Jharkhand High Court
Suresh Toppo Aged About 52 Years Son Of … vs The State Of Jharkhand on 3 March, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Civil Review No.94 of 2022
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Suresh Toppo aged about 52 years son of Bhauw Toppo, resident of
village Gitilpiri Anganbari Kendra, Hatia Station Road, P.O. Hatia
P.S.-Jagarnathpur, District-Ranchi
.... .... Petitioner/Appellant/Petitioner
Versus
1. The State of Jharkhand.
2. Secretary, Agriculture, Animal Husbandry and Cooperative
Department, Government of Jharkhand, Nepal House, Doranda,
P.O. and P.S Doranda, District-Ranchi.
3. Jharkhand Public Service Commission through its Chairman,
having its office at circular Road, P.O. GPO, P.S Lalpur, District
Ranchi, Jharkhand.
4. The Controller of Examination, Jharkhand Public Service
Commission through its Chairman, Lalpur, Ranchi, Jharkhand
.... .... Respondents/Respondents/Opposite Parties
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Petitioner : Mr. M.I. Khan, Advocate
Mr. D.K. Malityar, Advocate
For the State : Mr. Navneet Toppo, AC to GP-I
For the JPSC : Mr. Prince Kumar, Advocate
Mr. Rakesh Ranjan, Advocate
Mr. Jay Prakash, Advocate
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04/Dated: 03.03.2025
Per Sujit Narayan Prasad, J.
I.A. No.6567 of 2023
1. The instant interlocutory application has been filed for condonation
of delay of 237 days in filing the review petition.
2. Mr. M.I. Khan, learned counsel for the review petitioner along with
Mr. D.K. Malityar, learned counsel on record, has submitted that
delay in filing the instant review petition may be condoned in view
of the reason assigned as under paragraph-5 to the delay
condonation application.
3. It has been contended that the reason beyond the control of the
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review petitioner, the review could not have been filed due to
suffering said to be financial in nature, since, the petitioner is an
unemployed person and his father had died in the year, 1994. It has
been stated that as of now, the petitioner is totally dependent upon
his brother who is Railway employee and as such, he is having
difficulty in arranging the money for the purpose of filing of delay
condonation application, therefore, the delay has been caused.
4. Although, the copy of the review petition has been served upon the
State way back on 26.07.2023 but no reply on Oath has been filed.
5. However, learned counsel for the respondent-State as also learned
counsel for the respondent-JPSC have jointly submitted that they
are orally opposing the delay condonation application.
6. We have heard the learned counsel for the parties and gone
through the pleading made in the instant interlocutory application.
7. We are conscious that if the sufficient cause is available then
only the delay in filing the review petition is to be condoned,
reference in this regard may be made to the judgment rendered
by the Hon’ble Apex Court in the case of Basawaraj & Anr. Vrs.
Spl. Land Acquisition Officer, [(2013) 14 SCC 81], wherein, it
has been held by the Hon‟ble Apex Court at paragraphs 9 to 15
hereunder:
“9. Sufficient cause is the cause for which the defendant could
not be blamed for his absence. The meaning of the word
“sufficient” is “adequate” or “enough”, inasmuch as may be
necessary to answer the purpose intended. Therefore, the word
“sufficient” embraces no more than that which provides a
platitude, which when the act done suffices to accomplish the2
purpose intended in the facts and circumstances existing in a
case, duly examined from the viewpoint of a reasonable
standard of a cautious man. In this context, “sufficient cause”
means that the party should not have acted in a negligent
manner or there was a want of bona fide on its part in view of
the facts and circumstances of a case or it cannot be alleged
that the party has “not acted diligently” or “remained inactive”.
However, the facts and circumstances of each case must afford
sufficient ground to enable the court concerned to exercise
discretion for the reason that whenever the court exercises
discretion, it has to be exercised judiciously. The applicant must
satisfy the court that he was prevented by any “sufficient cause”
from prosecuting his case, and unless a satisfactory explanation
is furnished, the court should not allow the application for
condonation of delay. The court has to examine whether the
mistake is bona fide or was merely a device to cover an ulterior
purpose. (See Manindra Land and Building Corpn. Ltd. v.
Bhutnath Banerjee [AIR 1964 SC 1336], Mata Din v. A.
Narayanan [(1969) 2 SCC 770], Parimal v. Veena[(2011) 3 SCC
545] and Maniben Devraj Shah v. Municipal Corpn. of Brihan
Mumbai [(2012) 5 SCC 157].)
10. In Arjun Singh v. Mohindra Kumar [AIR 1964 SC 993] this
Court explained the difference between a “good cause” and a
“sufficient cause” and observed that every “sufficient cause” is a
good cause and vice versa. However, if any difference exists it
can only be that the requirement of good cause is complied with
on a lesser degree of proof than that of “sufficient cause”.
11. The expression “sufficient cause” should be given a liberal
interpretation to ensure that substantial justice is done, but only
so long as negligence, inaction or lack of bona fides cannot be
imputed to the party concerned, whether or not sufficient cause
has been furnished, can be decided on the facts of a particular
case and no straitjacket formula is possible.
12. It is a settled legal proposition that law of limitation may
harshly affect a particular party but it has to be applied with all
its rigour when the statute so prescribes. The court has no
power to extend the period of limitation on equitable grounds.
“A result flowing from a statutory provision is never an evil. A
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court has no power to ignore that provision to relieve what it
considers a distress resulting from its operation.” The statutory
provision may cause hardship or inconvenience to a particular
party but the court has no choice but to enforce it giving full
effect to the same. The legal maxim dura lex sed lex which
means “the law is hard but it is the law”, stands attracted in
such a situation. It has consistently been held that,
“inconvenience is not” a decisive factor to be considered while
interpreting a statute.
13. The statute of limitation is founded on public policy, its aim
being to secure peace in the community, to suppress fraud and
perjury, to quicken diligence and to prevent oppression. It seeks
to bury all acts of the past which have not been agitated
unexplainably and have from lapse of time become stale.
According to Halsbury’s Laws of England, Vol. 28, p. 266: “605.
Policy of the Limitation Acts.–The courts have expressed at
least three differing reasons supporting the existence of
statutes of limitations namely, (1) that long dormant claims have
more of cruelty than justice in them, (2) that a defendant might
have lost the evidence to disprove a stale claim, and (3) that
persons with good causes of actions should pursue them with
reasonable diligence.”
An unlimited limitation would lead to a sense of insecurity and
uncertainty, and therefore, limitation prevents disturbance or
deprivation of what may have been acquired in equity and
justice by long enjoyment or what may have been lost by a
party’s own inaction, negligence or laches. (See Popat and
Kotecha Property v. SBI Staff Assn. [(2005) 7 SCC 510] ,
Rajender Singh v. Santa Singh [(1973) 2 SCC 705 : AIR 1973
SC 2537] and Pundlik Jalam Patil v. Jalgaon Medium Project
[(2008) 17 SCC 448]
14. In P. Ramachandra Rao v. State of Karnataka [(2002) 4
SCC 578 ] this Court held that judicially engrafting principles of
limitation amounts to legislating and would fly in the face of law
laid down by the Constitution Bench in Abdul Rehman Antulay
v. R.S. Nayak [(1992) 1 SCC 225].
15. The law on the issue can be summarised to the effect that
where a case has been presented in the court beyond
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limitation, the applicant has to explain the court as to what was
the “sufficient cause” which means an adequate and enough
reason which prevented him to approach the court within
limitation. In case a party is found to be negligent, or for want of
bona fide on his part in the facts and circumstances of the case,
or found to have not acted diligently or remained inactive, there
cannot be a justified ground to condone the delay. No court
could be justified in condoning such aninordinate delay by
imposing any condition whatsoever. The application is to be
decided only within the parameters laid down by this Court in
regard to the condonation of delay. In case there was no
sufficient cause to prevent a litigant to approach the court on
time condoning the delay without any justification, putting any
condition whatsoever, amounts to passing an order in violation
of the statutory provisions and it tantamounts to showing utter
disregard to the legislature.”
8. Thus, it is evident that the sufficient cause means that the party
should not have acted in a negligent manner or there was a want
of bona fide on its part in view of the facts and circumstances of
a case or it cannot be alleged that the party has “not acted
deliberately” or “remained inactive”. However, the facts and
circumstances of each case must afford sufficient ground to
enable the Court concerned to exercise discretion for the reason
that whenever the Court exercises discretion, it has to be
exercised judiciously. The applicant must satisfy the Court that
he was prevented by any “sufficient cause” from prosecuting his
case, and unless a satisfactory explanation is furnished, the
Court should not allow the application for condonation of delay.
The Court has to examine whether the mistake is bona fide or
was merely a device to cover the ulterior purpose as has been
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held in Manindra Land and Building Corporation Ltd. Vrs.
Bhutnath Banerjee & Ors., AIR 1964 SC 1336, Lala Matadin
Vrs. A. Narayanan, (1969) 2 SCC 770, Parimal Vrs. Veena @
Bharti, (2011) 3 SCC 545 and Maniben Devraj Shah Vrs.
Municipal Corporation of Brihan Mumbai, (2012) 5 SCC 157.
9. It has further been held in the aforesaid judgments that the
expression “sufficient cause” should be given a liberal
interpretation to ensure that substantial justice is done, but only
so long as negligence, inaction or lack of bona fides cannot be
imputed to the party concerned, whether or not sufficient cause
has been furnished, can be decided on the facts of a particular
case and no straitjacket formula is possible, reference in this
regard may be made to the judgment rendered by the Hon”ble
Apex Court in Ram Nath Sao @ Ram Nath Sahu & Ors. Vrs.
Gobardhan Sao & Ors., (2002) 3 SCC 195, wherein, at
paragraph-12, it has been held as hereunder:-
“12. Thus it becomes plain that the expression “sufficient cause”
within the meaning of Section 5 of the Act or Order 22 Rule 9 of
the Code or any other similar provision should receive a liberal
construction so as to advance substantial justice when no
negligence or inaction or want of bona fides is imputable to a
party. In a particular case whether explanation furnished would
constitute “sufficient cause” or not will be dependent upon facts of
each case. There cannot be a straitjacket formula for accepting or
rejecting explanation furnished for the delay caused in taking
steps. But one thing is clear that the courts should not proceed
with the tendency of finding fault with the cause shown and reject
the petition by a slipshod order in over-jubilation of disposal drive.
Acceptance of explanation furnished should be the rule and
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refusal, an exception, more so when no negligence or inaction or
want of bona fides can beimputed to the defaulting party. On the
other hand, while considering the matter the courts should not lose
sight of the fact that by not taking steps within the time prescribed
a valuable right has accrued to the other party which should not be
lightly defeated by condoning delay in a routine-like manner.
However, by taking a pedantic and hypertechnical view of the
matter the explanation furnished should not be rejected when
stakes are high and/orarguable points of facts and law are
involved in the case, causing enormous loss and irreparable injury
to the party against whom the lis terminates, either by default or
inaction and defeating valuable right of such a party to have the
decision on merit. While considering the matter, courts have to
strike a balance between resultant effect of the order it is going to
pass upon the parties either way.”
10. In the light of aforesaid settled legal proposition, we have
considered the submission advanced on behalf of the learned
counsel for the review petitioner, based upon the pleading made at
paragraph-5 to the instant application and taking into consideration
the aforesaid fact, are of the view that the delay in filing the review
petition is to be condoned. The reason also is that in stead of
dismissing the instant review petition on the ground of limitation, it
would be just and proper to decide the review petition on merit.
11. Accordingly, the delay of 237 days in filing the instant review
petition is hereby, condoned.
12. In view thereof, I.A. No.6567 of 2023 stands allowed.
Civil Review No.94 of 2022
Prayer
13. The instant review petition has been filed for review of the order
dated 13.01.2022 passed in LPA No.415 of 2020, by which, the
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Letters Patent Appeal filed against the order dated 05.02.2018
passed by the learned Single Judge in W.P.(S) Nos. 60 of 2016
along with 82 of 2016 have been declined to be interfered with.
14. The brief facts of the case as per the pleading made in the review
petition, are required to be enumerated, which read as under:-
(i) The review petitioner made an application for consideration of
his candidature in pursuance to the advertisement published by
the Jharkhand Public Service Commission, hereinafter referred as
the “Commission”, being Advertisement No.03/2015 for the post of
Jharkhand Agriculture Service Class-II (Basic Category) (Assistant
Agriculture Director /Sub Divisional Agriculture Officer and
equivalent post). In the advertisement, the cut-off date has been
provided as on 01.08.2014 as age limit of different categories of
candidates. The petitioner has crossed the upper age limit as per
the cut-off date 01.08.2014 provided in the advertisement.
(ii) The review petitioner, therefore, has raised his grievance for
relaxation of the cut-off date so that he would get an opportunity to
appear in the examination. The ground was taken before the
learned Single Judge that the advertisement has been issued
after a long gap of 25 years and, as such, no appointment, on the
said post, has been made either in the erstwhile State of Bihar or
even after creation of the State of Jharkhand since the year 1989.
(iii) In the backdrop of the aforesaid fact, the day when the
advertisement being Advertisement No.03/2015 was issued, the
petitioner had crossed his maximum age and as such, for no fault
of his own, he has been deprived from participating in the process
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of selection. The ground has been taken on behalf of theCommission to the effect that the petitioner has crossed the age
limit as per the cut-off date given in the advertisement, therefore,
he cannot be permitted to claim for relaxation of the age.
(iv) As per the submission of learned counsel for the
Commission, which has been recorded by the learned writ Court,
the upper age limit on the basis of the cut-off date was
01.08.2014, but by way of corrigendum, the same has been
relaxed to 01.08.2010 and even then, the petitioner has not come
under the fold of consideration so far as the age criteria is
concerned.
15. It is evident from the factual aspect that the writ petitioner had
applied, in pursuance to the advertisement published by the JPSC
being Advertisement No.03 of 2015 invited for the purpose of
consideration of candidature of Assistant Agriculture Director/ Sub
Divisional Agriculture Officer and equivalent post.
16. The petitioner, being the candidate belonging to the Scheduled
Tribe Category has made an application said to be in order but his
candidature has not been considered on the ground that he has not
fall under the age criteria since he has crossed upper age limit of
40 years prescribed for schedule Tribe category.
17. The grievance of the writ petitioner before the learned writ court
was that the advertisement has been issued after a long gap of
25 years and, as such, no appointment, on the said post, has
been made either in the erstwhile State of Bihar or even after
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creation of the State of Jharkhand since the year 1989.
18. In the backdrop of the aforesaid fact, the day when the
advertisement being Advertisement No.03/2015 was issued, the
writ petitioner had crossed his maximum age and as such, for no
fault of his own, he has been deprived from participating in the
process of selection.
19. The ground has been taken on behalf of the Commission to the
effect that the petitioner has crossed the age limit as per the cut-
off date given in the advertisement, therefore, he cannot be
permitted to claim for relaxation of the age. According to
submission of the Commission which has been recorded by the
learned Writ Court, the upper age limit on the basis of the cut-off
date was 01.08.2014, but by way of corrigendum, the same has
been relaxed to 01.08.2010 and even then the writ petitioner has
not come under the fold of consideration so far as the age criteria
is concerned.
20. Learned Single Judge, has declined to accept the plea of the writ
petitioner on the ground that the fixing the age criteria or cut-off,
being the sole prerogative of the State/Employer and as such, the
Court of Law, is having no domain to interfere with the decision
taken by way of policy decision under the jurisdiction conferred
under Article 226 of the Constitution of India.
21. The said order passed by the writ Court has been carried by filing
Letters Patent Appeal being LPA. No.415 of 2020. The said Letters
Patent Appeal has also been dismissed, against which, the present
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review petition has been filed.
Submission of the learned counsel appearing for the review
petitioner:
22. The learned counsel appearing for the review petitioner has
submitted that reducing the cut-off date for age from 01.08.2014 to
01.08.2010 cannot be said to be justifiable decision, reason being
that, if it can be reduced for five years why not further, so that, the
candidates like the present petitioner may come under the
consideration zone so far as the issue of age is concerned.
23. However, in course of argument, it has been submitted by the
learned counsel for the review petitioner that the review petitioner
even not coming under the fold of age criteria on the basis of
reduction in cut-off date for age from 01.08.2014 to 01.08.2010 to
be counted the age of 40 years, then why not, it will reduce further
so that petitioner/review petitioner may come under the
consideration zone on the basis of the eligibility as per the age
criteria because the advertisement has been floated after a long
gap of 25 years.
24. Learned counsel, based upon the aforesaid grounds, has submitted
that the present review petition has been filed on the basis of the
aforesaid count and as such, it is a fit case where the present
review petition needs to be allowed.
Submission of the learned AC to GP-I for the respondent-State
and learned counsel for the respondent-JPSC:
25. Per contra, Mr. Navneet Toppo, learned AC to GP-I for the
respondent-State as also Mr. Prince Kumar, learned counsel for the
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respondent-JPSC have jointly submitted by raising the issue of
power of review, which is to be exercised by the High Court under
Article 226 of the Constitution of India.
26. It has been contended that there is no error said to be error
apparent on the face of the order passed by the Letters Patent
Appeal Court or even all the issues/contention which have been
raised on behalf of the petitioner before the learned writ court
having been taken into consideration by the Letters Patent Appeal
Court.
27. It has further been contended that even after shifting the cut-off
date relating to age criteria i.e. from 01.08.2014 to 01.08.2010, the
writ petitioner is not coming under the fold of age criteria since he
even has crossed the age of 40 years on the said date.
28. It has been contended that all the contentions of the petitioner has
been taken care of by the Letters Patent Appeal Court and further
no new fact has not been discovered by the petitioner which ought
to be placed before the Letters Patent Appeal Court rather the
contention which has been raised herein by the writ
petitioner/appellant /review petitioner has been considered and
answered by the Letters Patent Appeal Court, as such no ground is
available for the writ petitioner/review petitioner to review the order
dated 13.01.2022 passed in LPA No. 415 of 2020.
29. Learned counsel for the respondent-State as also the respondent-
JPSC, based upon the aforesaid grounds, has submitted that it is,
therefore, not a fit case where the power of review is to be
exercised.
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Analysis
30. We have heard the learned counsel for the parties, gone through
the finding recorded by the learned Writ Court as also the Letters
Patent Appeal Court and the pleading made in the present
review petition along with other records as available herein.
31. This Court before appreciation of the arguments advanced on
behalf of the parties with respect to the issue as to whether the
power of review is to be exercised in the factual background of
the present case needs to refer the underlying principle to invoke
the power of review.
32. The Hon’ble Apex Court in the case Moran Mar Basselios
Catholicos and Anr. vs. Most Rev. Mar Poulose Athanasius
and Ors., [AIR 1954 SC 526], particularly, at paragraph-32 has
observed 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 emphasis 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 XL VII, 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.”
33. Likewise, in the case of Col. Avatar Singh Sekhon Vrs. Union
of India (1980) Supp. SCC 562, the Hon’ble Apex Court
13
observed that a review of an earlier order cannot be done unless
the Court is satisfied that the material error which is manifest on
the face of the order, would result in miscarriage of justice or
undermine its soundness. The observations made are as under:
“12. A review is not a routine procedure. Here we resolved to hear
Shri Kapil at length to remove any feeling that the party has been
hurt without being heard. But we cannot review our earlier order
unless satisfied that material error, manifest on the face of the order,
undermines its soundness or results in miscarriage of justice. In Sow
Chandra Kante v. Sheikh Habib 1975 1 SCC 674 this Court
observed: ‘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. ….. The
present stage is not a virgin ground but review of an earlier order
which has the normal feature of finality.”
34. Further, the Hon’ble Apex Court in the case of Kamlesh Verma
v. Mayawati, reported in (2013) 8 SCC 320 has observed that
review proceedings have to be strictly confined to the scope and
ambit of Order XLVII Rule 1, CPC. As long as the point sought to
be raised in the review application has already been dealt with
and answered, parties are not entitled to challenge the impugned
judgment only because an alternative view is possible. The
principles for exercising review jurisdiction were succinctly
summarized as under:
“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;
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(iii) Any other sufficient reason. The words “any other sufficient
reason” has been interpreted in Chajju Ram v. Neki, and
approved by this Court in Moran Mar Basselios Catholicos v.
Most Rev. Mar Poulose Athanasiusto 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 re-heard 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.”
35. It is evident from the aforesaid judgments that the power of
review is to be exercised if there is any error occurred on the
face of the order or the factual aspect could not have been
brought to the notice of this Court in spite of the due diligence
having been taken in the matter of making available the factual
aspect of the relevant documents.
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36. The position of law is well settled, as would appear from the
reference of the judgment made hereinabove that the review of
the judgment can only be made if the new fact has come which
could not have been brought to the notice of the Court in spite of
the due diligence, as has been held by the Hon’ble Apex Court in
Moran Mar Basselios Catholicos and Anr. v. Most Rev. Mar
Poulose (supra).
37. It is evident from the aforesaid judgment that the power of review
can be exercised only the two folds ground, i.e., (i) if there is any
error apparent on the face of the order; or (ii) the fact which could
not have been brought to the notice of the court in spite of the due
diligence having been taken by the concerned party.
38. We are now proceeding to examine the factual aspect vis-à-vis the
ground which has been taken for the purpose of filing this review
petition in the touchstone of the legal proposition, as has been
settled by the Hon’ble Apex Court in the judgment referred
hereinabove.
39. So far as the first ground is concerned, i.e., the fixation of the age
from 01.08.2014 by reducing it to 01.08.2010, the same has been
said to be arbitrary exercise of the State, reason being that, the
petitioner is not coming under the fold of age criteria.
40. This Court has gone through the order passed by the learned writ
Court and the Letters Patent Appeal Court, the order which is being
sought to be reviewed and has found that after the advertisement
having been issued by the competent authority of the State
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Government, the said corrigendum as per submission of the
learned counsel for the JPSC has been issued with respect to
consideration of the parameter of age which has been reduced
from 01.08.2014 to 01.08.2010 for the purpose of counting the age
of Scheduled Tribe candidate to fall within the age criteria of 40
years.
41. Learned counsel appearing for the petitioner has made out a case
questioning the decision of the State to be arbitrary, reason being
that, he has not come under the zone of consideration so far as the
age is concerned even by reducing the age from 01.08.2014 to
01.08.2010, as a cut-off date for the purpose of counting the
maximum age of 40 years.
42. From the order dated 13.01.2022, which has been sought to be
reviewed, it is evident that the Letters Patent Appeal Court has
taken care of settled legal proposition of law that the policy decision
of the State Government is least to be interfered by the High Court
in exercise of its power under Article 226 of the Constitution of India
unless it is arbitrary and suffers from malice or any other vice.
43. So far as the ground taken that the State Government, in reducing
the cut-off date from 01.08.2014 to 01.08.2010 for the purpose of
counting the age to be not more than 40 years, the same has been
said to be arbitrary but the learned writ Court has given its finding
that such decision, being a policy decision of the State, cannot be
said to be arbitrary merely on the ground that the candidate like the
review petitioner is not coming under the fold of age criteria.
44. The aforesaid aspect of the matter has been taken into
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consideration by the Letters Patent Appeal Court and upheld the
order passed by the learned Single Judge by giving specific finding
on the basis of the judgment rendered by the Hon’ble Apex Court in
the case of K. Nagaraj & Ors. Vrs. State of Andhra Pradesh and
Anr., [(1985) 1 SCC 523, State of Jharkhand & Ors. Vrs. Ashok
Kumar Dangi & Ors., [(2011) 13 SCC 383], Census
Commissioner and Ors. Vrs. R. Krishnamurthy, [(2015) 2 SCC
796], Delhi Subordinate Services Selection Board Vrs. Praveen
Kumar, [2016 SCC OnLine SC 1549] and Chandigarh
Administration through the Director Public Instructions
(Colleges), Chandigarh Vrs. Usha Kheterpal Waie & Ors.,
[(2011) 9 SCC 645].
45. Further, law is well settled that a review petition, has a limited
purpose and cannot be allowed to be “an appeal in disguise”, as
has been settled by the Hon’ble Apex Court in the case of
Parsion Devi v. Sumitri Devi (1997) 8 SCC 715, for ready
reference the relevant paragraph of the aforesaid judgment is
quoted as under:
“Under Order 47 Rule 1CPC 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 1CPC. In
exercise of the jurisdiction under Order 47 Rule 1CPCit 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.”
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46. Similarly, in S. Murali Sundaram Versus Jothibai Kannan and
Others 2023 SCC OnLine SC 185 the Hon’ble Apex Court
observed as under:
15. While considering the aforesaid issue two decisions of this
Court on Order 47 Rule 1 read with Section 114 CPC are
required to be referred to? In the case of Perry Kansagra
(supra) this Court has observed that while exercising the review
jurisdiction in an application under Order 47 Rule 1 read with
Section 114 CPC, the Review Court does not sit in appeal over
its own order. It is observed that a rehearing of the matter is
impermissible in law. It is further observed that review is not
appeal in disguise. It is observed that power of review can be
exercised for correction of a mistake but not to substitute a
view. Such powers can be exercised within the limits of the
statute dealing with the exercise of power. It is further observed
that it is wholly unjustified and exhibits a tendency to rewrite a
judgment by which the controversy has been finally decided.
After considering catena of decisions on exercise of review
powers and principles relating to exercise of review jurisdiction
under Order 47 Rule 1 CPC this Court had summed upon as
under:
“(i) Review proceedings are not by way of appeal and have to
be strictly confined to the scope and ambit of Order 47 Rule 1.
(ii) Power of review may be exercised when some mistake or
error apparent on the fact of record is found. But error 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 the points where there may
conceivably by two opinions. (iii) Power of review may not be
exercised on the ground that the decision was erroneous on
merits. (iv) Power of review can also be exercised for any
sufficient reason which is wide enough to include a
misconception of fact or law by a court or even an advocate. (v)
An application for review may be necessitated by way of
invoking the doctrine actus curiae neminem gravabit.”
47. Review can also be sought when the order discloses some error
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apparent on the face of record or on grounds analogous thereto.
These are all grounds which find mention in various judicial
pronouncements right from the earliest time as well as in the
Rules of Order 47 of the Civil Procedure Code as permissible
grounds of review.
48. The term “mistake or error apparent” by its very connotation
signifies an error which is evident per se from the record of the
case and does not require detailed examination, scrutiny and
elucidation either of the facts or the legal position. If an error is
not self-evident and detection thereof requires long debate and
process of reasoning, it cannot be treated as an error apparent
on the face of the record for the purpose of Order 47 Rule 1
CPC.
49. 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.
50. In the very recent judgment in the case of Sanjay Kumar
Agarwal Vrs. State Tax Officer (1) & Anr., (supra) the Hon’ble
Apex Court while interpreting the provision of Order 47 Rule 1 of
the C.P.C. the proposition has been laid down to entertain the
review, as has been held at paragraph 16.1 to 16.7 which reads
as under:-
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“16.1. A judgment is open to review inter alia if there is a
mistake or an error apparent on the face of the record.
16.2. A judgment pronounced by the court is final, and
departure from that principle is justified only when
circumstances of a substantial and compelling character make it
necessary to do so.
16.3. 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 record e justifying the court to exercise
its power of review.
16.4. In exercise of the jurisdiction under Order 47 Rule 1 CPC,
it is not permissible for an erroneous decision to be “reheard
and corrected”.
16.5. A review petition has a limited purpose and cannot be
allowed to be “an appeal in disguise”.
16.6. Under the guise of review, the petitioner cannot be
permitted to reagitate and reargue the questions which have
already been addressed and decided.
16.7. An error on the face of record must be such an error
which, mere looking at the record should strike and it should not
require any long-drawn process of reasoning on the points
where there may conceivably be two opinions.–”
51. Thus, on the basis of aforesaid discussion it is evident that while
power of review may be inherent in the High Court to review its
own order passed in a writ petition, the same has to be exercised
on well-recognized and established grounds on which judicial
orders are reviewed. For example, the power may be exercised
on the discovery of some new and important matter or evidence
which was not within the knowledge of the parties seeking review
despite due exercise of diligence when the order was made.
52. The term “mistake or error apparent” by its very connotation
signifies an error which is evident per se from the record of the
case and does not require detailed examination, scrutiny and
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elucidation either of the facts or the legal position. If an error isnot self-evident and detection thereof requires long debate and
process of reasoning, it cannot be treated as an error apparent
on the face of the record for the purpose of invoking the
jurisdiction of review. Further 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.
53. Now rediverting to the order dated 13.01.2022, it is evident from the
order passed by this Court conferred under the Letters Patent
Appellate Jurisdiction that the fact which is being raised herein has
duly been considered although it has been answered against the
review petitioner.
54. The point if would have been agitated but having not been
considered by not recording any finding, then, it could be
understood that the same be a ground for review.
55. It needs to refer herein that the consideration always means the
“active application of mind” and not if the decision has been
taken in favour of the litigant concerned, as has been held by
Hon’ble Apex Court in the case of Chairman, Life Insurance
Corporation of India and Others v. A. Masilamani reported in
(2013) 6 SCC 530 wherein at paragraph 19 the Hon’ble Apex
Court has held which reads hereunder as :-
“19. The word “consider” is of great significance. The dictionary
meaning of the same is, “to think over”, “to regard as”, or “deem
to be”. Hence, there is a clear connotation to the effect that22
there must be active application of mind. In other words, the
term “consider” postulates consideration of all relevant aspects
of a matter. Thus, formation of opinion by the statutory authority
should reflect intense application of mind with reference to the
material available on record. The order of the authority itself
should reveal such application of mind. The appellate authority
cannot simply adopt the language employed by the disciplinary
authority and proceed to affirm its order. (Vide Indian Oil
Corpn. Ltd. v. Santosh Kumar [(2006) 11 SCC 147] and
Bhikhubhai Vithlabhai Patel v. State of Gujarat [(2008) 4
SCC] ).”
56. Learned counsel for the review petitioner has submitted that since
the consideration is not in favour of the litigant concerned, the
review petitioner, therefore, the present review petition.
57. But we are not in agreement with such ground, reason being that,
consideration is there and based upon the principle where the High
Court is not interfered in the policy decision of the State
Government, if such policy decision is not arbitrary or suffers from
prejudice or malice.
58. The another ground has been taken that so far as the age is
concerned even if it has been reduced from 01.08.2014 to
01.08.2010 then why not further, so that, the candidates like the
present petitioner may come under the consideration zone so far as
the issue of age is concerned.
59. However, this Court has even considered the aforesaid ground as
to whether the review petitioner is coming under the zone of
consideration taking his date of birth 20.01.1970 as was disclosed
by him based upon his matriculation certificate wherein the date of
birth of the writ petitioner is shown to be 20.01.1970 and as per the
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advertisement maximum age is to be given 40 years for one or the
other candidates belonging to the Scheduled Tribes and even on
01.08.2010 the age of review petitioner is shown to be crossed to
the age of 40 years, i.e., he was having the age of 40 years 06
months approximately.
60. This Court has put a pin-pointed query to the learned counsel for
the review petitioner that as to whether the aforesaid ground was
agitated by the writ petitioner before the learned Single Judge.
61. Mr. Khan, learned arguing counsel, in all fairness, has submitted
after getting instruction from the learned counsel on record that the
same was not the issue having been raised before the learned
Single Judge.
62. The law is well settled that if the ground is available and if not
raised before the original court in its inception and the order has
been accepted on the basis of the ground agitated and carried to
the appellate forum, then, it is not available for the party concerned
to make out a new case that too seeking review of the order
passed by the Court of Law.
63. Although, the principle of res-judicata as provided under Section 11
of the CPC is not applicable in the writ jurisdiction and as such,
keeping the spirit of Section 11(iv), i.e., the applicability of the
principle of constructive res-judicata, if the ground was available
but has not been agitated, the party concerned will seize to raise
the point in the further proceeding that too in the review.
64. The principle of review has already been dealt with in the judgment
rendered by the Hon’ble Apex Court as referred above that merely
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on the basis of error apparent on the face of the order or the fact
could not have been brought to the notice in spite of the due
diligence of the party concerned, then, only the power of review is
to be exercised and not on the basis of the new ground which was
available but having not been taken at the time of filing of the
litigation at its inception.
65. This Court, considering the aforesaid reason as also on the basis of
the discussions made hereinabove, is of the view that the instant
review petition deserves to be dismissed.
66. Accordingly, the instant review petition is dismissed.
67. Pending Interlocutory application(s), if any, stands disposed of.
(Sujit Narayan Prasad, J.)
(Pradeep Kumar Srivastava, J.)
Rohit/-A.F.R.
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