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2021 DIGILAW 155 (JK)

Suresh Kumar Sharma v. UT of J&K

2021-04-06

DHIRAJ SINGH THAKUR, PUNEET GUPTA

body2021
Order : Dhiraj Singh Thakur, J. 1. This is a petition seeking review of judgement and order dated 18.03.2020 passed in LPA No. 218/2019. Briefly stated, the material facts are as under:- 2. An advertisement notification dated 16.12.2013 was issued by the respondents inviting applications for 42 posts of Librarian. The maximum age prescribed for in-service candidates as on 01.01.2013 was 45 years. The petitioner being in Government service in the Technical Education Department also applied for the said post. However, this advertisement was withdrawn by the J&K Public Service Commission (PSV) vide order dated 29.09.2016 and a fresh advertisement notice was issued on 13.12.2016. This time the number of posts advertised was 67 as against 42 notified earlier. The age of in-service candidates was prescribed as 40 years as on 01.01.2016. Since the petitioner was ineligible in terms of the notification dated 13.12.2016, he preferred a writ petition, which was dismissed vide judgment and order dated 04.06.2019. An intra-Court appeal was preferred by the petitioner, which too came to be dismissed vide judgement and order dated 18.03.2020. 3. The crux of the argument of the petitioner in LPA was that after the first advertisement dated 16.12.2013 was withdrawn, the Education Department had written to the Public Service Commission on 23.08.2016 that the cut-off date for age criteria applied in response to the earlier notification be treated as 01.01.2013. It was urged that even when the opinion of the Law Department was sought, the subsequent advertisement notification notice of 2016 was issued fixing the impugned eligibility condition, based whereupon the candidature of the petitioner was rejected, on the criteria of age. In LPA, the case further set up was that the note appended to Schedule-II attached to the 2008 rules clearly provided the upper age limit of appointment for in-service candidate as 45 years as on 1st of January of the year of advertisement. It was stated that though Schedule-II was substituted vide notification dated 21.04.2014, the note appended of the Schedule-II was not tinkered with and hence the case set up was that the age as mentioned in the note remained unaltered even after substitution of Schedule-II. 4. It was stated that though Schedule-II was substituted vide notification dated 21.04.2014, the note appended of the Schedule-II was not tinkered with and hence the case set up was that the age as mentioned in the note remained unaltered even after substitution of Schedule-II. 4. In the judgment and order dated 18.03.2020, the Division Bench dealt with the issues and held that on account of the amendment incorporated vide Government Order No. 971-GAD of 2005 dated 05.08.2005, the maximum age limit for direct recruitment to Government service in all Subordinate and Gazetted Services, other than those filled through Combined Competitive Examination was amended, which inter alia provided for the upper age limit of 40 years for candidates, who are already in Government service. 5. The Division Bench also appears to have noticed the main argument of the learned counsel for the appellant which rested on the note appended to the Schedule-II of the 2008 rules, which reads as under:- “Note:- The upper age limit for appointment of in-service candidates to Gazetted Service in the Higher Education department shall be 45 years as on 1st of January of the year of advertisement.” 6. The Division Bench however rejected the argument of the learned counsel for the appellant that notwithstanding the substitution of Schedule-II, the note had survived and on the contrary held that after the substitution incorporated vide SRO 124 dated 21.04.2014 the note was no longer in existence and the benefit thereof could never flow to the petitioner. It was thus held that the maximum age limit for in-service candidates would be 40 years and the appellant admittedly being more than 40 years on 01.01.2016 was certainly overage for the post in question. 7. Through the medium of the present review petition, the petitioner has tried to highlight yet again the communication dated 23.08.2016, addressed to the Public Service Commission by the Higher Education Department with regard to adopting the criteria as was prevalent to the candidates, who had responded to the earlier advertisement dated 16.12.2013. This argument however was already noticed by the Division Bench in the judgment and order dated 18.03.2020, of which review is sought. This argument however was already noticed by the Division Bench in the judgment and order dated 18.03.2020, of which review is sought. Needless to say that the communication addressed by the Education Department to the Public Service Commission would by itself not amount to creating a right in favour of a candidate nor would it be deemed to have altered the eligibility criteria fixed either in the advertisement notice or have the effect of altering the rules to that limited extent. 8. The second issue sought to be highlighted by the learned counsel for the petitioner was the notice dated 19.01.2018, issued by the Higher Education Department, which inter alia fixes the eligibility of the candidates in Government service as 45 years. The argument was that the Public Service Commission ought to have adopted the same criteria even in the case of the petitioner. 9. Mr. Natnoo, learned AAG appearing on behalf of PSC on the other hand stated that while it was true that in the aforementioned notification of 2018, the age for in-service candidates was prescribed as 45 years, yet it is stated that it was an error, which was subsequently rectified by issuing the corrigendum dated 26.03.2021. It was further stated that the age of eligibility for in-service candidates have now been corrected to read as 40 years instead of 45 years. In view of the stand so taken, in our opinion, no case at all for interference with the judgment and order dated 18.03.2020 is made out. We find no error apparent on the face of record. 10. The scope of powers exercisable by a court in its review jurisdiction is no longer res integra. 11. 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. 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 characterized 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.” 12. The above position of law was reiterated in the case reported as Parsion Devi and Others v. Sumitri Devi and Others, (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” 13. In Board of Control for Cricket, India and another v. Netaji Cricket Club and others, 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. 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”. 14. In Kamlesh Verma v. Mayawati and Others, (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. 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 & 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. v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but les 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.” 15. Again in N. Anantha Reddy v. Anshu Kathuria & 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. 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.” 16. For the reasons mentioned above, this review petition is found to be without any merit and is, accordingly, dismissed.