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Judgment
Pankaj Mithal, J.—Order on Civil Misc. Delay Condonation Application No.40813 of 2009
The aforementioned Application has been filed, interalia, praying for condoning the delay in filing Civil Misc. Review/Modification Application No. 40825 of 2009.
The aforementioned Delay Condonation Application is supported by an Affidavit, sworn by Rakesh Chandra Pandey (petitioner no. 1 in Civil Misc. Writ Petition No. 48184 of 2004).
Having regard to the averments made in the aforementioned Delay Condonation Application and its accompanying Affidavit, we are satisfied that sufficient cause has been shown for the delay in filing the aforementioned Civil Misc. Review/Modification Application No. 40825 of 2009.
The aforementioned Delay Condonation Application, therefore, deserves to be allowed and the same is accordingly allowed.
The delay in filing the aforementioned Civil Misc. Review/Modification Application No. 40825 of 2009 is condoned.
Order on civil Misc. Review/Modification Application No. 40825 of 2009
By the Judgment and Order dated 22nd November, 2006, Civil Misc. Writ Petition No. 48184 of 2004 was dismissed by a Division Bench of this Court relying upon a detailed Judgment dated 22nd November, 2006 passed in Civil Misc. Writ Petition No. 38341 of 2003.
The aforementioned Review Application has been filed, interalia, praying for review/modification of the Judgment and Order dated 22nd November, 2006 passed in Civil Misc. Writ Petition No. 48184 of 2004 alongwith main Judgment and Order dated 22nd November, 2006 passed in Civil Misc. Writ Petition No. 38341 of 2003.
It appears that a selection was made by the U.P. Public Service Commission for the post of Principal of Government Intermediate Colleges and Senior Lecturers of District Institute of Education and Training. The petitioners/applicants in Civil Misc. Writ Petition No. 48184 of 2004 as well as the petitioners/applicants in Civil Misc. Writ Petition No. 38341 of 2003 were selected for Hill Cadre of the said service as against the Plains Cadre.
However, before the petitioners could be appointed pursuant to the said selection, the State of Uttar Pradesh was bifurcated and the areas covered by the Hill Cadre were constituted into a separate State of Uttaranchal.
The State of Uttaranchal refused the appointment to the persons selected for the erstwhile Hill Cadre of the State of Uttar Pradesh. The refusal to grant appointment by the State of Uttaranchal was upheld by the Supreme Court in the case of State of Uttaranchal and others vs. Sidharth Srivastava and others, 2003 (9) SCC 336:2003 JT (5) SC 393.
In the concluding portion of the said decision, their Lordships of the Supreme Court made observation that "this order shall not come in the way of the State of Uttar Pradesh, if so advised, to consider the claims of the nonofficial respondents for appointments based on the selection made by U.P.P.S.C."
The State of Uttar Pradesh considered the matter pursuant to the aforesaid observation of the Supreme Court, and declined to grant appointment by the orders impugned in the aforesaid two writ petitions.
A Division Bench of this Court in a detailed Judgment and Order dated 22nd November, 2006 passed in Civil Misc. Writ Petition No. 38341 of 2003 observed as under:
"The main basis of the decision of the Supreme Court as mentioned in paragraphs No. 13 and 14 of the said law report is that filling up of vacancies over and above the number of vacancies advertised would be violative of Articles 14 and 16 of the Constitution of India. Further, all the posts in the Plains Cadre stood filled up and, therefore, if the persons selected for the Hill Cadre were to be granted appointment by the State of Uttar Pradesh, it was only possible against future vacancies, which as stated above violated Articles 14 and 16 of the Constitution. The Supreme Court further held that selected candidates can not claim appointment as a matter of right. Mere inclusion of a candidate''s name in the select list does not confirm any right to the appointment.
In the present case, the counter affidavit of Km. Gyatri, Deputy Director of Education, states in paragraph 15 that the petitioners can not be granted appointment because there are no vacancies in the quota of direct recruitment. This in effect means that all the posts in the erstwhile cadre for which selection have been made by the U.P. Public Service Commission stood filled up. This paragraph 15 of the counter affidavit is met with a very vague denial in the rejoinder affidavit and it is not stated as to whether any of the vacancies in the erstwhile Plains Cadre for which selection had been made remained unfilled due to nonjoining of the selected candidates or for other similar reason, because of which the petitioners can possibly be treated as candidates of a waiting list and, therefore, granted appointment."
As noted above, the Judgement and Order dated 22nd November, 2006 passed in Civil Misc. Writ Petition No. 48184 of 2004 has adopted the reasoning given in the above Judgment dated 22nd November, 2006 passed in Civil Misc. Writ Petition No. 38341 of 2003.
We have heard Shri R.K. Ojha, learned counsel for the petitioners/applicants in the aforementioned Review/Modification Application, and perused the record.
Shri R.K. Ojha submits that the averments made in paragraph 15 of the Counter Affidavit of Km. Gyatri, Deputy Director of Education referred to in the abovequoted paragraphs of the Judgment and Order dated 22nd November, 2006 passed in Civil Misc. Writ Petition No. 38341 of 2003 were not correct as vacancy in the Plains Cadre of 1999 batch was available, and the petitioners were entitled to be considered in respect of the said vacancy.
Shri R.K. Ojha has referred to an Office Memorandum dated 12.5.2003 annexed as Annexure 4 to the Affidavit filed in support of the Review/Modification Application. The averments in regard to the said Letter dated 12.5.2003 have been made in paragraph 8 of the Affidavit filed in support of the Review/Modification Application.
It is submitted by Shri R.K. Ojha, learned counsel for the petitioners/applicants that in view of the said Office Memorandum dated 12.5.2003, the averments made in the Counter Affidavit of Km. Gyatri referred to above were not correct, and the Judgement and Order dated 22nd November, 2006 passed in Civil Misc. Writ Petition No. 48184 of 2004 as also the Judgment and Order dated 22nd November, 2006 passed in Civil Misc. Writ Petition No. 38341 of 2003 are liable to be reviewed and setaside.
We have considered the submissions made by Shri R.K. Ojha, learned counsel for the petitioners/applicants.
As is evident from the abovequoted paragraphs of the Judgment and Order dated 22nd November, 2006 passed in Civil Misc. Writ Petition No. 38341 of 2003, Rejoinder Affidavit was filed on behalf of the petitioners/applicants in reply to the Counter Affidavit of Km. Gyatri, Deputy Director of Education. The Division Bench in its Judgment and Order has observed that "This paragraph 15 of the counter affidavit is met with a very vague denial in the rejoinder affidavit and it is not stated as to whether any of the vacancies in the erstwhile Plains Cadre for which selection had been made remained unfilled due to nonjoining of the selected candidates or for other similar reason, because of which the petitioners can possibly be treated as candidates of a waiting list and, therefore, granted appointment".
It is, thus, evident that the averments made in paragraph 15 of the Counter Affidavit of Km. Gyatri were not specifically denied by the petitioners/applicants in their Rejoinder Affidavit nor did the petitioners/applicants in their Rejoinder Affidavit give relevant material particulars showing the existence of vacancies in the erstwhile Plains Cadre.
The documents, namely, Office Memorandum dated 12.5.2003, which is being relied upon now on behalf of the petitioners/applicants to assert that the averments made in paragraph 15 of the Counter Affidavit of Km. Gyatri, Deputy Director of Education, was evidently in existence prior to the Judgment and Order dated 22nd November, 2006, It has not been stated in paragraph 8 of the Affidavit filed in support of the Review/Modification Application that the said document, namely, Office Memorandum dated 12.5.2003 was discovered by the petitioners/applicants subsequently and the same, after the exercise of due diligence, was not within their knowledge or could not be produced by them at the time when the Judgment and Order dated 22nd November, 2006 was made. Therefore, the said document dated 12th May, 2003 cannot be made a ground for review of the Judgment and Order dated 22nd November, 2006 by the petitioners/applicants.
Even otherwise, it is well settled that the Court while dealing with a Review Petition cannot act as an Appellate Court and consider the merits of the judgment sought to be reviewed. A Review Petition cannot be an Appeal in disguise.
Reference in this regard may be made to the following decisions:
1.Lal Mohammad Vs. S.D.O., Bareilly and another, 1959 ALJ 223.
2.Smt. Savitri Devi Vs. Lal Chand (dead) & others, 2004 (55) ALR 690 (paragraph 45).
In view of the above legal position, the correctness or otherwise of the Judgment and Order dated 22nd November, 2006 passed in Civil Misc. Writ Petition No. 48184 of 2004 and the Judgment and Order dated 22nd November, 2006 passed in Civil Misc. Writ Petition No. 38341 of 2003, cannot be gone into in a Review Petition. In case, the petitioners/applicants were aggrieved by the said Judgment and Order on merits, it was open to them to seek appropriate relief before the higher court.
In view of the above discussion, we are of the opinion that the Review/Modification Application filed by the petitioners/applicants lacks merits, and the same is liable to be dismissed.
The Review/Modification Application is accordingly dismissed.