Suresh Toppo v. The State of Jharkhand

Judgment

I.A. No.6567 of 2023

1. The instant interlocutory application has been filed for condonation of delay of 237 days in filing the review petition.

2. Mr. M.I. Khan, learned counsel for the review petitioner along with Mr. D.K. Malityar, learned counsel on record, has submitted that delay in filing the instant review petition may be condoned in view of the reason assigned as under paragraph-5 to the delay condonation application.

3. It has been contended that the reason beyond the control of the 1 review petitioner, the review could not have been filed due to suffering said to be financial in nature, since, the petitioner is an unemployed person and his father had died in the year, 1994. It has been stated that as of now, the petitioner is totally dependent upon his brother who is Railway employee and as such, he is having difficulty in arranging the money for the purpose of filing of delay condonation application, therefore, the delay has been caused.

4. Although, the copy of the review petition has been served upon the State way back on 26.07.2023 but no reply on Oath has been filed.

5. However, learned counsel for the respondent-State as also learned counsel for the respondent-JPSC have jointly submitted that they are orally opposing the delay condonation application.

6. We have heard the learned counsel for the parties and gone through the pleading made in the instant interlocutory application.

7. We are conscious that if the sufficient cause is available then only the delay in filing the review petition is to be condoned, reference in this regard may be made to the judgment rendered by the Hon’ble Apex Court in the case of Basawaraj & Anr. Vrs. Spl. Land Acquisition Officer, [(2013) 14 SCC 81], wherein, it has been held by the Hon‟ble Apex Court at paragraphs 9 to 15 hereunder: “9. Sufficient cause is the cause for which the defendant could not be blamed for his absence. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, the word “sufficient” embraces no more than that which provides a platitude, which when the act done suffices to accomplish the 2 purpose intended in the facts and circumstances existing in a case, duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, “sufficient cause” means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted diligently” or “remained inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (See Manindra Land and Building Corpn. Ltd. v. Bhutnath Banerjee [AIR 1964 SC 1336], Mata Din v. A. Narayanan [(1969) 2 SCC 770], Parimal v. Veena[(2011) 3 SCC 545] and Maniben Devraj Shah v. Municipal Corpn. of Brihan Mumbai [(2012) 5 SCC 157].)

10. In Arjun Singh v. Mohindra Kumar [AIR 1964 SC 993] this Court explained the difference between a “good cause” and a “sufficient cause” and observed that every “sufficient cause” is a good cause and vice versa. However, if any difference exists it can only be that the requirement of good cause is complied with on a lesser degree of proof than that of “sufficient cause”.

11. The expression “sufficient cause” should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible.

12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. “A result flowing from a statutory provision is never an evil. A 3 court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.” The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means “the law is hard but it is the law”, stands attracted in such a situation. It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute.

13. The statute of limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale. According to Halsbury's Laws of England, Vol. 28, p. 266: “605. Policy of the Limitation Acts.—The courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant claims have

more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence.” An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches. (See Popat and Kotecha Property v. SBI Staff Assn. [(2005) 7 SCC 510] , Rajender Singh v. Santa Singh [(1973) 2 SCC 705 : AIR 1973 SC 2537] and Pundlik Jalam Patil v. Jalgaon Medium Project [(2008) 17 SCC 448]

14. In P. Ramachandra Rao v. State of Karnataka [(2002) 4 SCC 578 ] this Court held that judicially engrafting principles of limitation amounts to legislating and would fly in the face of law laid down by the Constitution Bench in Abdul Rehman Antulay v. R.S. Nayak [(1992) 1 SCC 225].

15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond 4 limitation, the applicant has to explain the court as to what was the “sufficient cause” which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such aninordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature.”

8. Thus, it is evident that the sufficient cause means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted deliberately” or “remained inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The Court has to examine whether the mistake is bona fide or was merely a device to cover the ulterior purpose as has been 5 held in Manindra Land and Building Corporation Ltd. Vrs. Bhutnath Banerjee & Ors., AIR 1964 SC 1336, Lala Matadin Vrs. A. Narayanan, (1969) 2 SCC 770, Parimal Vrs. Veena @ Bharti, (2011) 3 SCC 545 and Maniben Devraj Shah Vrs. Municipal Corporation of Brihan Mumbai, (2012) 5 SCC 157.

9. It has further been held in the aforesaid judgments that the expression “sufficient cause” should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible, reference in this regard may be made to the judgment rendered by the Hon”ble Apex Court in Ram Nath Sao @ Ram Nath Sahu & Ors. Vrs. Gobardhan Sao & Ors., (2002) 3 SCC 195, wherein, at paragraph-12, it has been held as hereunder:- “12. Thus it becomes plain that the expression “sufficient cause” within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. In a particular case whether explanation furnished would constitute “sufficient cause” or not will be dependent upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and 6 refusal, an exception, more so when no negligence or inaction or want of bona fides can beimputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner. However, by taking a pedantic and hypertechnical view of the matter the explanation furnished should not be rejected when stakes are high and/orarguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.”

10. In the light of aforesaid settled legal proposition, we have considered the submission advanced on behalf of the learned counsel for the review petitioner, based upon the pleading made at paragraph-5 to the instant application and taking into consideration the aforesaid fact, are of the view that the delay in filing the review petition is to be condoned. The reason also is that in stead of dismissing the instant review petition on the ground of limitation, it would be just and proper to decide the review petition on merit.

11. Accordingly, the delay of 237 days in filing the instant review petition is hereby, condoned.

12. In view thereof, I.A. No.6567 of 2023 stands allowed. Civil Review No.94 of 2022 Prayer

13. The instant review petition has been filed for review of the order dated 13.01.2022 passed in LPA No.415 of 2020, by which, the 7 Letters Patent Appeal filed against the order dated 05.02.2018 passed by the learned Single Judge in W.P.(S) Nos. 60 of 2016 along with 82 of 2016 have been declined to be interfered with.

14. The brief facts of the case as per the pleading made in the review petition, are required to be enumerated, which read as under:- (i) The review petitioner made an application for consideration of his candidature in pursuance to the advertisement published by the Jharkhand Public Service Commission, hereinafter referred as the “Commission”, being Advertisement No.03/2015 for the post of Jharkhand Agriculture Service Class-II (Basic Category) (Assistant Agriculture Director /Sub Divisional Agriculture Officer and equivalent post). In the advertisement, the cut-off date has been provided as on 01.08.2014 as age limit of different categories of candidates. The petitioner has crossed the upper age limit as per the cut-off date 01.08.2014 provided in the advertisement. (ii) The review petitioner, therefore, has raised his grievance for relaxation of the cut-off date so that he would get an opportunity to appear in the examination. The ground was taken before the learned Single Judge that the advertisement has been issued after a long gap of 25 years and, as such, no appointment, on the said post, has been made either in the erstwhile State of Bihar or even after creation of the State of Jharkhand since the year 1989. (iii) In the backdrop of the aforesaid fact, the day when the advertisement being Advertisement No.03/2015 was issued, the petitioner had crossed his maximum age and as such, for no fault of his own, he has been deprived from participating in the process 8 of selection. The ground has been taken on behalf of the Commission to the effect that the petitioner has crossed the age limit as per the cut-off date given in the advertisement, therefore, he cannot be permitted to claim for relaxation of the age. (iv) As per the submission of learned counsel for the Commission, which has been recorded by the learned writ Court, the upper age limit on the basis of the cut-off date was

01.08.2014, but by way of corrigendum, the same has been relaxed to 01.08.2010 and even then, the petitioner has not come under the fold of consideration so far as the age criteria is concerned.

15. It is evident from the factual aspect that the writ petitioner had applied, in pursuance to the advertisement published by the JPSC being Advertisement No.03 of 2015 invited for the purpose of consideration of candidature of Assistant Agriculture Director/ Sub Divisional Agriculture Officer and equivalent post.

16. The petitioner, being the candidate belonging to the Scheduled Tribe Category has made an application said to be in order but his candidature has not been considered on the ground that he has not fall under the age criteria since he has crossed upper age limit of 40 years prescribed for schedule Tribe category.

17. The grievance of the writ petitioner before the learned writ court was that the advertisement has been issued after a long gap of 25 years and, as such, no appointment, on the said post, has been made either in the erstwhile State of Bihar or even after 9 creation of the State of Jharkhand since the year 1989.

18. In the backdrop of the aforesaid fact, the day when the advertisement being Advertisement No.03/2015 was issued, the writ petitioner had crossed his maximum age and as such, for no fault of his own, he has been deprived from participating in the process of selection.

19. The ground has been taken on behalf of the Commission to the effect that the petitioner has crossed the age limit as per the cut- off date given in the advertisement, therefore, he cannot be permitted to claim for relaxation of the age. According to submission of the Commission which has been recorded by the learned Writ Court, the upper age limit on the basis of the cut-off date was 01.08.2014, but by way of corrigendum, the same has been relaxed to 01.08.2010 and even then the writ petitioner has not come under the fold of consideration so far as the age criteria is concerned.

20. Learned Single Judge, has declined to accept the plea of the writ petitioner on the ground that the fixing the age criteria or cut-off, being the sole prerogative of the State/Employer and as such, the Court of Law, is having no domain to interfere with the decision taken by way of policy decision under the jurisdiction conferred under Article 226 of the Constitution of India.

21. The said order passed by the writ Court has been carried by filing Letters Patent Appeal being LPA. No.415 of 2020. The said Letters Patent Appeal has also been dismissed, against which, the present 10 review petition has been filed. Submission of the learned counsel appearing for the review petitioner:

22. The learned counsel appearing for the review petitioner has submitted that reducing the cut-off date for age from 01.08.2014 to

01.08.2010 cannot be said to be justifiable decision, reason being that, if it can be reduced for five years why not further, so that, the candidates like the present petitioner may come under the consideration zone so far as the issue of age is concerned.

23. However, in course of argument, it has been submitted by the learned counsel for the review petitioner that the review petitioner even not coming under the fold of age criteria on the basis of reduction in cut-off date for age from 01.08.2014 to 01.08.2010 to be counted the age of 40 years, then why not, it will reduce further that petitioner/review petitioner may come under consideration zone on the basis of the eligibility as per the age criteria because the advertisement has been floated after a long gap of 25 years.

24. Learned counsel, based upon the aforesaid grounds, has submitted that the present review petition has been filed on the basis of the aforesaid count and as such, it is a fit case where the present review petition needs to be allowed. Submission of the learned AC to GP-I for the respondent-State and learned counsel for the respondent-JPSC:

25. Per contra, Mr. Navneet Toppo, learned AC to GP-I for the respondent-State as also Mr. Prince Kumar, learned counsel for the 11 respondent-JPSC have jointly submitted by raising the issue of power of review, which is to be exercised by the High Court under Article 226 of the Constitution of India.

26. It has been contended that there is no error said to be error apparent on the face of the order passed by the Letters Patent Appeal Court or even all the issues/contention which have been raised on behalf of the petitioner before the learned writ court having been taken into consideration by the Letters Patent Appeal Court.

27. It has further been contended that even after shifting the cut-off date relating to age criteria i.e. from 01.08.2014 to 01.08.2010, the writ petitioner is not coming under the fold of age criteria since he even has crossed the age of 40 years on the said date.

28. It has been contended that all the contentions of the petitioner has been taken care of by the Letters Patent Appeal Court and further no new fact has not been discovered by the petitioner which ought to be placed before the Letters Patent Appeal Court rather the contention which has been raised herein by the writ petitioner/appellant /review petitioner has been considered and answered by the Letters Patent Appeal Court, as such no ground is available for the writ petitioner/review petitioner to review the order dated 13.01.2022 passed in LPA No. 415 of 2020.

29. Learned counsel for the respondent-State as also the respondent- JPSC, based upon the aforesaid grounds, has submitted that it is, therefore, not a fit case where the power of review is to be exercised. 12 Analysis

30. We have heard the learned counsel for the parties, gone through the finding recorded by the learned Writ Court as also the Letters Patent Appeal Court and the pleading made in the present review petition along with other records as available herein.

31. This Court before appreciation of the arguments advanced on behalf of the parties with respect to the issue as to whether the power of review is to be exercised in the factual background of the present case needs to refer the underlying principle to invoke the power of review.

32. The Hon’ble Apex Court in the case Moran Mar Basselios Catholicos and Anr. vs. Most Rev. Mar Poulose Athanasius and Ors., [AIR 1954 SC 526], particularly, at paragraph-32 has observed as under: “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.”

33. Likewise, in the case of Col. Avatar Singh Sekhon Vrs. Union of India (1980) Supp. SCC 562, the Hon’ble Apex Court 13 observed that a review of an earlier order cannot be done unless the Court is satisfied that the material error which is manifest on the face of the order, would result in miscarriage of justice or undermine its soundness. The observations made are as under: “12. A review is not a routine procedure. Here we resolved to hear Shri Kapil at length to remove any feeling that the party has been hurt without being heard. But we cannot review our earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. In Sow Chandra Kante v. Sheikh Habib 1975 1 SCC 674 this Court observed: ‘A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. ….. The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality.”

34. Further, the Hon’ble Apex Court in the case of Kamlesh Verma v. Mayawati, reported in (2013) 8 SCC 320 has observed that review proceedings have to be strictly confined to the scope and ambit of Order XLVII Rule 1, CPC. As long as the point sought to be raised in the review application has already been dealt with and answered, parties are not entitled to challenge the impugned judgment only because an alternative view is possible. The principles for exercising review jurisdiction were succinctly summarized as under: “20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:

20.1. When the review will be maintainable: (i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; (ii) Mistake or error apparent on the face of the record; 14 (iii) Any other sufficient reason. The words “any other sufficient reason” has been interpreted in Chajju Ram v. Neki, and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasiusto mean “a reason sufficient on grounds at least analogous to those specified in the rule”. The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd.,.

20.2. When the review will not be maintainable:— (i) A repetition of old and overruled argument is not enough to reopen concluded adjudications. (ii) Minor mistakes of inconsequential import. (iii) Review proceedings cannot be equated with the original hearing of the case. (iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. (v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error. (vi) The mere possibility of two views on the subject cannot be a ground for review. (vii) The error apparent on the face of the record should not be an error which has to be fished out and searched. (viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition. (ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.”

35. It is evident from the aforesaid judgments that the power of review is to be exercised if there is any error occurred on the face of the order or the factual aspect could not have been brought to the notice of this Court in spite of the due diligence having been taken in the matter of making available the factual aspect of the relevant documents. 15

36. The position of law is well settled, as would appear from the reference of the judgment made hereinabove that the review of the judgment can only be made if the new fact has come which could not have been brought to the notice of the Court in spite of the due diligence, as has been held by the Hon’ble Apex Court in Moran Mar Basselios Catholicos and Anr. v. Most Rev. Mar Poulose (supra).

37. It is evident from the aforesaid judgment that the power of review can be exercised only the two folds ground, i.e., (i) if there is any error apparent on the face of the order; or (ii) the fact which could not have been brought to the notice of the court in spite of the due diligence having been taken by the concerned party.

38. We are now proceeding to examine the factual aspect vis-à-vis the ground which has been taken for the purpose of filing this review petition in the touchstone of the legal proposition, as has been settled by the Hon’ble Apex Court in the judgment referred hereinabove.

39. So far as the first ground is concerned, i.e., the fixation of the age from 01.08.2014 by reducing it to 01.08.2010, the same has been said to be arbitrary exercise of the State, reason being that, the petitioner is not coming under the fold of age criteria.

40. This Court has gone through the order passed by the learned writ Court and the Letters Patent Appeal Court, the order which is being sought to be reviewed and has found that after the advertisement having been issued by the competent authority of the State 16 Government, the said corrigendum as per submission of the learned counsel for the JPSC has been issued with respect to consideration of the parameter of age which has been reduced from 01.08.2014 to 01.08.2010 for the purpose of counting the age of Scheduled Tribe candidate to fall within the age criteria of 40 years.

41. Learned counsel appearing for the petitioner has made out a case questioning the decision of the State to be arbitrary, reason being that, he has not come under the zone of consideration so far as the age is concerned even by reducing the age from 01.08.2014 to

01.08.2010, as a cut-off date for the purpose of counting the maximum age of 40 years.

42. From the order dated 13.01.2022, which has been sought to be reviewed, it is evident that the Letters Patent Appeal Court has taken care of settled legal proposition of law that the policy decision of the State Government is least to be interfered by the High Court in exercise of its power under Article 226 of the Constitution of India unless it is arbitrary and suffers from malice or any other vice.

43. So far as the ground taken that the State Government, in reducing the cut-off date from 01.08.2014 to 01.08.2010 for the purpose of counting the age to be not more than 40 years, the same has been said to be arbitrary but the learned writ Court has given its finding that such decision, being a policy decision of the State, cannot be said to be arbitrary merely on the ground that the candidate like the review petitioner is not coming under the fold of age criteria.

44. The aforesaid aspect of the matter has been 17 consideration by the Letters Patent Appeal Court and upheld the order passed by the learned Single Judge by giving specific finding on the basis of the judgment rendered by the Hon’ble Apex Court in the case of K. Nagaraj & Ors. Vrs. State of Andhra Pradesh and Anr., [(1985) 1 SCC 523, State of Jharkhand & Ors. Vrs. Ashok Kumar Dangi & Ors., [(2011) 13 SCC 383], Census Commissioner and Ors. Vrs. R. Krishnamurthy, [(2015) 2 SCC 796], Delhi Subordinate Services Selection Board Vrs. Praveen Kumar, [2016 SCC OnLine SC 1549] and Chandigarh Administration through the Director Public Instructions (Colleges), Chandigarh Vrs. Usha Kheterpal Waie & Ors., [(2011) 9 SCC 645].

45. Further, law is well settled that a review petition, has a limited purpose and cannot be allowed to be “an appeal in disguise”, as has been settled by the Hon’ble Apex Court in the case of Parsion Devi v. Sumitri Devi (1997) 8 SCC 715, for ready reference the relevant paragraph of the aforesaid judgment is quoted as under: “Under Order 47 Rule 1CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. 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 justifying the court to exercise its power of review under Order 47 Rule 1CPC. In exercise of the jurisdiction under Order 47 Rule 1CPCit is not permissible for an erroneous decision to be “reheard and corrected”. A review petition, it must be remembered has a limited purpose and cannot be allowed to be “an appeal in disguise.” 18

46. Similarly, in S. Murali Sundaram Versus Jothibai Kannan and Others 2023 SCC OnLine SC 185 the Hon’ble Apex Court observed as under:

15. While considering the aforesaid issue two decisions of this Court on Order 47 Rule 1 read with Section 114 CPC are required to be referred to? In the case of Perry Kansagra (supra) this Court has observed that while exercising the review jurisdiction in an application under Order 47 Rule 1 read with Section 114 CPC, the Review Court does not sit in appeal over its own order. It is observed that a rehearing of the matter is impermissible in law. It is further observed that review is not appeal in disguise. It is observed that power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. It is further observed that it is wholly unjustified and exhibits a tendency to rewrite a judgment by which the controversy has been finally decided. After considering catena of decisions on exercise of review powers and principles relating to exercise of review jurisdiction under Order 47 Rule 1 CPC this Court had summed upon as under: “(i) Review proceedings are not by way of appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1. (ii) Power of review may be exercised when some mistake or error apparent on the fact of record is found. But error on the face of record must be such an error which must strike one on mere looking at the record and would not require any long- drawn process of reasoning on the points where there may conceivably by two opinions. (iii) Power of review may not be exercised on the ground that the decision was erroneous on merits. (iv) Power of review can also be exercised for any sufficient reason which is wide enough include a misconception of fact or law by a court or even an advocate. (v) An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit.”

47. Review can also be sought when the order discloses some error 19 apparent on the face of record or on grounds analogous thereto. These are all grounds which find mention in various judicial pronouncements right from the earliest time as well as in the Rules of Order 47 of the Civil Procedure Code as permissible grounds of review.

48. The term “mistake or error apparent” by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC.

49. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. 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 justifying the Court to exercise its power of review under Order 47 Rule 1 CPC.

50. In the very recent judgment in the case of Sanjay Kumar Agarwal Vrs. State Tax Officer (1) & Anr., (supra) the Hon’ble Apex Court while interpreting the provision of Order 47 Rule 1 of the C.P.C. the proposition has been laid down to entertain the review, as has been held at paragraph 16.1 to 16.7 which reads as under:- 20 “16.1. A judgment is open to review inter alia if there is a mistake or an error apparent on the face of the record.

16.2. A judgment pronounced by the court is final, and departure that principle justified only when circumstances of a substantial and compelling character make it necessary to do so.

16.3. 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 record e justifying the court to exercise its power of review.

16.4. In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be "reheard and corrected".

16.5. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise".

16.6. Under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided.

16.7. An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.—"

51. Thus, on the basis of aforesaid discussion it is evident that while power of review may be inherent in the High Court to review its own order passed in a writ petition, the same has to be exercised on well-recognized and established grounds on which judicial orders are reviewed. For example, the power may be exercised on the discovery of some new and important matter or evidence which was not within the knowledge of the parties seeking review despite due exercise of diligence when the order was made.

52. The term “mistake or error apparent” by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and 21 elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of invoking the jurisdiction of review. Further 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 justifying the Court to exercise its power of review.

53. Now rediverting to the order dated 13.01.2022, it is evident from the order passed by this Court conferred under the Letters Patent Appellate Jurisdiction that the fact which is being raised herein has duly been considered although it has been answered against the review petitioner.

54. The point if would have been agitated but having not been considered by not recording any finding, then, it could be understood that the same be a ground for review.

55. It needs to refer herein that the consideration always means the “active application of mind” and not if the decision has been taken in favour of the litigant concerned, as has been held by Hon’ble Apex Court in the case of Chairman, Life Insurance Corporation of India and Others v. A. Masilamani reported in (2013) 6 SCC 530 wherein at paragraph 19 the Hon’ble Apex Court has held which reads hereunder as :- “19. The word “consider” is of great significance. The dictionary meaning of the same is, “to think over”, “to regard as”, or “deem to be”. Hence, there is a clear connotation to the effect that 22 there must be active application of mind. In other words, the term “consider” postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order. (Vide Indian Oil Corpn. Ltd. v. Santosh Kumar [(2006) 11 SCC 147] and Bhikhubhai Vithlabhai Patel v. State of Gujarat [(2008) 4 SCC] ).”

56. Learned counsel for the review petitioner has submitted that since the consideration is not in favour of the litigant concerned, the review petitioner, therefore, the present review petition.

57. But we are not in agreement with such ground, reason being that, consideration is there and based upon the principle where the High Court is not interfered in the policy decision of the State Government, if such policy decision is not arbitrary or suffers from prejudice or malice.

58. The another ground has been taken that so far as the age is concerned even if it has been reduced from 01.08.2014 to

01.08.2010 then why not further, so that, the candidates like the present petitioner may come under the consideration zone so far as the issue of age is concerned.

59. However, this Court has even considered the aforesaid ground as to whether the review petitioner is coming under the zone of consideration taking his date of birth 20.01.1970 as was disclosed by him based upon his matriculation certificate wherein the date of birth of the writ petitioner is shown to be 20.01.1970 and as per the 23 advertisement maximum age is to be given 40 years for one or the other candidates belonging to the Scheduled Tribes and even on

01.08.2010 the age of review petitioner is shown to be crossed to the age of 40 years, i.e., he was having the age of 40 years 06 months approximately.

60. This Court has put a pin-pointed query to the learned counsel for the review petitioner that as to whether the aforesaid ground was agitated by the writ petitioner before the learned Single Judge.

61. Mr. Khan, learned arguing counsel, in all fairness, has submitted after getting instruction from the learned counsel on record that the same was not the issue having been raised before the learned Single Judge.

62. The law is well settled that if the ground is available and if not raised before the original court in its inception and the order has been accepted on the basis of the ground agitated and carried to the appellate forum, then, it is not available for the party concerned to make out a new case that too seeking review of the order passed by the Court of Law.

63. Although, the principle of res-judicata as provided under Section 11 of the CPC is not applicable in the writ jurisdiction and as such, keeping the spirit of Section 11(iv), i.e., the applicability of the principle of constructive res-judicata, if the ground was available but has not been agitated, the party concerned will seize to raise the point in the further proceeding that too in the review.

64. The principle of review has already been dealt with in the judgment rendered by the Hon’ble Apex Court as referred above that merely 24 on the basis of error apparent on the face of the order or the fact could not have been brought to the notice in spite of the due diligence of the party concerned, then, only the power of review is to be exercised and not on the basis of the new ground which was available but having not been taken at the time of filing of the litigation at its inception.

65. This Court, considering the aforesaid reason as also on the basis of the discussions made hereinabove, is of the view that the instant review petition deserves to be dismissed.

66. Accordingly, the instant review petition is dismissed.

67. Pending Interlocutory application(s), if any, stands disposed of. (Sujit Narayan Prasad, J.) (Pradeep Kumar Srivastava, J.) Rohit/-A.F.R. 25