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1991 Supreme(All) 732
High Court of Allahabad
Anshuman Singh, J.
Udai Narain Rai
Vs.
State of U. P.
Civil Misc. Writ Petition No 2071 of 1989
Decided On : Sep 27, 1991
Advocate Appeared:
N.C.Rajvanshi, D.P.Singh, V.B.Singh
The High Court has inherent jurisdiction to review its order under Article 226 of the Constitution of India to prevent miscarriage of justice and correct grave and palpable errors committed by it.
Headnote:
REVIEW PETITION - U.P. POLICE PROMOTION - SELECTION COMMITTEE - MANDAMUS - REVIEW JURISDICTION - LIMITATION - ARTICLE 226 OF THE CONSTITUTION OF INDIA - SECTION 151 CPC - ORDER 47, RULE 1 CPC - SECTION 5 OF THE INDIAN LIMITATION ACT - POWER OF REVIEW - ERROR APPARENT ON THE FACE OF THE RECORD - MISTAKE OR ERROR - MERITS OF THE JUDGMENT - SUBSTITUTION OF OPERATIVE PORTION OF THE JUDGMENT.
Fact of the Case:
The petitioners, Sub-Inspectors of Police, challenged the selection process for promotion to the post of Inspectors of Police. The High Court allowed the writ petition and directed the State to constitute a Selection Committee to recommend the petitioners for promotion. The State filed a review petition contending that the mandamus issued by the Court was contradictory, ambiguous, and unworkable.
Finding of the Court:
The Court held that the review petition was maintainable under Article 226 of the Constitution of India and that the provisions of the Code of Civil Procedure did not control the power of the High Court under Article 226. The Court further held that the operative portion of the judgment was contradictory and ambiguous and required clarification to prevent miscarriage of justice.
Issues: 1. Whether the review petition was maintainable under Article 226 of the Constitution of India? 2. Whether the provisions of the Code of Civil Procedure controlled the power of the High Court under Article 226? 3. Whether the operative portion of the judgment was contradictory and ambiguous?
Ratio Decidendi: 1. The Court held that the review petition was maintainable under Article 226 of the Constitution of India and that the provisions of the Code of Civil Procedure did not control the power of the High Court under Article 226. The Court relied on the decision of the Supreme Court in Shiv Deo Singh v. State of Punjab, AIR 1963 SC 1909, which held that the High Court had inherent jurisdiction to review its order under Article 226 of the Constitution to prevent miscarriage of justice and correct grave and palpable errors committed by it. 2. The Court held that the provisions of the Code of Civil Procedure did not control the power of the High Court under Article 226. The Court noted that a procedure had been prescribed for filing a review petition under Rule 12 of Chapter V of the High Court Rules, but no limitation appeared to have been prescribed for filing a review application. 3. The Court held that the operative portion of the judgment was contradictory and ambiguous. The Court noted that the mandamus issued by the Court in the operative portion of the judgment was contradictory, ambiguous, and unworkable. The Court held that the direction issued by the Court to promote the petitioners irrespective of their suitability was contradictory to the subsequent direction that their names be kept at the bottom of the selected 1988 Batch.
Final Decision: The Court allowed the review petition and substituted the operative portion of the judgment. The Court directed the State to constitute a Selection Committee within one month of filing a certified copy of the order and reconsider the case of the petitioners for promotion as Inspectors of Police according to the G.O. applicable to the said promotion. The Court further directed that if the petitioners were selected, their seniority would be fixed according to law but without disturbing the seniority of the respondents who were already promoted.
Anshuroan Singh, J.
1. Feeling aggrieved against the operative portion of the judgment dated November 21, 1990, delivered by Honourable H. C. Mithal, J. (Retired) in the aforesaid writ petition, the State of Uttar Pradesh has preferred this review petition. The judgment dated November 21, 1990 is Udai Narain Rai v. State of U. P. (1991) 1 UP LB EC 140.
2. The facts which necessitated the filing of the writ petition by the petitioners opposite parties brieflly stated are that the petitioners Udai Narain Rai, Kamla Prasad Rai and Ram Dutt Mishra are Sub-Inspector of Police. Selections for promotion to the post of Inspectors of Police was held in the year 1988 in which the petitioners were also called for interview. The result was declared on 31-12-1988 in which the names of the petitioners did not figure. THEreupon the petitioners opposite parties challenged the action of the Selection Committee in not selecting them to the post of Inspectors of Police. Promotion of respondents nos 3 to 9, namely, Rajendra Singh, Lok Nath Verma, Lal Chandra Bhartiya, Baleshwar Yadav, Raghvendra Singh, Tirath Raj Pandey and Mahesh Narain Mishra, who were selected in the said selection, was also challenged and it was prayed that the same may be quashed. The aforesaid respondents were not served with the notice of the writ petition and had no opportunity to controvert the allegations made against them in the writ petition and as such a statement was made by the counsel for the petitioners opposite parties that the petitioners opposite parties did not want their selection to be quashed.
After hearing counsel for the parties Honourable H. C. Mithal, J. (Retired) allowed the writ petition. Operative portion of the order is quoted below :-
"In the result, the writ petition succeeds and is allowed to the extent that the respondent nos 1 and 2 directed to constitute a Selection Committee within one month of filing of the certified copy of this order and then it may recommend the names of the petitioners for promotion as Inspectors of Police and accordingly they be promoted. The petitioners have given an undertaking that they would not claim seniority from those selected promotees in 1988 Batch. The names of the petitioners be kept at the bottom of the selected 1988 Batch keeping in mind their inter so seniority."
3. Review petition was filed on 11-4-1991. By an order dated 24-4- 1991 it was ordered to be listed on May, 9, 1991, and in the meantime learned 24-A.W-C-Suppl. counsel for the petitioners opposite parties was directed to file a counter- affidavit. On 21-5-1991 the case was listed again then Mr. N. C. Rajwanshi. learned counsel for the petitioners opposite parties, prayed for three weeks' time to file a counter-affidavit to the review petition as well as to the application under section 5 of the Indian Limitation Act. The Court allowed three week's time to Mr. Rajwanshi and thereafter three weeks' time was also granted to the learned Standing Counsel to file a rejoinder-affidavit and the case was ordered to be listed on July 10, 1991.
4. It appears that in the meantime on June 18, 1991 the Police, Head Quarter on behalf of the State of U. P. filed a Special Leave Petition against the judgment dated November 21, 1990, passed by this Court in the Supreme Court of India.
The review petition was listed before Honourable H. C. Mithal, J. on July 11, 1991, and probably that was the last working day before his retirement. It was stated at the Bar that the case could not be concluded during the course of the day, therefore, Hon'b'e H. C Mithal, J. did not hear the case and ordered that the file of the case be laid before Honourable Chief Justice for necessary orders. On July 12, 1991, the case was ordered to be listed before the appropriate Bench and in this way the case has come before me.
5. The first preliminary objection raised on behalf of the petitioners opposite parties is that since the respondent applicant has already filed a special Leave
