Dismissed

Sri. Mohamed Mustafa v. the Director

Karnataka HC16 Jun 2023RP/206/2022

Case brief

AI extract

What is this about?

In this review petition filed regarding an order denying an additional pension increment, the High Court of Karnataka rejected the appeal as a fresh challenge to findings. The court held that the petition did not disclose an error apparent on the face of the record and could not be used to retry the correctness of the earlier decision.

What did the court decide?

The review petition was rejected, and the earlier order remained unchanged.

Sri. Mohamed Mustafa Vs the Director — Pension and Retirement Benefits | Karnataka HC (2023)

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NC: 2023:KHC:20925-DB RP No. 206 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF JUNE, 2023

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PRESENT

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THE HON'BLE MR JUSTICE G.NARENDAR

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AND

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR REVIEW PETITION NO. 206 OF 2022

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BETWEEN:

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SRI. MOHAMED MUSTAFA S/O MOHAMED GHOSH AGE: 85 YEARS RETIRED GRADUATE HEAD MASTER R/AT No.715, 3^RD CROSS NEW MODEL COLONY RIGHT SIDE OLD TOWN BHADRAVATHI - 577 301.

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…PETITIONER

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(BY SRI. MANJUNATHA RAO BHONSLE, ADVOCATE)

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Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA

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AND:

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THE DIRECTOR (PRIMARY EDUCATION) O/O THE COMMISSIONER DEPT. OF PUBLIC INSTRUCTION NRUPATUNGA ROAD BENGALURU - 560 001.

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THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTION (ADMINISTRATION) SHIVAMOGGA DISTRICT

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2 - NC: 2023:KHC:20925-DB RP No. 206 of 2022

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B H ROAD SHIVAMOGGA - 577 201.

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…RESPONDENTS

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(BY SMT. SHILPA S GOGI, AGA FOR R1 & R2)

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THIS REVIEW PETITION IS FILED UNDER SECTION 114 R/W ORDER 47 RULE 1 OF CPC, PRAYING TO CALL FOR THE ENTIRE RECORDS IN WP NO. 4178/2020 AND REVIEW ITS ORDER DATED 06/01/2022 PASSED IN W.P.NO. 4178/2020 (SKSAT) BY SETTING ASIDE THE SAID ORDER AND PASS SUCH OTHER ORDER OR ORDERS, AS THIS HON’BLE COURT DEEMS FIT AND PROPER, IN FACTS AND CIRCUMSTANCES OF THE CASE AND ETC.,

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THIS PETITION COMING ON FOR ADMISSION THIS DAY, G.NARENDAR J , PASSED THE FOLLOWING:

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ORDER

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Heard learned counsel for the petitioner and learned Additional Government Advocate for the

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respondents.

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Learned counsel for the petitioner would contend that the reliance on the Government Circular dated 22.05.2004 is erroneous and that the Circular is issued by the Director of Department of the first petitioner before this Court and the same is in the teeth of the Government Order which came to be revoked only in the year 1987 and that he has passed his examination in

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Hence, he is entitled for grant of the additional increment.

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As noted by us, there is no explanation for the enormous delay of nearly 22 years in making a claim for the additional increment and this Court while allowing the writ petition has to place reliance on the Government Circular dated 22.05.2004 to allow the writ petition and negate the claim of the petitioner.

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Today, learned counsel for the petitioner would virtually argue on the correctness of the findings rendered by this Court. These are grounds that are required to be urged in a properly constituted appeal and not by way of review. In this regard, we place reliance on the decision of Hon’ble Apex Court in the case of S.Madhusudhan

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Reddy Vs. V.Narayana Reddy and Others ,¹ wherein the Hon’ble Apex Court in Paragraphs 24 and 27 has held as under:

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1 2022 SCC OnLine SC 1034

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“ 24. After discussing a series of decisions on review jurisdiction in Kamlesh Verma v. Mayawati, this Court observed that review proceedings have to be strictly confined to the scope and ambit of Order XLVII Rule 1, CPC. As long as the point sought to be raised in the review application has already been dealt with and answered, parties are not entitled to challenge the impugned judgment only because an alternative view is possible. The principles for exercising review jurisdiction were succinctly summarized in the captioned case as below:

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"20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:

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20.1. When the review will be maintainable:

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(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

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(ii) Mistake or error apparent on the face of the record;

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(iii) Any other sufficient reason.

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The words "any other sufficient reason" has been interpreted in Chajju Ram v. Neki, and approved by this Court in Moran Mar Bassellos Catholicos v. Most Rev. Mar Poulose Athanasius to mean "a reason sufficient on grounds at least analogous to those

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specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd.,.

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[20.2. When the review will not be maintainable:-]

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( i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

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(ii) Minor mistakes of inconsequential import.

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(iii) Review proceedings cannot be equated with the original hearing of the case.

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(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

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(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.

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(vi) The mere possibility of two views on the subject cannot be a ground for review.

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(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

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(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

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(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.”

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NC: 2023:KHC:20925-DB RP No. 206 of 2022

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27. In the captioned judgment, the term 'mistake or error apparent’ has been discussed in the following words:

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" 22. The term 'mistake or error apparent' by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, It cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision".

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[Emphasis Supplied]

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This Court has already rendered a finding and

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the ground urged is with regard to the correctness of the finding and the review petition does not disclose any error apparent on the face of the record. Whether the Government Circular takes precedence or the Government Order takes precedence are not the subject matter of the review petition.

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In that view of the matter, we do not see any ground which warrants interference with the considered order passed by us earlier. No error apparent on the face of the record is made out. Accordingly, the petition is rejected.

Sd/JUDGE

Sd/-

JUDGE

List No.: 1 Sl No.: 3

Sri. Mohamed Mustafa v. the Director

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Sri. Mohamed Mustafa v. the Director

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