* THE HON’BLE SRI JUSTICE P.S. NARAYANA AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR + REV. WPMP NO. 4961 OF 2005 IN W.P. NO. 4175 OF 2004 % 18.03.2010 # U. Lakshmi Narayana .. Petitioner Vs. $ The Secretary to Government, Department of Survey and Land Records, Secretariat buildings, Hyderabad and 2 others. .. Respondents <GIST: >HEAD NOTE: ! Counsel for petitioner : Sri V. Mallik ^ Counsel for respondents : GP for Services-II ? CASES REFERRED : 1. (2008) 7 Supreme Court Cases 38 2. AIR 1969 Supreme Court 267 3. 2006(4) ALD 1 4. (1993) 3 Supreme Court Cases 161 5. (2009) 3 Supreme Court Cases 227 6. AIR 1990 SC 1605 7. AIR (37) 1950 Federal Court 131 8. AIR 1955 Calcutta 92 9. AIR 1981 Rajasthan 36 10. AIR 1989 Calcutta 106 11. AIR 1954 SC 526 12. AIR 1996 Supreme Court 742 13. AIR 2006 Supreme Court 1634 14. 1970(3) Supreme Court Cases 643 15. AIR 1975 Supreme Court 67 THE HON’BLE SRI JUSTICE P.S. NARAYANA AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR REV. WPMP NO. 4961 OF 2005 IN W.P. NO. 4175 OF 2004 Date: 18.03.2010 Between: U. Lakshmi Narayana .. Petitioner. And The Secretary to Government, Department of Survey and Land Records, Secretariat buildings, Hyderabad and 2 others. .. Respondents. THE HON’BLE SRI JUSTICE P.S. NARAYANA AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR REV. WPMP NO. 4961 OF 2005 IN W.P. NO. 4175 OF 2004 Order: (per Hon’ble Sri Justice B. Chandra Kumar) Aggrieved by the order of this Court dated 17.01.2005 made in W.P. Nos.26567 of 2003 and 4175 of 2004, the respondent in W.P. No.4175 of 2004 has filed the present review petition, under Order 47 Rule 1 CPC, praying to review the said order mainly on the ground that this Court in the said order observed that in the absence of any statutory rules with regard to the selection of the candidates there is no reason to upheld the order of the Tribunal, though in spite of the fact that the rules made vide G.O. Ms. No.228 Revenue (SS) Department, dated 27.02.1992 i.e., the amended rules of A.P. Survey and Land Records Subordinate Service Rules 1964, prescribing the qualification for the post of Deputy Surveyor/Computer Draftsman Grade-II, were in force. 2. The brief facts of the case are as follows. In the year 1995, the recruitment process for the post of Deputy Surveyor/Computer Draftsman Grade-II was taken up by the selection committee i.e., Assistant Director, Survey and Land Records, Kadapa, Member, Regional Deputy Director, Kurnool, and Member under the Chairmanship of the Joint Collector, Kadapa, as per G.O. Ms. No.228/Rev./88, dated 27.02.1992 read with the circular instructions in Rc.No.D4/3565/92, dated 02.05.1992 and revised circular instructions in Rc.No.D4/3565/92, dated 12.05.1992 by the Commissioner, Survey, Settlements and Land Records, Hyderabad, who was the head of the department. The selection was made based on National Council Vocational Training Draftsman Certificate and based on minimum general educational qualification i.e., SSC. The merit list was prepared on the basis of the total marks obtained by the candidates in SSC public examination out of maximum marks of 500, excluding the marks obtained in Hindi and total prescribed marks of 580 in National Council Vocational Training Draftsman Certificate (hereinafter referred to as NCVT) i.e., grand total marks of 1080 (500 + 580) in both the examinations as per Rc.No.D4/7908/93, dated 01.06.1994 of the Commissioner of Survey, Settlements and Land Records, Hyderabad. About 30 vacancies were filled up in 1995 recruitment. Out of 30 vacancies, 27 vacancies were filled up in Deputy Surveyor category and 3 vacancies were filled up in C.D. Grade-II category and totally 15 vacancies were filled up by O.C. Candidates. 3. Challenging the above referred selections, the petitioner herein had filed O.A. No.3713 of 1996 before the A.P. Administrative Tribunal, Hyderabad (hereinafter referred to as ‘the Tribunal’). The petitioner in the said O.A contended that he had secured 319 marks in Draughtsman Civil and that the third respondent had appointed the persons who had not secured 319 marks. It is specifically contended that mixing up 10th class marks and preparing the merit list was contrary to the rules. 4. A counter was filed in the O.A contending that basing on the circular dated 01.06.1994, issued by the Commissioner of Survey, Settlements and Land Records, Hyderabad, grand total of marks obtained by the respective candidates in the SSC public examination as well as NCVT examination was taken and that the merit list for the categories of SC, ST, BC and OC candidates were separately prepared. It was also contended that the unofficial respondent No.4 secured grand total of 687 marks in both NCVT and SSC examinations out of 1080 marks and so he was selected and appointed to the post of Deputy Surveyor under BC-D category as per his merit. It was also contended that the petitioner herein had secured 187th rank in the combined merit list. The last person who was selected in O.C. category had got 763 marks in both the examinations and in BC-B category merit list the 26th ranker had got 737 marks, whereas the petitioner had secured only 654 marks, and therefore, he was not selected in BC-B category in 1995 recruitment. 5. The Tribunal, having considered the A.P. Survey and Land Records Subordinate Service Rules, held that though no percentage is fixed for minimum educational qualification, but as far as vocational training course is concerned, minimum percentage of 55% is fixed, and therefore, those candidates who did not secure 55% marks in the vocational course cannot at all be considered for the purpose of selection and since the selection is made contrary to the rules referred supra the selection has to be set aside. It was further held that if the petitioner comes within the zone of consideration of securing the marks in the vocational course as per the merit, he has to be considered and given appointment. It was also observed that since the appointments took place long back, it would not be proper at that stage to upset the earlier selection made, therefore a direction was given to examine the material papers and if it appears that the petitioner had secured more marks than the other candidates in NCVT examination, he should be given posting with effect from the date of giving such appointment to other candidates, giving notional seniority from that date and monetary benefit subsequent to the appointment. It was also directed to complete the exercise within three months from the date of receipt of the copy of the order of the Tribunal. It was also observed that the records were not produced before the Tribunal. 6. Aggrieved by the same, the Government of A.P., represented by the Secretary to Government, Department of Survey and Land Records, and others i.e., respondents 1 to 3 herein filed W.P. No.4175 of 2004 before this Court. However, a common order was passed in the said writ petition along with W.P. No.26567 of 2003. The Division Bench of this Court (consisting of the then Hon’ble Sri Justice G. Bikshapathy and one of us Hon’ble Sri Justice P.S. Narayana) held that the procedure for selecting the candidates is at the discretion of the selecting authorities and that the merit has to be assessed by a reasonable method and that the practice of the authorities is to assess the merit of the candidates both in the SSC as well as NCVT examinations and that they had taken the marks, obtained in both the examinations into consideration and assessed the over all merit of the candidates, and in those circumstances, there is no irregularity in the selection process. It was further held that though the Tribunal held that the marks in the SSC examination need not be taken into consideration, there is no reason for coming to such conclusion in the absence of any statutory rules with regard to the selection of the candidates. Holding so, the order of the Tribunal was set aside. Against the said order, the present review application is filed. 7. Sri V. Mallik, learned counsel for the petitioner, referring to G.O. Ms. No.228, dated 27.02.1992, submits that there were rules prescribing the qualification for the post of Deputy Surveyor/Computer Draughtsman Grade-II, which prescribe that the candidate should secure not less than 55% marks in aggregate and 60% marks in the survey subject in National Council of Vocational Training Certificate in Draughtsman (Civil) Trade (Two year course) and that since the said rules were in force and though subsequently a circular was issued, vide circular No.D4/7908/93, dated 01.06.1994, changing the method of selection and prescribing the procedure to take total marks of SSC and NCVT examinations as referred in the above paras, the authorities cannot ignore the Rules and follow the procedure prescribed in the Circular and to prepare the merit list. His main submission is that there cannot be any circular contrary to the rules issued by the Government, vide G.O. Ms. No.228 Revenue (SS) Department, dated 27.02.1992. His further submission is that when the minimum qualifying marks were fixed as 55% in NCVT examinations and when the petitioner had secured more than 55% of the marks in NCVT examination and when the other candidates had secured less than 55% of the marks in the said examinations, such candidates cannot be selected by denying the appointment to the petitioner. His next submission is that when the rules were in force, the observation of this Court that no such rules were in force is clearly an error apparent on the face of the record and therefore the review petition is maintainable. It is also contended that the 4th respondent in the O.A before the Tribunal had not secured the requisite 55% of the marks in NCVT examinations and though he was served with notice, he did not appear before the Tribunal and that the respondents herein had not added him as one of the respondents in the writ petitions and therefore the writ petition was not maintainable for not impleading the necessary party. It is also contended that the petitioner had filed contempt application in C.A. No.95 of 2004 and that the Tribunal has summoned the records and at that juncture the respondents have filed the writ petitions. 8. In support of his contention that when there exists an error apparent on the face of the record and when review is necessitated on account of some mistake or for any other sufficient reason, the review petition is maintainable, the learned counsel for the petitioner has relied on the judgment reported in Jagmohan Singh v. State of Punjab and others[1]. It is also contended that the power conferred on the authorities must be exercised only in the manner provided in the Act and not in any other way and in support of the said contention reliance is placed in the case reported in Gujarat Electricity Board v. Girdharlal Motilal and another[2]. He has also relied on the judgment reported in Somagani Venkata Subbamma v. District Panchayat Officer, Krishna District and another[3], wherein Taylor principle was discussed to the effect that if manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all and no other mode of performance can be adopted. He has also relied on the judgment reported in Shiv Kumar Chadha v. Municipal Corporation of Delhi and others[4], wherein it was held that in spite of the bar placed on the power of the Court, orders passed under such statutes can be examined on “jurisdictional question”. 9. Learned Government Pleader for Services-II submits that the candidates who were selected in the selection process, now under question, have already got two promotions and their selection at this stage cannot be disturbed. His main submission is that the maximum age prescribed for the candidates belonging to BC-B for selection is only 39 years and by this date, the petitioner had already crossed 41 years of age, and since he has now age barred his case cannot be considered. It is also contended that even if the selection process is faulty, since the petitioner himself had subjected to a faulty selection process, he cannot challenge the said selection later on and he is estopped and precluded from doing so. Reliance is placed in the case reported in Amlan Jyoti Borooah v. State of Assam and others[5]. It is also contended that two writ petitions were disposed of by a common order and in review application long drawn arguments are not permissible and the matter cannot be re-examined as a fresh matter and the earlier order cannot be reviewed and since this Court had considered the existing practice of selection of candidates basing on the circulars and therefore no review is permissible. 10. Learned counsel for the petitioner, in reply, submits that when there was existing rules, the observation of the Tribunal that there are no existing rules itself is sufficient to allow the review application. The points that arise for consideration are; (1) Whether the review application is maintainable in the circumstances of the case? (2) Whether the petitioner having participated in the selection process can challenge the same later on? (3) Whether the selection is contrary to the rules? (4) Whether the observation of this Court that there were no existing rules is an error apparent on the face of the record and in such circumstances whether the impugned order can be reviewed? 11. Point No.3: Admittedly, the Government of A.P., vide G.O. Ms. No. 228 Revenue (SS) Department, dated 27.02.1992, amended the A.P. Survey and Land Records Subordinate Service Rules, 1964, prescribing the following qualification for the post of Deputy Surveyor and Computer Draughtsman Grade-II; “National Council of Vocational Training Certificate in Draughtsman (Civil) Trade (Two years course with surveying as one of the subjects in any Industrial Training Institute recognized by the Government of India) with not less than 55% marks in the aggregate and 60% marks in the survey subject.” This is in addition to the minimum general educational qualification prescribed for the post. Subsequently, a revised circular was issued vide circular No.D4/3565/92, dated 12.05.1992, prescribing the entire procedure for issuing notification, taking bio-data particulars, scrutiny of applications, selecting the candidates and issuing appointment orders. It is also a fact that the Government subsequently issued another circular in No.D4/7908/93, dated 01.06.1994, taking the total marks of the candidates prescribing as follows; “…………..A merit list has to be drawn on the basis of the grand total of marks obtained by the respective candidates in the SSC public examination as well as NCVT examination, in the descending order of the marks. For this purpose the total marks obtained in 10th class shall be taken out of maximum marks 500 (i.e.) excluding the marks obtained in the Hindi subject and the total marks obtained in NCVT examination shall be taken out of the maximum prescribed marks of 580. Such merit lists have to be prepared separately for each post for the categories of SC, ST, BC and OC in a register form. In other words, these merit lists indicate the grand total of marks obtained in both the qualifying examinations put together from out of the maximum marks of 1080. The lists so drawn will be an integrated index of the performance of the candidates in both these examinations.” 12. The contention of the respondents is that the selection was made as per the circular dated 01.06.1994 referred to above. The contention of the petitioner is that the selection ought to have been made as per the rules prescribed under G.O. Ms. No.228, dated 27.02.1992. The Tribunal came to the conclusion that the selection should be in accordance with the rules prescribed in the above mentioned G.O., and the selection made contrary to those rules is liable to be set aside. Since it appears that the rules prescribed that the candidates should secure not less than 55% of the marks in aggregate in the NCVT examination, and therefore, taking total marks of NCVT + SSC as per the circular dated 01.06.1994 appears to be contrary to the rules. Therefore, it is clear that selection was contrary to the Rules in force. It also appears that the finding of the Tribunal is in consonance with the above referred rules. 13. Point No.4: A reading of the rules mentioned above make it clear that the amended rules of the A.P. Survey and Land Records Subordinate Service Rules, 1964, amended vide G.O. Ms. No.228, dated 27.02.1992, were in force as on the date of selection. When the rules were in force, which is not in dispute, the earlier observation of this Court that there are no such rules appears to be an error apparent on the face of the record. 14. Point No.1: In the above referred circumstances, it has to be seen whether this Court can entertain the review application. It is settled law that the Court cannot sit in appeal on earlier judgment and therefore cannot re-examine all the facts and circumstances of the case. Error apparent means an error which must strike one, on mere looking at the record and does not require long reasoning. In Simrikhia v. Smt. Dolley Mukherjee[6], it was held that where there is no such changed circumstances and the decision has to be arrived at on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the same materials to arrive at different conclusion is in effect a review. In Jamna Kuer v. Lal Bahadur[7], it was held that mistake through oversight of Court is an error apparent on the face of the record. I n Burma Shell Oil Storage Distributing Co. of India Ltd., v. Labour Appellate Tribunal[8], it was held that erroneous assumption as to the material facts is a ground for review. I n State of Rajasthan v. M/s. Mehta Chetan Das Kishandass[9], it was held that when the decision of the Supreme Court is overlooked in deciding the limitation it is a valid ground for review. In the decision reported in In re : Mahamaya Banerjee[10], it was observed that sufficient reason occurring in Order 47 Rule 1 will include misconception of fact and/or law. I n M.M.B. Catholicos v. M.P. Athanasius[11], it was held that misconception of law is a ground for review. However, there are certain limitations for exercising the powers of review. When a party has already approached the superior Courts and in such circumstances, in M/s. Kabari Pvt.Ltd., v. Shivnath Shroff[12], it was held that review petition shall not be maintainable. It is also settled law that on a subsequent judgment of a superior court on a point involved in a case no review application is maintainable (see Haridas Das v. Smt. Usha Rani Bank and others[13]). I n Gulam Abbas v. Mulla Abdul Kadar[14], the apex Court, having held that the Court did consider a circular having the force of law, allowed the review application. 15. Thus, review means to reconsider the same material. When it appears that an error on the face of the record has occurred and it can be verified by mere looking at the record, a review application is maintainable. In view of the above discussion, it is clear that when the rules were in force, the observation of this Court that no such rules were in existence appears to be a mistake apparent on the face of the record and therefore the review application is maintainable. Admittedly the unofficial respondent before the Tribunal was not made as a party to the Writ Petitions filed by the respondents and when it is contended that the very writ petition itself is not maintainable, it appears that the review application is maintainable. 16. Point No.2: Now coming to the contention of the learned Government Pleader for the respondents that the petitioner, having participated in the selection process, cannot challenge the same later on does not stand to scrutiny. It is true that the petitioner had participated in the selection process. However, it does not mean that he had given his consent to the authorities to ignore the existing rules and to follow the circular instructions. It appears that the petitioner has no role in the decision taken by the respondents to ignore 55% of the minimum marks in NCVT examinations and to adopt the method of taking aggregate marks of SSC and NCVT examinations as per the circular dated 01.06.1994. It is for the authorities to adopt the correct method of calculating the marks as per the rules existing by then. 17. It is contended that the petitioner has now become age barred, and therefore, his case cannot be considered. It is settled law that the act of the Court shall not cause prejudice to any party. It is the duty of the Court to do justice and to grant relief to the parties. Merely on the ground of delay in disposal of cases, if relief is denied to the parties and cases are disposed of accordingly, in our considered view it amounts to doing injustice. It is the duty of the Court to undo the injustice done to a party. What is to be seen is whether the petitioner is responsible for the delay and if he is responsible for the delay then probably that circumstance can be taken into consideration while considering the other facts and circumstances. But when he is not responsible for the delay and the delay occurred because of the reason of pendency of the cases, then he cannot be held responsible. What is to be seen is what the position of the petitioner was when he approached the Court. Whether he was eligible for appointment and whether he was not age barred by that time. When he was not age barred and eligible for appointment on the date when he approached the Court, mere passing of time because of the pendency of the case before the Court, for which he is no way responsible, cannot be a ground to reject his otherwise justified claim. Merely because of the pendency of cases the relief cannot be denied to a party. If a party is not responsible for the delay in Courts or for the delay in administrative actions or for the delay in taking decisions by the executive authorities then how he be held responsible for the same and now can we deprive the accrued right to such party when he approached the Court or the authorities. 18. On the issue of delay, in Director of Inspection of Income-tax (Investigation), New Delhi v. Pooran Mall and Sons[15], it was held that where any proceeding is stayed for a period by an order of Court or injunction issued by any Court that period will be excluded in computing the period of limitation. Therefore, merely because of the delay, the claim of the petitioner cannot be rejected. 19. In the above circumstances, we are of the considered view that the review application has to be allowed. 20. Accordingly, the review WPMP No.4961 of 2005 is allowed. Consequently, the order passed in W.P. Nos.26567 of 2003 and 4175 of 2004, dated 17.01.2005, only to the extent of W.P. No.4175 of 2004 stands set aside. It is made clear that the selection of all other candidates need not be disturbed and the petitioner’s case alone should be considered and he should be given appointment order as per the orders of the Tribunal in O.A. No.3713 of 1996. _______________ P.S. NARAYANA, J. ___________________ B. CHANDRA KUMAR, J. Dt. 18.03.2010 Nsr [1] (2008) 7 Supreme Court Cases 38 [2] AIR 1969 Supreme Court 267 [3] 2006(4) ALD 1 [4] (1993) 3 Supreme Court Cases 161 [5] (2009) 3 Supreme Court Cases 227 [6] AIR 1990 SC 1605 [7] AIR (37) 1950 Federal Court 131 [8] AIR 1955 Calcutta 92 [9] AIR 1981 Rajasthan 36 [10] AIR 1989 Calcutta 106 [11]