Kiran Chawla & Ors. v. UOI & Anr.

1. Whether reporters of Local papers may be allowed to see the judgment? YES

2. To be referred to the reporter or not? NO

3. Whether the judgment should be reported in the Digest?

NO ANIL KUMAR, J. * CM No. 16263/2011 This is an application seeking condonation of 105 days of delay in filing the review application. 2011:DHC:5000-DB The applicants have contended that against the order dated 2nd May, 2011, the petitioner had filed a special leave petition by diary NO. 25359/2011. After filing the special leave petition, the petitioners/applicants were advised to file a Review Petition before this Hon‟ble Court and this led to a delay of 105 days. Apparently, the application lacks any material particulars as no particulars have been given as to when the Special Leave Petition was filed by diary No. 25359/2011; when the petitioner felt it wise to file the review petition; and when was the advice given as well as other particulars. The application has been filed in a very casual manner without disclosing any cogent grounds which would make out a sufficient cause for condonation of delay. From the averments made in the application seeking condonation of delay of 105 days, which lacks in material particulars, the petitioners/applicants have failed to make out a sufficient cause for condoning the delay in filing the review application. The learned counsel for the petitioners/applicants has failed to show that the averments made will constitute sufficient cause and that the applicants are entitled for condonation of delay of 105 days in filing the review application in the present facts and circumstances and in law. Therefore, the application for condonation of delay is without any merit and thereby it is dismissed. Review Application No. 545/2011 and CM No. 16262/2011 The application of the petitioners/applicants seeking condonation of 105 days‟ delay in filing the review application has been dismissed, however, the merits of the review application are also considered by this Court after hearing the counsel for the applicants. The applicants have sought review of the order dated 2nd May, 2011 on the ground that there is an error apparent in holding that the petitioners were illegally appointed as they had not been appointed through the Direct Recruitment Examination conducted by the Staff Selection Commission(SSC) as required under the CSSS and the CSCS Rules, since according to the applicants the Department of Tourism has framed its own Recruitment Rules for the Grade „C‟ Post exercising powers conferred under the proviso to Article 309 of the Constitution. It is further submitted that under the Recruitment Rules of the Ministry of Tourism, there is no requirement of SSC examination qualified candidates so far as the appointment of Lower Division Clerks is concerned. Therefore, according to the Recruitment Rules for the post of Junior Stenographers, the Direct Recruitment Examination (conducted by SSC) qualified candidates are eligible for appointment but the same remained unavailable throughout before the petitioners were appointed on ad hoc basis. The other error apparent alleged by the petitioners/applicants is that the reliance could not be placed on the ratio of Pankaj Gupta (supra) relied on in the order dated 2nd May, 2011 since that case is distinguishable from the facts and circumstances of the present matter, inasmuch as in that case, the employees were appointed illegally without following the procedure prescribed under the law. In contradistinction, the petitioners/applicants were not appointed illegally or de hors the Recruitment Rules as the first category of petitioners, i.e. the Junior Stenographers, were requisitioned from the Employment Exchange in absence of any candidature from the SSC and therefore, the proviso to Rule 14(1) of the Central Secretariat Stenographers Services (CSSS) Rules, 1969 were invoked and vacancies were notified to the Employment Exchange. It is contended that when sufficient number of candidates are not available from the examination held by the SSC, then appointments could be made either provisionally or on regular basis as would be prescribed by DOPT. Regarding LDCs, it is contended that they were appointed according to the Recruitment Rules of the Department of Tourism by a notification of vacancies to the Employment Exchange and even if CSCS Rules are deemed to be applicable to the LDCs, even then, in case of dearth of qualified candidates from the SSC, the appointments are to be made under the proviso to Rule 12 (1) (b) of CSCS Rules. The applicants have also contended that inadvertently it could not be brought to the notice of the court that the respondent is a nonparticipating office with respect to SSC, as has been remarked by the then Under Secretary, Tourism. This cannot be disputed that the power of review is not an absolute power and is hedged by restrictions as indicated in Order 47 of the Code of Civil Procedure. 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 stares in the face without any elaborate arguments being needed for establishing it. The power of review can also be exercised on account of an error on the face of record or for any other sufficient reason. In Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma, (1979)4SCC389, the Supreme Court had held as under:- “……..It is true there is nothing in Article 226 of the Constitution to preclude a 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 the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or 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.” The attempt of the petitioners/applicants in the present review application is only to re-agitate the issues. In our opinion, no error much less an error apparent on the face of the record has been pointed out by the petitioners/applicants. The learned counsel for the petitioners has referred to the notification dated 15th January, 1990, notifying Rules regulating the method of recruitment to the post of Junior Stenographers in the Department of Tourism (Headquarter Establishment). The rules contemplate recruitment to the post of Junior Stenographers and the method of recruitment prescribed is direct recruitment through SSC on the basis of qualifying the examination to be held by SSC for departmental vacancies. The said method of recruitment also states that vacancies caused by the incumbents being away on transfer, on study leave or under any other circumstances for a duration of one year or more, shall be filled by transfer on deputation basis from officials of the Central Government holding analogous post on regular basis and possessing the qualifications prescribed for direct recruit. The petitioners, who were appointed as Junior Stenographers, had neither qualified the examination conducted by the SSC, nor were they appointed by transfer on deputation and also nor were they officials of the Central Govt. holding analogous post on regular basis. The Notification for the appointment was categorical that the appointments to the post of Junior Stenographers shall purely be on ad hoc basis against the regular vacancies which was reported to SSC from time to time during the period 1993-99. The Ministry of Tourism, from time to time, had reported vacancies to SSC as per Rules so that the process for appointment to the said post could be initiated and could be completed by SSC. Admittedly the petitioners were not appointed pursuant to any examinations conducted by SSC. The learned counsel for the petitioners/applicants has also referred to the notification dated 25th February, 1961 notifying the Recruitment to Class „III‟ Posts Rules, 1961 regarding Lower Division Clerk. In the Rules, the learned counsel has referred to “100% by direct recruitment”, which appears under the columns and rows of the recruitment rules and before the appended `Note‟, to contend that the recruitment is 100% by direct recruitment. However, the method of recruitment contemplated under the said recruitment rule for Lower Division Clerk is 25% by promotion on the basis of competitive examination, limited to Lower Division Clerks and Lower Division Clerks (Hindi) in the Department of Tourism (Headquarters), and 75% by promotion on the basis of seniority subject to the rejection of the unfit. These rules relied on and referred to by the learned counsel do not reflect any error apparent in the order dated 2nd May, 2011, rather, it is only an attempt of the petitioners/applicants to re-agitate the issues. No error, much less an error apparent on the face of the record, has been pointed out by the applicants. An error which is not evident and has to be inferred by a detailed process of reasoning can hardly be said to be an error apparent on the face of the record. This principle was reiterated by Supreme Court in the case of Lily Thomas etc. Vs. UOI and Ors., Manu/SC/0327/2000 with a clear caution that in the exercise of the power of review, Court may correct the mistake but cannot substitute its earlier view. The mere possibility of two views on the subject, if any, is not a ground for review. 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. The ground canvassed in the review petition that in absence of the sufficient number of candidates qualifying the SSC examination, they were requisitioned from the Employment Exchange by invoking the proviso to Rule 14(1) of the Central Secretariat Stenographers Services (CSSS) Rules, 1969 and, thereafter, vacancies were notified to the Employment Exchange and that when sufficient number of candidates are not available from an examination held by SSC, then appointments could be made either provisionally or on regular basis as may be prescribed by DOPT, had not been taken either in the writ petition or before the Tribunal. In any case, no such facts had been alleged that sufficient numbers of candidates were not available from the examination held by the SSC and therefore, the petitioners were appointed on regular basis as per the procedure prescribed by DOPT. The petitioners, in any case, were not appointed on regular basis which is apparent from their appointment letters. The appointment letters categorically incorporated that the appointment shall be purely on temporary basis and until further orders. Para 2 of some of the appointment letters, is as under:- “2. Their appointment will be purely on temporary basis and until further orders.” The petitioners/applicants had also submitted in the representations made by them that they were of the view that though they were appointed on ad-hoc basis, yet they would be regularized in due course as was done previously with other ad hoc employees. The petitioners/applicants, however, never represented that since sufficient number of candidates were not available after the examination conducted by SSC, therefore, they were appointed through the Employment Exchange and that consequently they could not be appointed on ad hoc basis but should have been appointed on regular basis. On perusal of the grounds in the writ petition and the grounds taken before the Tribunal, it is apparent that the above noted ground was not taken categorically on behalf of the petitioners nor was it canvassed by the petitioners and on the basis of the same, it cannot be held that there is any error apparent on the face of the order dated 2nd May, 2011. There is no averment that such a plea was taken by the counsel for the petitioners and was not adjudicated by the Court. The applicants are, therefore, not entitled to seek review of the order dated 2nd May, 2011 on the basis of the new plea, which was not taken before the Tribunal and before this Court and which was not canvassed before the passing of order dated 2nd May, 2011. The relevant facts for this new plea were not pleaded and consequently had not been replied to by the respondents. For the foregoing reasons, even on merits, this Court does not find any error apparent in the order dated 2nd May, 2011, or any error which is evident so as to entail exercise of the power of review by this Court. The application for review is without any merit and it is, therefore, dismissed. The CM No. 16262/2011 for stay is also disposed of as infructuous, in the facts and the circumstances, as the review application has been dismissed by this Court on account of delay in filing the same and on merits. ANIL KUMAR, J. SUDERSHAN KUMAR MISRA, J. SEPTEMBER 26, 2011. „rs‟