Review Of Judgement Cannot Be “Cloaked Appeal,” Must Be Within Contours Of Order 47 Rule 1 CPC : Calcutta High Court

The Calcutta High Court has recently dismissed a review petition while outlining the powers of review available to the High Court as a Court of record under Article 215 of the Constitution, and the circumscription of the same in view of Order 47 Rule 1 of the CPC, which outlines the grounds for review of a judgement.

A single-bench of Justice Shekhar B Saraf held:

An appeal cannot cloak as review…Courts while exercising their review jurisdiction act as third umpires and are only empowered to look into an error apparent on the face of record. If the courts are required to embark upon a journey in search for the error on which review has been sought, then that error cannot be termed as an error apparent on face of record. Review jurisdiction cannot be treated as second opportunity by the parties aggrieved by a judgement or order to argue afresh.

Brief facts of the case

These observations came in a review petition by State of West Bengal challenging the Courts judgement in WPA 3086 of 2019 passed in January 2021.

The respondent in the review petition, (“petitioner”) had a BSc degree in Math and had participated in a recruitment drive pursuant to which he was selected as Assistant Teacher in mathematics at the Haribhanga Junior High School (“school”).

Petitioner thereafter pursued a distance-MSc degree from Vinayaka Missions University, and the school, after informing the District Inspector, Schools (“DI”), allowed him to complete the degree, pursued through online mode as well as sit in the final exams, which he successfully passed.

Petitioner applied for granting graduate scale of pay, after completing his master’s degree, and the application was sent to the DI for approval.

Upon not hearing from the DI, the petitioner moved a writ before the High Court, which was disposed of by directing the DI to consider the petitioners claims and pass a reasoned order pertaining to the same.

The petitioner thereafter appeared before the DI and received communication that he had failed to take permission from the DI which was required in terms of a government order dated 2007. He challenged the same in WPA 3086 of 2019.

Court disposed of the aforesaid plea and directed the authorities to give a higher pay to the writ petitioner from the date following the last date of his final post graduate exams.

Proceedings before the High Court

It was argued by the applicants that the MSc certificate obtained by the respondent was not valid and as such he was not entitled to post graduate scale of pay.

It was argued that the University Grants Commission had imposed a complete bar on all private universities from operating any study center or off-campus course outside the state and that a coordinate bench of the Calcutta High Court had earlier held that the degree certificates obtained from Vinayaka Missions University through Directorate of Distance Education were not valid.

State argued that the information about the ineligibility of the petitioner’s degree certificate was a new fact which was not known during the earlier writ petition, leading to the review application.

Respondents contended that the grounds for review assailed by the petitioner were not tenable either in law or on facts.

It was argued that the mere discovery of new or important matter or evidence is not a good enough ground for review ex debit justitiae.

Respondents argued that Vinayaka Mission University was a deemed to be a University and that the Distance Education Council (DEC), which conferred the petitioner’s degree had been granted recognition by the UCG and as such the degree obtained by the respondent was valid.

Court’s Verdict

In dismissing the State’s review application, the Court held that review power is to only be exercised with extreme diligence and wariness, or else “it would defeat the very purpose of the existence of such power.” It held:

Nobody is perfect. Everyone, at one point or the other, makes mistakes. To err is to human" is the one of the oldest proverbs in the English language. While we as judges of constitutional courts may be addressed as "Your Lordships", we are not infallible. Recognizing this principle, and to also prevent miscarriage of justice, being Courts of Record under Article 215 of the Constitution of India, power of reviewing their own orders are inherent in the High Courts. However, exercise of this power is not limitless and is subject to certain conditions.

Court held that ‘terms and conditions’ which would apply in cases to invoke the review power of the High Court, would be found under Order 47 Rule 1 of the Code of Civil Procedure, 1908.

It was observed that Order 47 Rule 1 would had to be strictly followed in cases of review, such that parties were not permitted to re-argue a matter as a “cloaked appeal” under the guise of review.

Bench reiterated that in order to merit review of a judgment or order, it must be an error apparent on the face of the record.

“If the Courts have to search for the error, it cannot be termed as an error apparent on the face of record and would not entitle a party to seek review of a judgment”, it was held.

Accordingly, the review application was dismissed, with the Court observing that the present application required the Court’s examination of the petitioner’s MSc certificate, which was not within the scope of a review petition.

Citation: 2023 LiveLaw (Cal) 312

Case: State of WB v Sudipta Ghosh

Case No: RVW 163 of 2023

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