IN THE HIGH COURT OF JUDICATURE AT PATNA C. REV. No.32 of 2008 DR. NIRMAL PRAKASH NARAIN Versus THE STATE OF BIHAR & ORS ----------- 6. 09.07.2008 1. Heard learned counsels for the petitioner, state and respondent No.11. 2. This Civil Review application has been filed by Dr. Nirmal Prakash Narain to review the order dated 17.11.2006 passed in CWJC No. 2688 of 2005. 3. The grounds mentioned in the review petition for reviewing the order passed in the writ petition are that; (i) the order in the writ application has been passed at the instance of the state in connivance with the petitioner in the writ application by not bringing relevant records before the court or otherwise finding recorded would have been different, Material facts have been suppressed and there is error of record; (ii) Review petitioner though a necessary party, was not made a party and his application for intervention was not considered. 4. Canvassing ground No. I, it has been submitted by the counsel for the review petitioner that prior to 1997 rules, this Hon’ble court in Rita Sinha’s case, taking consideration of all facts and circumstances, has fixed time schedule in appointment on teaching posts , such as posts of - 2 - Assistant Professor, with a direction to fill annual vacancies strictly in accordance with year wise merit panel of that year only. The appointments used to be made on the basis of the decision in Reeta Sinha’s case reported in 1990(2) PLJR 243, confirmed in the Division Bench decision and followed and approved by a Full Bench of this Hon’ble court in its judgment reported in 2006(1) PLJR 73. 5. An advertisement for filling vacancies for the post of Assistant Professor of the year, 1992 was published. The review petitioner’s name in the 1991 panel (general category) was there but it was suppressed and without exhausting the 1991 panel as decided in Reeta Sinha’s case, panels of 1992, 1993, 1994 were published vide Notification No. 236(17) dated 16.07.1997. The review petitioner challenged this Notification by filing CWJC No. 6736/97. Indulgence was granted by the Hon’ble Court and finally, it was directed that only after exhausting 1991 panel, posting can be made from the subsequent panel. The Hon’ble court initiated suo moto contempt vide MJC No. 2526/97. The government thereafter modified earlier notification No. 236 dated 16.7.97 and came out with Notification vide No. 11 dated 08.11.1997 amending and modifying its Notification No. 291(17) dated 21.8.1997 as well as Notification No. 236(17) dated 16.7.1997. In this Notification, review petitioner was at serial No.2 and Dr. Mahendra Prasad Raut at serial No. 3. The seniority of - 3 - Assistant Professor (general surgery) against the vacancies prior to creation of separate teaching cadre and coming into effect of the 1997 rules, became final and settled in terms of the orders passed by this court. Now on account of quashing of policy decision of the Government, through Memo No. 22(17) dated 26.01.2006 and the order dated 17.11.2006 passed in the writ application, the State Government is trying to disturb the seniority finally settled, in absence of any principle laid down by court. As such, review is necessary. 6. Counter affidavit has been filed on behalf of Dr. Indra Shekhar Thakur in which preliminary objection has been raised regarding maintainability of the review petition on account of non-joinder of party. In the counter-affidavit, it has been stated that in CWJC No. 10314/96 and MJC No. 2526/97, no order was passed by the Hon’ble High Court in favour of the review petitioner even then how the state- respondents interpreted it in favour of the review petitioner, can be replied by the state-respondents only. In the annual merit panel of 1991, review petitioner was at serial No. 3 in general category. There were three vacancies of Assistant Professors out of which one was for reserved category candidate and two were for general category. In 1991 panel, Dr. H.N. Bhardwaz was at serial No. 1, Dr.P.S. Sinha was at serial No. 2 and Dr. Mahesh Rawat was at serial No. 3 (a reserved candidate). There was no room for review petitioner - 4 - but by maneuvering things, in contrary to the finding records in Dr. Reeta Sinha’s case, the review petitioner was adjusted in 1991 panel. Subsequently, the state government became wise and in the year, 2003, reviewed the entire panel from 1991 to 1994 and on that basis, the seniority list was prepared, in which review petitioner was much below but did not give any objection against the provisional gradation list. However an objection was filed by Dr. Indra Shekhar Thakur (O.P. No. 11) which was considered, examined and on 30.08.2003 finally, the objection was accepted up to the stage of Hon’ble Minister. In this list, review petitioner is at serial No. 21. 7. I do not find it necessary to go into these controversies, as these facts were not in issue in C.W.J.C. No. 2688/05. What I find that the counsel for the petitioner himself has submitted that in the writ application, direction of this court is not to disturb the regular promotions but the State Government has been directed to decide inter se seniority in case of ad hoc promotions, arbitrary promotions in terms of 1997 rules. There is no order or direction causing apprehension to the review petitioner. His apprehension is not substantiated by the finding recorded in the writ application, and there is no ground for entertaining this review petition. - 5 - 8. So far the ground regarding error of record is concerned; I do not find that either in the counter-affidavit or in the supplementary affidavit, any statement has been made by the state-respondent which can be considered as error of record. The respondent-state was not directed at any point of time to produce the entire record relating to promotions of the Assistant Professor, Associate professor and professor. The writ petitioners and the private respondents did not allege any error of record during pendency of the writ application or at the time of hearing. This ground taken by the review petitioner is not sustainable and it do not make out a ground for review of the order passed in the writ application. I also do not find that there is any suppression of fact. 9. Another ground which has been taken is that being necessary party, the review petitioner was not impleaded as the party as such, in view of decision reported in AIR 1963, S.C. 1609 and the decision of this court reported in LPA No. 946/05, remedy to such an aggrieved party would lie by filing a review application before the court concerned, what I find that the statement made by the review petitioner is not correct as he has suppressed a material fact. The review petitioner had filed I.A. No. 1748/06 in CWJC No. 2688 of 2005 for being impleaded as party. In this interlocutory application, review petitioner was intervenor, petitioner No. 2. In this intervention application, all - 6 - intervenors including review petitioner had accepted all the statements made by the writ petitioner in that case. However, the interlocutory application was not pressed, may be due to reason that it was in support of the writ petitioner. In this circumstance, the law is well settled that review petition at the instance of such party cannot be entertained on the grounds that he was not given opportunity while passing an order against his interest. 10. Counsel for the review petitioner has further submitted that it is for the litigant to chose the forum. Though the review petitioner has two remedies; either to file writ application or review application but he has preferred review for redressal of his grievance in the light of the settled decision of this court as well as the Apex Court reported in AIR 2004 3329 (Pohia Singh aliasa Pohia Ram (D) by L. Rs. V. State of Punjab and others) where it has been held: “There is nothing in Article 226 of the Constitution to preclude the High Court from exhausting the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave error or palpable errors committed by it.” 11. Counsel for the state has submitted that since the review application is based on tentative gradation list, it is - 7 - not maintainable. It has further been submitted that there is no finding in order which shows either error of record or error in law. As such, no ground for review is made out. So far civil review application is concerned, it is based on assumptions not on facts, as such, no ground is made out for review the order. 12. It seems that the review petitioner being aggrieved by Notification No. 44 dated 21.01.2008, has filed this review application which is a subsequent development after disposal of the writ application. Notification, which in reality is cause of action for filing review application, cannot be a ground for reviewing the order passed in the writ application. 13. I do not find that either there has been any miscarriage of justice or any grave or palpable error committed which requires review of the order passed in the writ application. The grounds on which review has been sought, are not applicable in the present case. 14. Controversy of seniority was not the subject matter of the writ application rather the prayer of the petitioners in the writ application was only with regard to ad hoc promotions given in the different departments, specially, in surgery and medicines and also to prepare separate gradation list to consider promotions in the Deptts of medicines, general surgery and super speciality. This was - 8 - considered and the direction was issued to give promotions on regular basis as per rule. No case for review is made out . The review application is dismissed. A.K.V ( Mridula Mishra, J.)