JUDGMENT : SUBRATA TALUKDAR, J. 1. In this Review Application (for short the review or RVW), the writ petitioner/ appellant/ review applicant (for short only the applicant), seeks review of the order dated 14th of January, 2015 passed in the appeal, i.e. F.M.A. 981 of 2014 with C.A.N. No. 8968 of 2014, by a Hon’ble Division Bench of this Court. 2. The RVW has been assigned before this Bench. 3. It would be necessary for the present discussion to reproduce the order of 14th January, 2015 which, inter alia, reads as follows:- “The school got upgraded in 1982 having a 4-class Junior High School. The appellant was an organizing staff. He was duly found by DLIT serving the school. The appellant’s case for regularization could not be considered earlier as his graduate qualification was in question but in another set of litigation where he ultimately succeeded, Learned Single Judge asked the Director of School Education to consider his prayer for regularization. Accordingly, the Director considered his case and rejected his claim by a well-reasoned order appearing at pages 130-134 of the application for stay. The reasoned order would depict, one Haradhan Mandal was a pure science teacher engaged by the school in 1978 whereas the appellant also a pure science teacher, was engaged in 1970. In 1982 when the school was upgraded from 2-class Junior High School to 4-class Junior High School, there was one post for pure science that could be adjusted against Haradhan Mandal. It is true, the appellant’s case was necessary delayed because of his disputed graduate qualification. Even if we ignore the same today and go back to 1982, we are not in a position to accede to his prayer in the presence of Hardhan Mandal who is senior to him. In such event, we are constrained to observe, the appellant’s prayer cannot be acceded to. The appeal fails and is hereby dismissed along with the application without any order as to costs. Certified copy of this order, if applied for, be supplied to the parties as early as possible.” 4. Mr. Ali, Learned Counsel appearing in support of the RVW, strongly relies on a judgment reported in In Re: Samir Kumar Naskar vs. Director of School Education and Ors., (2006) 1 Cal LT 134 (HC) being RVW No. 3106 of 2004. Mr.
Certified copy of this order, if applied for, be supplied to the parties as early as possible.” 4. Mr. Ali, Learned Counsel appearing in support of the RVW, strongly relies on a judgment reported in In Re: Samir Kumar Naskar vs. Director of School Education and Ors., (2006) 1 Cal LT 134 (HC) being RVW No. 3106 of 2004. Mr. Ali argues that while considering a review application, the reviewing Court is entitled to correct its earlier mistakes. Relying on the provisions of Order 47 Rule 1 of the Code of Civil Procedure which enable a litigant to seek review of an order of Court, it is submitted that the correction of its mistakes by the Court sitting in review jurisdiction is an action well recognised in law. 5. Mr. Ali submits that in the facts of the present RVW, the Hon’ble Appellate Bench while passing its order dated 17th of January, 2015, did not, but, ought to have taken notice of an essential fact that the School in issue did not enjoy a Staff Pattern till 1990, in which year the School Education Department, Government of West Bengal, formulated a Staff Pattern for the School in issue upon its upgradation from Junior Class II to Junior Class IV level. 6. It is further submitted that the Hon’ble Appellate Bench was misguided by the order of the Director of School Education (DSE) as upheld by the Hon’ble Single Bench, inter alia, holding that since three teachers stood already absorbed in the School, there was no scope to appoint the petitioner. 7. Mr. Ali submits that in view of the back-to-back orders passed by the Hon’ble Single Bench as upheld by the Hon’ble Division Bench (supra), not only the seniority of the petitioner in service has been ignored but, the fundamental error committed by the DSE connected to recognising a Staff Pattern for the school in issue at a time when no such Staff Pattern either existed or applied under the Rules, the injustice suffered by the applicant has remained uncorrected. 8. Mr. Ali points out that it was incumbent upon the then Learned Counsel for the petitioner to apprise both the Hon’ble Single Bench and the Hon’ble Division Bench of the correct position of the Staff Pattern qua the School in issue.
8. Mr. Ali points out that it was incumbent upon the then Learned Counsel for the petitioner to apprise both the Hon’ble Single Bench and the Hon’ble Division Bench of the correct position of the Staff Pattern qua the School in issue. Therefore, the conclusion of the Court based on a fundamentally flawed premise requires to be and, can be, corrected in this RVW. 9. Learned Counsel for the review applicant adds legal support to his arguments on the additional authorities of In Re: M.C. Ghatak vs. Union of India in RVW Nos. 001 and 002 of 2014 arising out of WPCT Nos. 271 and 272 of 2013, and, In Re: BCCI and another vs. Netaji Cricket Club and Others reported in, (2005) 4 SCC 741 . 10. Mr. Lahiri, Learned State Counsel, submits that the grounds being now taken in the RVW were never earlier taken at any stage by the review applicant. The law on the exercise of review jurisdiction does not provide for de novo adjudication. A mistake committed by the then Learned Counsel for the petitioner cannot extend to a realisation of its mistake by Court. 11. The statutory position was first established by the DSE and affirmed up to the appellate stage. It was throughout not pointed out by the review applicant/ the writ petitioner that either his Learned Advocate or, the Courts have erred. 12. Both the Hon’ble Trial Court and the Hon’ble Division Bench have concurred with the decision-making process. The purported cause-of-action in the RVW harks back to 1982. With the long efflux of time to the present day, deeply entrenched third party rights have grown roots. 13. The apropo adjudication, assuming that the review applicant has been able to make out a case of mistake, lies by way of an appeal. Learned State Counsel submits that the present RVW can be construed as a camouflage to save the limitation lost in filing a regular appeal. 14. Mr. Lahiri next takes this Court to the order of the Director of School Education (DSE) dated 23rd of October 2003 (supra). It is submitted that the DSE has discussed all and the whole of the facts.
14. Mr. Lahiri next takes this Court to the order of the Director of School Education (DSE) dated 23rd of October 2003 (supra). It is submitted that the DSE has discussed all and the whole of the facts. The DSE had concluded as follows:- “In the circumstances, the petitioner who was a Science graduate with Physics, Chemistry and Mathematics combination and who could not fit into the prescribed staff pattern of a 4- class junior high school, when the school was upgraded as such on 01.01.1982 and had required a teacher of Bio-Science, that is, a teacher with B.Sc (Bio), is not entitled to any relief as he has prayed for.” 15. Learned State Counsel submits that therefore at all stages before the DSE, the Hon’ble Single Bench and the Hon’ble Division Bench, the petitioner did not join issue either on the Staff Pattern or, on his seniority. 16. The attention of this Court is further drawn to the essential pleadings in the RVW.
Learned State Counsel submits that therefore at all stages before the DSE, the Hon’ble Single Bench and the Hon’ble Division Bench, the petitioner did not join issue either on the Staff Pattern or, on his seniority. 16. The attention of this Court is further drawn to the essential pleadings in the RVW. Grounds II, IV, V, VII, XI, XIV of the RVW illustratively read as follows:- “(II) For that the Hon’ble Division Bench should have to consider an reject the erroneous decision of the Director of School Education as he did not follow the relevant solemn interim orders passed from time to time by his Lordship the Hon’ble Justice Mohitosh Majumder (As then was) whereby by and where under the appellant was clearly entitled to resume his function as Assistant Teacher and ultimately entitled to obtain the order of approval as organiser teacher with retrospective benefit; (IV) For that the Hon’ble Court should have to consider the influenced decision of Director of School Education violating the Hon’ble Court’s order regarding staff pattern although the school authority and District Inspector of School (SE), illegally given appointment the private respondent in place of Appellant and by virtue of the relevant solemn direction dated 1.12.1989, 2.9.1991 the said appointment was turned into conditional appointment and ultimately turned into infructuous for the remaining one vacancy of the upgraded section of the concerned Junior High School; (V) For that the Hon’ble Court did not consider the suppression of facts by the Director of School Education by ignoring the contempt punishment imposed upon the then District Inspector of Schools (SE) for not given approval to the Appellant in the post of Assistant Teacher n Science Group as per solemn order passed by Hon’ble High Court in the matter being C.O. No. 4434 (W) of 1988; (VII) For that Hon’ble Court failed to consider the wrongful decision taken by the Director of School Education as he has no legal right to raise the dispute regarding staff pattern rule against Appellant’s absorption for the sub-judice post as per Hon’ble Court’s order; (XI) For that the Hon’ble Court failed to realize that the Director of School Education purposely treated the order of District Inspector of School (who was found guilty of contempt for raising the dispute of staff pattern rule and for seeking instruction from Director of School Education) as the “reasoned order” repeatedly; (XIV) For that the Hon’ble Court failed to realize that the Director of School Education had not at all any legitimate right to disobey the specific solemn directions dated 10.05.1988 and 7.10.2002 in the matter of according the necessary approval of the appellant as organiser teacher in accordance with law.
The Hon’ble Judge did not at all interfere in the specific solemn direction dated 10.05.1988;” 17. Having heard the parties and considering the materials placed, this Court is under no illusion that the mistake alleged to have crept into the order of the Hon’ble Division Bench dated 14th January, 2015 requires, if at all, a complete reassessment of findings from the source, commencing with the order of the DSE. It transpires from the arguments of Learned Counsel for the RVW applicant that the tip of the ice-berg has been shown, giving an idea about the sheer volume of ice packed beneath the water level. 18. It is trite that the error contemplated to be reviewed must be an error apparent on the face of the record and, not an error which has to be searched. In other words, it must be an error of inadvertence. 19. This Court respectfully notices, in the context of the present facts, the law elucidated by the Hon’ble Apex Court In Re: Meera Bhanja vs. Nirmala Kumar Choudhury, (1995) 1 SCC 170 at Paragraphs 8, 9 and 15 thereof which, read as follows:- “8. It is well settled that the 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 connection with the limitation of the powers of the court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, speaking through Chinnappa Reddy, J, has made the following pertinent observations: (SCC p. 390, para 3) It is true as observed by this Court in Shivdeo Singh v. State of Punjab, there is nothing in Article 226 of the Constitution to preclude the High Court form 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. But, there are definitive limits to the exercise of the power of review.
But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the fact of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court.” 9. Now it is also to be kept in view that in the impugned judgment, the Division Bench of the High Court has clearly observed that they were entertaining the review petition only on the ground of error apparent on the face of the record and not on any other ground. So far as that aspect is concerned, it has to be kept in view that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. We may usefully refer to the observations of this Court in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale wherein, K.C. Das Gupta, J., speaking for the Court has made the following observations in connection with an error apparent on the face of the record: 15. 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 CPC by merely styling the reasoning adopted by the earlier Division Bench as suffering from a pattern error. It would not become a pattern 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 the entire evidence, sat almost as court of appeal and has reversed the findings reached by the earlier Division Bench.
It would not become a pattern 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 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’s 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 CPC. 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 the short ground, therefore, this appeal is required to be allowed. The final decision dated 8-7-1986 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 5-9-1984 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 3-8-1978 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.” 20. For the above reasons the review merits no further or other consideration. RVW 15 of 2015 stands accordingly dismissed. 21. There will be, however, no order as to costs. Samapti Chatterjee, J.: I have the benefit to go through the judgment prepared by my learned brother, Justice Subrata Talukdar and I am in complete agreement with the conclusion arrived at. However, as the issue decided relates to Court’s Power of Review, I wish to add a few lines.
21. There will be, however, no order as to costs. Samapti Chatterjee, J.: I have the benefit to go through the judgment prepared by my learned brother, Justice Subrata Talukdar and I am in complete agreement with the conclusion arrived at. However, as the issue decided relates to Court’s Power of Review, I wish to add a few lines. It has been noticed over the years that after the proceedings are finally disposed of, attempts are made to dislodge such decisions by filing review applications re-agitating the issues and/or controversies already decided in the judgment which are beyond the Scope of Review as provided in Order 47 Rule 1 (1) of the Code of Civil Procedure. The Supreme Court in a long catena of decisions has consistently held and has again re-iterated, as to when the Review will be and will not be maintainable, in its recent judgment reported in (Tamil Nadu Terminated Full Time Temporary Employees Associatin Vs S.K. Roy, Chairman, Life Insurance Corporation of India & Another, (2016) 9 SCC 366 ). Although the said judgment was rendered in an application for review filed under Article 137 of the Constitution of India which power is exclusively conferred upon Supreme Court but in disposing the application, the Supreme Court not only considered its Power of Review under Article 137 but also considered the scope and effect of Order 47 Rule 1 (1) of the Code of Civil Procedure and reiterated the law relating to Review as pronounced by it in its earlier judgment reported in (Kamlesh Verma Vs Mayawati, (2013) 8 SCC 320 ) therein considering several decisions on the point and summarized the principles relating to Review in Para-20.1 and 20.2 thereof which are duly quoted in Tamil Nadu Terminated Full Time Temporary Employees’ Association (supra) in Para-8 as under :- “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” has been interpreted in Chhajju Ram v. Neki and approved by this Court in Moran Mar Basselios Catholicos v. Mar Poulozs 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 views 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.” It is also profitable to quote para-18, (SCC pp. 332-333) from the said decision in Kamlesh Verma (supra). “18. Review is not rehearing of an original matter. The power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. A repetition of old and overruled argument is not enough to reopen concluded adjudications. This Court, in Jain Studios Ltd. v. Shin Satellite Public Co. Ltd. held as under: (SCC pp. 504-05, para 11) ‘11.
The power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. A repetition of old and overruled argument is not enough to reopen concluded adjudications. This Court, in Jain Studios Ltd. v. Shin Satellite Public Co. Ltd. held as under: (SCC pp. 504-05, para 11) ‘11. So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases.’ Thus it is now well settled that unless the grounds provided in Order 47 Rule 1 (1) of the Code of Civil Procedure are established, the Review application would not be entertained. There will be, however, no order as to costs. Urgent certified photocopies of this judgment, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.