Sh. Sutesh Kumar vs Union of India and Another

Anil Kumar, J.

CM No.581/2012

Allowed subject to all just exceptions.

Application is disposed of.

CM No.580/2012 & RP No.29/2012

By these applications the petitioner has sought the condonation of the delay of three years and 301 days in filing the application for the review of the order dated 29th November, 2007 dismissing the writ petition of the petitioner, on the ground that the said order is liable to be reviewed on account of the alleged relaxation of age and other conditions being granted for the recruitment of drivers.

The petitioner had sought the quashing of order No.DV-1/93-CC-IV dated 31st May, 1993, whereby the services of the petitioner who had joined as a constable driver with the CRPF in September, 1991 were terminated and the appeal against the order of termination was also dismissed. The writ petition of the petitioner was dismissed and it was pertinently made note of that the services of 24 persons including the petitioner were terminated on the ground that the petitioner''s initial recruitment was irregular and contrary to the rules. The recruitment of the petitioner was found to be contrary to the rules as he was over age by 3 years 4 months and 10 days and his chest measurement was not according to the minimum standards prescribed for appointment as driver.

While dismissing the writ petition the original records were produced and perused by the Court. On behalf of petitioner it had been contended that there was a relaxation of 5 years for constable drivers, however, no specific assertion was made by the petitioner in his rejoinder nor was anything produced to show that the petitioner was entitled for any relaxation.

By order dated 29th November, 2007 the writ petition was dismissed not only on the ground that the petitioner was over age but also on the ground that the chest measurement of the petitioner at the time of recruitment was not as per the minimum eligibility conditions since the petitioner''s chest measurement was 78-79 cms and no relaxation could be granted for the same.

The petitioner has now sought the review of the order dated 29th November, 2007 by relying on the telegram dated 11th April, 1991 issued by the DD (Pers) to CENTPOL NW zone which is allegedly regarding the grant of relaxation to similarly situated persons as the petitioner. Review is also sought on the ground that the Inspector General of Police, Northern Sector, CRPF, R.K. Puram, New Delhi had also issued similar letters providing relaxation in the rules for the recruitment of Constable drivers and Constable fitters and that even the Director General, CRPF has issued a letter dated 3rd June, 1992 pertaining to the special recruitment drive for recruitment of CT (DVR) and CT (FTR) from the open market by providing the relaxation in the rules for recruitment. The petitioner has also asserted that the other persons who were appointed under the special recruitment drive by the relaxation of rules along with the petitioner and juniors to the petitioners have also been retained in the service, whereas the services of the petitioner had been terminated without any rhyme or reason.

The petitioner has sought the condonation of 3 years and 301 days on the ground that the petitioner was not having with him these letters stipulating the relaxation and condonation of rules earlier and that it was only after visiting the offices of the respondents several times that he was able to obtain the letters providing the relaxation in the second week of September, 2011, after which he immediately approached this Court to bring the same to its notice.

It is pertinent to note that even according to the allegations of the petitioner/applicant, the relaxation letters are dated 11th April, 1991 and 3rd June, 1992. While the petitioner had filed the writ petition dated 6th December, 1998 and the writ petition was disposed of only on 29th November, 2007. No cogent reason has been disclosed as to how the petitioner could not get the knowledge of these alleged letters at that time. Even after the dismissal of the writ petition on 29th November, 2007 nothing has been disclosed as to what efforts were made by the petitioner/applicant to obtain these letters except for making the bald averment that he had visited the offices of the respondents several times and that he had got this information only in September, 2011.

The learned counsel for the petitioner/applicant cannot dispute that the discovery of new evidence or material by itself is not sufficient to entitle a party for the review of a judgment, provided the applicant had acted with due diligence and that the existence of the evidence, which he has now discovered, was not within his knowledge. If it is found that the petitioner/applicant has not acted with due diligence then it is not open to the Court to admit the evidence on the ground of sufficient cause. The party seeking a review should prove strictly the diligence he claims to have exercised. In a review application, a party cannot be allowed to introduce fresh documents merely to supplement the evidence which might possibly have had some effect on the result.

This is no more res integra that discovery of new evidence or material by itself is not sufficient to entitle a party for review of a judgment. A review is permissible on the ground of discovery of new evidence only when such an evidence is relevant and of such a character that if it had been produced earlier it might possibly have altered the judgment, further, it must be established that the applicant had acted with due diligence and that the existence of the evidence, which he has now discovered, was not within his knowledge when the order was passed. If it is found that the petitioner has not acted with due diligence then it is not open to the Court to admit evidence on the ground of sufficient cause. The party seeking a review should prove strictly the diligence he claims to have exercised. In a review application a party cannot be allowed to introduce fresh documents merely to supplement evidence which might possibly have had some effect on the result.

So far as the power of review available to a court is concerned, in Ajit Kumar Rath Vs. State of Orissa and Others, the Court held thus that this power is not an absolute power and is hedged by the restriction indicated in Order 47 of the Code of Civil Procedure. Such power can be exercised on the application of a person, on the discovery of new and important matter or the evidence which, after the exercise of due diligence, was not within his knowledge or could not be reproduced by him at the time when the order was made. This power can also be exercised on account of some mistake or error apparent on the fact of the record or for any other sufficient reason. A review cannot be sought merely for fresh hearing or arguments or correction of an erroneous view taken earlier. The power of review can be exercised only for correction of a patent error of law or fact which stays in the face without any elaborate argument being needed for establishing it.

In Babboo alias Kalyandas and Others Vs. State of Madhya Pradesh, the Supreme Court 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 and palpable errors committed by it. But, there are definitive limits to be exercise of the power of review. The power of review may be exercised on the discovery of new and important matter of 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 merit.

Attempt of the petitioner/applicant is only to re-agitate the issues. The applicant has also not specifically explained as to how the letters pertaining to the relaxation could not be produced by him despite due diligence on his part when the writ petition was filed on 16th December, 1998 and at the time the Court had dismissed his writ petition only 29th November, 2007.

In the totality of facts and circumstances, this Court is not satisfied with the pleas raised by the petitioner that there is sufficient cause to condone the delay of 3 years and 301 days in filing the review application nor are there any cogent grounds for reviewing the order dated 29th November, 2007.

The applications are, therefore, dismissed.