Jharkhand High Court
Pradeep Kumar Barik vs Union Of India Through The General … on 16 March, 2026
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Sanjay Prasad
2026:JHHC:7110-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Civil Review No.86 of 2025
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Pradeep Kumar Barik, aged about 46 years, son of Late
Murlidhar Barik, resident of Qtr. No.C/20, Sector-2, P.O. &
P.S.-Rourkela, District-Sundargarh (Orissa), PIN-760005.
... ... Petitioner/Petitioner
Versus
1. Union of India through the General Manager, South
Eastern Railway, Garden Reach, P.O. & P.S. Garden Reach,
Kolkata-43 (W.B.).
2. Chief Personnel Officer (RP), South Eastern Railway,
Garden Reach, P.O. & P.S. Garden Reach, Kolkata-43 (W.B.).
3. Senior Divisional Personnel Officer (SR), South Eastern
Railway, CKP Division, P.O. & P.S. Chakradharpur, District-
Singhbhum West, Jharkhand-833102.
4. Divisional Railway Manager, South Eastern Railway, CKP
Division, P.O. & P.S. Chakradharpur, District-Singhbhum
West, Jharkhand-833102.
... ... Respondents/Opposite Parties
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Petitioner : Mrs. M.M. Pal, Sr. Advocate
Mrs. Mohua Palit, Advocate
Mrs. Manjusri Patra, Advocate
For Respondents : Mr. Sunil Kumar, Advocate
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06/16.03.2026
Per Sujit Narayan Prasad, J.
Prayer
1. The instant review petition is under Article 226 of the
Constitution of India, seeking review of the order dated
19.11.2024 passed in W.P.(S) No.6445 of 2017.
Facts
2. The brief facts of the case, as per the pleading made in the
writ petition, needs to be referred which reads as under:-
3. It is the case of the review petitioner/writ petitioner that
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the petitioner initially filed an Original Application bearing O.A.
No. 48 of 2017 before the learned CAT at Ranchi inter-alia for
issuance of direction upon the respondents to extend the
benefit of alternative employment in terms of the Railway
Circulars dated 24.09.1999, 7.08.2000 and 29.12.2000 to the
petitioner at par with the same and similarly situated persons
named in O.A. No. 04 of 2014, O.A. No. 176 of 2010, O.A. No.
65 of 2010, O.A. No. 84 of 2006, O.A. No. 136 of 2006, O.A. No.
30 of 2008 and O.A. No. 32 of 2008 and for a direction upon
the respondents to consider the case of the petitioner for his
employment in alternative post for which he is medically fit and
the respondents be directed not to discriminate the petitioner
and to extend the same benefit of employment under the
Railway Scheme at par with the other same and similarly
situated persons.
4. In O.A., it was specifically submitted that the petitioner is
entitled for the same benefits of employment in alternative
posts in terms of the Railway Circulars/Uniform Policy decision
referring the Full Bench judgement of the learned tribunal
dated 10.7.2012 passed in O.A. No. 65 of 2010 as there was a
specific direction that the benefit of the said Judgement
extended to the candidates who were selected against the
Notification dt. 05.05.98.
5. Though, the review petitioner/writ petitioner/applicant
case and claim were fully covered by the Full Bench judgement
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dated 10.7.2012 passed in O.A. No. 65/2010 as he was also
appeared against the same notification dated 05.05.1998, the
learned Tribunal vide order dated 23.05.2017 has dismissed his
case without waiting for written statement, holding
applicant’s/writ petitioner’s O.A. is barred by limitation.
6. It is the further case of the petitioner that he had also filed
a limitation application bearing M.A. No. 26 of 2017 for
condonation of the delay wherein it was categorically stated
that he made a representation dated 20.10.2016 after getting
information about the order dated 31.10.2014 passed in O.A.
No. 04 of 2014 and accordingly requested to condone the delay
and to extend the same benefits at par with the petitioners in
O.A. No. 04 of 2014, in O.A. No. 65 of 2010 (FB) and in O.A. No.
84 of 2006, O.A. No. 136 of 2004, O.A. No. 176 of 2010 as in all
the cases, the respondents were directed to extend the benefits
of alternative appointment in medically unfit candidates, in
which, they are medically fit in terms of the Railway
Circulars/Policy/Estt. Srl. No. 215/1999, 232/2000 and
22.4.2004 issued time to time, but the learned tribunal has not
taken into consideration the aforesaid fact.
7. The petitioner, being aggrieved and dissatisfied with the
order dated 23.05.2017 has moved before this Court by filing
writ petition being W.P.(S) No. 6445 of 2017. The learned writ
Court after taking into consideration the factual aspect has
refused to interfere with the order dated 23.05.2017 passed by
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the learned Tribunal, against which, the instant review petition
has been filed.
Argument advanced on behalf of the Review Petitioner
8. Learned Senior Counsel for the review petitioner has taken
the following grounds in assailing the impugned judgment: –
(i) It has been contended that the learned writ court,
while dismissing the writ petition on the ground of delay in
filing the O.A., has failed to appreciate that the Railway
circulars dated 24.09.1999, 07.08.2000 and 29.12.2004 are the
policy decisions of the Railway and that policy is to provide the
same benefits of alternative employment to all such medically
unfit candidates.
(ii) In case of policy decision, the obligation is casted
upon the authorities concerned to extend that benefit to all
similarly situated persons irrespective of whether they have
approached or not and in such a case there is no question of
limitation.
(iii) It has also been contended that the learned writ
court has not considered the proposition of law that in a case
when the benefit is based on the policy decision, the obligation
casts upon the authority to extend the same benefits to all the
similarly situated persons but having not done so, the order
impugned suffers from an error. In order to buttress this limb
of argument the learned senior counsel has placed reliance
upon the judgment rendered by the Hon’ble Apex Court in the
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6864/2011).
(iv) It has been contended that while dismissing the writ
petition the judgement dt. 05.01.2022 passed in W.P.;(S) No.
937 of 2014 by the Co-ordinate Bench has been referred but
failed to consider the para-3 of that judgement wherein
referring the judgement passed in O.A. No. 65 of 2010 (F.B.)
and the issue of applicability of the Railway Board’s circular,
policy decision, delay was condoned after referred the
judgement of the Full Bench passed in O.A. No. 65 of 2010.
9. Learned senior counsel for the review petitioner, based
upon the aforesaid grounds, has submitted that the same having
not been considered in right perspective by the writ Court and as
such, it is a fit case for exercising the power of review.
Arguments advanced on behalf of the Respondent
10. Per Contra, Mr. Sunil Kumar, learned counsel for the
respondents has submitted that all the grounds which are being
raised, have already been taken into consideration by this Court
and the petitioner by re-agitating the same, is trying to make the
said ground to be a ground for review, which is not permissible.
11. It has been contended that the case of the present
petitioner is not to be treated as precedent for other such
persons approaching the court after a prolonged delay.
12. It has further been contended that the ground is only to be
entertained if acceptable within the scope to exercise the power
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of review. All the grounds which have been raised herein by the
learned counsel for the petitioner have already been taken into
consideration by this Court and as such, the said ground cannot
be said to be a new one for the purpose of coming to the
conclusion that error apparent on the face of record or the fact
could not be produced in spite of all due diligence, hence, order
impugned, therefore, is not sought to be reviewed.
13. Learned counsel, based upon the aforesaid grounds, has
submitted that all these grounds however cannot be taken as a
ground to review the order passed by the writ court.
Analysis
14. We have heard the learned counsel for the parties and
gone through the rival submissions made on behalf of the
parties, pleadings and the order sought to be reviewed.
15. This Court, before appreciating the aforesaid contentions
of the learned counsel for the parties, deems it fit and proper to
refer underlying principle of the review or the power/scope of
review.
16. The Hon’ble Apex Court in the case Moran Mar Basselios
Catholicos and Anr. vs. Most Rev. Mar Poulose Athanasius
and Ors., [AIR 1954 SC 526], particularly, at paragraph-32 has
observed as under:
“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-6-
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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.”
17. Likewise, in the case of Col. Avatar Singh Sekhon Vrs.
Union of India, (1980) Supp. SCC 562, the Hon’ble Apex Court
observed that a review of an earlier order cannot be done unless
the Court is satisfied that the material error which is manifest
on the face of the order, would result in miscarriage of justice or
undermine its soundness. The observations made are as under:
“12. A review is not a routine procedure. Here we resolved
to hear Shri Kapil at length to remove any feeling that the
party has been hurt without being heard. But we cannot
review our earlier order unless satisfied that material
error, manifest on the face of the order, undermines its
soundness or results in miscarriage of justice. In Sow
Chandra Kante v. Sheikh Habib 1975 1 SCC 674 this
Court observed: ‘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. ….. The present stage is not a
virgin ground but review of an earlier order which has the
normal feature of finality.”
18. Further, the Hon’ble Apex Court in the case of Kamlesh
Verma vs. Mayawati, reported in (2013) 8 SCC 320 has
observed that review proceedings have to be strictly confined to
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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 as under:
“20. Thus, in view of the above, the following grounds of
review are maintainable as stipulated by the statute:
20.1. When the review will be maintainable:
(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;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason. The words “any other
sufficient reason” has been interpreted in Chajju Ram v.
Neki, and approved by this Court in Moran Mar Basselios
Catholicos v. Most Rev. Mar Poulose Athanasiusto mean “a
reason sufficient on grounds at least analogous to those
specified in the rule”. The same principles have been
reiterated in Union of India v. Sandur Manganese & Iron
Ores Ltd.,.
20.2. When the review will not be maintainable:–
(i) A repetition of old and overruled argument is not enough
to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the
original hearing of the case.
(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.
(v) A review is by no means an appeal in disguise whereby
an erroneous decision is re-heard 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.
(vii) The error apparent on the face of the record should not
be an error which has to be fished out and searched.
(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.
(ix) Review is not maintainable when the same relief
sought at the time of arguing the main matter had been
negatived.”
19. It is evident from the aforesaid judgments that the power
of review is to be exercised if there is any error occurred on the
face of the order or the factual aspect could not have been
brought to the notice of this Court in spite of the due diligence
having been taken in the matter of making available the factual
aspect of the relevant documents.
20. The position of law is well settled, as would appear from
the reference of the judgment made hereinabove that the review
of the judgment can only be made if the new fact has come
which could not have been brought to the notice of the Court in
spite of the due diligence, as has been held by the Hon’ble Apex
Court in Moran Mar Basselios Catholicos and Anr. v. Most
Rev. Mar Poulose (supra).
21. It is evident from the aforesaid judgment that the power of
review can be exercised only the two folds ground, i.e., (i) if
there is any error apparent on the face of the order; or (ii) the
fact which could not have been brought to the notice of the
court in spite of the due diligence having been taken by the
concerned party.
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22. Further, law is well settled that a review petition, has a
limited purpose and cannot be allowed to be “an appeal in
disguise”, as has been settled by the Hon’ble Apex Court in the
case of Parsion Devi v. Sumitri Devi (1997) 8 SCC 715, for
ready reference the relevant paragraph of the aforesaid
judgment is quoted as under:
“Under Order 47 Rule 1CPC a judgment may be open to
review inter alia if there is a mistake or an error apparent
on the face of the record. An error which is not self-evident
and has to be detected by a process of reasoning, can
hardly be said to be an error apparent on the face of the
record justifying the court to exercise its power of review
under Order 47 Rule 1CPC. In exercise of the jurisdiction
under Order 47 Rule 1CPCit is not permissible for an
erroneous decision to be “reheard and corrected”. A review
petition, it must be remembered has a limited purpose and
cannot be allowed to be “an appeal in disguise.”
23. Similarly, in S. Murali Sundaram Versus Jothibai
Kannan and Others 2023 SCC OnLine SC 185 the Hon’ble
Apex Court observed as under:
“15. While considering the aforesaid issue two decisions of
this Court on Order 47 Rule 1 read with Section 114 CPC
are required to be referred to? In the case of Perry Kansagra
(supra) this Court has observed that while exercising the
review jurisdiction in an application under Order 47 Rule 1
read with Section 114 CPC, the Review Court does not sit in
appeal over its own order. It is observed that a rehearing of
the matter is impermissible in law. It is further observed
that review is not appeal in disguise. It is observed that
power of review can be exercised for correction of a mistake
but not to substitute a view. Such powers can be exercised
within the limits of the statute dealing with the exercise of
power. It is further observed that it is wholly unjustified and
exhibits a tendency to rewrite a judgment by which the
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controversy has been finally decided. After considering
catena of decisions on exercise of review powers and
principles relating to exercise of review jurisdiction under
Order 47 Rule 1 CPC this Court had summed upon as
under:
“(i) Review proceedings are not by way of appeal and have
to be strictly confined to the scope and ambit of Order 47
Rule 1.
(ii) Power of review may be exercised when some mistake or
error apparent on the fact of record is found. But error on
the face of record must be such an error which must strike
one on mere looking at the record and would not require any
long-drawn process of reasoning on the points where there
may conceivably by two opinions. (iii) Power of review may
not be exercised on the ground that the decision was
erroneous on merits. (iv) Power of review can also be
exercised for any sufficient reason which is wide enough to
include a misconception of fact or law by a court or even an
advocate. (v) An application for review may be necessitated
by way of invoking the doctrine actus curiae neminem
gravabit.”
24. Review can also be sought when the order discloses some
error apparent on the face of record or on grounds analogous
thereto. These are all grounds which find mention in various
judicial pronouncements right from the earliest time as well as
in the Rules of Order 47 of the Civil Procedure Code as
permissible grounds of review.
25. 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
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apparent on the face of the record for the purpose of Order 47
Rule 1 CPC.
26. Under Order 47 Rule 1 CPC a judgment may be open to
review inter alia if there is a mistake or an error apparent on the
face of the record. An error which is not self-evident and has to
be detected by a process of reasoning, can hardly be said to be
an error apparent on the face of the record justifying the Court
to exercise its power of review under Order 47 Rule 1 CPC.
27. In the very recent judgment in the case of Sanjay Kumar
Agarwal Vrs. State Tax Officer (1) & Anr., 2023 SCC OnLine
SC 1406, the Hon’ble Apex Court while interpreting the
provision of Order 47 Rule 1 of the C.P.C. the proposition has
been laid down to entertain the review, as has been held at
paragraph 16.1 to 16.7, which reads as under:-
“16.1. A judgment is open to review inter alia if there is a
mistake or an error apparent on the face of the record.
16.2. A judgment pronounced by the court is final, and
departure from that principle is justified only when
circumstances of a substantial and compelling character
make it necessary to do so.
16.3. An error which is not self-evident and has to be
detected by a process of reasoning, can hardly be said to be
an error apparent on the face of record e justifying the court
to exercise its power of review.
16.4. In exercise of the jurisdiction under Order 47 Rule 1
CPC, it is not permissible for an erroneous decision to be
“reheard and corrected”.
16.5. A review petition has a limited purpose and cannot be
allowed to be “an appeal in disguise”.
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16.6. Under the guise of review, the petitioner cannot be
permitted to reagitate and reargue the questions which have
already been addressed and decided.
16.7. An error on the face of record must be such an error
which, mere looking at the record should strike and it
should not require any long-drawn process of reasoning on
the points where there may conceivably be two opinions.–”
28. Thus, on the basis of aforesaid discussion it is evident that
while power of review may be inherent in the High Court to
review its own order passed in a writ petition, the same has to be
exercised on well-recognized and established grounds on which
judicial orders are reviewed. For example, the power may be
exercised on the discovery of some new and important matter or
evidence which was not within the knowledge of the parties
seeking review despite due exercise of diligence when the order
was made.
29. 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 invoking
the jurisdiction of review. Further an error which is not self-
evident and has to be detected by a process of reasoning, can
hardly be said to be an error apparent on the face of the record
justifying the Court to exercise its power of review.
30. It is evident from the law laid down by the Hon’ble Apex
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Court that the parameters have been fixed in the recent
judgment in the case of Sanjay Kumar Agarwal Vrs. State
Tax Officer (1) & Anr. (supra), and in sum and substance, the
power of review can only be exercised if there is error apparent
on the face of order or the fact could not have been produced in
spite of due diligence.
31. Adverting to the factual aspect of the present case by taking
into consideration the ground, as has been agitated on behalf of
the petitioner, we are now proceeding to examine as to whether,
the same can be said to be a ground to exercise the power of
review.
32. It is evident that review petitioner/writ petitioner had
initially filed an Original Application bearing O.A. No. 48 of 2017
before the learned CAT at Ranchi inter-alia for issuance of
direction upon the respondents to extend the benefit of
alternative employment in terms of the Railway Circulars dated
24.09.1999, 7.08.2000 and 29.12.2000 to the petitioner at par
with the same and similarly situated persons and for a direction
upon the respondents to consider the case of the petitioner for
his employment in alternative post for which he is medically fit
and the respondents be directed not to discriminate the
petitioner and to extend the same benefit of employment under
the Railway Scheme at par with the other same and similarly
situated persons.
33. Ground has been taken before the learned tribunal that the
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petitioner is entitled for the same benefits of employment in
alternative posts in terms of Railway Circulars/Uniform Policy
decision referring the Full Bench judgement of the learned
tribunal dated 10.7.2012 passed in O.A. No. 65 of 2010 as there
was a specific direction that the benefit of the said Judgement
extended to the candidates who were selected against the
Notification dated 05.05.1998.
34. The learned Tribunal, vide order dated 23.05.2017, has
dismissed his case holding applicant’s/writ petitioner’s O.A. is
barred by limitation.
35. The petitioner, being aggrieved and dissatisfied with the
order dated 23.05.2017 has moved before this Court by filing
writ petition being W.P.(S) No. 6445 of 2017.
36. This Court, vide order dated 19.11.2024, after taking into
consideration the factual aspect and applying the principle of
fence sitter and further basing upon the delay and laches, has
refused to interfere with the order dated 23.05.2017 passed by
the learned Tribunal, against which, the instant review petition
has been filed.
37. The learned counsel for the review petitioner has
emphatically contended that when the benefit is based on the
policy decision, the obligation casts upon the authority to extend
the same benefits to all the similarly situated persons but having
not done so, the order impugned suffers from an error.
38. It has further been contended that while dismissing the
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writ petition, the judgement dated 05.01.2022 passed in W.P.;(S)
No. 937 of 2014 by the Co-ordinate Bench has been referred but
failed to consider para-3 of that judgement wherein referring the
judgement passed in O.A. No. 65 of 2010 (F.B.) and the issue of
applicability of the Railway Board’s circular, policy decision,
delay was condoned after referred the judgement of the Full
Bench passed in O.A. No. 65 of 2010.
39. This Court, in the backdrop of the aforesaid settled basic
principle of civil review and in order to ascertain that whether
the aforesaid grounds raised by the learned counsel for the writ
petitioner could not have been brought to the notice of the
court in spite of the due diligence having been taken by the
concerned party or any error apparent on record has gone
through the order passed by the writ Court against which
review has been sought for. For ready reference, the relevant
paragraphs of the order of which review is being sought for, are
being quoted herein:
“37. So far as the petitioner/applicant of writ petition
being W.P.(S) 6445 of 2017 is concerned he is also
one of the candidates, who was empaneled under
Chakradharpur Division of Railways in terms of the
Notification dated 5th May, 1998, but due to his
medical unfitness in B-I Category, he was subjected
to re-medical examination, but again declared
medically unfit in that category.
38. There was a provision for alternative employment
against next below medical category for which he is
medically fit. The grievances were pending for long
and therefore the applicant moved the learned CAT
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citing different orders passed in different O.As.
concerning different applicants, wherein the rejection
orders were quashed and the respondents were
directed to provide employment to those applicants in
Group-D post which required only C-I Medical
Standard next below B-I category Medical Standard
in which they had failed.
39. The applicant claimed that he was also medically
fit for C-I category and accordingly entitled for
employment in any lower medical category of Group-D
post pursuant to Railway’s Board Circular.
40. Learned Tribunal considered the case of the
parties, but in his case, took a different view and
dismissed the original application holding as time
barred and dismissed the same at the admission
stage itself, against which the present writ petition
has been filed.
41. Adverting to the facts of the instant case it is
pleaded that petitioner in the month of September
2016 came to know that one Sri Chamepshwar
Rajhans (petitioner of W.P.(S) 937 of 2015) had moved
before Tribunal in OA no. 04 of 2014 for a direction to
provide alternative employment in any Group ‘D’ post
for which he is medically fit and his OA has been
allowed vide an order dated 31st October, 2014 with
a direction to provide him employment in alternative
post in below Medical Grade at per with the similarly
situated persons.
42. Accordingly, the petitioner/applicant has
preferred the O.A being O.A. No. 051/800048/2017
with MA/051/00026/2017 for the similar relief and
for the condonation of delay in filing the said O.A. But
the said O.A was dismissed by the learned tribunal
vide order dated 23.05.2017.
43. It is further pleaded that apart from the above, as
many as about 18 to 20 OAs have been allowed in
between the period 2009 to 2013 in terms of the order
dated 5th December, 2008 and alternative
employment have been provided to all such medically
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unfit candidates who applied against the notification
dated 05.05.1998 and in all such cases either delay
have been condoned/ignored or never raised by the
respondents.
44. It is contended by the learned counsel for the
petitioner that the petitioner’s case is squarely
covered by the decision dated 31.10.2016 passed in
OA no. 04 of 2014 (Champeshwar Rajhans Vs Union
and India and others). Both the petitioner and
applicants of the said OA were appointed against the
notification dated 05.05.1998 and were declared
medically unfit in B-1 category and now
Champeshwar Rajhans has been provided
employment, as such this petitioner is entitled for the
same benefit after condoning the delay.
45. The learned counsel for the petitioner has further
submitted that the similar points were raised in OA
no. 65 of 2010 and that OA was referred before the
Full Bench due to dissenting opinion between the two
members of the Division Bench, and the learned Full
Bench of the Tribunal vide a detailed order dated
10.07.2012 disposed of said O.A with a direction to
the respondents to extend the same benefits to the
similarly placed persons subject to outcome the
decision of the in W.P (S) No. 2259 of 2009, however,
it was made clear that the order is restricted only to
the candidates selected against the Notification dated
05.05.1998.——
46. In the aforesaid context we are now revisiting the
facts of the instant case and after perusal it appears
that it is the admitted case the present petitioner that
he has preferred the O.A. in year 2017 when the
order in the O.A being OA No. 04 of 2014 was passed
by the learned tribunal whereby the relief was
granted to the similarly placed applicant namely
Champeshwar Rajhans.
47. The learned tribunal after taking into
consideration of the long delay in filing the application
had dismissed the said O.A being O.A. No.
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051/800048/2017 with MA/051/00026/2017 on
the ground of delay at the admission stage itself
without entering into the merit of the case.
48. At this juncture we would like to refer the settled
position of law that the principle of fence sitter can be
made applicable when there is delay and laches on
the part of the concerned employee.
50. Thus, it is evident from the aforesaid settled
position of law that when a person who is not vigilant
of his rights and acquiesces into the situation, his
grievance cannot be heard after a couple of years on
the ground that the same relief should be granted to
him as was granted to the persons similarly situated
who were vigilant about their rights and challenged
their cause.
51. Further it is admitted facts that the
petitioner/applicant has approached the tribunal and
authority concerned after 16 years for redressal of his
grievances merely on the ground that he came to
know about the order of learned tribunal passed in
the O.A being OA No. 04 of 2014 whereby the relief
was granted to the similarly placed applicant namely
Champeshwar Rajhans, therefore this ground as
taken by the petitioner is not said to be sufficient
ground in condoning the delay in the light of the
settled position of law as rendered by the Hon’ble
Apex Court in the case of State of Uttar Pradesh and
Others vs. Arvind Kumar Srivastava and Others
(supra).
52. The learned counsel has relied upon the order
passed by the learned Full Bench of the Tribunal in
OA no. 65 of 2010 wherein vide order dated
10.07.2012 a direction was passed to the
respondents to extend the same benefits to the
similarly placed persons subject to outcome the
decision of the in W.P (S) No. 2259 of 2009 and
further ordered that the order is restricted only to the
candidates selected against the Notification dated
05.05.1998. The learned counsel contended that this
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is a judgment in rem and, therefore, the applicant is
entitled to similar relief.
53. It is admitted fact that the applicant has
approached the tribunal inordinate delay of 16 years
and the applicant has been in deep slumber and has
never approached any forum for more than 16 years
for his relief. The judgment made by the Full Bench of
the tribunal is not a judgment in rem and the ground
of recent knowledge of the relief granted in similar
cases is not acceptable in terms of the aforesaid
settled position of law particularly the judgment
rendered by the Hon’ble Apex Court in the case of
State of Uttar Pradesh and Others vs. Arvind Kumar
Srivastava and Others.
54. The case of the petitioner/applicant is fit to be
considered in the light of the judgment passed by the
co-ordinate Bench of this Court in W.P.(S) No. 937 of
2015 wherein consideration has been given that the
case of the respondent of the said case should not be
treated as precedent for other such persons
approaching the court after a prolonged delay.
55. However, we have considered the case of the
respondents/applicants as above who are the
respondents of W.P.(S) No. 2207 of 2009 and W.P.(S)
No. 2259 of 2009 by taking into consideration the fact
that they were before the Court of Law since the year
2006 and 2008 respectively while the petitioner of
W.P.(S) No. 6445 of 2017 has approached the
Tribunal only in the year 2017 after the order having
been passed by the learned Tribunal in O.A. No. 04 of
2014.
56. Hence, applying the principle of fence sitter and
basing upon the delay and laches, this Court is of the
view that the order passed by the learned Tribunal is
not amenable to be interfered with in exercise of
power of judicial review under the power conferred
under Article 226 of the Constitution of India.
57. Accordingly, the writ petition being W.P.(S) No.
6445 of 2017 is hereby dismissed.”
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40. It is evident from perusal of paragraph-52 of the order of
writ Court as quoted hereinabove that learned counsel for the
writ petitioner (herein review petitioner) has relied upon the
order passed by the learned Full Bench of the Tribunal in O.A.
No.65 of 2010 wherein vide order dated 10.07.2012 a direction
was passed to the respondents to extend the same benefits to
the similarly placed persons subject to outcome of the decision
of W.P (S) No. 2259 of 2009, with a further direction that the
order is restricted only to the candidates selected against the
Notification dated 05.05.1998 and by referring the aforesaid
order, the learned counsel for the writ petitioner has contended
that since the aforesaid judgment/order, i.e., OA No. 65 of 2010
is judgment in rem, therefore, the applicant is entitled to get the
similar relief.
41. The writ Court, while appreciating the aforesaid
contention of the learned counsel for the petitioner in
paragraph-53 of the order, has observed that the applicant has
approached the tribunal after inordinate delay of 16 years and
the applicant has been in deep slumber and has never
approached any forum for more than 16 years for his relief. It
has further been observed that the judgment made by the Full
Bench of the tribunal is not a judgment in rem and the ground
of recent knowledge of the relief granted in similar cases is not
acceptable in terms of the aforesaid settled position of law
particularly the judgment rendered by the Hon’ble Apex Court
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in the case of State of Uttar Pradesh and Others vs. Arvind
Kumar Srivastava and Others (supra).
42. Thus, from the aforesaid discussion, it is apparent that the
learned writ Court while negating the claim of the writ petitioner
has already taken into consideration the ground/contention,
which has been raised by the learned counsel for the review
petitioner herein.
43. So far as the other contention of the learned counsel for
petitioner about no proper consideration of judgment passed in
W.P.(S) No. 937 of 2015 is concerned, is not fit to be accepted,
reason being that, from perusal paragraph-54 of the order of
writ Court, it would be evident that judgment passed by the co-
ordinate Bench of this Court in W.P.(S) No. 937 of 2015 has also
been taken into consideration by the writ Court and further from
paragraph-55 of the order of writ Court, it is apparent that the
Court has also taken into consideration the fact that the
respondents of W.P.(S) No. 2207 of 2009 and W.P.(S) No. 2259 of
2009 were before the Court of Law since the year 2006 and 2008
respectively but the writ petitioner of the instant case has
approached the Tribunal in the year 2017 after the order having
been passed by the learned Tribunal in O.A. No. 04 of 2014 and
based upon the aforesaid consideration, the writ Court has
negated the claim of the writ petitioner/review petitioner.
44. This Court, therefore, applying the principle upon which
the power of review is to be exercised, is of the view that the
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ground as has been raised cannot be a ground for review, since,
the said ground has already been taken into consideration by
the Writ Court.
45. So far, the question of applicability of the judgment
rendered by the Hon’ble Apex Court in the case of Union of
India and Anr. Vs. S.K. Murti in the present facts and
circumstances of the instant is concerned, is also not fit to be
accepted.
46. From the perusal from the aforesaid judgment, it is
evident that the Hon’ble Apex Court has observed that
scientists under the Flexible Complementing Scheme (FCS) are
entitled to promotion from the date they become eligible, not
from the date of the assessment board, if the delay is due to
administrative inaction. This established that retrospective
promotions are valid if vacancies existed during the eligibility
period.
47. Thus, it is evident that the Hon’ble Apex Court has held
that the administrative delay in constituting a Review
Committee cannot penalize a scientist who has completed the
required residency period and met eligibility criteria but herein
the it is not the situation, rather, the petitioner himself
approached the Tribunal in the year 2017 after the order
having been passed by the learned Tribunal in O.A. No. 04 of
2014, therefore, the writ Court while applying the principle of
fence sitter and basing upon the delay and laches has refused
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to interfere with the order passed by the learned tribunal.
48. Further, it is settled position of law that the applicability of
the judgment depends upon the facts and circumstances of
each and every case and there cannot be any universal
application of the judgment rather each judgment is to be
decided on the basis of fact of each case. Reference in this
regard may be made to the judgment rendered by the Hon’ble
Apex Court in Dr. Subramanian Swamy vs. State of Tamil
Nadu & Ors reported in (2014) 5 SCC 75, for ready reference,
the relevant paragraph of the aforesaid judgment, is being
quoted as under :
“47. It is a settled legal proposition that the ratio of
any decision must be understood in the background
of the facts of that case and the case is only an
authority for what it actually decides, and not what
logically follows from it. “The court should not place
reliance on decisions without discussing as to how
the factual situation fits in with the fact situation of
the decision on which reliance is placed.”
49. On the basis of discussion made hereinabove and further
this Court, on consideration of the ground for review, as has
been agitated by the learned counsel for the review petitioner, is
of the view that all the grounds which have been raised by the
learned counsel for the petitioner have already been considered
by this Court exhaustively and no new thing has been brought
said to attract the principle of error apparent on the face of
record or anything could have been brought to the notice of the
Court in spite of due diligence.
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50. This Court, therefore, is of the view that the fact of the
present case so far as exercising the power of review is
concerned, is not coming under the law laid down by way of
formulating the parameters as in the case of Sanjay Kumar
Agarwal Vrs. State Tax Officer (1) & Anr. (supra) and other
cases, which have already been referred in preceding
paragraphs, hence, it is not a case where the power of review is
to be exercised.
51. In the result, the instant review petition fails and is,
dismissed.
52. Pending interlocutory application(s), if any, also stands
disposed of.
(Sujit Narayan Prasad, J.)
(Sanjay Prasad, J.)
16.03.2026
A.F.R.
Rohit/
Uploaded on 25.03.2026
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