The High Court
Case Details
- 1 - IN THE HIGH COURT OF JHARKHAND AT RANCHI Civil Review No.5 of 2022 ---- 1. Prerna, aged about 40 years, daughter of Late Lalan Prasad, resident of Qtr. No.E.O/80, Block No.7, Janta Nagar, PTPS, Patratu, P.O. and P.S. Patratu, District Ramgarh (Jharkhand). 2. Amar Kumar, aged about 41 years, son of late Parash Nath Sharma, resident of Kusai Colony, Qr. No. F/111, Doranda, P.O. & P.S. Doranda, District Ranchi. 3. Hemant Kumar Choubey, aged about 48 years, son of late Subhash Choubey, resident of Kusai Colony, Qr. No.F/99, Doranda, P.O. & P.S. Doranda, District Ranchi. … … Respondents/Review petitioners Versus 1. Jharkhand State Electricity Board, through its Chairman, Jharkhand State Electricity Board, Engineering Building, HEC, Dhurwa, P.O. and P.S. Dhurwa, District Ranchi (Jharkhand). 2. The Chairman, Jharkhand State Electricity Board (now Jharkhand Urja Vikas Nigam Limited), Engineering Building, HEC, Dhurwa, P.O. and P.S. Dhurwa, District Ranchi (Jharkhand). 3. The Secretary, Jharkhand State Electricity Board (now Jharkhand Urja Vikas Nigam Limited), Engineering Building, HEC, Dhurwa, P.O. and P.S. Dhurwa, District Ranchi (Jharkhand). 4. The Director, Personnel, Jharkhand State Electricity Board (now Jharkhand Urja Vikas Nigam Limited), Engineering Building, HEC, Dhurwa, P.O. and P.S. Dhurwa, District Ranchi (Jharkhand). 5. The Joint Secretary, Jharkhand State Electricity Board (now Jharkhand Urja Vikas Nigam Limited), Engineering Building, HEC, Dhurwa, P.O. and P.S. Dhurwa, District Ranchi (Jharkhand). … … Appellants/Opposite Parties 6. Ranjeet Kumar, son of late Rabindra Lal Karan, resident of C-105, Narayan Tower, Mahuwa Toli, near Gas Godown Namkum, P.O. & P.S. Namkum, District Ranchi. Pradeep Kumar Chatterjee, son of late Panchanan Chatterjee, resident of Kusai Colony, Qr. No. F/110, P.O. & P.S. Doranda, District Ranchi. 7. 8. Rajesh Kumar Singh, son of late Harakh Narayan Singh, resident of Kusai Colony, Qr. No. F/110, Doranda, P.O. & P.S. Doranda, District Ranchi. - 2 - 9. Pawan Kumar Tiwary, son of late Radha Kant Tiwary, resident of 33/11 KV Power Sub Station, Ratu, P.O. & P.S. Ratu, District Ranchi. 10. Ram Prakash Raj Sinku, son of late Shailesh Kumar Raj Sinku, C/o Sanjay Ming, Bara Ghagra, near Shanti Rani School, Doranda, P.O. & P.S. Doranda, District Ranchi. 11. Kashi Nath Kumhar, son of late Suken Kumhar, resident of Qr. No.F/2, Grid Sub Station Colony, Adityapur near Sudha Dairy, P.O. & P.S. Gamharia, District Seraikella Kharsawan. … … Respondents/Opposite Parties With Civil Review No.6 of 2022 ---- 1. Ram Prakash Raj Sinku, aged about 37 years, son of Late Shailesh Kumar Raj Sinku, C/o Sanjay Ming, Bara Ghagra, Near Shanti Rani School, Doranda, Post Doranda, Police Station Doranda, District Ranchi. 2. Pawan Kumar Tiwary, aged about 34 years, son of Late Radha Kant Tiwary, Resident of 33/11 KV, Power Sub- Station, Ratu, Post Ratu, Police Station Ratu, District Ranchi. … … Appellant Nos. 7, 6/Petitioners Versus 1. Jharkhand State Electricity Board (now Jharkhand Urja Vikas Nigam Limited), through its Chairman, Jharkhand State Electricity Board, Engineering Building, HEC, Dhurwa, Post Dhurwa, Police Station Dhurwa, District Ranchi (Jharkhand). 2. The Chairman, Jharkhand State Electricity Board (now Jharkhand Urja Vikas Nigam Limited), Engineering Building, HEC, Dhurwa, Post Dhurwa, Police Station Dhurwa, District Ranchi (Jharkhand). 3. The Secretary, Jharkhand State Electricity Board, (now Jharkhand Urja Vikas Nigam Limited), Engineering Building, HEC, Dhurwa, Post Dhurwa, Police Station Dhurwa, District Ranchi (Jharkhand). 4. The Director, Personnel, Jharkhand State Electricity Board (now Jharkhand Urja Vikas Nigam Limited), Engineering Building, HEC, Dhurwa, Post Dhurwa, Police Station Dhurwa, District Ranchi (Jharkhand). 5. The Joint Secretary (IV), Jharkhand State Electricity Board, (now Jharkhand Urja Vikas Nigam Limited), Engineering Building, HEC, Dhurwa, Post Dhurwa, Police Station - 3 - Dhurwa, District Ranchi (Jharkhand). 6. Manoj Kumar, Son of Late Jag Narayan Rai, resident of Jag Narayan Bhawan, Road No. 3, Prem Nagar, P.O. Hatia, P.S. Jagarnathpur, District-Ranchi. 7. Sohrai Kachhap, Son of Late Bandhu Kacchap, resident of Bara Ghagra (Nichay Toli), Doranda P.O. and P.S. Doranda, District-Ranchi. 8. Ajay Kumar Jha, Son of Late Sudhir Jha, resident of J.S.E.B. Colony near Shiv Mandir, Kokar, P.O. and P.S. Kokar, District Ranchi. 9. Hemant Kumar, Son of Late Ram Bilas Sah, resident of Qr. No.E/79, Road No. 12, Patratu, P.O. and P.S. Patratu, District Ramgarh. 10. Subhash Rawani, Son of Late Modi Rawani, resident of Patel Nagar, Road No.6B, P.O. - Hatia, P.S. - Jagarnathpur, District Ranchi.
Legal Reasoning
11. Ranjeet Kumar Gupta, Son of Sri Balram Prasad Gupta, resident of Qr. No.B/100, Sector-II H.E.C., P.O. and P.S. Jagarnathpur, Dhurwa, District- Ranchi. 12. Rishikesh Son of Late Sudama Singh, Resident of behind Dr. Shyam Homeo Clinic, Purulia Road, Old Lowadih, P.O. and P.S. Namkum, District- Ranchi. … … Respondents/Opposite Parties 13. Prerna, daughter of Late Lalan Prasad, Resident of Qr. No.E.O/80, Block No.7, Janta Nagar, P.T.P.S., Patratu, Post Patratu, Police Station Patraty, District Ramgarh (Jharkhand). 14. Amar Kumar, Son of Late Parash Nath Sharma, Resident of Kusai Colony, Qr. No. F/111, Doranda, Post Doranda, Police Station Doranda, District Ranchi. 15. Ranjeet Kumar, Son of Late Rabindra Lal Karan, resident of C-105, Narayan Tower, Mahuwa Toli, Near Gas Godown Namkum, Post Namkum, Police Station Namkum, District Ranchi. 16. Rajesh Kumar Singh, aged about 36 years, son of Late Harakh Narayan Singh, Resident of Kusai Colony, Qr. No. F/110, Doranda, P.O. and P.S.- Doranda, District- Ranchi. 17. Hemant Kumar Choubey, Son of Late Subhash Choubey, resident of Kusai Colony, Qr. No.F/99, Doranda, Post Doranda, Police Station Doranda, District Ranchi. 18. Kashi Nath Kumhar, aged about 35 years, Son of Late Suken Kumhar, Resident of Qr. No.F/2, Grid Sub-Station Colony, Adityapur near Sudha Dairy, P.O. and P.S. Gamharia, District Seraikella Kharsawan. - 4 - 19. Pradeep Kumar Chatterjee, aged about 48 years, S/o Late Panchanan Chatterjee, R/o Kusai Colony, Qr. No. F/110, P.O. + P.S. Doranda, Ranchi, Jharkhand. … … Proforma Respondents/Opposite Parties CORAM : HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD ------- For the Petitioners For the Respondents ------ : Mrs. Ritu Kumar, Advocate Mr. Indrajit Sinha, Advocate : Mr. Sachin Kumar, Advocate -------- Order No.06/Dated 7th August, 2023 Per Sujit Narayan Prasad, J. I.A. No.4366 of 2023 in Civil Review No.05/2022 This interlocutory application has been preferred under Section 5 of the Limitation Act for condoning the delay of 136 days in preferring Civil Review No.05 of 2022. 2. 3. Heard learned counsel for the parties. Having regard to the averments made in the application and submissions made on behalf of the review petitioners, we are of the view that the review petitioners were prevented from sufficient cause in filing the review within the period of limitation. As such, the delay of 136 days in preferring the instant review petition is hereby condoned. 4. I.A. No. 4366 of 2023 stands allowed. Civil Review No.5 of 2022 with Civil Review No.6 of 2022 5. Both the review petitions have been heard together
Decision
and are being disposed of by this common order since the order under review is a common order passed by the Division Bench of this Court in intra-court appeal being L.P.A. No.512 of 2018 - 5 - with L.P.A. No.647 of 2018 disposed of on 22.12.2021. 6. The brief facts of the case which are required to be enumerated reads as under :- 7. The writ petitioners were appointed on Class IV posts in Jharkhand State Electricity Board (hereinafter to be referred to as J.S.E.B.), now Jharkhand Urja Vikas Nigam Limited (hereinafter to be referred to as JUVNL). The JUVNL came out with a Standing Order No. No.812 dated 07.01.1999 providing therein the process of appointment on non-technical Class-III posts through internal advertisement. The JUVNL decided to fill up the vacant posts of non-technical Class-III post vide Resolution No.7305 dated 02.12.1998 against the sanctioned strength through internal advertisement in pursuance to the decision of the Apex Board and the percentage of vacancies in non-technical Class-III posts would be filled up by the departmental candidates through selection as shown against each post. 8. The Director, Personnel, J.S.E.B. (now JUVNL) issued a letter being letter No.1341 dated 25.06.2008 for appointment on the post of Junior Accounts Clerk, Lower Division Assistant and Routine Clerks and other posts through internal process who are having the qualification of Matriculation and above; and minimum educational qualification for Junior Accounts Clerk and Lower Division Assistant is Graduate (Science/Arts/Commerce) and for Routine Clerk, it is - 6 - Matriculation. It has further been stated that application from interested persons having requisite qualification should be forwarded to the office of Director, Personnel by 31.08.2008 in prescribed format enclosed with the letter. 9. Subsequently, vide letter No.144 dated 19.01.2009 it has been notified that the candidates who have applied for Correspondence Clerk/Junior Accounts Clerk, if interested, they may also apply for appointment on the post of Lower Division Assistant. 10. Thereafter, the writ petitioners, claiming themselves to be eligible, applied in prescribed format for the posts of Junior Accounts Clerk, Lower Division Assistant and Routine Clerk. In the examination they had appeared and after being declared successful in the result published on 15.02.2009, they were issued the Offer of Appointment and accordingly they joined on the respective posts at the place and started working but the J.S.E.B. cancelled the order of appointment vide order No. 860 dated 07.05.2009 whereby implementation of different orders by which the persons appointed on the post of Junior Accounts Clerk, Lower Division Assistant and Routine Clerks including the petitioners, without assigning any reason. 11. The Association made due representation protesting against such decision of the Board/Nigam but to no effect and, therefore, the aggrieved appointees approached this Court by filing writ petitions being W.P.(S) Nos. 1248 of 2010 and 1269 - 7 - of 2010. 12. The respondents-appellants, JUVNL appeared and contested the case by filing counter affidavit taking the plea that – (i) The posts have been filled up without following the circular dated 07.01.1999 as the posts have been filled up beyond the sanctioned strength earmarked to be filled up from amongst the in-service candidates and thereby encroaching the quota of the post to be filled up through direct recruitment by inviting applications from open market. (ii) As per the advertisement, two years’ experience was required to be possessed by one or the other candidates for their appointment through promotion. (iii) The entire appointment is without any approval by the Board and even the posts have been filled up beyond the sanctioned strength of the posts of entire cadre irrespective of the vacancies to be filled up by way of promotion or through direct recruitment. (iv) Immediately after the aforesaid filling up of the posts through promotion, an enquiry committee was constituted which has submitted its report alleging serious irregularities/illegalities in such appointment and, therefore, the filling up of the post by way of promotion has been held to be illegal and accordingly, they have been reverted to their original posts. - 8 - 13. Learned Single Judge, after hearing the learned counsel for the parties, has quashed the impugned decision of the authority pertaining to their reversion from service with a direction to come out with a fresh order of appointment which was the subject matter of the appeals. 14. The aforesaid order was challenged by filing Letters Patent Appeals wherein the order passed by the learned Single Judge has been quashed and set aside, which has been sought to be reviewed in these review petitions. 15. The ground has been taken as would appear from the review petitions that the consideration which has been made while dismissing the intra-court appeal that the petitioners do not fulfill the requirement of having two years’ experience, the same is incorrect finding since the petitioners do fulfill the requirement of having two years’ experience as in-service candidate. 16. This Court, before dealing with the aforesaid ground to be a just ground for review of the order passed by this Court, deems it fit and proper to refer the position of law so far as the power of review is concerned. 17. The Hon’ble Apex Court has considered the width and scope of power of review in Moran Mar Basselios Catholicos and Anr. Vrs. Most Rev. Mar Poulose Athanasius and Ors., reported in AIR 1954 SC 526 particularly at paragraph-32 which read as hereunder:- - 9 - “32. Before going into the merits of the case it is as well to bear in mind the scope of the application for review which has given rise to the present appeal. It is needless to emphasis that the scope of an application for review is much more restricted than that of an appeal. Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order XL VII, Rule I of our Code of Civil Procedure, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified, grounds, namely (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason.” 18. In the case of Shivdev Singh and Others v. State of Punjab and Others, reported in AIR 1963 SC 1909, in a review petition filed under Order 47, Rule 1 C.P.C., the Supreme Court held that the power of review of its own order by the High Court inheres in every Court of plenary jurisdiction, to prevent miscarriage of justice or to correct grave and palpable errors committed by it. In doing so, the Court was only upholding the principles of natural justice. This decision indicates that the Court’s power of review while exercising jurisdiction under Article 226 of the Constitution extends to correct all errors to prevent miscarriage of justice. The judgment rendered by Hon’ble Apex Court in the case of Sow. Chandra Kanta and Anr. Vrs. Sheikh Habib, reported in AIR 1975 SC 1500 wherein it has been held that:- “A review of a judgment is a serious step and reluctant resort to - 10 - 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, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient.” 19. It is the settled proposition as has been settled by Hon’ble Apex Court in the judgment discussed hereinabove that the scope of review can only be done in case of discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the decree was passed, mistake or error apparent on the face of the record and for any other sufficient reason and in the light of this legal position the fact of these review petitions need to be appreciated. 20. It is thus evident that the power of review can only be exercised on the following conditions :- (i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the decree was passed, (ii) Mistake or error apparent on the face of the record and (iii) For any other sufficient reason. 21. This Court is now proceeding to deal with as to - 11 - whether the ground which has been agitated can be said to be a ground of review as per the principle to be followed by the review court while reviewing the order. 22. The first ground has been taken that the writ petitioners are holding the experience but as would appear from the submission made by learned counsel appearing for the review petitioners, that the condition about possessing of two years’ experience by in-service candidate is not the requirement under the circular dated 07.01.1999 and merely on the ground that such condition is available in the advertisement, does not debar the writ petitioners from consideration on the principle that in case of any discrepancy in between the rules of recruitment or the advertisement, rules of recruitment will prevail and thereby even though such experience is not available the appointment made to the post of Routine Clerk cannot held to be illegal. For ready reference, the submission made on behalf of the writ petitioners in the appeal which has been recorded at paragraph-9 of the order under review is being referred and quoted as under :- “9. In response, Mr. Indrajit Sinha, learned counsel appearing for the writ petitioners-respondents, submits that such condition about possessing of two years’ experience by in- service candidates is not the requirement under the circular dated 07.01.1999 and merely on the ground that such condition is available in the advertisement does not debar the writ petitioners from consideration on the principle that in case of any discrepancy in between the Rules of Recruitment or the - 12 - advertisement, the Rule of Recruitment will prevail and thereby even though such experience is not available, the appointment made to the post of Routine Clerk cannot be held to be illegal.” 23. It further appears from the order sought to be reviewed as under paragraph 11(ii) wherein the issue was framed that the condition although not stipulated in the rules of recruitment but stipulated in the advertisement pertaining to possessing of two years’ experience before consideration to the post in question, if not fulfilled, such appointment can be held to be illegal? 24. This Court has proceeded to answer the aforesaid issue by considering the terms and conditions of the advertisement which was annexed as Annexure-2 to the Memorandum of appeal whereby and whereunder the mandatory condition was provided to have the minimum educational eligibility condition which was mandatorily to be possessed by the in-service candidates with the further stipulation that such candidates who have completed two years’ experience as on 30th September, 2008 will only be eligible to make application in the internal recruitment process. 25. The writ petitioners have applied and after having been selected, offer of appointment was issued and they have started discharging the duty. But the Board, after finding violation of the rules of recruitment, as per the standing order dated 07.01.1999, set up a committee as to whether any illegality has been committed in the matter of appointment or - 13 - not. The committee has found out that so far as it relates to the possessing of the experience certificate is concerned, this Court while dealing with the issue has dealt with the issue regarding the nature of appointment said to be illegal or not, as per the argument advanced on behalf of the review petitioners, the appellant in the intra-court appeal, but we had not considered basing upon the submission of Mr. Sinha wherein he has admitted the fact that the appointees are required to possess two years’ working experience as per condition stipulated in the advertisement which is mandatory for the candidate even for the post of Routine Clerk. 26. He has defended such appointment on the ground that the condition about possessing two years’ experience was not available in the rules of recruitment as contained in the standing order dated 07.01.1999 but such argument was rejected on the ground that while making application which was in pursuant to the condition of advertisement, the candidates have seen such conditions with naked eyes and thereafter made their applications and since they were not possessing the required eligibility criteria, as per advertisement, their candidature ought to have been rejected at the threshold on the ground of non-fulfilment of condition as has been stipulated in the advertisement. 27. It is, thus, evident that the issue of possessing the experience certificate has well been considered while dealing - 14 - with the intra-court appeal, as would appear from paragraph No.13 of the order sought to be reviewed. 28. The ground has been taken that all the appellants fulfill the eligibility and experience as per the advertisement and circular in force and the other ground regarding the propriety of the enquiry report, basis of the decision taken by the Administrative Authority are concerned, as would appear from the order sought to be reviewed that the aforesaid aspect of the matter has also been considered in detail. 29. This Court, after going through the grounds/argument advanced on behalf of the review petitioners for review of the order passed by this Court in L.P.A. No.512 of 2018 and L.P.A. No.647 of 2018, is of the view that the issue which has already been dealt with and decided has now again been sought to be reopened by taking the same points which were already argued and considered by this Court in intra-court appeal. 30. It is, thus, evident that it is not a case where the review petitioners have come on the ground of a new fact said to have not brought into the notice of the Court at the time of hearing of intra-court appeal in spite of due diligence or it is not a case where the error is apparent on the face of the record, rather, the case is on the basis of material which has already been considered for its re-consideration. 31. This Court, on the basis of the position of law as - 15 - referred hereinabove, wherein the parameters have been fixed to exercise the power of review, i.e., (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason, but has not found any of the conditions for review. As such, this Court is of the considered view that the instant case is not coming under the fold so as to exercise the power of review. 32. This Court, on the basis of the discussions made hereinabove, so far as the fact and law is concerned, is of the view that it is not a fit case where the power of review can be exercised. 33. Accordingly, both the Review Petitions (Civil Review No.5 of 2022 and Civil Review No.6 of 2022) stand dismissed. 34. Pending interlocutory applications also stand disposed of. (Sanjaya Kumar Mishra, C.J.) (Sujit Narayan Prasad, J.) Birendra/A.F.R.