JUDGMENT
1. We have heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Shashibind Kumar Srivastava for petitioners and learned Standing Counsel for respondents.
2. This is an application for review of the final judgement passed by us on 30th March, 2007 by which the writ petition was dismissed.
The present review application has been filed by the petitioners taking various grounds that the Court has not considered the various aspects of the matter which was argued before the Court and there is an apparent illegality in the judgement dated 30.3.2007. Before entering into the merits of the review application, the brief facts are to be seen which are necessary for this purpose. The prayer made in the writ petition was to regularise the services of the petitioners in accordance with the Regularisation Rules and further to treat the petitioners as regular and permanent lecturers in Government Colleges with all consequential benefits. The appointments of the petitioners were under a scheme of guest lecturer introduced by the State Government in view of the Government Order dated 22.7.1986. It is apparent from the record that the appointments of the petitioners were on the basis of lecture given by them that is on contract basis. A writ petition was filed by certain persons as Writ Petition No.4812 of 1988 and the same was allowed vide its order dated 10.10.1996 and the Government Order was quashed. In pursuance of the order dated 1.4.2004, the petitioners have been treated as ad hoc lecturers with effect from 10.10.1996. The State Government had issued a notification regularising 13 lecturers by order dated 16.4.2004 who according to the petitioners, were similarly situated but the petitioners have not been regularised on account of objections regarding their qualification as they were not having requisite minimum qualification specified on the date. The argument of Mr. Khare was that the petitioners were given appointments as guest lecturers as the petitioners were having the said qualification on the date when they were appointed as guest lecturers. Therefore, subsequently that cannot be a basis for denial of the claim to the petitioners for regularisation. Further submission was made by Mr. Khare that as the Government Order dated 20.7.1986 has already been quashed and by order dated 1.4.2004, the petitioners have been treated to be on ad hoc basis effective from 10.10.1996, therefore, rejection of the claim of the petitioners for regularisation is wholly illegal and if the qualification has been changed subsequently from the later date, this will not affect the petitioners as according to the Regularisation Rules on the initial date of appointment, the requisite qualification should have been possessed by the person concerned.
3. The respondents submitted that for the purposes of appointment of lecturers in Government College, the posts are to be filled by the Commission as per prescribed procedure. The minimum necessary qualifications for the post are to be determined by the University Grant Commission. On the basis of the scheme of the State Government the petitioners were engaged on the basis of payment of honorarium of Rs. 15/- per lecture. There was no age limit. It was further provided that volunteers should be invited only after July and to continue after annual examination in each academic session and they may be permitted to continue till joining by the regularly selected candidates. However, the Government Order was abolished by Government Order dated 11.7.1989.
4. We have considered all the arguments raised on behalf of Mr. Khare and had held that according to Rules, the requisite qualification for the post of appointment as lecturers, when they were initially given appointments, cannot be taken into consideration as on the date when the petitioners were being considered on ad hoc basis, the requisite qualification prescribed thereunder has to be there. As on the date when they were considered for adhoc appointments, they were not having requisite qualification prescribed therein, therefore, they cannot be treated for the purposes of regularisation in view of the Regularisation Rules.
5. Admittedly, on 10.10.2006, the petitioners were not having the requisite qualification which was prescribed for the purposes of ad-* hoc appointment. The Regularisation Rules clearly states that the persons who have been appointed on adhoc basis, if they possess the requisite qualification on that date, can be considered for regularisation in view of third amendment of Rules 2001. Admittedly, when the petitioners were given appointment either as a guest lecturer or on contract basis on a consolidated salary, the vacancies were not advertised according to the procedure laid down by the Apex Court. There was no age limit. Even the persons who were working somewhere else can also apply in view of the government order and the principal of the institution was made authority to give the appointment. There was no proper constitution of Selection Committee as provided under the Rules.
6. Considering all aspects of the matter which were raised by Mr. Khare this Court considering the Constitutional Bench Judgment of the Apex Court was pleased to dismiss the writ petition by its judgment and order dated 30.3.2007.
7. Now the same grounds which were argued by Mr. Khare are being assailed in the review application. It is well settled that review of a judgment and order can be entertained unless and until the ingredients of Order 47 Rule 1 is fulfilled. Order 47 Rule 1 deals with the power of review.
Section 114 read with Rule 47, Rule 1 C.P.C. Prescribes the limitations for entertaining a review petition. The same are: that the party filing the application for review has discovered a new and important matter or evidence after exercise of due diligence which was not within its knowledge or could not be produced by it at the time when the decree was passed; or order made or on account of some mistake or error apparent on the face of the record; or ‘for any other sufficient reason.
8. The aforesaid limitations are prescribed in a crystal clear language and before a party submits that it had discovered a new and important matter or evidence which could not be produced at the earlier stage, the condition precedent for entertaining the review would be to record the finding as to whether at the initial stage, the party has acted with due diligence. “Due” means just and proper in view of the facts and circumstances of the case. (Vide A.K. Gopalan v. State of Madras ).
9. Some mistake or error, if made ground for review, it must be apparent on the fact of the record and if a party files an application on the ground of ‘some other sufficient reason’, it has to satisfy that the said sufficient reason is analogous to the other conditions mentioned in the said rule i.e. discovery of new and important matter or evidence which it could not discover with due diligence or it was not within his knowledge, and thus, could not produce at the initial stage. Apparent error on the face of record has been explained to include failure to apply the law of limitation to the facts found by the Court or failure to consider a particular provision of a Statute or a part thereof or a statutory provision has been applied though it was not in operation. Review is permissible if there is an error of procedure apparent on the face of the record, e.g., the judgment is delivered without notice to the parties, or judgment does not effectively deal with or determine any important issue in the case though argued by the parties. There may be merely a smoke-line demarcating an error simplicitor from the error apparent on the face of record. But, there cannot be a ground for entertaining the review in the former case. “Sufficient reason” may include disposal of a case without proper notice to the party aggrieved. Thus, if a person comes and satisfies the Court that the matter has been heard without serving a notice upon him, review is maintainable for the “sufficient reason” though there may be no error apparent on the face of record.
10. The expression ‘any other sufficient reason’ contained on Order 47, Rule 1 of the Code means “sufficient reason” which is analogous to those specified immediately to it in the provision of Order 47, Rule 1 of the Code.
11. In Chhajju Ram v. Neki and Ors. AIR 1922 PC 112, it was held by the Privy Council that apology must be discovered between two grounds specified therein, namely; (i) discovery of new and important matter or evidence; and (ii) error apparent on the face of record before entertaining the review on any other sufficient ground. The same view has been reiterated in Debt Prasadand Ors. v. Khelawanand Ors. ; and Mohammad Hasan Khan v. Ahmad Hafiz Ahmad Ali Khan and Anr. AIR 1957 Nag 97.
12. In S. Nagraj and Ors. v. State of Kamataka and Anr. 1993 Supp(4) SCC 595, the Hon’ble Apex Court considered the scope of review and observed as under:
Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law, the courts and even the Statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice…. The expression, for any other sufficient reason’ in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to he sufficient ground to exercise the power.
13. The Court further held that the purpose of review is rectification of an order which stems from the fundamental principle that the justice is above all and it is exercised only to correct the error which has occurred by some accident, without any blame.
14. While deciding the said case, the Hon’ble Supreme Court placed reliance upon a large number of judgments, including in Raja Prithwi Chand Lal Chaudhury v. Sukhraj Rai and Ors. AIR 1941 FC 1; and Rajunder Narain Rae v. Bijai Govind Singh (1836) 1 MOO PC 117. The same view has been reiterated by the Hon’ble Apex Court in Oriental Insurance Co. Ltd. and Anr. v. Gokulprasad Maniklal Agarwal and Anr. .
15. A Full Bench of the Himachal Pradesh High Court, in The Nalagarh Dehati Co-operative Transport Society Ltd., Nalagarh v. Beli ham and Ors. , considered the scope of review and held that not considering an existing judgment of the Hon’ble Supreme Court may be a ground of review and for the same it placed reliance upon the judgments of the Privy Council in Rajah Kotagiri Venkata Subbamma Rao v. Rajah Vellanki Venkatrama Rao (1900) 27 IA 197 (PC), wherein it was held that the purpose of review, inter alia, is to correct an apparent error which should not have been there when the judgment was given. The Court also placed reliance upon the judgment of the Federal Court in Hari Shankar v. Amath Nash 1949 PC 106, wherein it was held as under:
…the error could not he one apparent on the fact of record or even analogous to it. When, however, the Court disposes of a case without adverting to or applying its mind to a provision of law which gives it jurisdiction to act in a particular way, that may amount to an error analogous to one apparent on the face of record sufficient to bring the case within the purview of Order 47 Rule 1, Civil Procedure Code.
16. In Thadikulangara Pylee’s son Pathrose v. Ayyazhiveeitil Lakshmi Amma’s son Kuttan and Ors. , the Kerala High Court considered a review application which was filed on the ground of subsequent judgment of the Court and dismissed the same observing as under:
If it is borne in mind that a judicial decision only declares and does not make or change the law, although it might correct previous erroneous views of the law, a review on the basis of subsequent binding authority would not be a review of a decree which, when it was made, was rightly-made, on the ground of the happening of a subsequent even.
17. While deciding the said case, the Court placed reliance upon the judgments of the Privy Council in Rajah Kotagiri Venkata Subbamma (supra); Chhajju Ram (supra); Bisheshwar Pratap Sahi and Anr. v. Parath Nath and Anr. AIR 1934 PC 213; and on judgments of the Hon’ble Supreme Court in A.C. Estates v. M/s Serajuddin & Co. ; and Moran Mar Basselies Catholicos and Anr. v. Most Rev. Mar Poulose Athanasius and Ors. AIR 1954 SC 526.
In Sow. Chandra Kanta and Anr. v. Sheik Habib, , the Hon’ble Apex Court dismissed a review application observing as under:
…thus, making it that a review proceeding virtually amounts to a rehearing. May be…a review thereof must be subject to the rules of the game and cannot he lightly entertained. A review of a judgment is a serious subject and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave of error is crept in earlier by judicial fallibility.
18. Similar view has been reiterated by the Hon’ble Supreme Court in Sajjan Singh v. State of Rajasthan ; G.L. Gupta v. D.N. Mehta ; Northern India Caterers’ (India ) Ltd. v. Lt. Governor of Delhi ; Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and Ors. ; and Green View Tea & Industries v. Collector, Golaghat .
19. Similarly, in Devaraju Pillai v. Sellayya Pillai , the Hon’ble Apex Court held that if a party is aggrieved of a judgment by a Court, the proper remedy for such party is to file an appeal against that judgment. A remedy by way of an application for review, is entirely misconceived and if a Court entertained the application for review then it has totally exceeded its jurisdiction in allowing the review merely because it takes a different view in construction of the document.
20. In Delhi Administration v. Gurdeep Singh Uban AIR 2000 SC 3737, the Hon’ble Apex Court deprecated the practice of filing review application observing that review, by no means, is an appeal in disguise and it cannot be entertained even if application has been filed for clarification, modification or review of the judgment and order finally passed for the reason that a party cannot be permitted to circumvent or bye-pass the procedure prescribed for hearing a review application. The Court also rejected the argument that review application should be entertained to do justice in the case, observing as under:
The words ‘justice’ and ‘injustice’, in our view, are sometimes loosely used and have different meanings to different persons, particularly to those arrayed on opposite sides…. Justice Cardozo said, ‘The Web is tangled and obscure, shot through with a multitude of shades and colours, the skeins irregular and broken. Nay hues that seems to be simple, are found, when analysed, to be complex and uncertain blend. Justice itself, which we are wont to appeal to as a test as well as an ideal, may mean different things to different minds and at different times. Attempts to objectify its standards or even to describe them, have never wholly succeeded.
21. The learned Counsel for the petitioners is not able to show by means of the present application of review that what is apparent illegality on the face of it and the things which are being argued by way of the present review petition, certain things were not in the knowledge of the petitioners when the matter was being decided.
22. In view of the aforesaid fact, however, the Courts are not competent to pass an order running counter to the statutory provisions. The Courts are meant to enforce the law and not to direct any person not to act in accordance with law.
23. In view of above fact, we find no illegality in the judgment and order dated 30th March, 2007 passed by this Court. The review application is devoid of merits and is hereby dismissed.
No order as to costs.