Board of Secondary Education vs Mahendra Kumar Patel and Others

M.M. Das, J.—Though this matter was not there in the today''s list, but as it is connected to CONTC No. 2335 of 2009, which was on board, the record was called for & this matter is taken up.

This review petition has been filed seeking review of the Order Dated 1.9.2009 passed in W.P. (C) No. 13778 of 2008. By the said order, this Court on taking into consideration the facts of the case & on perusal of the annexures made to the respective pleadings of the parties & also after hearing the Learned Counsel for both the parties directed that the Board of Secondary Education, Orissa, Cuttack shall correct the date of birth of the Petitioner from "5.11.1952" to "5.1.1957" in his HSC Examination certificate granted to him in the year 1973 & issue a corrected certificate within a period of three weeks from the date of production of a certified copy of the said order before the Secretary.

Dr. A.K. Rath, Learned Counsel for the review Petitioner submits that where hearing the Writ Petition, Annexures-8, 5 & 6 were not brought to the notice of this Court. According to him, in Annexure-8, which is a letter of the Inspector of Schools, in response to the letter of the Deputy Director (NGS), directing him to enquire regarding the date of birth of the Petitioner, the Inspector of Schools on enquiry & verification of the admission registers reported that the date of birth of the Petitioner as recorded in the admission register seems to be over written & it is not ascertained whether it is 5.1.1952 or 5.1.1957 as per the Transfer Certificate of Class-V. He, therefore, submits that this is. a disputed question of fact, which should not have been gone into & referring to Annexures-5 & 6. Mr. Rath submits that the letters sent by the school for correcting the date of birth as mentioned in the des patch register, copies of which are annexed as Annexures-5 & 6, clearly show that no postage stamp was affixed as the column for postage stamp is blank.

Mr. Swain, Learned Counsel for the Opp. Party No. 1, on the other hand, submits that in the report of the Inspector of Schools, the Inspector of Schools has categorically found on further enquiry that the date of birth of the elder brother of the Petitioner has been recorded as "6.5.1952" & it is not disputed that the elder brother of the Petitioner, namely, Gandhi Patel, was elder to the Petitioner. Hence, the date of birth of the Petitioner cannot be earlier to the date of birth of his elder brother; the other annexure, being Annexure 10 to the rejoinder affidavit, which if a copy of the admission register, shows that the date of birth of the Petitioner is 5.1.1957.

At the time of disposal of the Writ Petition, Learned Counsel for both the parties were heard & the documents were perused by the Court.

Now examining the scope of review by the Writ Court under Article 226 of the Constitution, it would be profitable to refer to the case of Babboo alias Kalyandas and Others Vs. State of Madhya Pradesh, , where it was held that it is true, there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave & palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery-of new & important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with Appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court.

In the case of Northern India Caterers (India) Ltd. Vs. Lt. Governor of Delhi, , it has been laid down that whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case & the finality of the Judgment delivered by the Court will not be reconsidered except where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. An error apparent on the face of the record exists if of two or more views canvassed on the point it is possible to hold that the controversy can be said to admit of only one of them. If the view adopted by the Court in the original Judgment is a possible view having regard to what the records states, it is difficult to hold that there is an error apparent on the face of the record.

Examining the grounds set-forth in the present review application in the touchstone of the ratio laid down by the. Apex Court as referred to above, this Court finds that there is absolutely no error apparent on the face of the record nor there is any analogous ground for exercising the power of review.

In view of the above, the review application deserves no merit & is accordingly dismissed.

Urgent certified copy of this order be granted as per rules.