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Judgment
K.M.Thaker, J.—The application on hand has been titled and described by the applicant as "application for review of the judgment and order dated 29.10.2010."
The applicant is the original Petitioner and Appellant and present opponents are original Respondents.
The applicant is one of the students of opponent No. 2 institute in present application.
The Respondent No. 2-institute had, on the charge that the Petitioner was involved in act of ragging, imposed certain penalty on the Petitioner and other five students, vide circular/order dtd.1.2.2010
Aggrieved by the said order, the applicant herein had preferred a writ petition being Special Civil Application No. 3669 of 2010 which was rejected by learned single Judge vide order dated 25th March, 2010. Against the said order rejecting the petition, the Petitioner preferred Letters Patent Appeal No. 528 of 2010 which was decided by judgment and order dated 29th October, 2010. As the title of the application suggests, the applicant seeks review of the order. However, the reliefs prayed for in the application read thus;
(A) This Hon''ble Court may be pleased to admit and allow this application.
(B) This Hon''ble Court may be pleased to quash and set aside the report of ILARC and further be pleased to set aside the impugned order of punishment.
(C) This Hon''ble Court may be pleased to direct the Respondent Institute to restore the status ante and permit the applicant to take examinations of the last semesters by way of special examinations such that the applicant does not lose the two semesters of 2010.
(D) Be pleased to grant any other and further reliefs, as the nature and circumstances of the present case may require.
Mr. Sinha, learned advocate has appeared on behalf of applicant. Mr. Shelta, learned senior counsel with Ms. Nanavati, learned advocate has appeared for Respondents Nos. 2 and 3.
We have heard learned Counsel for contesting parties and considered the submissions.
Mr. Sinha, learned advocate has submitted that the Court, by virtue of the judgment and order dated 29.10.2010, prospectively (with effect from the date of the judgment) set aside the order dated 1st February, 2010 imposing penalty. However, since the penalty imposed on the Petitioner by the Respondents was for the period of two semesters, and even after the judgment in the appeal, the Petitioner would not get the benefit and that, therefore, the directions by the Court may be appropriately reviewed. He, particularly, requested that the finding by the Court that entire punishment cannot be set aside may be reviewed. He reiterated the submissions (as recorded in para:4 of the judgment dated 29.10.2010) which were raised by the Appellant-Petitioner against the institute''s order dated 1st February, 2010 and again submitted that the institute''s order deserves to be set aside.
The application is contested by the Respondents and it is, inter alia, submitted that the applicant is not entitled to relief as claimed for in the application. The Respondents have also contended, relying on decision of the Apex Court (in the case of Babboo alias Kalyandas and Others Vs. State of Madhya Pradesh, that the power of review can be exercised where some mistake or error apparent on the face of the record is found, whereas in present matter no such case is made out and that, therefore, the application is not maintainable and does not deserve to be entertained.
We have noted the averments and contentions made by the applicant in the application.
If the averments made and contentions made by the applicant in the application memo and more particularly in paras: (1.f) to (1.n) are examined, it emerges that they are essentially, in the nature of appeal against the judgment and do not make out ground for review of the judgment i.e. do not demonstrate any error apparent on the face of record. The power of review cannot be exercised for entertaining and considering the said contentions. In this context reference may be made to the decision in the case of Gujarat University, Ahmedabad and etc. Vs. Sonal P. Shah, wherein the Full Bench, with regard to power of review observed thus;
The review applications are quite incompetent as what is sought by them is to practically set aside the order of the Division Bench and remodulate the reliefs so as to meet the alleged exigencies of the situation, as according to the review Petitioners the decision has an engulfing effect on the careers and asperations of the students who are already promoted of course without examination. This is nothing but an attempt to circumvent the path of approaching the Supreme Court by way of an appeal for which leave is already granted. Though the Plenary jurisdiction of this Court in review is not very much circumscribed there are definitive limits as held in Shivdeo Singh and Others Vs. State of Punjab and Others, Of course, this judgment was prior to the amendment of CPC by which u/s 141, the provisions of CPC are not made applicable to the proceedings under Article 226 of the Constitution of India. The restrictions under Order 47 of the CPC are not directly applicable, and this Court can exercise the powers on a wider canvass on any analogous ground; still the scope for review has it s own restrictions and may not be exercised in the manner in which the powers can be exercised in an appeal.
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. A mere repetition through different counsel of old and overruled arguments cannot create a ground for ''review'' (vide Krishna Iyer, J. Sow Chandra Kante and Another Vs. Sheikh Habib, . Hence, these review applications have no scope.
The Hon''ble Apex Court, in the decision in the case of Col. Avtar Singh Sekhon Vs. Union of India (UOI) and Others, in the case of Col. Avtar Singh Sekhon v. Union of India and Ors., has observed, in para 12 that;
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 this Court observed: (SCC p.675, para1)
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.
Subsequently, while referring to the decision in the case of Col. Avtar Singh Sekhon (supra), the Hon''ble Apex Court in the case between Promoters and Builders Association of Pune Vs. Pune Municipal Corporation and Others, wherein, in para:13, the Hon''ble Court observed thus;
As was observed by this Court in Col. Avtar Singh Sekhon v. Union of India review is not a routine procedure. A review of an earlier order is not permissible unless the Court is satisfied that material error, manifest on the face of the order undermines its soundness or results in miscarriage of justice. A review of judgment in a case 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 stage of review is not a finality. This view has been reiterated in Devender Pal Singh v. State, NCT of Delhi (SCC para 16). This being the legal position, there is absolutely no ground for review of the judgment and order dated 5-5-2004. The review petitions are, therefore, liable to be dismissed.
So far as the issue about keeping the term is concerned, it is necessary to note that at the outset of the hearing of the appeal, it was inquired from the Respondent institute about possibility as to whether Appellant would be in position to keep the term. In response to the said query made at the outset of the hearing, an affidavit was filed on behalf of the Respondent institute wherein it was clarified that in view of the regulations and the applicable time frame such alternative was not feasible. The aforesaid aspect would be clear from para:8 of the judgment wherein response given by the Respondent institute has been taken into account. It has been observed in para:8 of the judgment that;
At this stage, we should refer to the relevant averments in the further affidavit by Dr. G.J. Joshi, Assistant Professor. The said affidavit has been made pursuant to the suggestion made to the Respondent university to reconsider the matter with regard to the penalty of rustication of the Petitioner for two semesters. It comes out from the said affidavit that the mandatory requirement regarding continuous evaluation of Appellant''s academic performance, has not been undertaken and it would not be possible to allow the Appellant to keep the term at this stage. In the affidavit, it has, inter alia, been stated thus:
xxx xxx xxx
3.1 The Petitioner and other alike students have not completed required course work/labouratory work during the remaining period of the even (spring) semester 2009-2010. they are required to undergo work for 13 weeks out of 17 weeks. They have not undergone continuous evaluation of their academic performance for the semester as a mandatory requirement.
The Petitioner will be allowed registration in even semester in December, 2010 so that he can fulfill minimum academic requirement for his studies. The other punishment i.e. at Item Nos. 2 to 5 awarded in category A shall be reviewed by the Institute sympathetically after his joining for the even semester of the academic year 2010-2011.
(emphasis supplied)
So far as the issue regarding the proceedings and report of ILARC is concerned, it is necessary to note that in the application memo, the applicant-Appellant has averred that after the order rendered by the learned single Judge (which was subject matter of the appeal) the present applicant-Appellant had preferred appeal before the Chairman of the Respondent Institute.
Now it is pertinent to also note that the said factual aspect was not made available before the Court and was not stated when the appeal was heard and came to be decided by the judgment dated 29.10.2010.
Now, in the present application, the applicant-Appellant has come out stating that after the judgment of the learned Single Judge he had also preferred an appeal before the Chairman of the Respondent institute. It is also now averred by the applicant-Appellant (which was not stated and placed before the Court at the time of hearing of the appeal and thereafter until the date of decision) that the appeal was taken up for hearing by the competent authority. The details mentioned by the applicant-Appellant in para: (1.n) (of the present application memo) were also not before the Court at the time of hearing of the appeal or thereafter until the date of the judgment. It is now admitted by the Appellant that, "since the appeal was pending before the Chairman and since no response was given, the applicant had not submitted the copy of the appeal before this Court and is therefore enclosing the same in this review application. ...". In the present application, applicant has come out with the factual aspects narrated in para:(1.n) of the application whereas the said aspects ought to have been stated during the hearing of the appeal.
The applicant-Appellant prosecuted the said remedy simultaneously, and that too without disclosing in the Letters Patent Appeal or during the hearing of the said Letters Patent Appeal before us.
Be that as it may, the said aspects are, now, at this stage, not relevant after the judgment in the appeal which is already rendered.
So far as the proceedings before the and the report of the ILARC are concerned, the Court had, at that stage, noted the relevant factual aspects, as observed in para:10.7(a) to (h) of the judgment and having regard to the said factual aspects, the Court had taken into consideration the observations by the Apex Court in the case of Ajit Kumar Nag Vs. General Manager (P.J.), Indian Oil Corporation Ltd., Haldia and Others, and then observed in para: 10.8 that;
10.8 When the credence and credibility of the committee/members is not impeached and when the conclusions of the ILARC also are not assailed on the ground that they are without any supporting evidence and/or contrary to evidence and the material/evidence on record before the ILARC also is also not impeached, when any allegation of bias and victimization against the committee or the students is not made, then in view of the aforesaid aspects and in light of the observations of the Hon''ble Apex Court, we are not inclined to upturn the ILARC''s unanimous recommendation and/or to invalidate the entire hearing - proceedings by the ILARC against the Petitioner (who is found to be involved in serious infraction of conduct viz. act of ragging) on the ground that the composition of ILARC did not conform the recommendation of the Raghavan Committee and Apex Court''s direction or the UGC regulations. We order accordingly.
Having regard to the said clarification made by the Respondent institute at the early stage that it was considered appropriate, in the facts of the case, to set aside the order dated 1st February, 2010 imposing the penalty prospectively with effect from the date of the judgment.
In the facts of the case and in light of the above noted clarification by the Respondent institute (which was made at the outset in response to Court''s suggestion) any other direction would have resulted into the direction to Respondent institute to ignore or breach its regulations regarding the requirement to be fulfilled by the students for keeping semester/term, which the Court could not have passed while exercising jurisdiction under Article 226 of the Constitution of India.
On this ground also, we do not think that the applicant-Appellant has made out any ground for review of the order.
20.1 The applicant has now, in present application, raised contention of such nature which can not be considered and which would not fall within the purview of "detection of some mistake or error apparent on face of record" but are such that they relate to the merits of the case and, as observed by the Hon''ble Apex Court, would be "in the province of Court of Appeal". We may here refer to the observation by the Apex Court in para:3 of the decision in the case of Aribam Tuleshwar Sharma (supra);
...It is true as observed by this Court in Shivdeo Singh and Others Vs. State of Punjab and Others, there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal.
In the affidavit filed by the Respondent institute in response to present application, the Respondent institute has also averred that;
7.4 The semester examination for the academic year 2009-2010 was held on 8.5.2010. The supplementary examination is for those students who have registered for the corresponding semester, completed mandatory academic requirement of course work and laboratory work but have obtained either II, EE or FF grade at the end of the semester, after the end of semester examination. According to the regulation for B. Tech. Programme the Petitioner and other students cannot appear for supplementary examination for the even semester, 2010.
7.5 The Petitioner will be allowed registration in even semester in December, 2010 so that he can fulfill minimum academic requirement for his studies. The other punishment i.e. at Item Nos. 2 to 5 awarded in category A shall be reviewed by the Institute sympathetically after his joining for the even semester of the academic year 2010-2011. Annexed hereto and marked as ANNEXURE-I is a copy of the minutes of the meeting of the Committee. All the students including Petitioner are intimated for registration. (ANNEXURE-II).
I also produce herewith an extract of the Regulation governing course of study and examination for the B. Tech. students, is annexed hereto and marked as ANNEXURE-III to this affidavit.
It was upon having regard to the response given by the Registrar in his affidavit (as recorded in para:8 of the order dtd.29.10.2010) that the direction in the judgment dated 29.10.2010 came to be passed. Now, having regard to the stipulations made by the Respondent institute in aforesaid para:7.5 of the affidavit dtd. 10th January, 2011, all that can be observed and clarified, is that the incident and the order dated 1st February, 2010 may not be cited by the Respondent institute in the results or the record of the applicant-Appellant and/or in the certificates, if any, which may be issued to the applicant-Appellant so that applicant-Appellant may not have any difficulty or may not have to face any complications in his future career including further studies.
As noted above, the applicant has failed to make out any case demonstrating any apparent error on the face of the record. The submissions made in application, which are in the nature of contentions on merits, cannot be raised and/or entertained in application for review.
Therefore, on overall consideration of the application, the application fails. Any case for review is not made out, hence the application is rejected.