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2018 Supreme(Cal) 784
IN THE HIGH COURT OF CALCUTTA
SAMAPTI CHATTERJEE, SUBRATA TALUKDAR, JJ.
Debabrata Bera - Appellant
Vs.
State Of West Bengal and Others - Respondent
C.A.N. No. 6132 of 2015; Review No. 51 of 2015; Appeal From Order No. 981 of 2015
Decided on : 27-11-2018
Advocate Appeared:
Md Yamin Ali, Adv., Md Arif Ali, Adv., Amit Prakash Lahiri, Adv., Chittaranjan Ghosh, Adv.
The error contemplated to be reviewed must be an error apparent on the face of the record and, not an error which has to be searched. The Court also emphasized the principles relating to Review as pronounced by the Supreme Court in various judgments.
Headnote:
Review Application - Court's Power of Review - Order 47 Rule 1 of the Code of Civil Procedure - In Re: Samir Kumar Naskar vs. Director of School Education and Ors., (2006) 1 Cal LT 134 (HC), In Re: M.C. Ghatak vs. Union of India in RVW Nos. 001 and 002 of 2014 arising out of WPCT Nos. 271 and 272 of 2013, In Re: BCCI and another vs. Netaji Cricket Club and Others reported in, (2005) 4 SCC 741 - Order 47 Rule 1 (1) of the Code of Civil Procedure - Tamil Nadu Terminated Full Time Temporary Employees Associatin Vs S.K. Roy, Chairman, Life Insurance Corporation of India & Another, (2016) 9 SCC 366 - Kamlesh Verma Vs Mayawati, (2013) 8 SCC 320
Fact of the Case:
The review applicant sought review of the order dated 14th of January, 2015 passed in the appeal, i.e. F.M.A. 981 of 2014 with C.A.N. No. 8968 of 2014, by a Hon’ble Division Bench of this Court. The applicant argued that the School in issue did not enjoy a Staff Pattern till 1990, and the Hon’ble Appellate Bench was misguided by the order of the Director of School Education (DSE). The State Counsel contended that the grounds being now taken in the RVW were never earlier taken at any stage by the review applicant.
Finding of the Court:
The Court dismissed the review application, stating that the mistake alleged to have crept into the order of the Hon’ble Division Bench dated 14th January, 2015 requires, if at all, a complete reassessment of findings from the source, commencing with the order of the DSE. The Court emphasized that the error contemplated to be reviewed must be an error apparent on the face of the record and, not an error which has to be searched.
Issues: The issues revolved around the alleged mistake in the order of the Hon’ble Division Bench dated 14th January, 2015, and the grounds being now taken in the RVW which were never earlier taken at any stage by the review applicant.
Ratio Decidendi: The Court emphasized that the error contemplated to be reviewed must be an error apparent on the face of the record and, not an error which has to be searched. The Court also highlighted the principles relating to Review as pronounced by the Supreme Court in various judgments.
Final Decision: The review merits no further or other consideration. RVW 15 of 2015 stands accordingly dismissed. There will be, however, no order as to costs.
SUBRATA TALUKDAR, J.
1. In this Review Application (for short the review or RVW), the writ petitioner/ appellant/ review applicant (for short only the applicant), seeks review of the order dated 14th of January, 2015 passed in the appeal, i.e. F.M.A. 981 of 2014 with C.A.N. No. 8968 of 2014, by a Hon’ble Division Bench of this Court.
2. The RVW has been assigned before this Bench.
3. It would be necessary for the present discussion to reproduce the order of 14th January, 2015 which, inter alia, reads as follows:-
“The school got upgraded in 1982 having a 4-class Junior High School. The appellant was an organizing staff. He was duly found by DLIT serving the school. The appellant’s case for regularization could not be considered earlier as his graduate qualification was in question but in another set of litigation where he ultimately succeeded, Learned Single Judge asked the Director of School Education to consider his prayer for regularization. Accordingly, the Director considered his case and rejected his claim by a well-reasoned order appearing at pages 130-134 of the application for stay.
The reasoned order would depict, one Haradhan Mandal was a pure science teacher engaged by the school in 1978 whereas the appellant also a pure science teacher, was engaged in 1970. In 1982 when the school was upgraded from 2-class Junior High School to 4-class Junior High School, there was one post for pure science that could be adjusted against Haradhan Mandal. It is true, the appellant’s case was necessary delayed because of his disputed graduate qualification. Even if we ignore the same today and go back to 1982, we are not in a position to accede to his prayer in the presence of Hardhan Mandal who is senior to him.
In such event, we are constrained to observe, the appellant’s prayer cannot be acceded to.
The appeal fails and is hereby dismissed along with the application without any order as to costs.
Certified copy of this order, if applied for, be supplied to the parties as early as possible.”
4. Mr. Ali, Learned Counsel appearing in support of the RVW, strongly relies on a judgment reported in In Re: Samir Kumar Naskar vs. Director of School Education and Ors., (2006) 1 Cal LT 134 (HC) being RVW No. 3106 of 2004. Mr. Ali argues that while considering a review application, the reviewing Court is entitled to correct its earlier mistakes. Relying on the provisions of Order 47 Rule 1 of the Code of Civil Procedure which enable a litigant to seek review of an order of Court, it is submitted that the correction of its mistakes by the Court sitting in review jurisdiction is an action well recognised in law.
5. Mr. Ali submits that in the facts of the present RVW, the Hon’ble Appellate Bench while passing its order dated 17th of January, 2015, did not, but, ought to have taken notice of an essential fact that the School in issue did not enjoy a Staff Pattern till 1990, in which year the School Education Department, Government of West Bengal, formulated a Staff Pattern for the School in issue upon its upgradation from Junior Class II to Junior Class IV level.
6. It is further submitted that the Hon’ble Appellate Bench was misguided by the order of the Director of School Education (DSE) as upheld by the Hon’ble Single Bench, inter alia, holding that since three teachers stood already absorbed in the School, there was no scope to appoint the petitioner.
7. Mr. Ali submits that in view of the back-to-back orders passed by the Hon’ble Single Bench as upheld by the Hon’ble Division Bench (supra), not only the seniority of the petitioner in service has been ignored but, the fundamental error committed by the DSE connected to recognising a Staff Pattern for the school in issue at a time when no such Staff Pattern either existed or applied under the Rules, the injustice suffered by the applicant has remained uncorrected.
8. Mr. Ali points out that it was incumbent upon the then Learned Counsel for the petitioner to apprise both the Hon’ble Single Be
