Allowed

Sunil Kumar Pandey v. State of Jharkhand Throguh the Secretary Department of Home

Jharkhand HC22 Nov 2022C.Rev./69/2021

Case brief

AI extract

What is this about?

The High Court of Jharkhand allowed a review petition filed by a police constable challenging a Letter Patent Appeal dismissal. The Court held that the dismissal order failed to consider a prior judgment by a coordinate Bench on identical facts, violating judicial discipline and constituting a mistake apparent on the face of the record under Article 226.

What did the court decide?

The instant review petition is allowed; L.P.A. No.476 of 2014 is restored to its original file and listed for hearing.

Sunil Kumar Pandey Vs State of Jharkhand Throguh… — Service and Employment | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Civil Review No.69 of 2021

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Sunil Kumar Pandey, aged about 36 years, Son of late Awadh Pandey, Resident of Village-Tundi (Thuthi), P.O. Lohandi, P.S. Chauparan, District-Hazaribagh (Jharkhand) …. …. Petitioner

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Versus

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1. State of Jharkhand through the Secretary, Department of Home, Project Bhawan, P.O. & P.S. Dhurwa, District-Ranchi.

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2. Director General of Police, At, P.O. & P.S. Dhurwa, District-Ranchi.

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3. Deputy Inspector General of Police, North Chotanagpur, P.O., P.S. & District-Hazaribagh.

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4. Deputy General of Police (Personnel), At, P.O., P.S. and DistrictRanchi.

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5. Superintendent of Police, At, P.O., P.S. and District-Koderma.

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6. Superintendent of Police, At, P.O., P.S. and District-Giridih.

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7. District Superintendent of Education, At, P.O., P.S. and DistrictHazaribagh .... .... Respondents/Opp. Parties

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CORAM : HON’BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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------ For the Petitioner : Ms. Isha Khanna, Advocate : Mr. Prakash Kumar Singh, Advocate For the State : Mr. Rahul Saboo, G.P.-II ------

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ORAL JUDGMENT 06/Dated: 22.11.2022

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Learned counsel appearing for the review petitioner, at the outset, has sought leave of this Court to make necessary correction

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in the provision of law under which the instant review petition has been filed.

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2. Learned counsel for the petitioner is being given such liberty.

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3. Necessary correction be made in course of the day.

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4. The instant review petition has been filed under Article 226 of

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the Constitution of India for review of the judgment/order dated

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20.11.2018 passed by the coordinate Division Bench of this Court in L.P.A. No.476 of 2014 on the ground that the order passed by the another coordinate Division Bench of this Court on 07.07.2014 in L.P.A. No.419 of 2013 has not been considered which is exactly on the similar facts and circumstances.

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5. The brief facts of the case, as per the pleading made in the petition, required to be enumerated, are as hereunder:-

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It is the case of the review petitioner that an Advertisement No.01/2010 dated 25.03.2010 was floated in the newspaper regarding recruitment to the post of Constable in Police in the State of Jharkhand. As per the Advertisement No. 01/2010, the minimum educational qualification prescribed for appointment to the post of Constable was 7^th Pass from the educational institution recognized by the State Government within the State of Jharkhand. The review petitioner was selected and appointed on the said post on the basis of School Leaving Certificate obtained from Amoli Apurwa High School at Mangandh, Chauparan, Hazaribagh and residential certificate produced by him. The said certificate shows that the petitioner had entered the said school on 23^rd March, 1998 and left the school on 9^th March, 1999, while, he was studying in Class-VIII which indicates that he had passed Class-VII Exam from the said school. The review petitioner was served with the show-cause notice vide dated 31^st December, 2012 to reply as to why he should not be terminated from service as his educational certificate was obtained from the school which was not recognized by the State Government,

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as per the terms of the Advertisement and relevant provisions of the Police Manual. The petitioner seems to have submitted his reply, which however could not give satisfactory response as the school itself was recognized by the State Government upon the recommendation of the Jharkhand Academic Council, Ranchi in the sessions 2008-2009 vide letter dated 22^nd November, 2008 issued by the Secretary, Jharkhand Academic Council, Ranchi. Therefore, the petitioner's service has been terminated vide Memo No.179 dated 28.01.2013.

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The writ petitioner, being aggrieved with the order as contained in Memo No.179 dated 28.01.2013, appended as Annexure-7 to the writ petition, whereby the services of the writ petitioner has been dismissed with immediate effect, has filed the writ petition being W.P.(S) No.5499 of 2013. But, the said writ petition was dismissed by the learned Single Judge of this Court vide order dated 07.10.2014, against which, letters patent appeal was filed being L.P.A. No.476 of 2014, wherein, the order passed by the coordinate Division Bench of this Court in L.P.A. No.419 of 2013 dated 07.07.2014 has been annexed by taking the specific plea therein that the case of the writ petitioner is squarely covered with the order passed by the coordinate Division Bench of this Court in L.P.A. No.419 of 2013, rather, it has been stated that the case of the writ petitioner stands on better footing as because he possess qualification of Intermediate from the recognized institution. But the letters patent appeal was dismissed vide order dated 20.11.2018 on the ground that the issue

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on fact has properly been appreciated by the learned Single Judge while deciding the writ petition being W.P.(S) No.5499 of 2013 vide judgment/order dated 07.10.2014.

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6. The review petitioner against the order dated 20.11.2018 passed in L.P.A. No.476 of 2014 has filed instant review petition merely on the ground that the coordinate Division Bench of this Court while dismissing the letters patent appeal being L.P.A. No.476 of 2014 has not considered the order passed by the another Division Bench of this Court in L.P.A. No.419 of 2013 on 07.07.2014.

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7. This Court has heard the instant review petition on 01.09.2022, directing the State-respondent to file counter affidavit, however, no affidavit was filed and as such, the matter was adjourned and listed on 11.10.2022 but even on that date, no counter affidavit was filed, as such, the matter was adjourned to be listed on 22.11.2022.

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8. The counter-affidavit has been filed on 14.11.2022, wherein, stand inter-alia has been taken by defending the order passed by the Division Bench, which is under review in the instant review petition. 9. However, there is no averment with respect to specific stand taken by the writ petitioner/appellant as under paragraph-15 of L.P.A. No.476 of 2014 which has been supported by Annexure-9, i.e., the order passed by the coordinate Division Bench of this Court in L.P.A. No.419 of 2013.

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10. The matter has been heard and Mr. Rahul Saboo, learned G.P.II has represented the respondent-State of Jharkhand.

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11. This Court put a specific query that why even in spite of

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specific direction passed by this Court, no para-wise reply has been filed. Further, why specific stand has not been taken as to whether the order passed by the coordinate Division Bench of this Court in L.P.A. No.419 of 2013 dated 07.07.2014, appended as Annexure-9 to the memorandum of appeal has not been dealt with taking a view as to whether the order passed by coordinate Bench of this Court in L.P.A. No.419 of 2013 is squarely covering the case of the writ petitioner or is different on fact.

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12. The matter was taken over by the learned Advocate General to assist this Court on the aforesaid query. 13. The learned Advocate General has considered Annexure-9, as appended to L.P.A. No.476 of 2014 and fair enough to submit that after going through the factual aspect involved in this case as also the fact as narrated in the order passed by the coordinate Division Bench of this Court in L.P.A. No.419 of 2013 are exactly similar.

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14. This Court, having heard the learned counsel for the parties and after taking into consideration the ground of review, i.e., the judicial discipline warrants that when the coordinate Division Bench of this Court has already passed an order in L.P.A. No.419 of 2013 decided on 07.07.2014, there was no occasion to take different view by another coordinate Division Bench while dismissing the L.P.A. No.476 of 2014 on 20.11.2018, even though, the order passed in L.P.A. No.419 of 2013 was already on record by way of Annexure9 with specific statement made as under paragraph-15 of L.P.A.

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No.476 of 2014.

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15. Learned Advocate General has submitted that the appropriate order may be passed after taking into consideration Annexure-9 as appended to L.P.A. No.476 of 2014.

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16. This Court, after considering the factual aspect involved in the given facts of the case as also the fact narrated in Annexure-9 appended to letters patent appeal being L.P.A. No.476 of 2014, is of the view that there is no difference so far as the facts of both the cases are concerned.

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17. This Court, therefore, is of the view that the judicial discipline warrants to follow the order passed by the same Corum in order to maintain consistency, as has been held by the Hon’ble Apex Court in U.P. Gram Panchayat Adhikari Sangh & Ors. Vs. Daya Ram Saroj & Ors., (2007) 2 SCC 138, wherein, it has been held at paragraph26 which reads as under:-

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“ 26. Judicial discipline is self-discipline. It is an inbuilt mechanism in the system itself. Judicial discipline demands that when the decision of a coordinate Bench of the same High Court is brought to the notice of the Bench, it is to be respected and is binding, subject of course, to the right to take a different view or to doubt the correctness of the decision and the permissible course then open is to refer the question or the case to a larger Bench. This is the minimum discipline and decorum to be maintained by judicial fraternity.”

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18. This Court is aware with the legal position about the scope of

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review, as has been held in Moran Mar Basselios Catholicos and Anr. v. Most Rev. Mar Poulose Athanasius and Ors ., [AIR 1954 SC 526] , particularly at paragraph-32 which reads as hereunder:-

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“ 32. Before going into the merits of the case it is as well to bear in mind the scope of the application for review which has given rise to the present appeal. It is needless to emphasis that the scope of an application for review is much more restricted than that of an appeal. Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order XL VII, Rule I of our Code of Civil Procedure, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified, grounds, namely (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason.”

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In Shivdev Singh and Others v. State of Punjab and Others

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[AIR 1963 SC 1909] , the Supreme Court held that the power of review of its own order by the High Court inheres in every Court of plenary jurisdiction, to prevent miscarriage of justice or to correct grave and palpable errors committed by it. In doing so, the Court was only upholding the principles of natural justice. This decision indicates that the Court’s power of review while exercising

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jurisdiction under Article 226 of the Constitution extends to correct all errors to prevent miscarriage of justice. The judgment rendered by Hon’ble Apex Court in Sow. Chandra Kante and Anr. v. Sheikh Habib [ AIR 1975 SC 1500] wherein it has been held that:-

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“A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition through different counsel of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient.”

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It is, thus, evident from the aforesaid judgment that a mere repetition through different counsel of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient.

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19. But after going through the facts and as per the discussion made hereinabove, this Court is of the view taking into consideration the decision of the coordinate Division Bench dated 07.07.2014 passed in L.P.A. No.419 of 2013 which ought to have been followed by another coordinate Division Bench while deciding the issue in L.P.A. No.476 of 2014, which is the subject matter of the instant review petition, the instant review petition is fit to be allowed, since, due to non-consideration of the order passed by the coordinate Division Bench of this Court dated 07.07.2014 in L.P.A. No.419 of 2013, there is mistake or error apparent on the face of the

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record.

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20. In the result, the instant review petition stands allowed.

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21. In consequence thereof, L.P.A. No.476 of 2014 is restored to its

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original file.

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22. With the consent of the learned counsel for the parties, let the appeal being L.P.A. No.476 of 2014 be listed on 5^th December, 2022 within top five cases.

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(Dr. Ravi Ranjan, C.J . )

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(Sujit Narayan Prasad, J.)

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N.A.F.R

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Rohit/-

Sunil Kumar Pandey v. State of Jharkhand Throguh the Secretary Department of Home

Case brief

What is this about?

What did the court decide?

Sunil Kumar Pandey v. State of Jharkhand Throguh the Secretary Department of Home

Case brief

What is this about?

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