Union of India (UOI) vs Shekhar Suman

Anil Kumar, J.—This is an Application by the petitioner seeking review of order dated 12th January, 2010 u/s 114 of the Code of Civil Procedure. The petitioner/applicant has contended that there is an error apparent on the face of the record in holding that the Railway Administration was required to give job on completion of course to the respondent.

It is contended that the review of order dated 6th July, 2004 before the Central Administrative Tribunal was sought on the ground that the job could not have been given to the respondent as the scheme had already been elapsed and the petitioner/applicant had only undertaken to reimburse the money spent on the course to the respondent without giving any undertaking to give him the job after the completion of the course.

For seeking the review of order dated 12th January, 2010 and to contend that the petitioners are not liable to give the job to the respondent, the petitioners have also relied on the copy of review application filed in O.A No. 2431/2003 which was not filed by the petitioners earlier.

This cannot be disputed by the petitioners that despite discontinuation of the course, on the application for contempt filed by the respondent and an application for review filed by the petitioners, it was directed that the respondent will be allowed to complete the course from any institution and the petitioners were directed to reimburse the cost of the course. The respondent had to complete the course with a view to get a job and not as an educational qualification. The order passed on the application of the petitioners for review and the application of the respondent for Contempt of Court by the petitioners, therefore, was disposed of without taking any contempt proceedings against the petitioners as the respondent had to complete the course and the petitioner had to reimburse the cost and petitioner thereafter was liable to offer the job despite discontinuation of the scheme. The said order dated 6th July, 2004 was not challenged by the petitioners, directing petitioners to allow respondent to complete the vocational course in Railway commercial in any Railway zone and to give benefit of completion of Railway course was not challenged by the petitioners. The respondent had to complete the Railway course only with the object to get an appointment to the post of Commercial Clerk and in the circumstances the petitioners cannot deny their liability to offer the post of Commercial Clerk to the respondents. The order dated 2nd August, 2005, disposing of the review application and the contempt application filed by the respondent was also not challenged by the petitioners and in the circumstances the petitioners cannot contend that beside reimbursing the cost of completing the vocational course in Railway commercial, they do not have the liability to offer the post of Commercial Clerk to the respondent. The order dated 2nd August, 2005 was passed after the scheme was closed and, therefore, the petitioners cannot be allowed to take shelter again under the plea that the scheme was closed and therefore, despite lapse on their part they are not bound to offer post of Commercial Clerk to the respondent.

In any case in the facts and circumstances, there is no error apparent on the face of record nor on the basis of the copy of review application filed by the petitioner now, it can be accepted that there was error in the order dated 2nd August, 2005 disposing of the review application of the petitioners along with the application for Contempt by the respondent. The applicant in any case has not sought review of the said order. Whether the petitioners can seek review of order dated 12th January, 2010 on the basis of the application for review filed for the review of order dated 6th July, 2004 directing the petitioner to allow the respondent to complete the vocational course in any of the Railway zones and to give the benefit of completion of railway course and then to give an appointment to the post of commercial clerk.

The petitioners/applicant cannot seek review of order dated 12th January, 2010 on the basis of the application for review of order dated 6th July, 2004 which was disposed of by order dated 2nd August, 2005 as this application was not produced by the petitioners before the Tribunal in O.A No. 2684/2008 titled as Sh. Shekhar Suman v. Union of India which was disposed of by order dated 5th August, 2009. Against the said order, the Writ Petition No. 163/2010, Union of India v. Shekhar Suman was filed, which was also dismissed by order dated 12th January, 2010, review of which order is sought by the petitioner.

A review is permissible on the ground of discovery of new evidence only when such an evidence is relevant and of such character that if it had been produced earlier it might possibly have altered the judgment, however, it must be established that the petitioner had acted with due diligence and the existence of the new evidence which is sought to be relied on, was not within the knowledge of the applicant when the order was passed. The application for review now relied on by the petitioner was always within their knowledge and consequently no such ground has been disclosed in the application which will entitle the petitioner to review the order after consideration of the contents of the application in support of the plea for review. In any case even by considering the application, the order dated 2nd August, 2005 cannot be interpreted differently so as to mean that the liability of the petitioner was not to offer the post of Commercial Clerk to the respondent. The order dated 6th July, 2004 directing the petitioner to allow the respondent to complete the vocational course from any Railway zone was modified to the extent that the respondent could complete the vocational course from any institution as the scheme of the petitioner had expired and the petitioner was further directed to reimburse the expenses of the course. Except to his extent the order dated 6th July, 2004 was modified and other directions of the said order had not been modified by order dated 2nd August, 2005 nor the order dated 6th July, 2004 can now be modified on the basis of the contents of the application, now relied on by the petitioner.

The petitioner is not entitled for review of the order dated 12th January, 2010 because 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 Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma and Others, , the Supreme Court had held as under:

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.

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 suggesting the Court to exercise its power of review under Order 47 Rule 1 read with Section 114 of the Code of Civil Procedure. In exercise of review jurisdiction it is not permissible for an erroneous decision to be reheard and corrected, as jurisdiction under a review petition is for limited purpose and cannot be allowed to be an appeal in disguise. In any case the order dated 2nd August, 2005 disposing of the application of review and the contempt petition of the respondent whereby the respondent was allowed to complete his Railway commercial course from any institution which was to be reimbursed by the petitioner, the intention was that after the completion of the course which the respondent could not do on account of lapse on the part of the petitioner, the post of Commercial Clerk be offered to him. The order dated 6th July, 2004 was not completely reviewed by order dated 2nd August, 2005 and only change in the direction given to the petitioner was that the respondent was allowed to complete the vocational course from any of the institutions in place of any of the institutions of the petitioner. In the circumstances, there is no error apparent in the order dated 12th January, 2010 and in any case the alleged error on the basis of a new document cannot be corrected in the facts and circumstances.

The application for review is otherwise also barred by time as it has been filed on 17th March, 2010, 62 days after the order was passed and the time taken for certified copy was 6 days whereas the limitation for filing the review is 30 days.

In the entirety of facts and circumstances, there are no grounds to allow the application for review of order dated 12th January, 2010. The application in the facts and circumstances is without any merit and it is, therefore, dismissed. However, at the request of learned Counsel for the petitioner four weeks time more is granted to the petitioner to comply with the orders of the Tribunal to offer the appointment to the post of commercial clerk to the respondent.