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2018 DIGILAW 737 (ORI)

MANIKA JENA v. STATE OF ODISHA

2018-08-14

S.N.PRASAD

body2018
JUDGMENT : S. N. Prasad, J. - The instant review application has been filed for review of the order 22.08.2017 passed by this Court in W.P.(C) No.5670 of 2013 whereby and whereunder this Court has declined to interfere with the decision taken by the Collector, Jajpur dated 18.12.2008. 2. The review application has been filed on the ground that the petitioners are for consideration of their candidature against the post of trained graduate while the opposite parties no.4 and 5 are against the trained metric scale and as such, there cannot be any comparison in between the candidature of the petitioners vis-?-vis the opposite parties no.4 and 5 but this factual aspect has not been taken into consideration while disposing of the writ petition. Hence, this review application. 3. This Court, after hearing the learned counsel for the petitioners and going through the writ petition as also the order passed by the Collector, has found that this point has never been raised by the petitioners before the Collector rather before the Collector all along the case was that the petitioners cannot be said to be disqualified, since they have been appointed but the authority, while taking decision on the basis of the marks secured by opposite parties no.4 and 5, has rejected the claim of the petitioners for their selection under the Scheduled Tribe Category. It is thus evident that the Collector has taking into consideration the respective marks of the petitioners vis-?-vis the opposite parties no.4 and 5 and admittedly, the Collector, after comparison of their respective marks as per merit list, has found that the opposite parties no.4 and 5 had secured 49.11% and 47.06% respectively, while on the other hand, petitioners no.1 and 2 had secured 46.00% and 45.56% respectively and therefore, the claim of the petitioners has been rejected. This Court, after taking into consideration the decision taken by the Collector and also taken into consideration the fact that the Collector has not committed any illegality in rejecting the claim of the petitioners for the reason that if the opposite parties no.4 and 5 had secured higher marks in comparison to that of the petitioners, has found that there is no reason not to select the opposite parties no.4 and 5. 4. 4. Learned counsel for the petitioners have taken altogether a new point for review of the aforesaid order by submitting that the petitioners vis-?-vis opposite parties no.4 and 5 were altogether on different category of posts and as such, cannot be compared but it is settled position of law that scope of review is very limited. This Court has considered the judgment of Hon'ble Apex Court regarding width and scope of power of review as has been rendered in the case of Moran Mar Basselios Catholicos and Anothers Vrs. Most Rev. Mar Poulose Athanasius and Others, (1954) AIR SC 526 particularly at paragraph 32 which reads as under:- "32. Before going into the merits of the case it is as well to bear in mind the scope of the application for review which has given rise to the present appeal. It is needless to emphasise that the scope of an application for review is much more restricted than that of an appeal. Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order XLVII, Rule I of our Code of Civil Procedure, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified, grounds, namely (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason." In the case of Shivdev Singh v. State of Punjab, (1963) AIR SC 1909, in a review petition filed under Order 47, Rule 1 C.P.C., the Supreme Court held that the power of review of its own order by the High Court inheres in every Court of plenary jurisdiction, to prevent miscarriage of justice or to correct grave and palpable errors committed by it. In doing so, the Court was only upholding the principles of natural justice. This decision indicates that the Court's power of review while exercising jurisdiction under Article 226 of the Constitution extends to correct all errors to prevent miscarriage of justice. The judgment rendered by Hon'ble Apex Court in the case of Sow Chandra Kanta and Another Vrs. In doing so, the Court was only upholding the principles of natural justice. This decision indicates that the Court's power of review while exercising jurisdiction under Article 226 of the Constitution extends to correct all errors to prevent miscarriage of justice. The judgment rendered by Hon'ble Apex Court in the case of Sow Chandra Kanta and Another Vrs. Sheik Habib, (1975) AIR SC 1500 wherein it has been held that "A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition through different counsel of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient." It is the settled proposition as has been held by Hon'ble Apex Court in the judgment discussed herein above the scope of review which can only be done in case of discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, mistake or error apparent on the face of the record and for any other sufficient reason and in the light of this legal position the fact of these review petitions need to be appreciated. 5. The petitioners have challenged the order passed by the Collector for issuance of writ of certiorari in exercise of power conferred under Article 226 of the Constitution of India and it is settled that the writ of certiorari can only be exercised by the High Court sitting under Article 226 of the Constitution of India, if there is any perversity in the finding or order is without jurisdiction or if the order is without following any statutory provision, but admittedly, the writ of certiorari cannot be exercised if the point which ought to have been raised by the petitioners but not raised cannot be said to be the ground to exercise the power of writ of certiorari for declaring the order illegal. Reference may be made in this regard to the judgment rendered by Hon'ble the Apex Court in the case of Syed Yakoob Vrs. Reference may be made in this regard to the judgment rendered by Hon'ble the Apex Court in the case of Syed Yakoob Vrs. K. S. Radhakrishnan and others, (1964) AIR SC 477 wherein at paragraph-7 their Lordships have been pleased to hold as follows:- "7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised." The proposition laid down by the Hon'ble Apex Court in the case of Syed Yakoob still holds good since the same has been considered by Hon'ble the Apex Court recently in the case of M/s. Pepsico India Holding Pvt. Ltd. Vrs. Krishna Kant Pandey, (2015) 4 SCC 270 wherein their Lordships while discussing the scope of Article 226 of the Constitution of India in the matter of showing interference with the finding of the Tribunal has been pleased to hold after placing reliance upon the judgment rendered in the case of Chandavarkar Sita Ratna Rao Vrs. Ashalata S. Guram, (1986) 4 SCC 447 as follows:- "17. In case of finding of facts, the court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be made to the observations of this Court in Bathutmal Raichand Oswal v. Laxmibai R. Tarta where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal. The High Court was not competent to correct errors of facts by examining the evidence and reappreciating. The High Court was not competent to correct errors of facts by examining the evidence and reappreciating. Speaking for the Court, Bhagwati, J. as the learned Chief Justice then was, observed at page 1301 of the report as follows: (SCC p. 864, para 7) The special civil application preferred by the appellant was admittedly an application under Article 227 and it is, therefore, material only to consider the scope and ambit of the jurisdiction of the High Court under that article. Did the High Court have jurisdiction in an application under Article 227 to disturb the findings of fact reached by the District Court? It is well settled by the decision of this Court in Waryam Singh v. Amarnath that the ... power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways v. Sukumar Mukherjee to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors. This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bose v. Commr. of Hills Division and it was pointed out by Sinha, J., as he then was, speaking on behalf of the court in that case: It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226 the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority." 6. Therefore, this Court is of the view that since the point which has been raised for filing this review application since been not raised before the Collector, the said ground cannot be said to be a ground to review the aforesaid order. 7. In view thereof, there is no ground to deal with the order dated 22.08.2017 passed by this Court in W.P.(C) No.5670 of 2013. Accordingly, the review petition is dismissed. Final Result : Dismissed