Dismissed

District Inspector of Schools v. Ajay Kumar

Allahabad HC17 Aug 2023CMRA/97/2023

Case brief

AI extract

What is this about?

This court dismissed a review application filed against an order in a writ petition regarding appointment approval. The review applicant sought review based on a report received after the judgment, which the court held to be subsequent evidence, not new evidence within the knowledge at the time of judgment. The application was rejected as devoid of merit.

What did the court decide?

The review application dismissed with costs of Rs. 20,000 payable to the widow of the deceased petitioner within six weeks.

District Inspector of Schools Vs Ajay Kumar — Public Procurement and Tenders | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:165217

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Reserved On:- 10.08.2023 Delivered On:- 17.08.2023

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Case :- CIVIL MISC REVIEW APPLICATION No. - 97 of 2023 Applicant :- District Inspector Of Schools

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Opposite Party :- Ajay Kumar Counsel for Applicant :- Ashish Mohan Srivastava Counsel for Opposite Party :- Bipin Lal Srivastava

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Hon'ble Siddharth, J.

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Heard Sri Ashish Mohan Srivastava, learned standing counsel appearing for respondent no. 3 / review applicant and Sri Vinayak Verma, Advocate holding brief of Sri Bipin Lal Srivastava, learned counsel for the petitioner / opposite party.

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Order on Civil Misc. Delay Condonation Application No. 01 of 2023

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Cause shown for delay in filing of the substitution application to bring on record the legal heirs of the deceased-petitioner are sufficient.

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Delay condonation application is allowed. Substitution application shall be deemed to be filed within time throughout.

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Order on Civil Misc. Substitution Application No. 2 of 2023

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For the reasons given in affidavit in support of substitution application, the substitution application is allowed.

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Counsel for the petitioner is directed to implead the legal-heirs / representatives of deceased-petitioner, Ajay Kumar, in the array of parties of the review application within the course of the day.

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Order on Civil Misc. (Delay Condonation Application) No. Nil of 2023 in Civil Misc. Review Application No. 97 of 2023 in Civil Misc. Writ Petition No. 29615 of 2023

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Cause shown for delay in filing of the review application is sufficient.

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Delay condonation application is allowed.

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The review application filed on behalf of the respondent no. 3 is treated to have been filed within time throughout.

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Order on Civil Misc. Review Application No. 97 of 2023

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This review application has been filed praying for review of the judgment and order dated 28.04.2022 passed by this Court in Civil Misc. Writ Petition No. 29615 of 2013 (Ajay Kumar vs. State of U.P and others).

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Learned counsel for the review applicant / respondent no. 3 submits that after the order dated 28.04.2022 was passed by this Court, the District Inspector of School, Meerut sought relevant documents from the Committee of Management of institution, respondent no. 5, to process the claim for grant of financial approval to the appointment of petitioner. In response to the aforesaid letter, the respondent no. 5 submitted documents to show that the petitioner, Ajay Kumar, was never appointed in the institution. No such employee ever worked in the institution nor the Principal / Committee of Management ever appointed such person.

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Counsel for the review applicant / respondent no. 3 submits that in paragraph 15 of the writ petition also only averment was made that on 10.04.2021, petitioner was adjudged to be the best candidate by the Principal of institution for appointment on class-IV post. Petitioner also did not filed any joining report along with writ petition. Since the respondent no. 5 did not filed any counter affidavit in the writ petition, therefore, the aforesaid facts could not be brought to the notice of this Court. It has been submitted that this court allowed the writ petition only on the ground that the D.I.O.S has passed the impugned order dated 13.04.2021, refusing financial approval to the appointment of the petitioner on suspicion only. Now the suspicion of the D.I.O.S stands proved from the report submitted by the Committee of Management of institution on 25.05.2022 to the D.I.O.S. Hence, it has been prayed that the order of this court dated 28.04.2022 may be reviewed.

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Counsel for the petitioner / Opposite party, Shri Vinayak Verma, has vehemently opposed arguments of counsel for the review applicant / respondent no. 3 and submitted that the arguments made by counsel for review applicant are against findings of this court recorded in judgment and order dated 28.04.2022. He has submitted that the subsequent letter of management committee dated 25.05.2022 cannot be made a ground for review of judgment and order of this court passed earlier on 28.04.2022. Review of an order passed by the court on the basis of material, subsequently coming into existence, cannot be made a ground for review of the judgement and order of this court.

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After hearing the rival contentions, this Court finds that notices were directed to be issued on 27.05.2013 to the Principal and Committee of Management of the institution who were arrayed as respondent nos. 4 and 5, respectively, in the writ petition by this court. From the order sheet, it is clear that as per service report dated 28.03.2018, the notices sent to

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the aforesaid respondents by registered post was deemed to be served since neither acknowledgement due nor unserved notice was received back by the office. Counter affidavit was filed by respondent no. 3 earlier and therefore it cannot be said that the judgement and order of this court was passed without affording any opportunity of hearing to the respondent nos. 4 and 5.

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It is clear that respondent no. 5, Committee of Management, despite service of notice, did not filed any counter affidavit. Respondent no. 3 filed counter affidavit and after considering the same the judgment and order dated 28.04.2022 was passed by this court. This court has considered the counter affidavit filed by respondent no. 3 and passed the order. In case, respondent no. 3 neglected to verify the correct facts before filing counter affidavit nothing can be done now. Committee of Management, respondent no. 5, despite service of notice of filing of the writ petition did not filed any counter affidavit. The subsequent information given by the Committee of Management, respondent no. 5 to the respondent no. 3 on 25.05.2022 cannot be made ground for review of the judgment and order passed by this Court dated 28.04.2022, when respondent no. 5 never filed any counter affidavit earlier in the writ petition.

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A review application by any person regarding review of judgment and order lies when he is aggrieved :-

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a. by a decree or order from which an appeal is allowed but from which no appeal has been preferred;

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b. by a decree or order from which no appeal is allowed;

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c. by a decision on a reference from a court a small causes, may apply for a review of judgment to the court which passed the decree or made the order on any of the following grounds:

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(1) discovery by the applicant of new and important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made.

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(2) on account of some mistake or error apparent on the face of the record.

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(3) for any other sufficient reason.

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Discovery of new and important matter or evidence: The party seeking review must show that he exercised greatest care in adducing all possible evidence and that the new evidence is such as is relevant and that if it had been given in the suit it might possibly have altered the judgment. It is not only the discovery of new and important evidence which entitles a party to apply for a review, but the discovery of any new and important matter which was not within the knowledge of the party when the decree was passed or order made.

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Mistake or error apparent on the face of the record: It is not limited to a mistake of fact. It may be of law. Failure to consider a ruling is not such an error. It should be an error which can be seen by a mere perusal of the record without reference to any other matter.

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3. Any other sufficient reason:

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These words have been interpreted to mean a reason sufficient on grounds at least analogous to those specified in (1) and (2).

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This Court finds that it is not the case of the review applicant / respondent no. 3 that some document vital for decision of the case was available but it could not be placed before this Court, when judgment and order dated 28.04.2022 rather its case is that subsequently a report dated 25.05.2022 has been received from respondent no. 5 which demolishes the entire case of petitioner. Hence the judgment of this Court deserves to be reviewed. There is no such power vested in this Court to consider subsequently created evidence for reviewing its judgment passed prior to coming into existence of such evidence / material. Discovery of new and important evidence which was not within knowledge of the party can be ground for review as considered above but not the new evidence or

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document created after the judgment of the Court. Argument in this regard is legally misconceived and misleading and is hereby rejected.

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The review application is devoid of merit and is hereby, dismissed with costs of Rs. 20,000/-. State is warned against filing such review application without considering the relevant and correct law. Cost ordered aforesaid shall be paid to widow of deceased-petitioner within six weeks from today in her bank account through electronic mode.

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Order Date :- 17.08.2023

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Rohit

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Digitally signed by :- ROHIT DAS High Court of Judicature at Allahabad

District Inspector of Schools v. Ajay Kumar

Case brief

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District Inspector of Schools v. Ajay Kumar

Case brief

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