Jharkhand High Court
Upendra Kumar Rai vs The State Of Jharkhand on 27 February, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Civil Review No. 5 of 2025
1. Upendra Kumar Rai, aged about 43 years, S/o Shri Shivshank Ray, R/o
village-Gurura Gurra, Kaimur, (Bhabua), P.O. & P.S. Kudra, District-
Kaimur, Bihar-821108.
2. Md. Abrar, aged about 43 years, S/o Md. Abbas Ali, R/o village-
Khatanaga, Kanke, P.O.- Gagi, P.S- Kanke, District-Ranchi.
3. Maheshwar Mahto, aged about 56 years, S/o Late Jhariram Mahto, R/o
village- Edeldih, Janumpidih, Baredih, P.O-Janumpidig, P.S- Tamar,
District- Ranchi.
4. Bishu Oraon, aged about 49 years, S/o Jerku Oraon, R/o village-
Bargawh, Barwa Toli, Bankir, Gumla P.O.-Keshipara, P.S- Gumla,
District- Gumla.
5. Marwari Oraon, aged about 47 years, S/o Devna Oraon, R/o village-
Ghagra, Ghaghra, P.O.- Hatu, Ghaghra, P.S- Bedo, District- Ranchi.
6. Salan Paul Kerketta, aged about 44 years, S/o Late Lakhan Kerketta,
R/o village-Surhu Tola, Lohra Garha P.O.-Surhu, P.S- Kamdara,
District- Gumla.
7. Dhananjay Kumar Singh, aged about 50 years, S/o Late. Gopal Prasad
Singh, R/o village-Pandey Tola, Sono P.O.-Sono, P.S- Sono, District-
Jamui, Bihar-811314.
8. Sanjay Kumar Sharma, aged about 54 years, S/o Late Rajendra Sharma,
R/o village-Dhawan Nagar, Kanke, PO- Jawahar Nagar, P.S- Gonda,
District- Ranchi
9. Ramakant Rai, aged about 55 years, S/o Late Rampal Ray, R/o village-
Keshofarka, P.O. & P.S- Sono, District- Jamui, Bihar- 811314.
10.Bhutnath Singh Munda, aged about 49 years, S/o Late Chunilal Singh,
R/o village-Madhukama, Humta, P.O.-Humta, P.S-Bundu, District-
Ranchi.
11. Yodhya Oraon, aged about 53 years, S/o Atwa Oraon, R/o village-
Gurgurjari, Mandar, P.O.- Kaimbo, P.S-, District-Ranchi.
12. Sukhram Nag, aged about 48 years, S/o Kunjal Nag, R/o village-
Salga, P.O.- Khunti, P.S- Khunti, District- Khunti.
.........Respondents/Review Petitioners
Versus
1. The State of Jharkhand
2. The Director General of Police, Jharkhand, P.O., P.S- Dhurwa and
District-Ranchi
3. The Secretary, Department of Personnel, Administrative Reforms
and Rajbhasha, Government of Jharkhand, P.O, P.S-Dhurwa and District-
Ranchi
4. The Senior Superintendent of Police, Ranchi, P.O, P.S-Dhurwa and
District- Ranchi .....................Respondents
5. Arun Kumar, aged about 68 years, S/o Late Ramrup Prasad, R/o
Krishna Apartment, Flat No.201, Near Jaipal Singh Stadium, P.O.-G.P.O,
P.S.-Kotwali, District- Ranchi ........................Appellant/Respondent
6. Sushmita Devi, W/o Late Amarnath, R/o Premchand Nagar, Police
Line, Dhanbad, P.O., P.S. Kotwali and District-Dhanbad
..... ... Respondent/Proforma Respondent
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Petitioners : Mr. Ajit Kumar, Sr. Advocate
Ms. Akriti Shree, Advocate
For the Respondent-State: Mr. Ranjan Kumar, AC to Sr. SC-I
---------
Order No.5/Dated: 27 February, 2025
th
Per, Sujit Narayan Prasad, J.
I.A No.12171 of 2024
1. This Interlocutory Application has been filed under section 5 of the
Limitation Act, 1963 for condonation of delay of 627 days in
preferring the present review petition.
2. The reason has been assigned as would be evident from paragraph
no.6 onward that after the order dated 16.12.2022 was passed by a
co-ordinate Bench of this Court in L.P.A No.392 of 2019 thereafter
the review petitioners approached the Hon’ble Apex Court to
challenge the said order in S.L.P (C) No.3283 of 2023 but the same
was dismissed in limine vide order dated 20.02.2023.
3. Thereafter, the review petitioners herein filed a review being R.P(C)
No.1508 of 2024 (Diary No.12140 of 2024) on 14.03.2024 against
the order dated 20.02.2023 passed in S.L.P (C) No.3283 of 2023 but
the same was also dismissed vide order dated 07.08.2024. Thereafter,
the present review petition has been filed.
4. The ground, therefore, has been taken that due to pending proceeding
before the Hon’ble Apex Court the delay has been caused in filing
the instant review petition.
5. The learned counsel appearing for the State has vehemently opposed
the application for condonation of delay.
6. We have heard learned counsel for the parties and gone through the
ground referred in the instant interlocutory application for the
purpose of condonation of delay of 627 days.
7. There is no dispute about the fact that generally the lis is not to be
rejected on the technical ground of limitation but certainly if the
filing of petition suffers from inordinate delay, then the duty of the
Court to consider the application to condone the delay before
entering into the merit of the lis.
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8. Further it is settled position of law that while considering the delay
condonation application, the Court of Law is required to consider the
sufficient cause for condonation of delay as also the approach of the
litigant as to whether it is bona fide or not as because after expiry of
the period of limitation, a right is accrued in favour of the other side
and as such, it is necessary to look into the bona fide motive of the
litigant and at the same time, due to inaction and laches on its part.
9. It also requires to refer herein that what is the meaning of “sufficient
cause”. The consideration of meaning of “sufficient cause” has been
made in 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 the 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 that3
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 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
limitation, the applicant has to explain the court as to what
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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.”
10.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 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.
11.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 notsufficient 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
5
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 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.”
12.In the backdrop of the aforesaid settled legal proposition of law now
this Court, adverting to the grounds referred in the instant
interlocutory application, is of the view that the delay in filing of the
instant review petition needs to be allowed on the ground that the
litigation was pending before the Hon’ble Apex Court which was
finally decided on 07.08.2024 and thereafter within two months from
the date of the decision, the present civil review petition has been
filed.
13.Considering the ground assigned in the interlocutory application and
taking into consideration the purport of section 5 of the Limitation
Act, 1963, the delay of 627 days in preferring the present review
petition is hereby condoned.
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14.Accordingly, I.A. No.12171 of 2024 stands allowed and disposed of
as such.
Civil Review No. 5 of 2025
Prayer
15.The jurisdiction conferred to this Court under Article 226 of the
Constitution of India has been invoked for review of the order dated
16.12.2022 passed in L.P.A No.392 of 2019, whereby and
whereunder, the co-ordinate Bench of this Court has held that the
promotion granted to the review petitioners is illegal and the said
promotion is being set at naught and further the review petitioners
were directed to be reverted to their original post forthwith after 15
years of the said promotion.
Factual Matrix of the Case:
16.The brief facts of the case as pleaded in the instant review petition
needs to refer herein which is being referred herein as under:
17.The present review petitioners are the respondents to the intra court
appeal who have been granted promotion to the higher post of Sub-
Inspector of Police by giving out of turn promotion in view of the
provisions of Rule 660 (C) of the Police Manual. The said rule
provides to grant out of turn promotion on the basis of a citation.
Their cases are that they have been conferred with the citation and
after taking into consideration the same the State Government has
exercised power to grant out of turn promotion in view of the
provision of Rule 660 (C) of the Police Manual.
18.It is pleaded that the writ petitioner who has been denied out of turn
promotion said to be in absence of any citation. The letters patent
Court while hearing the learned counsel for the writ petitioner has
gone into the issue to assess the propriety of the decision taken by
the State in granting out of turn promotion to the review petitioners
based upon the citation in order to consider the case of the writ
petitioner/appellant.
19.The specific case of these review petitioners is that they have been
granted promotion on the state of the citation but on consideration
on the relevant documents said to be citation had found that those
documents cannot be conceded to be a citation rather it were the
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recommendation of the Superintendent of Police of the concerned
districts and basis upon the same, the Departmental Promotion
Committee has considered these review petitioners to be fit to be
promoted by granting out of turn promotion.
20. It is evident from the record that L.P.A. No. 392/2019 was filed by
the appellant/respondent no. 5 with a prayer to set aside the order
dated 05.04.2016 passed by the learned writ Court by which the writ
petition i.e. W.P.(S) No. 1458/2008 filed by the appellant/respondent
no. 5 challenging the order dated 10.01.2008 passed by Departmental
Promotion Committee which rejected the prayer of the
appellant/respondent no. 5 for grant of out of turn promotion, has
been dismissed.
21.As per the pleading in the writ petition when the appellant was posted
at Runi Saidpur Police Station in Sitamarhi District in the month of
October, 1992 a communal riot took place on the eve of immersion
of the Goddess Durga which resulted in huge loss of life and property
and the situation was quite alarming.
22.The appellant on 28.10.1992 was successful in apprehending two
criminals, namely, Md. Nisar and Md. Abu Talib with huge quantity
of arms and consequently arrested them and seized the arms. The
Director General of Police having fully satisfied with the appellant’s
job, wrote a letter dated 18.01.1994 wherein the appellant’s job was
praised and had also at the same time recommended that the
appellant should be awarded with a revolver, which was, however,
never extended/given to the appellant.
23.The Joint Secretary, Government of Bihar, Home (Police
Department) had also vide his letter dated 21.08.96 accepted the
recommendation of the Director General of Police and had accorded
permission to award the appellant with a revolver/pistol for his
praiseworthy work.
24.Appellant was desirous of his case being considered under Rule 660
(C) of the Bihar Police Manual for out of turn promotion and for this
the appellant made representations and reminders to the concerned
respondents, but the same was not considered by the concerned
respondents.
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25.The respondents on the ground of pendency of the two departmental
proceeding refused to promote the appellant on out of turn basis
under Rule 660 (C) of the Bihar Police Manual. The Departmental
Promotion Committee (DPC) which was held on 10.01.2008
(impugned order) has rejected the candidature of the appellant for
out of turn promotion under Rule 660(C) (A) (ii) of the Police
Manual.
26.Accordingly the writ petitioner preferred writ petition being W.P.(S)
1458 of 2008 for redressal of his grievances but the same was
dismissed vide order dated 05.04.2016, consequently writ petitioner
preferred intra court Appeal being LPA No. 392 of 2019.
27.The appellant states that the main ground for dismissing the writ
petition of the appellant was that the Hon’ble Single Judge has given
a finding that the petitioner claim for giving out of turn promotion
by the DPC for not finding him to have been awarded any medal of
bravery under the provision of Rule 660 of the Police Manual.
28. It needs to refer herein earlier to dismissal of said writ petition,
another writ petition i.e. W.P.(S) No. 351/2004 which had also been
preferred by the Respondent No.5/writ petitioner was disposed of
vide order dated 22.01.2004, directing the respondent to consider the
case of writ petitioner/ Respondent No.5 within a period of 6 weeks
from the date of representation.
29.In compliance of the direction of the writ Court, a meeting was
conveyed in the Police Headquarters which was presided by the
Director General of Police, Jharkhand on 09.06.2004. All the
relevant recommendation, facts, rules, circumstances, etc. were duly
considered and it was found that due to pendency of Departmental
Proceeding Nos.36/2004 and 45/2004 against the appellant as well
as due to unsatisfactory services, the appellant was not entitled for
out of turn promotion. The Committee, which deliberated the
proposals for out of turn promotion, has issued speaking minutes of
their meeting in respect of all the cases they deliberated upon.
30.Accordingly, the prayer of the writ petitioner/ appellant for out of
turn promotion under rule 660(C) was dismissed by the DPC vide
order dated 10.01.2008.
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31. Further, it is the case of the respondents/review petitioners have
been awarded out of turn promotion in view of the recommendation
made in their favour on account of act of bravery in compelling the
naxals to flee away while posted as Bansjor O.P. in Simdega District.
The respondents/review petitioners have bravely contested the
naxals compelling them to flee away even at the cost of serious
damage to them. The respondents have been extended promotion in
terms of Rule 660(C) of the Police Manual.
32.The case of the review petitioners/respondents herein is different to
that of the Respondent No.5/appellant. In the case of the Respondent
No.5/appellant he was involved in apprehending two hardened
criminals whereas the review petitioners/respondents were involved
in repelling a naxal attack. No comparison can be drawn between
these two.
33.The Superintendent of Police, Simdega has recommended out of turn
promotion to 13 Police Personnel and Police Officers in connection
with Bansjora O.P. Naxal attack wherein the Police Officers
demonstrated outstanding courage and bravery by putting their life
in danger and attacked the naxals resulting in failure of plan by them
(naxals) and they were forced to run away. Upon the
recommendation made for out of turn promotion, promotion was
granted in the meeting conveyed on 05.09.2009 for grant of out of
turn promotion.
34. It has been stated that there was no discrimination against the
petitioner while granting out of turn promotion to 13 Police Officers
because the citation granted to the petitioner was not for outstanding
operational work and therefore the order passed by the Departmental
Promotion Committee (D.P.C) rightly rejected the prayer of writ
petitioner/appellant for out of turn promotion vide order dated
10.01.2008.
35. It has been stated that regarding Rule 660-C vide notification no.
1463 dated 04.02.1989, amendment was carried out in gazette
publication but not incorporated and published in Police Manual and
as per amended Rule 660-C of Jharkhand Police Manual, out of turn
promotion is granted for citation received for “outstanding
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operational work and in the present case, the appellant was not
granted citation for outstanding operational work and therefore, he is
not eligible for out of turn promotion.
36.On 12.05.2022, the Director General of Police, Jharkhand appeared
before the Hon’ble Court along with original documents and apprised
the Hon’ble Court regarding the out of turn promotion considered by
the Departmental Promotion Committee.
37. It is necessary to mention that the citation was issued to the
petitioner for out of turn promotion but no citation was issued to the
petitioner on operational duty, which is the requisite for
consideration by the DPC for grant of out of turn promotion under
Rule-660 (C) of the Police Manual.
38.The case of the writ petition/appellant was considered by the DPC
meeting convened on 10.01.2008 and it was found that no citation
has been issued to the petitioner on the ground of outstanding
operational work and therefore he was not found fit for the grant of
out of turn promotion under Rule-660 (C) of the Police Manual.
39.L.P.A. No. 392 of 2019 was heard by the Hon’ble Court and vide
order dated 16.12.2022 passed by the Hon’ble Division Bench the
promotion granted to the review petitioners is held illegal and the
said promotion is being set at naught and further the review
petitioners were directed to be reverted to their original post
forthwith.
40.The respondents/ review petitioners preferred Special Leave to
Appeal (C) No. 3283/2023 before the Hon’ble Apex Court, however,
the Hon’ble Apex Court has been pleased to dismiss the appeal in
limine vide order dated 20.02.2023.
41.Thereafter, the respondents/ review petitioners preferred review of
the order dated 20.02.2023 passed in Special Leave to Appeal (C)
No. 3283/2023, but the same was also dismissed vide order dated
07.08.2024.
42.The review petitioners were given out of turn promotion to the post
of Assistant Sub Inspector vide Order contained in memo no. 212
dated 25.01.2008 w.e.f. 02.01.2008, however, they were to be given
monetary benefits after passing PTC.
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43.Review petitioners were further given promotion to the post of Sub
Inspector in the year 2013 and since then till 22.07.2024, when they
were reverted to their original post of Constable vide memo no. 701
issued by the Office of Director General and Inspector General of
Police.
44.The order of promotion has been granted by the State Government
and merely on the basis of recommendation made by the
Superintendent of Police of the concerned district the same having
been constituted with the citation if the promotion was granted,
hence, this Court has come to the conclusive findings that the
recommendation cannot be constituted to be citation made by the
Superintendent of Police of the concerned district rather the said
recommendation only if accepted by the State for the purpose of
issuance of citation will only be said to be citation in the eyes of law
for the purpose of consideration of out of turn promotion.
Argument by the learned senior counsel for the review
petitioner:
45.Mr. Ajit Kumar, the learned senior counsel appearing for the review
petitioners has submitted that the “citation” word has not been
defined by making any stipulation that too with the competent
authority to issue citation and, hence, the basis of out of turn
promotion will only be said to be the documents issued by the
Superintendent of Police of the concerned district and, thus, error has
been committed by this Court.
46. Further without appreciation that the review petitioners had been
promoted to the post of ASI on the basis of citation which may be
not in a specified format but is certainly in the form of
commendation/recommendation for gallant and outstanding
performance. By the impugned order the review petitioners have
been punished and reverted to the original post of Constable on
which they were appointed way back in the year between 1999 to
2005 for no fault of their own.
47.Hence, the present review petition has been filed.
Analysis
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48.Before considering the aforesaid ground for filing review this Court
needs to refer herein that the review petitioners after the order dated
16.12.2022 passed in L.P.A No.392 of 2019 having been passed by
this Court which has been sought to be reviewed has preferred a
Special Leave Petition before the Hon’ble Apex Court being S.L.P
(C) No.3283 of 2023, but the same was dismissed vide order dated
20.02.2023. The review petitioner, thereafter, have again filed a
review before the Hon’ble Apex Court being R.P(C) No.1508 of
2024 (Diary No.12140 of 2024) on 14.03.2024 against the order
dated 20.02.2023 passed in S.L.P (C) No.3283 of 2023, but the same
was also dismissed vide order dated 07.08.2024. Thereafter, the
present review petition has been filed.
49.The ground has been taken that merely because the S.L.P (C)
No.3283 of 2023 has been dismissed there is no embargo in
exercising of power of review.
50.We are not in dispute to the aforesaid proposition of law due to the
reason that if the Special Leave Petition was dismissed in limine,
then the power of review can be exercised by the High Court.
However, the matter would have been different if the Special Leave
Petition has been converted into an appeal and if the appeal would
have been dismissed, then based upon the merger principle the order
passed by the High Court will be said to be merged in to the order
passed in the Special Leave to Appeal and the said order will be said
to be the binding effect.
51.But herein, the factual aspect is different to the extent that after
dismissal of the Special Leave Petition vide order dated 20.02.2023
the review petitioners have again preferred review which was also
dismissed vide order dated 07.08.2024, meaning thereby, the
Hon’ble Apex Court has not found any reason to reconsider the order
already passed in Special Leave Petition which was dismissed.
52.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 be referred to underlying principle to invoke the power
of review.
13
53.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.”
54.Likewise, in the case of Col. Avatar Singh Sekhon Vrs. Union of
India (1980) Supp. SCC 562, the Hon’ble Apex Court 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.”
55.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
14
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;
(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.”
56.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.
57.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
15
diligence, as has been held by the Hon’ble Apex Court in Moran
Mar Basselios Catholicos and Anr. v. Most Rev. Mar Poulose
(supra).
58. Now adverting to the fact of the instant case it is evident that this
Court has dealt with in the impugned judgment regarding the
meaning of citation and who is the authority to confer citation. The
reason for doing that was since the issue was of grant of out of turn
promotion and, as such, the eligibility required to be considered and
the eligibility as per the Rule 660 (C) of the Police Manual is that the
citation if available with one or the other candidates they can be
considered for out of turn promotion. For ready reference the Rule
660 (C) of the Police Manual as it is after its amendment by
Notification No. GSR 1463 dated 04.02.1989 reads as under:
“660-C Out of turn promotion.- The following criteria and
procedure will be adopted for giving out of turn promotion: (i)The
officer concerned should not have been awarded any major
punishment till the date of consideration and order of out of turn
promotion. (ii) Should have very good entries in permanent
character roll. (iii) Should have received citations for high
standard of investigation, supervision of cases and for excellence
in intelligence work. (iv) Should have ability for shouldering
higher responsibilities consonant with the proposal promotion.
OR should been awarded President’s medal or Medal for
gallantry. OR should have received citation for outstanding
operational work. (b) Out of turn promotion will be decided, by
committee which will be constituted as follows:
(i) Director General and I.G. of Police, Bihar, Patna
Chairman
(ii) Senior Officer-in-Charge of CID, Bihar Member
(iii) Senior Most Officer in-charge of Special Branch, Bihar
Member
(iv) Senior Most officer-in-charge (personnel) of Bihar
Member
(v) Senior most regional I.G. of Police Member
(vi) Special Secretary/ Addl. Secretary Home (Police)
Department Member Secretary.”
59.This Court adverting to the factual aspect so far as the ground taken
for review is concerned the question of recommendation has been
said to be accepted to be citation, but the same cannot be a ground
for review, since, this Court has already discussed the aforesaid issue
in several paragraphs of the order dated 16.12.2022 passed in L.P.A
No.392 of 2019 which is sought to be reviewed, reference of the said
paragraphs have been quoted as under:
16
18. It is not in dispute that making recommendation for citation is one
thing which is to be done by the local authority depending upon the
performance of one or the other police personnel/officials for getting
out of turn promotion or the police medal or any other bravery award
but either „citation‟ or police medal or any bravery award is the domain
of the State/Central Government to issue on the basis of such
recommendation.
As such, the recommendation, according to our considered view,
cannot be construed to be citation unless accepted by the Government.
The State respondents, in spite of several opportunities being granted
by this Court, neither came out with the notification pertaining to
definition of citation nor produced any document. However, in course
of argument it has been confessed that the recommendation cannot be
construed to be citation.
19. This Court, after considering the confession of the State
respondents that the recommendation cannot be construed to be citation
then posed a pinpointed question upon the State respondents that how
and under what authority Departmental Promotion Committee so
constituted for the purpose of consideration of out of turn promotion,
has considered the recommendation made by the District
Superintendent of Police to be citation. Learned counsel appearing for
the State respondents has not replied to the aforesaid query. To that
effect specific direction has been passed on 11.05.2022 directing the
State to file proper affidavit regarding issuance of directly or indirectly
citation in favour of the persons who have been given promotion, for
ready reference the order dated 11.05.2022 is quoted hereunder :-
“23/Dated: 11.05.2022
Heard.
On the last occasion, learned counsel for the State took time
to take instruction in this matter as to whether the petitioner
should also be granted promotion from the date due when his
contemporary or junior were given promotion then it was
said that since the petitioner has already retired then only
consequential benefit would be given and as such they are
contemplating to take such decision. Now again an affidavit
has been filed bringing on record the recommendation of the
Superintendent of Police regarding grant of citation with
respect to the earlier persons to whom promotion was
already given.
We are unable to understand this action of the State and it is
regretted that in place of taking such decision they have
again filed this affidavit.
We have made it clear that admittedly since there is no order
passed by the State authorities on the recommendation of the
Superintendent of Police granting, directly or indirectly,
citation in favour of the persons who have been given
promotion and it is also further admitted that promotion was
given on the basis of that. That had led this Court to issue
notice to all such persons who have been granted promotion
by the State on that ground.
If the State does not take such decision or file proper
affidavit then this Court would be left with no option than to
decide the matter on its merit. Then the fate of the persons17
who have already been granted promotion would also be
decided.
It appears that by repeating all the earlier statements, the
State authorities are trying to mislead this Court without
answering the issue.
Learned counsel has not been able to show the rules
regarding grant of citation. They have not appended any
annexure showing grant of citation in favour of the persons
who were promoted rather some order with respect to some
other persons have been brought on record perhaps only for
the purpose of misleading this Court.
Accordingly, let the Director General of Police appear before
us tomorrow (12.05.2022) to explain the conduct of the
Police Department before us.
Put up this case tomorrow (12.05.2022) at 10.30 A.M.”
Accordingly, the Director General of Police appeared on 12.05.2022
but it has been admitted that no citations have been issued, rather on
the basis of recommendation, out of turn promotion has been granted
in favour of the private respondents.
20. This Court has perused the recommendation so made by the District
Superintendent of Police in favour of the private respondents
wherefrom it is evident that the recommendations have only been made
by narrating the work performed by the private respondents and the
said recommendations have been treated to be citations by the
Departmental Promotion Committee basis upon which the due
recommendation was made for granting out of turn promotion in favour
of the private Respondent Nos. 5 to 17, which was subsequently
accepted by the competent authority by issuance of appropriate order
in this regard.
This Court has perused such recommendation having been made by the
Senior Superintendent of Police, as has been appended in the affidavit
filed on 22.11.2022, wherein recommendation has been for out of turn
promotion from the rank of Sub-Inspector of Police to Inspector of
Police, so far as writ petitioner is concerned. Such recommendation is
also there as would appear from the minutes of the meeting of
Departmental Promotion Committee wherein while treating the
recommendation made by the Superintendent of Police, Simdega as
was made vide letter No.3 dated 09.01.2008 for out of turn promotion
in favour of Shri Dhananjay Kumar Singh, Respondent No.6, such
recommendation has also been made in favour of Shri Ramakant Rai,
Respondent No.7, as contained in letter No.3 dated 09.01.2008. It
appears that such recommendation has been made by the
Superintendent of Police, Simdega in respect of all the newly
impleaded respondents in the same letter.
21. The question arose for consideration, as has been agitated by the
writ petitioner that if such recommendation has also been made by the
Senior Superintendent of Police recommending the name of the writ
petitioner for out of turn promotion, as would appear from the
recommendation made by Senior Superintendent of Police vide letter
dated 10.07.2004, then why the writ petitioner has been discriminated.
This Court is of the view that in filling up of the public post, all
similarly situated employees are required to be treated equally in order
to maintain equality of opportunity which has been enshrined under
18
Article 16 of the Constitution of India subject to exception carved out
therein. But this Court is also considering the factual aspect with the
legal issues that if the employees who have been granted out of turn
promotion are not eligible for such promotion as per the eligibility
criteria prescribed under Rule 660(C) of the Police Manual, are they
entitled to hold the post?
Position of law is settled that the eligibility criteria is required to be
fulfilled by one or the other candidates and there cannot be any
deviation therefrom. It is also equally settled that there cannot be any
relaxation in the eligibility criteria, as has been held by Hon’ble Apex
Court in Bedanga Talukdar v. Saifudaullah Khan & Ors. [(2011) 12
SCC 85], wherein at paragraph 29 has observed, which is being quoted
hereunder :
“29. We have considered the entire matter in detail. In our
opinion, it is too well settled to need any further reiteration that
all appointments to public office have to be made in conformity
with Article 14 of the Constitution of India. In other words,
there must be no arbitrariness resulting from any undue favour
being shown to any candidate. Therefore, the selection process
has to be conducted strictly in accordance with the stipulated
selection procedure. Consequently, when a particular schedule
is mentioned in an advertisement, the same has to be
scrupulously maintained. There cannot be any relaxation in the
terms and conditions of the advertisement unless such a power
is specifically reserved. Such a power could be reserved in the
relevant statutory rules. Even if power of relaxation is provided
in the rules, it must still be mentioned in the advertisement. In
the absence of such power in the rules, it could still be provided
in the advertisement. However, the power of relaxation, if
exercised, has to be given due publicity. This would be
necessary to ensure that those candidates who become eligible
due to the relaxation, are afforded an equal opportunity to apply
and compete. Relaxation of any condition in advertisement
without due publication would be contrary to the mandate of
equality contained in Articles 14 and 16 of the Constitution of
India.”
It is also equally settled that if any appointment/promotion has been
granted dehors the rule, the incumbent who has been granted
promotion, is not entitled to hold the post. This is on the basis of the
proposition that illegality cannot be allowed to be perpetuated and the
moment the illegality comes to the notice, it has to be set at right.
Reference in this regard may be made to the judgment of Hon’ble Apex
Court in State of Orissa and Anr. v. Mamata Mohanty, [(2011) 3 SCC
436], wherein, at paragraphs 56 and 57, Their Lordships have been
pleased to hold:-
“56. It is a settled legal proposition that Article 14 is not meant to
perpetuate illegality and it does not envisage negative equality.
Thus, even if some other similarly situated persons have been
granted some benefit inadvertently or by mistake, such order does
not confer any legal right on the petitioner to get the same relief.
57. This principle also applies to judicial pronouncements. Once
the court comes to the conclusion that a wrong order has been
passed, it becomes the solemn duty of the court to rectify the19
mistake rather than perpetuate the same. While dealing with a
similar issue, this Court in Hotel Balaji v. State of A.P. [1993
Supp (4) SCC 536] observed as under: (SCC p. 551, para 12) “12.
… „2. … To perpetuate an error is no heroism. To rectify it is the
compulsion of judicial conscience. In this, we derive comfort and
strength from the wise and inspiring words of Justice Bronson in
Pierce v. Delameter [1 NY 3 (1847) : A.M.Y. p. 18] at p. 18: “a
Judge ought to be wise enough to know that he is fallible and,
therefore, ever ready to learn: great and honest enough to discard
all mere pride of opinion and follow truth wherever it may lead:
and courageous enough to acknowledge his errors”.‟ [As
observed in Distributors (Baroda) (P) Ltd. v. Union of India,
(1986) 1 SCC 43, p. 46, para 2.] “
It is also required to refer herein about the position of law that Article
14 of the Constitution of India does not envisage negative equality,
rather it envisages positive equality, as has been held in State of Bihar
& Ors. v. Kameshwar Prasad Singh & Anr., [AIR 2000 SC 2306] at
paragraph 30, which is quoted hereunder:
30. The concept of equality as envisaged under Article 14 of the
Constitution is a positive concept which cannot be enforced in a
negative manner. When any authority is shown to have
committed any illegality or irregularity in favour of any
individual or group of individuals, others cannot claim the same
illegality or irregularity on the ground of denial thereof to them.
Similarly wrong judgment passed in favour of one individual
does not entitle others to claim similar benefits. In this regard this
Court in Gursharan Singh v. New Delhi Municipal Committee
[(1996) 2 SCC 459] held that citizens have assumed wrong
notions regarding the scope of Article 14 of the Constitution
which guarantees equality before law to all citizens. Benefits
extended to some persons in an irregular or illegal manner cannot
be claimed by a citizen on the plea of equality as enshrined in
Article 14 of the Constitution by way of writ petition filed in the
High Court. … … …”
22. In the given facts of the case, the writ petitioner is claiming parity
with the Respondent Nos. 5 to 17 on the ground that the writ petitioner
is having similar recommendation made by Senior Superintendent of
Police, Ranchi and the same is also the case with the private
respondents wherein Superintendent of Police, Simdega has made
recommendation for their out of turn promotion.
The writ petitioner has never claimed that he is holding citation making
him eligible for out of turn promotion, rather his case is that why he
has differently been treated while he is also having the recommendation
of Senior Superintendent of Police, Ranchi.
But the question is that whether any relief can be granted in favour of
the writ petitioner on the basis of violation of Article 14 of the
Constitution of India when the parity against whom is being claimed
by the writ petitioner are themselves not fulfilling the eligibility criteria
as per Rule 660(C) of the Police Manual. If the respondents will be
directed to grant promotion to the writ petitioner for the purpose of
maintaining parity, the same will be nothing but it will be a case of
granting relief on the basis of negative equality which is not
permissible as per the position of law and after taking into
20
consideration the spirit of Article 14 of the Constitution of India which
does not envisages negative equality as has been held by Hon‟ble Apex
Court in State of Orissa and Anr. v. Mamata Mohanty (Supra) and State
of Bihar & Ors. v. Kameshwar Prasad Singh & Another (Supra).
Therefore, according to our considered view, since the writ petitioner
is not fulfilling the criteria as laid down under Rule 660(C) of the Police
Manual, having not received citation or any police/gallantry award,
there cannot be any direction under Article 226 of the Constitution of
India commanding upon the respondents to consider the case of the
writ petitioner for out of turn promotion.
23. The further question required to be decided is as to whether the
private respondent Nos. 5 to 17 who are also not possessing the citation
and not fulfilling the eligibility criteria as prescribed under Rule 660(C)
of the Police Manual and can they be allowed to retain the post? Will
it not allow the illegality to be perpetuated?
This Court is of the view on the basis of the principle laid down by the
Hon’ble Apex Court that the public posts cannot be allowed to be
retained by such candidates who are not eligible as per the Rules of
Appointment/Promotion.
It is equally settled that there cannot be any relaxation in the rule
although it is not a case of any relaxation as would appear from the fact
of the given case, rather it is a case of wrong consideration by the
competent authority deviating from the statutory rule by considering
the recommendation as citation and merely on the basis of
recommendation, the private respondents have been granted promotion
in absence of citation or any Police/President medal, as per the
eligibility criteria provided under Rule 660(C) of the Police Manual.
24. This Court, after taking into consideration the principle laid down
by the Hon’ble Apex Court that the illegality cannot be allowed to be
perpetuated and public posts cannot be allowed to be filled up from
ineligible candidate, is of the considered view that the promotion
granted in favour of private respondent Nos. 5 to 17 requires
interference by this Court in order to set the act of the State authority
right.
25. Accordingly, the promotion granted in favour of Respondent Nos.
5 to 17 is being set at naught. Their promotion is held to be illegal and
they be directed to be reverted to their original post forthwith.
26. Accordingly, Issue Nos. (i) to (iii) have been answered.
27. Now the last issue that why the competent authority, even though
there is no ambiguity in the rule governing the field, i.e., Rule 660(C)
of the Police Manual, has granted promotion in favour of the private
respondents?
The competent authorities who have been assigned with the power to
grant such promotion are required to strictly and scrupulously follow
the statutory rule to fill up the public posts.
Herein, the Superintendent of Police of the district has made
recommendations for promotion but the competent authority, without
giving due adherence to the eligibility criteria, as stipulated under Rule
660(C) of the Police Manual, has granted out of turn promotion to the
private respondents causing financial loss to the State exchequer
which, according to our considered view, is not allowed to be done and
is not expected from the competent authority who have been conferred
with the power to appoint or promote to fill up the public posts.
21
Since it is a case of out of turn promotion and, as such, the decision in
that respect ought to have been taken with more care but the competent
authority, without taking into consideration that none of the private
respondent have citation or other eligibility criteria for consideration
of their cases for out of turn promotion and in absence thereof, the
member of the Departmental Promotion Committee have
recommended names of the private respondents for promotion which
finally has culminated into the final decision passed by the competent
authority.
28. This Court, since is exercising the jurisdiction conferred to this
Court under Article 226 of the Constitution of India, deems it fit and
proper in the peculiar facts and circumstances of the case to direct the
Chief Secretary of the State to conduct an enquiry against the Members
of the Departmental Promotion Committee and the authorities who
have granted promotion on the basis of recommendation made by the
local authorities treating it to be citations.
Such enquiry is necessary since the State exchequer has been
overburdened by disbursement of salary by extending the benefit of
promotion illegally.
The Chief Secretary of the State of Jharkhand is to conduct an enquiry
for the purpose of fixing accountability so as to compensate the loss
caused to the State exchequer.
Needless to say that while fixing accountability, the officers concerned
will be dealt with under the applicable Conduct Rules/Pension Rules,
as applicable.
29. The Chief Secretary, State of Jharkhand is directed to complete
such exercise by conducting proper enquiry, in accordance with law,
within stipulated period of six months from the date of receipt of a copy
of this order.
30. Accordingly, the instant appeal stands disposed of with the above
observation and direction.
60.Since the aforesaid aspect of the matter is given due consideration
by this Court at length and, hence, the ground which has been taken
for review of the order dated 16.12.2022 passed in L.P.A No.392 of
2019 sought to be reviewed, i.e., the recommendation has been
submitted to be accepted as a citation. But the same has been
considered at length in the order passed by the Letters Patent Court
as is being evident from the extracted portion of the order quoted
hereinabove, hence, the same cannot be ground for review.
61.The scope of review is only that if there is any error apparent on the
face of the order or the fact could not have been brought to the notice
in spite of due diligence, but it cannot be in the garb of an appeal or
merely by change of an advocate there can be a ground for review
by advancing an argument by giving the different interpretation of
the consideration already made.
22
62.Further, the 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:
9. 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”.”
63.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 thecontroversy
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.”
23
64.Review can also be sought when the order discloses some error
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.
65.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.
66.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.
67. 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:-
“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.
24
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.–”
68.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.
69.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 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.
70.This Court, in view of the aforesaid discussions and taking in to
consideration that there is no error apparent on the face of the record
and further the contention as raised by respondent/ review petitioners
has already been considered by the appellate Court is of the view that
it is not a fit case where the power of review is to be exercised.
71.Accordingly, the instant review petition being Civil Review No.5 of
2025 stands dismissed.
72.Pending Interlocutory Application(s), if any, stands disposed of.
(Sujit Narayan Prasad, J.)
(Pradeep Kumar Srivastava, J.)
Sudhir
AFR25
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