaid Special Leave to Appeal and the appeal in question has been turned down and the order passed by this Court has attained finality, then at this stage the petitioner cannot be permitted to file any review application. In support of his submission, he has placed his reliance on the judgement of Apex Court in Abhai Miligai Partnership Firm v. K. Santhakumaran, Civil Appeal Nos. 4996-4999 of 1994 dated 9.9.1998, which reads as under : “These appeals are directed against the order made by High Court of Madras dated 7,4.1994 in Review C.M.P. Nos. 44 and 45 of 1994 in Civil Revision Petition Nos. 4974 and 4975 of 1983. 2. The Rent Controller ordered eviction of the appellants in an eviction petition filed by respondents 1 and 2 on the ground of wilful default in payment of rent and bona fide requirement of the premises by respondents 1 and 2 for their own business; On appeal filed by the appellant-tenants, it was found that there was a bona fide dispute with regard to the title of the property which could be decided by the Civil Court. The appellate authority set aside the order of the Rent Controller on 27.8.1983, Respondent 1 and 2 thereupon preferred revision petitions in the High Court and by its order dated 7.1.1987, the High Court rejected both the revision petitions, confirming the view of the appellate authority. Aggrieved by the orders of the High Court dated 7.1.1987, respondents 1 and 2 filed S.L.P.(C) Nos. 4039-4040 of 1987. The appellants appeared on caveat in the Supreme Court. Both sides were represented by senior Advocates of this Court. Aggrieved by the orders of the High Court dated 7.1.1987, respondents 1 and 2 filed S.L.P.(C) Nos. 4039-4040 of 1987. The appellants appeared on caveat in the Supreme Court. Both sides were represented by senior Advocates of this Court. After hearing learned counsel for the parties, the special leave petitions were dismissed on 16.9.1987, After the dismissal of the special leave petitions by this Court, the respondents filed review petitions No. CMP 44 and 45 of 1994 in the High Court seeking review of the order, dismissing civil revision petitions No. 4974 and 4975 of 1983 on 7.1.1987. It was the order dated 7.1.1987 (supra) which was the subject-matter of challenge in SLP(C) Nos. 4039-4040/87. There was also a delay of 221 days in filing the review petitions in the High Court after the dismissal of the special leave petitions. The learned Single Judge, by the order impugned before us, not only condoned the delay of 221 days but also reviewed the earlier orders made on 7.1.1987, reversed the orders made in civil revision petitions and allowed civil revision petitions and ordered eviction of the tenant-appellants. Aggrieved, the appellants are before us against the order dated 7.4.1994 made in the review petitions. We have heard learned counsel for the parties. 3. The manner in which the learned Single Judge of the High Court exercised the review jurisdiction, after the special leave petitions against the self-same order had been dismissed by this Court after hearing learned counsel for the parties, to say the least, was not proper. Interference by the learned single Judge at that stage is subversive of judicial discipline. The High Court was aware that SLPs against the orders dated 7.1.87 had already been dismissed by this Court. This High Court, therefore, had no power or jurisdiction to review the self same order, which was the subject-matter of challenge in the SLPs in this Court after the challenge had failed. By passing the impugned order on 7.4,1994, judicial propriety has been sacrificed. After the dismissal of the special leave petitions by this Court, on contest, no review petitions could be entertained by the High Court against the same order. By passing the impugned order on 7.4,1994, judicial propriety has been sacrificed. After the dismissal of the special leave petitions by this Court, on contest, no review petitions could be entertained by the High Court against the same order. The very entertainment of the review petitions, in the facts and circumstances of the case was an affront to the order of this Court, We express our strong disapproval and hope there would be no occasion in the future when we may have to say so. The jurisdiction exercised by the High Court, under the circumstances, was palpably erroneous. The respondents who approached the High Court after the dismissal of their SLPs by the this Court, abused the process of the Court and indulged in vexatious litigation. We strongly deprecate the manner in which the review petitions were filed and heard in the High Court after the dismissal of the SLPs by this Court. The appeals deserve to succeed on that short ground. The appeals are, consequently, allowed and the impugned order dated 7.4.1994 passed in the review petitions is hereby set aside. The respondents shall pay Rs. 10,000 as costs.” 5. It is sought to be contended by learned counsel appearing on behalf of private respondent that such practice has been deprecated by the Apex Court and by no stretch of imagination at this staqe the order passed by this Court can be reviewed and as such, the present review application is liable to be dismissed. 6. The review application can be allowed only on (1) discovery of new and important matter of evidence which, after exercise of due diligence, was not within the knowledge of the person seeking review, or could not be produced by him at the time when the order was made, or (2) when some mistake or error on the face of record is found, or (3) on any analogous ground. But review is not permissible on the ground that the decision was erroneous on merits as the same would be the province of an Appellate Court. 7. But review is not permissible on the ground that the decision was erroneous on merits as the same would be the province of an Appellate Court. 7. In the case of Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909 , Hon’ble Apex Court took the view that there is nothing under Article 226 of the Constitution of India, which precludes 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. It was held that the power of review under Article 226 of the Constitution of India, in reviewing its own orders, every Court including High Court inheres plenary jurisdiction, to prevent miscarriage of justice or to correct grave and palpable errors committed by it. 8. Hon’ble Apex Court in the case of A.P. Sharma v. A.P. Sharma, 1979 (4) SCC 389 , has cautioned that power of review of High Court is not the same as appellate powers and review on the ground that certain documents have not been considered, which formed the record, cannot be ground of Review. Hon’ble Apex Court in the case of Meera Bhanja v. Nirmla K. Chaudhary, 1995 (1) SCC 170 , has taken the view that review must be confined to error apparent on the face of record, error must be such as would be apparent on mere looking without any long drawn process of reasoning, and reappraisal of evidence on record for finding out error would amount to exercise of appellate jurisdiction, which is not at all permissible. 9. In the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137 , Hon’ble Supreme Court has made the following observations in connection with an error apparent on the face of the record : “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. 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. In our view the aforesaid approach of the Division Bench dealing with the review proceedings clearly shows that it has overstepped its jurisdiction under Order 47, Rule 1, C.P.C. By merely styling the reasoning adopted by the earlier Division Bench as suffering from a patent error. It would not become a patent error or error apparent in view of the settled legal position indicated by us earlier. In substance, the review Bench has re appreciated the entire evidence, sat almost as Court of appeal and has reversed the findings reached by the earlier Division Bench Even if the earlier Division Bench findings regarding C.S. Plot No. 74 were found to be erroneous, it would be no ground for reviewing the same, as that would be the function of an appellate Court. Learned counsel for the respondent was not in a position to point out how the reasoning adopted and conclusion reached by the Review Bench can be supported within the narrow and limited scope of Order 47, Rule 1, C.P.C. Right or wrong, the earlier Division Bench judgment had become final so far as the High Court was concerned. It could not have been reviewed by reconsidering the entire evidence with a view to finding out the alleged apparent error for justifying the invocation of review powers. Only on that short ground, therefore, this appeal is required to be allowed. The final decision dated 8th July, 1986 of the Division Bench dismissing the appeal from appellate decree No. 569 of 1973 insofar as C.S. Plot No. 74 is concerned as well as the review judgment dated 5th September, 1984 in connection with the very same plot, i.e. C.S. Plot No. 74 are set aside and the earlier judgment of the High Court dated 3rd August, 1978 allowing the Second Appeal regarding suit plot No. 74 is restored. The appeal is accordingly allowed. In the facts and circumstances of the case, there will be no order as to costs.” 10. The appeal is accordingly allowed. In the facts and circumstances of the case, there will be no order as to costs.” 10. In Parsion Devi and others v. Sumitri Devi and others, 1997 (8) JT SC 480, Hon’ble Supreme Court has taken the view that review proceeding has to be strictly confined to the ambit and scope of Order 47, and therein the two earlier judgments referred to above have been relied upon. Again in Smt. Meera Bhanja v. St. Nirmala Kumari Choudhary, 1985 (1) SCC 170, while quoting this approval a passage from Abhiram Taleshwar Sharma v. Abhiram Pishak Sharma and others, ( 1979 (4) SCC 389 , Hon’ble Supreme 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. 11. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is 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 the jurisdiction Under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be “reheard and corrected”. A review petition has a limited purpose and cannot be allowed to be “an appeal in disguise.” 12. Hon’ble Apex Court, in the case of Lily Thomas v. Union of India, AIR 2000 SC 1650 , after considering the dictionary meaning of word “review” has taken the view that power of review can be exercised for correction of mistake and not to substitute a view. Such powers can be exercised within the limits of the statute, dealing with exercise of power; the review cannot be treated as an appeal in disguise, and mere possibility of two views on the subject is not a ground of Review. 13. Such powers can be exercised within the limits of the statute, dealing with exercise of power; the review cannot be treated as an appeal in disguise, and mere possibility of two views on the subject is not a ground of Review. 13. Hon’ble the Apex Court in Subhash v. State of Maharastra and another, AIR 2002 SC 2537 , the Apex Court emphasized that Court should not be misguided and should not lightly entertain the review application unless there are circumstances falling within the prescribed limits for that as the Courts and Tribunal should not proceed to re-examine the matter as if it was an original application before it for the reason that it cannot be a scope of review. In State Haryana v. Mohinder Singh, JT 2002 (1) 197, the Apex Court disapproved the judgment of High Court,wherein earlier writ petition was disposed of by High Court being infructuous and giving some directions, and subsequent to the same, Review was sought, which was allowed, same was clearly termed to be overstepping of jurisdiction, and amounting to giving of one more chance of hearing. 14. In the case of Union of India v. B. Valluvar, 2006 (8) SCC 686 , Hon’ble Apex Court has again considered the parameters of review jurisdiction of High Court, that same shall be exercised within the limitations as provided under Section 114 read with Order 47 Rule of C.P.C.,and without recording finding as to there existed error apparent on the face of the record, merit cannot be gone into. Hon’ble Apex Court in the case of State of Haryana and others v. M.P. Mohila, 2007 (1) SCC 457 , has taken the view that in the garb of clarification application, recourse to achieve the result of review application, cannot be permitted, as what an not be done directly,cannot be done indirectly. 15. In the case of Bhagwant Singh v. Deputy Director of Consolidation and another, AIR 1977 All. 163 , this Court rejected the review application filed on a ground which had not been argued earlier because the counsel, at initial stage, had committed mistake in not relying on and arguing those points, held as under : “It is not possible to review a judgment only to give the petitioner a fresh inning. It is not for the litigant to judge of counsel’s wisdom after the case has been decided. It is not for the litigant to judge of counsel’s wisdom after the case has been decided. It is for the counsel to argue the case in the manner he thinks it should be argued. Once the case has been finally argued on merit and decided on merit, no application for review lies on the ground that the case should have been differently argued.” 16. On the touchstone of the dictum noted above, the review is permissible only when there is error apparent on the face of record i.e. error should be grave and palpable, and the error must be such as would be apparent on mere looking of record, without requiring any long drawn process of reasoning, and reappraisal of entire evidence for finding the error, as same would amount to exercise of appellate jurisdiction. Further, the review lies only on the grounds mentioned in Order 47, Rule 1 read with Section 141 CPC. The party must satisfy the Court that the matter or evidence discovered by it at a subsequent stage could not be discovered or produced at the initial stage though it had acted with due diligence. A party filing a review application on the ground of any other “ sufficient reason” must satisfy that the said reason is analogous to the conditions mentioned in the said provision of C.P.C. 17. In the aforesaid circumstances, once the order passed by this Court has been subjected to challenge in Special leave to Appeal (C) No. 9729 of 2016 and the same was dismissed by the Apex Court on 18.4.2016, even though without according any leave for filing the review and the present review application has been filed after dismissal of the aforesaid SLP with the sole object to get a second chance of re-hearing, whereas we on the earlier occasion have extensively dealt with the issue of eligibility/qualification for holding the office of Principal. In the garb of review matter cannot be permitted to be re-opened. 18. Consequently, the delay condonation application and review application are rejected.