Kamlesh Kumar Mishra v. Guru Ghasi Das Vishwavidyalaya & Ors.

SB: Hon'ble Shri Satish K. AgnihotrJLJ, Present: Petitioner in person. Shri Rajendra Tiwari, Senior Advocate with Shri Rajkumar Tripathi, Shri Amrito Das, Advocates for the respondents. ORAL ORDER (Passed on 12U1 day of February, 2009)

The petitioner seeks review ofthe order dated 6.2.2006 passed in W.P. No. 2964/1991 (Dr. Kamlesh Kumar Mishra v. Gum Ghasidas Vishwavidyalaya & Others), on the following grounds: "1. The petitioner/applicant prefen-ed tlie petition for quashing of appointment ofrespondent N0. 3 and for a direction to respondent No. 1 to appoint the petitioner as per the advertisement, Annexure P-5. The main grounds raised by the petitioner were that respondent no. 3 was not disqualified for appointment to the post of lecturer as she was not having Ph.D Degree or research experience of two years on the date of appoiatment, whereas the petitioner was having them.

The contention raised on behalfofthe respondentNo. 3 was that the advertisement was not of 15th May, 1986, but was of8 February, 1988, in which it was mentioned that the eligibility for the lecturer was as per the UGC norms. According to Respondent No. appointment to the post of lecturer as Master's Degree with 55% marks and good academic record. laid down the qualifications the UGC norms 3, '^,. such, adopted revised pay the norais with regard to is pertinent to mention here that'.the scale of pay in the 3. It advertisement was mentioned as Rs. 700-1600 and not that ofRs. 2200-4000. As essential qualifications for the appointment on the post of lecturer continued to be a Doctorate Degree/research experience for two years.

It would be relevant to mention here that the University i.e. 1 did not produce records of the Selection Respondent N0. Committee in order to indicate as to what were the essential qualifications for the post oflecturer at the time ofinterview ofthe petitioner as well as respondent no. 3. As such adverse inference ought to have been drawn against the respondents.

This Hon'ble Court in para -11 ofthe order has held that before the advertisement dated 8.2.1988 the State Goveriunent includini respondent University recommended by Mehrotra Committee, whereas the records indicate that the recommendations of Mehrotra Coiiunittee were, as a matter of fact, not applied in the respondent University as is amply clear from the advertisement dated 8.2.88, as the pay scale oflecturer is mentioned as Rs. 700-1600 in the said advertisement.

In para 6 of the order this Hon'ble Court has been pleased to draw a comparative chart of the respective qualifications of the petitioner and the respondent no. 3. The case ofthe petitioner was that the respondent no. 3 was not even qualified to participate in therefore, she ought not have been the selection process and, appointed and the petitioner being the only candidate having requisite essential qualifications as on the date of application on the basis ofthe fact that he had research experience ofmore than 2 years on the date of advertisement was qualified and even before the interview he was awarded the Degree of Ph.D. Therefore, he was the only qualified candidate to be appomted as lecturer.

That all these facts do not fmd place in the order dated 6.2.2006 and on account ofthese, the order dated 6.2.2006 deserves to be reviewed. " The brief facts, in nutshell, are that the review petitioner/writ petitioner challenged the appointiTient of respondent No. 3 on the post of Lecturer, Political Science, respondeat-University, pursuant advertisement dated 8.2.1988. This Court, after having considered the vvrit petition from all aspects and after hearing the parties, came to the conclusion as under: possessing Ph.D/M.Phil degree "Hence, an essential qualification for grant of increments and better pay scale, not the essential required qualification for appointment to the post of Lecturer. Admittedly, the petitioner and the Respondent No. 3 had essential qualification at the time of making application i.e. before 7.3.1988 for appointment to the post of Lecturer but i'a:«iSfc.

7.. ."^ ^, %.- the Respondent No. 3 had better academic records as she Uas 78% marks in higher secondary school examination with 82.5 % marks in the concerned subject, 63.5% marks in graduation with 70% marks in the concerned subject and 65.3% marks in post graduation, when the petitioner had less than 50 marks in science subject in higher secondary school examination, 57% marks in Science subject in graduation and 62% marks in post graduation. The respondent No. 3 had better research work than the petitioner. The selection comiTiittee, it appears, has gone through the entire academic records of both the candidates before selecting the Respondent No. the post of appointment. There is no reason to interfere with the selection process and the results thereafter made by the experts in the 3 Having heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto, is evident that the petitioner has not pointed out any manifest error on record and further has not brought any new fact which could not be produced by the petitioner earlier inspite of due diligent efforts.

It is a trite law that review proceedings have to be strictly confined to the scope and ambit of Order 47 Rule 1 ofthe Code of Civil Procedure, 1908. (See S.R.Chavan v. Cement Corporation of India and others and Kanhaiya Lal Mehar v. High Court of Chhattisgarh). Principle of law is well settled by several judicial pronouncements of the Hon'ble Supreme Court in the case of Smt. Meera Bhanjan Vs. Smt. Nirmala Kumar Choudhary , Lily Thomas, etc. Vs. Union oflndia and others , Ajit Kumar Rath Vs. State of Orissa and others , Government ofT.N. and others Vs. M.Ananchu Asari and other.s . In the matter of Kerla State Electricity Board v. Hitech Electrothermics & Hydrpower Ltd. and others , the Supreme Court observed as under: "10. This Court has referred to several documents on record and also considered the documentary evidence brought on record. This Court '(2008)1 CGLJ519 2 (2007) 2 CGLJ 326 'AIR1995SC455 4AIR2000SC 5AIR2000SC85 ' 7 (2005) 2 SCC 332 (2005)63cc 651 1650 J'a.t^! .rf;:S6.. 1l ;y;iiiS?!S !| ,.^4.!!i.»i?pai \.'^- •^,. on a consideration of the evidence ori.rebord concluded that the respondent had been denied power supply by the Board in appropriate tune which prevented the respondent from starting the commercial production by 31-12-1996.

This is a fmding of fact recorded by fhis Court on the basis of appreciation of evideace produced before the Court. In a review petition it is not open to this Court to reappreciate the evidence and reach a different conclusion, even ifthat is possible. Leamed counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be pen-nitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence records a finding of fact and reaches a produced, conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise.

" the court Applying the well settled principles of review to the facts of the case, the petitioner is seeking opportunity to argue the entire case afresh under the garb of review petition, which is not permissible and tenable in law. This review petition is in the nature of appeal which cannot be considered and decided by this Court. Thus, the review petition is devoid of merit and deserves to be and is accordingly dismissed. ;- Sd/- Satish K. Agnihotri Judge Amit