2022 (4) TMI 1031 - HC - Indian Laws

Review of Order - error apparent on the face of record or not - review of order in exercise of power under Order XLVII Rule 1 r/w Section 114 of the Code of Civil Procedure - Seeking direction to grant applicants/respondents pro-forma/notional promotion to the post of Principal Commissioners of Income Tax and consequential retirement benefits - HELD THAT - While considering the provisions of Order 1 Rule XLVII of the Code of Civil Procedure in the case of S. BAGIRATHI AMMAL VERSUS PALANI ROMAN CATHOLIC MISSION 2007 (12) TMI 456 - SUPREME COURT held that the error contemplated under Rule 1 of Order 47 CPC for permissibility of review must be such which is apparent on the face of the record and not an error which has to be fished out and searched. In other words, it must be an error of inadvertence. It should be something more than a mere error and it must be one, which must be manifest on the face of the record. When does an error cease to be mere error and becomes an error apparent on the face of the record depends upon the materials placed before the Court. If the error is so apparent that without further investigation or enquiry, only one conclusion can be drawn in favour of the applicant, the review will lie. Admittedly, in the present case, it is not the case of the review petitioners that there is error apparent on the face of the record to review the order dated 21st January, 2020 passed by the Co-ordinate Bench of this Court, but the reason for filing the review petition is only because of change of law in a subsequent decision by another Co-ordinate Bench of this Court which is impermissible in view of the provisions of Explanation of the Order XLVII Rule 1 of the Code of Civil Procedure. It is well settled that the first and foremost requirement while entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the record and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed. An error, which is not self evident and to be detected by the process of reasoning, can hardly be said to be an error apparent on the face of the record, justifying the Court to exercise the power of review. The point raised in the present review petition is answered in the negative holding that the review petitioners have not made out any ground to review the order, in exercise of review powers under Order XLVII Rule 1 r/w Section 114 of the Code of Civil Procedure - Review petition dismissed.

Issues Involved:
1. Review of the order dated 21st January 2020 in Writ Petition No.25502/2018.
2. Consideration of notional promotion for respondents.
3. Application of Order 47 Rule 1 r/w Section 114 of the Code of Civil Procedure.
4. Error apparent on the face of the record.
5. Subsequent change of law as a ground for review.

Issue-wise Detailed Analysis:

1. Review of the order dated 21st January 2020 in Writ Petition No.25502/2018:
The review petition was filed to reconsider the order dated 21st January 2020, which allowed the writ petition filed by the respondents and directed the review petitioners to ensure notional promotion of the respondents, similar to the case of D.B. Manival Raju. The original applications of the respondents were dismissed by the Central Administrative Tribunal, but the High Court allowed their writ petition, setting aside the Tribunal's order and directing the notional promotion.

2. Consideration of notional promotion for respondents:
The respondents sought pro-forma/notional promotion to the post of Principal Commissioners of Income Tax and consequential retirement benefits. They contended that they were eligible for promotion as their names were included in the ACC-approved list for the panel year 2013-14. However, they retired before the promotion order could be issued. The Tribunal initially dismissed their applications, but the High Court later allowed their writ petition, granting the reliefs sought.

3. Application of Order 47 Rule 1 r/w Section 114 of the Code of Civil Procedure:
The review petitioners argued that the order relied upon by the High Court (dated 21.6.2017 in the case of D.B. Manival Raju) was subsequently set aside by another Co-ordinate Bench on 16th March 2021. They contended that this subsequent judgment constituted an error apparent on the face of the record, justifying a review under Order 47 Rule 1 r/w Section 114 of the Code of Civil Procedure.

4. Error apparent on the face of the record:
The Court examined whether there was an error apparent on the face of the record in the order dated 21st January 2020. It was concluded that the review petitioners did not demonstrate such an error. The Court emphasized that a review is not an appeal in disguise and should only address patent errors. The subsequent change in law or judgment by another Co-ordinate Bench does not constitute an error apparent on the face of the record.

5. Subsequent change of law as a ground for review:
The review petitioners sought review based on the subsequent judgment dated 16th March 2021, which set aside the order relied upon by the High Court in its 21st January 2020 decision. The Court held that a change in law or a subsequent judgment by a Co-ordinate Bench does not justify a review. The Explanation to Order 47 Rule 1 of the Code of Civil Procedure explicitly states that a subsequent decision of a superior court in another case is not a ground for review.

Conclusion:
The Court concluded that the review petitioners did not make out a case for review of the order dated 21st January 2020. The review petition was dismissed as devoid of merits, with no order as to costs. The Court reiterated that the power of review is limited and cannot be used to reargue the case or address changes in law subsequent to the original judgment.

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