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TMI Blog2017 (9) TMI 2026X X X X Extracts X X X X X X X X Extracts X X X X ..... e Judge at the time of disposal of the main Writ Petition nor before the Appellate Court at the time of hearing or at the time of passing the Judgment and viewed in that perspective, these new facts/issues cannot be allowed to be raised before this Court. The Review Applicants' cannot heighten or improve their case, which was not there either in the Original Writ Petition or in the Writ Appeal by placing heavy reliance on the alleged statement of the Respondent/Petitioner's mother dated 06.02.1995 before the Sub Inspector of Police, Namakkal Police Station and the Application/Petition of the Respondent/Petitioner's father's brother, one Chinnu, son of Arumugam, Unjanai of Thiruchengode circle etc., Also the well settled legal proposition to be borne in mind is that 'Review' erases the Original Judgment or Order passed by a competent Court of Law from the inception. In the instant case, based on the facts and circumstances of the present case and on an overall assessment of the same in a real and proper perspective, a proper course of action available/open to the Applicants' in Law, is to prefer a Special Leave Petition before the Hon'ble Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the second wife of late Ramasamy (Deceased Grade I - Police Constable) and that she had married the said Ramasamy, during the life time of Pappammal (First Wife of the deceased) and therefore, her marriage is deemed to be void, as per Government Letter (Ms) No. 34, Labour and Employment Department dated 16.04.2002 in and by which the children born out of void marriages are not entitled to claim an 'Appointment on Compassionate Ground'. 7. The Learned Special Government Pleader for the Review Applicants strenuously submits that the Respondent/Writ Petitioner's mother, Vijayakumari (2nd Wife of deceased, Ramasamy, father of the Respondent/Writ Petitioner) had made a categorical statement on 06.02.1995 before the Sub Inspector of Police, Namakkal Police Station, wherein it was stated in the year 1980, her marriage with late P.C.783, Ramasamy, took place at Mudalaipatti in a proper manner, thereafter, her husband while working at Masanangudi Police Station at Masanangudi, she lived with him for a month and during that time, her husband's first wife, Pappammal was residing with them and later on her husband got transferred to Salembody Police Station and at that time, P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge 513 at Special Pages 527 and 528 wherein at Paragraph 26(3) it is observed as under: 26(3) If a mistake is committed by an erroneous assumption of a fact which is allowed to stand, would cause miscarriage of justice, then also an application for review can be entertained. Also, the Learned Special Government Pleader for the Applicants refers to the aforesaid decision at Page Nos. 529 and 530 at Paragraph No. 29, wherein among other things it is observed as under: 29........... latches etc., vide 1. Rajalashmiah v. State of Mysore (AIR 1967 SC 993) 2. Rabindra Nath V. Union of India (AIR 1970 SC 470) 3. J.N. Maltiar V. State of Bihar (AIR 1973 SC 1343) 4. Amrit Lal V. Collector, C.E.C. Revenue (AIR 1975 SC 538) 5. State of Orissa V. Arun Kumar (AIR 1976 SC 1639) 6. State of Orissa V. P. Samantrav (AIR 1976 SC 2017) 7. Gian Singh V. The High Court of Punjab and Haryana (AIR 1980 SC 1894) 8. G.C. Gupta V. N.K. Pandey (AIR 1988 SC 268) and 9. High Court of M.P.V. Mahesh Prakash (AIR 1994 SC 2595) 11. The Learned Special Government Pleader for the Applicants relies on the decision of Hon'ble Supreme Court in Aribam Tuleshwar Sharma V. Aribam Pishak Sharma and Others, (1979) 4 Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned Counsel for the Respondent contends that in 'Law', 'Review' is not an 'Appeal' in disguise, where an erroneous decision is reheard and corrected, but, lies only for a 'Patent Error'. To lend support to this contention, the Learned Counsel for the Respondent cites the decision of the Hon'ble Supreme Court in Sasi (Dead) through Legal Representatives v. Aravindakshan Nair and others, (2017) 4 Supreme Court Cases at Page 692. 15. The Learned Counsel for the Respondent takes a plea that an 'Error, which is not self evident and is to be detected by a process of reasoning cannot be termed as an 'Error Apparent on the Face of Record, justifying a 'Court of Law' to exercise its power of Review'. Applicants. Applicants' reply (With reference to Government Orders/Letters) 16. The Learned Special Government Pleader for the Applicants refers to G.O. Ms. No. 560, Labour and Employment, 3.08.1977 issued by the Government of Tamil Nadu, which deals with 'Employment Assistance to Families of Deceased Government Servants' in public service in and by which in Sl. No. (2), the term 'Near Relative' is defined and restr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... places heavy reliance on the Letter (Ms) No. 34 dated 16.04.2002 Labour and Employment (Q1) Department of Government of Tamilnadu wherein at Paragraph No. 2, it is observed as follows: 2. It has now been brought to the notice of the Government for clarification by various department as to whether children of the deceased Government Servants born through unlawful second marriage/wife are eligible for compassionate ground appointment. The matter has been examined in detail. It is considered that children born out of void marriages are entitled for the benefit in respect of the property of the deceased Government Servants ie., family pension and death-cum-retirement gratuity and that compassionate appointment cannot be equated to the states of the property of the deceased. As such, the word 'Son or Unmarried daughter' as used in the scheme of compassionate appointment has to be construed only to mean son or daughter born through lawful wedlock. 20. The Learned Special Government Pleader for the Applicants also points out the contents of G.O. Ms. No. 2899, Labour and Employment Department dated 23.12.2008 whereby it is clarified that the 'Legally adopted son/unmarried adop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de within three years from the date of death of Government servant. Also that the maximum age limit for such appointment was raised to 50 in the case of deceased Government Servants. Discussions 24. In this connection, it is not out of place for this Court to pertinently point out that the Respondent/Petitioner in W.P. No. 23475 of 2011 at Paragraph No. 2 of his affidavit had clearly averred that his Father (Late Thiru. Ramasamy) had worked as Grade I Police Constable 783 at Nilgiris District and while in service, he expired on 15.06.1994. Further, his father (late) had married Tmt. Pappammal, who expired on 17.06.1983. It is the categorical averment of the Respondent/Petitioner in Paragraph No. 2 of his affidavit in W.P. No. 23475 of 2011 to the effect that after the death of his father's first wife, on 12.11.1983, his father, married his mother, Tmt. Vijayakumari and hence the marriage of his mother is valid, as per Hindu Marriage Act, 1955. 25. It comes to light that on 16.10.2002, the Tahsildar, Namakkal had issued a certificate to the effect that the Respondent/Petitioner's family is in 'Indigent Circumstances' and that there is no income from any property. Fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... family cannot be considered to be in indigent circumstances. The Respondent/Petitioner in the Writ Petition took a plea that on earlier occasion, the ground of rejection was that he is the son of second wife and therefore, the Review Applicants' cannot take a different stand after two years. 29. The Learned Special Government Pleader for the Applicants brings it to the notice of this Court that one Chinnu, brother of deceased, Ramasamy (father of the Respondent/Petitioner) had submitted an undated Application before the Sub-Inspector of Police, Namakkal wherein he had averred that his family does not know as to which Village/Place, Pappammal belongs to and only when all his family members had scolded Ramasamy, he married, his sister's daughter Vijayakumari (Chinnu's sister daughter) in a proper manner and out of the said wedlock, there were three children and that the said Pappammal has no issues etc., 30. The Respondent/Petitioner had filed an Appeal on 04.07.2011 before the 1st Review Applicant against the rejection order of the 2nd Review Applicant/Superintendent of Police/Nilgiris District, Udhagamandalam and the 1st Review Applicant passed an impugned order on 04.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermission for his second marriage and as such, the said marriage was void. Therefore, the Appellants take a plea that the application for compassionate ground appointment sought for by the Respondent/Petitioner was not considered by the First Appellant/Director General of Police, Tamil Nadu, Chennai and in this regard, he was informed as per memo Rc. No. 116456/CA2/2008 dated 09.02.2009. Also at Paragraph Nos. 10 and 11 of said the Judgment, this Court has made the following observations: 10. As far as the present case is concerned, one cannot brush aside a primordial fact that the Respondent/Petitioner's deceased father (Ramasamy) married the Respondent/Petitioner's mother only after the death of his first wife. In reality, his deceased father married his mother Vijayakumari on 12.11.1983. In this connection, it is to be remembered that the first wife died on 17.06.1983. Viewed in that perspective, the contra plea taken on behalf of the Appellants is not accepted by this Court. Indeed, the Respondent/Petitioner had produced the certificate from the Tahsildar, Namakkal District dated 16.10.2002, wherein, it was mentioned that the Respondent/Petitioner's family is in ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 735 wherein it is held that the 'Children of Void Marriage are Legitimate One'. 37. It is to be borne in mind that a person cannot approbate and reprobate as per decision of Hon'ble Supreme Court between Nagubai Ammal V.V. Shama Rao reported in AIR 1956 SC Page 593. Further in India, a party cannot be allowed to turn the pleadings round so as to spell out a different case, as per decision of Hon'ble Supreme Court in Jhandu V. Tariff reported in AIR 1914 P.C. at Page 34. Also it is well settled that during the course of litigation, a person is not allowed to assume an inconsistent and contradictory position and this is termed as 'Judicial Estoppel'. 'Legal Position of Review' 38. In so far as 'Review' is concerned, a Court of Law cannot enter into a process of taking evidence to establish something which is not on record with a view to create records for the purpose. In fact, 'Review' is permissible only if an error, which is self evident in nature. The term 'Mistake or Error Apparent' by its very character signifies, an error which is per se from the record and does not require a detailed examination, scrutiny and elucidation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention is raised before this Court in the Review Application that the Respondent/Petitioner's mother, Vijayakumari had addressed a letter dated 06.02.1995 to the Sub-Inspector, Namakkal Police Station inter alia to the effect that she got married to her maternal uncle late Ramasamy P.C. No. 783 in the year 1980 at Mudalaipatti, as per customs and thereafter, they resided at the quarters annexed to Masinakudi Police Station and they lived there for a month and during the time her husband's first wife, Pappammal was also living together with them etc., 42. In this regard, this Court aptly points out that the plea regarding the Letter/Statement of the Respondent/Petitioner's mother dated 06.02.1995 addressed to the Sub-Inspector of Police Station, Namakkal was not taken either before the Writ Court in W.P. No. 23475 of 2011 or before the Division Bench of this Court in Writ Appeal No. 449 of 2016. For the first time in Review Application, the Applicants' make an endeavour to fall back upon the alleged letter/statement of the Respondent/Petitioner's mother, Vijayakumari dated 06.02.1995. It is reiterated that in Law, the ground/plea not taken earlier in a origin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n all cases including where the Government servant had died even before 26.06.1995 also. The said fact was intimated by the 2nd Review Applicant's office vide its letter dated 17.02.2011 to the Respondent/Petitioner. 47. It cannot be denied that the Respondent/Petitioner was keeping track of the subject matter in issue from the beginning and his mother, Vijayakumari was made to understand that her application for appointment of her son on compassionate ground was pending before the 1st Review Applicant/Director General of Police, Office of Tamilnadu Chennai. 48. It is to be pointed out by this Court that when the Respondent/Petitioner in Writ Petition had come out with a plea that his deceased father, Ramasamy, married his mother, Vijayakumari on 12.11.1983 after the death of his father's first wife, Pappammal on 17.06.1983, which was not either controverted or repudiated in the counter affidavit dated 13.08.2012 filed by the 2nd Review Applicant/Superintendent of Police, Nilgiris District. Therefore, it was held by this Court in the Judgment in W.A. No. 449 of 2016 dated 07.04.2016 that the second marriage of the Respondent/Petitioner's deceased father, Ramasamy with h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , on their part the aforesaid statement of Vijayakumari and the undated application of Chinnu, Respondent's father's brother would not be either produced before the Learned Single Judge at the time of Passing the Order in the Writ petition or before the Hon'ble Division Bench at the time of passing the Judgment in the Writ Appeal. 51. It cannot be said that the Review Applicants', in the instance case, was not provided with an ample opportunity to produce the aforesaid statement of Vijayakumari dated 06.02.1995 and the undated Application of the Respondent/Petitioner's father's brother, Chinnu. In fact, a Court of Law will not permit a party or litigant to produce additional documents, as evidence in Review Application to fill up Omissions/Lacunae in a given case. 52. Suffice it for this Court to point out that the additional materials, as aforesaid cannot be taken note of to fill up omission or patch up weak points of the Applicants' case. Moreover, a mere assertion in a Petition/Application or otherwise is not enough on the side of Applicants' to establish that despite due diligence, additional evidence would not be filed either before the Learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent's/Petitioner's mother, Vijayakumari dated 06.02.1995 before the Sub-Inspector of Namakkal Police Station and (b) the undated Petition/Application of Chinnu (his father's brother) addressed to the Sub Inspector of Namakkal Police Station, this Court comes to an irresistible conclusion that these issues were not raised before the Learned Single Judge at the time of disposal of the main Writ Petition in W.P. No. 23475 of 2011 nor before the Appellate Court at the time of hearing or at the time of passing the Judgment in Writ Appeal No. 449 of 2016 and viewed in that perspective, these new facts/issues cannot be allowed to be raised before this Court. Furthermore, these purported new facts/issues are not self evident errors, which could be deciphered and the same require a long drawn reasoning. Even on that score, the present Review Application filed by the Review Applicants' is per se not maintainable, as opined by this Court. Moreover, 'Rehearing' and correction of the decision arrived at in the Judgment dated 07.04.2016 passed in W.A. No. 449 of 2016 is impermissible in Law. In reality, the point(s), which could have been raised at the earlier procee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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