BYNOTIFICATION'NO. S96Q/D-2S7(MO< B/C.Q./05AS SPECIFiEDiNSCHEOU.E I & H OF THE COURT FEES ACf-1870~ ,/ IN THE HIGH COURT OF CHHATTISGRH AT BILASPUR REVIEW PETITION No. IS^ /2010 APPLICANTS / RESPONDENTS \^ ...-'s^ T^S^ ,rt:v" ..f/'^' i--''l^r ..-•<') ^^ State of Chhattisgarh Through its Secretary, Department of Health & Family Welfare Department, D K S Bhawan, Raipur (C.G) Director, Health Services Old Nurses Hostel, DKS Bhawan Campus, Raipur (C.G) fff' 3. NON APPLICANT/ RESPONDENT €'^' Director, Medical Education Old Nurses Hostel, DKS Bhawan Campus, Raipur (C.G) 4. Civil Surgeon Government Hospital Kanker (C.G) 5. Dean Pt. Jawahar Lal Nehru Memorial Medical College, Raipur (C.G) VERSUS 1../' Dr. K K Som, S/o Late Shri M. P Som, Aged about 53 year, Anesthesia Specialist Government Hospital Kanker (C.G) ''(>*»aiimn^KNW!IN>la»nMi 6 APPLICATIOI^FOR REVIEW / MODIFICATION OF THE ORDER DATED 17708/2010 PASSED BY THE HON'BLE COURT IN W.P.(S) N0. 3574/2010, DR. K. K SOM Vs STATE OFCHHATTISGARH AND OTHERS ri ^ TTISGAI SiNGLE BENCH : HON'BLE SHRi I'VJANINDRA n'iOHAN SHRiv'ASTA'vA.J. KtVIEW PfcTITION N0.13SJ20'|Q state of URnattisgam ana otnsrs Versus ur. K.K.aom A ^ ^lani 1n/ _.— sd _ shrivastava ^ssw"" ^VS^^^-^^^^ i^-~r ^. sasas^sss3""1^ Ji -^-f'tS' "^^SS:-r"^S'£' snraiia i- RESPONDtN^ IU itate of ChhatSisgarh and others Dr. K.K.Som Tesent: - 5nn Y.B. inaKur, Ueputy Advocate Ueneral ror tne onn nii ffi^gar. counsei TOF ine re5pclnaeni !-??s?ss;' ^,march.^on l nis re'/ision petition is airectea against oraer aatea 1 //8/i u passea Dy tnis uourt in w.i-'.csi i\!o.,3Si/4.'T!j wnereoy tne pem'on OT tne wnt pefflioner was aiiowea ana tne State autnonties were aii'ectea to grant sponsorsnip uertirscate to tne wnt petrtioner. 2. i ne t';i/o grounas on wn'cn review nas Deen sougnt are, nrstiy tnat inis u-oun aia not taKe into consiaeration tne ract tnat accoraing to Kuie 44 OT URnattisgarn uvil ser/ices (leave) Kuies, ly/'/, a CIVB ssr/ant cannot De grantea studv leave bevond maximum oeriod of 24 months in his entire service tenure. As the'non-appiicant / writ petitioner had aiready avaiied the benefit of scheme of stuay leave m tne year iyy/, wnen ne unaerwent tne uipioma uourse in Anestnesia, tneretore, in case, sponsorsnip is grantea to ts.Ke up h'ost yraduation Uegree Course in Anestnesia, wnicn is OT tnree years, st v/ou'a exceed maximum period of study ieave. It is submitted that the petitioner, Sn the wrlt petition, suDmitted a list or aocto.'s wno are dou'oie h'ost uraauates Dut !t was not Drougnt to tne notice o* ine uourt mat tnose were tne aoctors wno naa ^ rt ^ cornpieted their Post Graduation even before joinlng their services and none of them were those who were granted study ieave twice. it is aiso contended that In view of the provisions contained in Rule 42 (2)(iii) of the Ruies of 1977 that study 'ieave shouid be granted by the authorlties for studies which may not be ciosely connect.sa v/itn tne won< OT tne uovernment uen/ant Dut wnicn are capaDie OT , widening his mlnd in a manner iikeiv to improve his abilities as a Civii Servant and equip him better to coilaborate with those empioyed in other branches of puDiic serv'ice, tne wnt petitioner was ngntiy rerusea sponsorsnip certfficaie. Moreover, in the State Government medica! seroice, the doctors who are specinlist in Anesthesia are deficient in number and as the pstitioner had aiready been Dromotea as oDeciaiist in Anestnesia on tne sirengtn or siDioma quaiiricanons, tneretors, tnere was aii ine justffication to reject tne appiication ror issuance or sponsorsnip cemncate, so tnst some omer canaiaate may De grantea ODDortuniw. i ne secona grouna to seeK review or tne oraer passea oy inis UOUP. is that in w.F.(C) No. 189/10, Navai Asija and others v. Union of India and otners, v.e Mon'Die aupreme uourt issuea intenm orders prescribing scneauie ror extenaea rouna OT h'ost uraauauon uounseisng ^uiu ana a aeaaiine or admission was fixed, according to which, no admission could be granted after 20/672u10. Therefore, the wnt petitioner, who fiied the -writ petition on 15/7/10 i.e. aner the iast date of adinission fixed bv the Hon'bie Supreme Court, was not o. On the other hand. iearned counsei for the non-aDDlicant / writ Detttioner suDmittea tnat tnis rev'ev/ oetition !s notninci out an aDDea! in aisguise. Me submits that none of the grounds which have now been raised before this Court, TSS^ri asvsisKswsstfty^S^S^^^^SSB^^SSWSSy 'vjsy' isse'" 9 to oppose the reiier ciaimed in me wm petition were enner raisea in tne pleaaings nor were argued and after having sufrered an order, those new grounds have Deen coined as an anertnougnt, oniy to avoia compiiance ot me oraer ana to »voidthe consequences of non-compiiance of the order as the writ petitioner filed ;ontempt petitlon on 7/10/10. Leamed counsei for the non-appiicant further irgued that in the review petition, new facts are being pieaded. He further iubmits that neither in the order dated 30/6/06, anv of the arounds which are now been taken, were stated as reasons for rejection of the wrst petitioner's appiication ror issuance or sponsorsnip certmcate, nor were wnisperea in tne reply to the petition. Learned counsei for the non-appiicant submlts that in the absence of any ground reiating to error apparent on the face of record or that nev/ ana imponant maner OT eviaence was aiscoverea wnicn v/as not wftiiin rne Knowieage even after exeresse of due diligence, revssw petition is liaisle to De dismissed. it is further contended that interim order of the SuDreme Court was passed on 13/5/10 and the review appiicants were fuily in the notice and knowiedge of the said order as thev had conducted examination and were grannng admission, tnerefpre tne review petition desen/es to De dismissea. it is further contention of learned counsei for the non-appiicant that the interim order of the SuDreme Court passed on 13/5/10 was oniv in reiation to the admisslon agains^'Ail Inaia Quota' ana ror that reason, review sougm on that grouna is liableto De reiected. 4. Learned counsei for the applicant could not dispute that the two grounds which are now being raised to seek review of the order passed by this Court, were not raised in the writ petition, to oppose reiief ciaimed by the writ petitioner. Neither in the repiy, any such ground was taken or facts reiaiing to those grounds k /'.' •<, x ^..// ^.jsy \\ -o pieaded nor during the course of arguments, any such submission was. mads. Apparentiy, therefore, it is not even the case of the review petitioner that there is any error apparent on the face of the record. warranting review of the earlier order. in the letter datea' 30/6/10 (Annexure P/1 in the writ petition) the only reason assignea ror rerusai ror issuance or sponsorsnip cenincate was 'administrative reason'. in the return filed by the appiicants herein, aii that v/as raised in ciefence was that oniy Assistant Surgeon v/orking under the Government of Chhattisgarh wiii be eiigibie to be sponsored. Since the petitioner had aiready obtained dipioma course in Anesthesia and is workina as Anesthesia SpecEaiist and not an Assistant Surgeon who has been promoted as Anesthesia Speciaiist, therefore.he is not entitfed for sponsorship of csrtificate. Except this, no other aver.ment jn deniai of petitioner's ciaim for issuance of sponsorship certificate was raised in the reDJv. No other records, fiie or note-sheets were proaucecl serc.re tr«suourt to even remotesy suggesi tnat tne grounas wnicn are now been taken jn the review pstition were ever made basis for rejection of petifioner's aDDiication for SDonsorshiD cerBficate. &. i ne appiicants nerein are ine competent autnoniy aeaiing v/itn acimission to mea'cai courses sn tne yiate. i ne auesuon wnetner in tne event ot arant OT sponsorsnip certirscate, me provision or Leave Kuses w'li come in meway, cannot be said to be a new ract which v/as not v/ithin the knowledae of the aoDiicant. inspite of due diiigence. 't is difncult to accept that whiis opposing the petitioner for issuance of sponsorship certificate by a Government Doctor and whiie c'erenaing tne maner, tne review appiicant nad no notice or Knowiedge or the provisions relating to the Leave Rules and that was discovered iater on. E'/en othem'ise. apDlicants have stated that the Post Graduate course is of three h a\ years. Those granted sponsorshjp wiii have to be granted study ieave for a minimum period or thlrty six months. Therefore, the submission which is now been rnade before this Court that after sponsorship certificate is granted, the petitioner would be entitied to study ieave beyond 24'months which wouid extend the maximum period of study ieave, has no base. In any case, this was not an issue for consideration before this C-ourt and it cannot be agitated in review petition. s-irst grouna tnererore tails. 6. ihe applicant autnormes are aeaiing wm tne meaicai eaucanon. ine Interim order of the Supreme Court in the case of Navai Asija (Supra) was oassed on 13/5/10 and it deait with the scheduie for extended second round of counseiina for 'AIi india Quota' and the matter in which the unfilled seats vvere to bs filled UD. The order of the Supreme Court cleariv stated that the State Government shall adhere to the specified time scheduie particuiariy to the second item in regard to reporting or vacancies. There is nothing on record to show that this order of the Supreme Court was not within the notice and knowi.edge of the appiicant at the time of Tiling repiy in the writ petition. No such averment has &een maae in the review oetmon. inis cieany snov/s tnat me aoDlicant had TU!I notice ana Knowieaae ana mract were unaer an oBiiciation to jrant admission according to the order of the Supreme Court yet that ground was not raised before this Court. Moreover, iearned counsei for the non-appllcant / writ petitioner is correct in submitting that the interim order of the Supreme Court was witn regara to niiing up or 'AII inaia uuota' seats wnereas tne wnt peticoner claimed admisslon aaainst the 'State Quota' seat and that order of Supreme Court wouid not come in tne way or granting reiiet to nim. t:ven omerA'ise, me non-appiicant has brougnt to the nouce of this uourt &y way or specitic pieaaings ^WwhfsaW^.^~'S^^^ESS!i^r- ^ thst admissions were granted even against the seat of Anesthesia to another doctor in the month of Juiv. 2010. This fact has not been disputed bv the applicant. /. 1 he scope OT revsew was consiaerea Dy tne supreme L;oun in tne case OT Mandas Das v. Smt_usn_a_Kani Banik and others, 2006. AIR SCW 1771, wnerein it was neia- " 14. in Meera Bhanja v. Nirmala Kumari Choudhary [AIR 1995 SC 455], ftVt'as neici tnat: "8. It is well settled !av»that the review proceeainss are not Dy way of an appeat and have to be strictiy cominea to me scope ana amDrt of Order XLVIi Ruie 1 CPC. In connection with the iimitation of the powers of the Court under Order XLVii Rule 1, while deaiing with similar jurisdiction avaiiable to the High Court v/hile seeking to review the orders under Article 226 of the Constitution, this Court, in the case of Aribam Tuieshwar Shar.'na v. Aribam Pishak Shaimt sDeakina through Chinnappa Reddv, J. has made the foiiowing pertinent oDservanons: 'lt is true there is nothlng in Articte 226 of the Constitution to preclude the Mign Court ?rom exercising me power OT review wnscn inheres in evero coun ot Dienary iunsaiction to prevem miscarnage of justice or to correct grave and paipaoie errors commraea Dy it. But. there are definitive iimits to the exereise of the power of revlew. •• rne Dower OT review mav oe exereisea on tne aiscovery OT new ana imDortant maner or eviaence wnicn, aner trse exercise OT aue diiigence was not within the know'iedge of the person seeking the review or couid not be produced by him at the tirne when the order was maae; it may De exereisea wnere some misraKe or error apparent on the face of tne recora is rouna, it may aiso &e exereised on anv analoaous ground. But, it may not be exereised on the ground that the decision was erroneous on merlt. That would be jn the province of a court of appeal. A power of review is not to fc.- {'•;'i'' ^ ;.^TJ/ A^ x-®y be confused with appeiiate power which may enabie an appeiiate court to correct aii manner of errors committed by the Subordinate Court." App'ying ihe aforesaid weli settied principies in the matter of review of decisions and in view ofthe facts and circumstances of the present case and the grounds which have been raised to seek revievv, i am ofthe considered opinion that no ground for review is made out. y. tven mougn not raisea as a sDecmc grounc! in tne review petiflon. iearnea counsel for the appiicant urged that in view ofthe judgment of the Supreme Court in the case of Mriduj Dhar and another v. union of india anci others, 2u05 t'2) SCC 65, under anv ciroumstances. this Court could not direct issuance of sponsorsnip certiTicate, as no miastream aamission aner tne last aate or adrnisslon is permissibie. in the ietter of seiection dated 28/06/10 (Annexure P/5 sn v/rrt petition), tne wnt petrtioner was grantea provjsiona! aamission ana v/as asked to produce the reguiar service and sponsorship certmcate. Therefore, it was not a case that the Detitioner was not granted admission. That ietter itseif indicates that iast date of admission was 30/5710. Therefore, on this .ground aiso, the aDDticant is not entitied to seek review ofthe orderdated 17/8/10. 1 10. Though, l have held that no case for review is made out, this Court takes note of the fact t-hat after order dated 17/8/10 was passed by this Court, a writ appeal was nied which was later on witneirav>'n witn tiberty to nie review petition and thereafter, the instant review petinon was filed. In this manner, as no sponsorship certificate was issued, the applicant was not aiiowed to join the course even tnougn ne was grantea aamission viae letter aatea 'ZQ/snu. i,s k -^-e^ ^ now, major part of the duration of the Post Graduation course has aiready been compieted and if the petitioner is aiiowed to join the course at this be'iated stage, it wouid run contrary to the decision of the Suoreme Court in the case of ivlridui Dhar (Supra). The pendency of the writ appeai and review petition has brought ion. /; 11. The non-appiicanvwrit petitioner is a sufferer of iilegal and arbitrary action and even though, an order was passed in his favour on 17/8/10, when he stood aamittea ror tne course, ne cou'a not oe aliowea to join tne s-'ost uraauation course. It is not merely a matter of i.ndividual interest. The non-appiicant / writ pemioner is a specialist in Anestnesia. !T ne is aepnvea OT opponunity to undertake Post Graduation course because of iiiegai and arbitrary action of the applicant / State, It couid not only be a great toss of the writ petitioner and ioosing the opportunity to improve his qualification but also the State Medical Heaith wil be deprived of a specialist In Anesthesia with Post Graduation Quaiificaiion. 12. Takjng into consideration the totality of the circumstances and to do compiete justlce, in modification of order dated 17/8/10 passed by this Court, it is now ordered that the non-applicant/ writ petitioner shaii be granted admission against one seat OT ^ost uraauation course OT Anestnessa in the State auota. in t'ne next academic session in the year 2011. The review petition is accordingly aisDoseo. OTT. ManindraMohanShrivastava Judge [,.,."' •o^;;w ss^