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2019 DIGILAW 350 (JHR)

State of Jharkhand v. Naryan Das

2019-02-04

PRAMATH PATNAIK

body2019
JUDGMENT : Pramath Patnaik, J. Since the aforementioned Civil Review applications [Civil Review No. 8 of 2016 with Civil Review No. 12 of 2016] involve common questions of law, therefore, the said applications have been heard analogously and with the consent of the respective counsels, are being disposed of by this common order. … Civil Review No. 8 of 2016 … 2. The present Civil Review application has been preferred for modification/review of the order dated 11.06.2013, passed in W.P. (S) No.2917 of 2010, whereby this Court disposed of the writ petition with a direction to the respondents to consider the petitioner’s claim on the basis of re-measurement report of the Medical Board and to allot additional point according to the said measurement and pass appropriate order, regarding his appointment, within six weeks from the date of receipt/production of a copy of the order, passed therein. 3. It has been averred in the Review application that the petitioner has filed the writ application bearing W.P. (S) No. 2917 of 2010 and the said writ petition was disposed of vide order dated 11.06.2013 and the Notification of Home Dept., Govt. of Jharkhand was published on 12.11.2001 after bifurcation of State for recruitment of Constables in Police Dept. and accordingly, Advt. was published in 2004 vide Advt. No. 01/2004 for selection of constables in the Dept. of Police, vide memo No. 2026/P. dtd 18.08.2010 of the DGP, Jharkhand, the merit list prepared against said advt., now became time barred. It has been averred that the term used by the petitioner ‘Re-measurement’, is not in fact true, which he claims to be violative of order of Hon’ble Court. It is process of recruitment which must be followed according to Rule 672 format 104 of the Police Manual. It has further been submitted that after considering all the above mentioned facts and circumstances, if the review petitioner complies the order dated 11.06.2013, passed in W.P. (S) No.2917 of 2010 it will open flood gate of litigations. Further, it has been submitted that on the ground that if a person having height 166 Cm will be selected/recruited, then all other candidates having height a little bit above will claim for their respective appointments and hence the order dated 11.06.2013, passed in W.P. (S) No.2917 of 2010 needs to be modified. … Civil Review No. 12 of 2016 … 4. … Civil Review No. 12 of 2016 … 4. The present Civil Review application has been preferred for modification/review of the order dated 20.06.2013, passed in W.P. (S) No.4966 of 2009, whereby this Court allowed the writ petition with a direction to the respondents to issue appropriate order of appointment on the basis of the said report of the Civil Surgeon-cum-Chief Medical Officer, Hazaribag within two months from the date of receipt/production of a copy of the order, passed therein. 5. It has been averred in the Review application that the petitioner has filed the writ application bearing W.P. (S) No. 4966 of 2009 and the said writ petition was disposed of vide order dated 20.06.2013 and the Hon’ble Writ Court ought to have reserved a liberty with the review petitioner or its competent authorities to verify the measurement and other parameters of the writ petitioner/respondent no. 1 as per law and Rule 672 (A) of the Police Manual and similarly they ought to have been granted liberty to take final decision on the basis of final findings. The writ petitioner/respondent no. 1 could be directed to be appointed only subject to verification of his height and other parameters upon compliance of Rule 672 (A) of the Police Manual. It has further been submitted that the Chairman, Selection Board No. 3-cum-Superintendent of Police, Hazaribagh cannot exercise his power beyond statutory procedure for recruitment as per Rule 672 (A) and Form 104 of the Police Manual and he had to fill the format prescribed for the same by writing/filling the column of height chest etc., So, calling the writ petitioner/respondent for medical examination cannot amount to violation of the order of the Hon’ble Court. It is de facto the procedure for appointment of the writ petitioner/respondent in compliance of the order of the Hon’ble Court and hence, the order dated 20.06.2013, passed in W.P. (S) No.4966 of 2009 needs to be modified. 6. Mrs. Aprajita Bhardwaj, A.C. to A.G. appearing for the Respondent-State submits that that in view of the facts and circumstances of these matters, if the review petitioner complies the order dated 11.06.2013, passed in W.P. (S) No.2917 of 2010 it will open flood gate of litigations. 6. Mrs. Aprajita Bhardwaj, A.C. to A.G. appearing for the Respondent-State submits that that in view of the facts and circumstances of these matters, if the review petitioner complies the order dated 11.06.2013, passed in W.P. (S) No.2917 of 2010 it will open flood gate of litigations. Learned counsel further submits that on the ground that if a person having height 166.20 Cm is appointed then all other candidates having the same height or more will claim for their respective appointments, the order dated 11.06.2013, passed in W.P. (S) No.2917 of 2010 needs to be modified. 7. Learned counsel for the Opposite parties/writ petitioner vehemently opposes the prayer for entertaining both the review applications (Civil Review No. 8 of 2016 with Civil Review No. 12 of 2016) on the ground that the scope of entertaining Review is very-very limited. 8. Having heard the learned counsel for the respective parties, and on perusal of the records, I find no reason for entertaining the Civil Review applications (Civil Review No. 8 of 2016 with Civil Review No. 12 of 2016), mainly for the following facts and reasons:- (i) Admittedly, against the order dated 11.06.2013, passed in W.P. (S) No.2917 of 2010, a Contempt Case (C) No. 49 of 2014 and against the order dated 20.06.2013, passed in W.P. (S) No.4966 of 2009 a Contempt Case (C) No. 630 of 2014 were filed by the writ petitioners. As per the order passed by this Court, admittedly, there has been delay in compliance of the impugned orders passed in the aforesaid writ applications and in order to wriggle out the contempt application, these Review applications have been filed, but the respondents have not shown their promptitude in filing the Review applications. Since the order dated 11.06.2013, passed in W.P. (S) No.2917 of 2010 and the order dated 20.06.2013, passed in W.P. (S) No.4966 of 2009 have attained finality, there is absolutely no illegality or infirmity in the order passed by this Court. Moreover, the present civil review applications are not an appeal in disguise, like appeal against the decision of the writ petition, this civil review applications have been argued out at length, hence civil review applications deserves to be dismissed in limine. Moreover, the present civil review applications are not an appeal in disguise, like appeal against the decision of the writ petition, this civil review applications have been argued out at length, hence civil review applications deserves to be dismissed in limine. Much has been argued in the civil review applications about the delay in compliance of the impugned orders passed in the aforesaid writ applications, but none of these arguments is accepted by this Court mainly for the reason that the matter cannot be reopened in these civil review applications. (ii) It has been held by Hon'ble the Supreme Court in the case of Aribam Tuleshwar Sharma v. Aibam Pishak Sharma & Ors., as reported in (1979) 4 SCC 389 , at paragraph 3 as under: “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 a 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. 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 face 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 powers which may enable an appellate court to correct all manner of errors committed by the subordinate court.” (emphasis supplied) (iii) It has also been held by Hon'ble the Supreme Court in the case of Meera Bhanja v. Nirmala Kumari Choudhary, as reported in (1995) 1 SCC 170 , at paragraph nos. 8, 9 and 15 as under: “8. 8, 9 and 15 as under: “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 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. 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 face 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. 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: 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. 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 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 reappreciated 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. 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 that 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.” (emphasis supplied) (iv) It has further been held by Hon'ble the Supreme Court in the case of Parsion Devi & Ors. v. Sumitri Devi & Ors., as reported in (1997) 8 SCC 715 , at paragraph nos. 7, 8 and 9 as under: “7. It is well settled that review proceedings have to be strictly confined to theambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P. (SCR at p. 186) this Court opined: “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 characterised as vitiated by ‘error apparent’. A review is by no means an appeal in disguise whereby an erroneous decision is reheardand corrected, but lies only for patent error.” 8. Again, in Meera Bhanja v. Nirmala Kumari Choudhury while quoting with approval a passage from Aribam Tuleshwar Sharma v. Aribam Pishak Sharmathis 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 1CPC. 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”. (emphasis supplied) (v) The Hon'ble Apex Court also has dealt with the scope of review in the case of Haridas Das v. Usha Rani Banik & Ors., as reported in (2006) 4 SCC 78 , at paragraph nos. 13 to 18 as under: “13. In order to appreciate the scope of a review, Section 114 CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the court since it merely states that it “may make such order thereon as it thinks fit”. 13 to 18 as under: “13. In order to appreciate the scope of a review, Section 114 CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the court since it merely states that it “may make such order thereon as it thinks fit”. The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing “on account of some mistake or error apparent on the face of the records or for any other sufficient reason”. The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict. This is amply evident from the Explanation to Rule 1 of Order 47 which states that the fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the court should exercise the power to review its order with the greatest circumspection. This Court in Thungabhadra Industries Ltd. v. Govt. of A.P. held as follows: (SCR p. 186) “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. … where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.” 14. … where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.” 14. In Meera Bhanja v. Nirmala Kumari Choudhury it was held that: “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 1CPC. 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, this Court, in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma speaking through Chinnappa Reddy, J. has made the following pertinent observations: ‘It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice orto correct grave and palpable errors committed by it. 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 byhim at the time when the order was made; it may be exercised where some mistake or error apparent on the face 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.’ ” (SCC pp. 172-73, para 8) 15. 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.’ ” (SCC pp. 172-73, para 8) 15. A perusal of Order 47 Rule 1 shows that review of a judgment or an order could be sought: (a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of the record or any other sufficient reason. 16. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma this Court held that there are definite limits to the exercise of power of review. In that case, an application under Order 47 Rule 1 read with Section 151 of the Code was filed which was allowed and the order passed by the Judicial Commissioner was set aside and the writ petition was dismissed. On an appeal to this Court it was held as under: (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 a 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. 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 face 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. 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 powers which may enable an appellate court to correct all manner of errors committed by the subordinate court.” 17. The judgment in Aribam case has been followed in Meera Bhanja. In that case, it has been reiterated that an error apparent on the face of the record for acquiring jurisdiction to review must be such an error which may strike one on a mere looking at the record and would not require any long-drawn process of reasoning. The following observations in connection with an error apparent on the face of the record in Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale were also noted: (AIR p. 137) “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.” (SCR pp. 901-02) 18. It is also pertinent to mention the observations of this Court in Parsion Devi v. Sumitri Devi. Relying upon the judgments in Aribam and Meera Bhanja it was observed as under: (SCC p. 719, para 9) “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 10 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’.” (emphasis supplied) 9. In exercise of the jurisdiction under Order 10 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’.” (emphasis supplied) 9. In view of the facts stated in the foregoing paragraphs coupled with the dictum of the Hon’ble Apex Court (supra), there is no substance in the present civil review applications and, hence, both Civil Review No. 8 of 2016 with Civil Review No. 12 of 2016 are hereby dismissed.