# Anil Kumar v. Union of India & Ors

- **Citation:** (2022) 8 ILRA 578
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-24
- **Case number:** Civil Misc. Review Application No. 40 of 2022
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-v-union-of-india-ors-48918
- **Pages:** 13

## Headnote

A. Civil Procedure Code - O. 47 R. 1 -
Review - Scope - Apparent error - Any
other sufficient ground - Writ petition was
decided in term of Dharmendra Kumar's
case, wherein the ground for rejecting the
candidature
was
the
suppression
of
material facts regarding pendency of a
criminal
case,
whereas
the
case
of
applicant-petitioner stands on different
footing that he had no knowledge about
his criminal case - Held, non-disclosure or
suppression of material facts would be
covered in the category of 'any other
sufficient cause', which furnishes a good
ground for review and is wide enough to
include such a cause - Held further, the
case of the petitioner stands on a better
and
different
footings
from
that
of
Dharmendra Kumar's case, hence the
impugned
judgment
is
liable
to
be
reviewed and recalled - High Court
remanded
the
matter
back
to
the
authority for fresh decision to be taken in
the light of Avtar Singh's case and Pawan
Kumar's case. (Para 27, 28, 33, 36 and 37)
Writ petition allowed. (E-1)
List of Cases cited:-

## Text

_Characters 0–39,963 of 43,585. This is a partial read: ask again with offset=39963 for what follows._

578 INDIAN LAW REPORTS ALLAHABAD SERIES
respondents at the highest level, otherwise
prevailing situation of arbitrary approach
and breach of principles of natural justice
may not only adversely affect the assessees
who pay revenue to the Government, but
also may develop a perception amongst
people/assessees that it is difficult to get
justice from the authorities in statutory
proceedings.

8. For all the reasons aforestated, the
impugned order and the notice as aforesaid
are quashed. Liberty is granted to the
respondents to pass an order afresh under
Section 148A(d) of the Act 1961 after
affording reasonable opportunity of hearing
to the petitioner. The respondent no.1 is
directed to take forthwith all required steps
to remove shortcomings in the system and
to develop a system of accountability of
erring officers/employees.

9. The writ petition is allowed to the
extent indicated above, with cost of Rs.
50,000/- which the respondents shall pay to
the petitioner within two weeks by an
account payee bank draft or RTGS.
----------
(2022) 8 ILRA 578
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.05.2022

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Civil Misc. Review Application No. 40 of 2022
in Writ A No. 38386 of 2017

Anil Kumar ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Tejasvi Misra

Counsel for the Respondents:
Ms. Shruti Malviya

A. Civil Procedure Code - O. 47 R. 1 -
Review - Scope - Apparent error - Any
other sufficient ground - Writ petition was
decided in term of Dharmendra Kumar's
case, wherein the ground for rejecting the
candidature
was
the
suppression
of
material facts regarding pendency of a
criminal
case,
whereas
the
case
of
applicant-petitioner stands on different
footing that he had no knowledge about
his criminal case - Held, non-disclosure or
suppression of material facts would be
covered in the category of 'any other
sufficient cause', which furnishes a good
ground for review and is wide enough to
include such a cause - Held further, the
case of the petitioner stands on a better
and
different
footings
from
that
of
Dharmendra Kumar's case, hence the
impugned
judgment
is
liable
to
be
reviewed and recalled - High Court
remanded
the
matter
back
to
the
authority for fresh decision to be taken in
the light of Avtar Singh's case and Pawan
Kumar's case. (Para 27, 28, 33, 36 and 37)
Writ petition allowed. (E-1)
List of Cases cited:-
1. Avtar Singh Vs U.O.I. & ors.; 2016(8) SCC
471
2. Nandkishore Lalbhai Mehta Vs New Era
Fabrics P.Ltd.& Ors; (2015) 9 SCC 755
3. Special Appeal No. 2435 of 2011; Rama Kant
Prasad & ors. Vs U.O.I. & ors. decided on
07.01.2013
4. Special Appeal No. 153 of 2019; Tej Bahadur
Yadav Vs U.O.I. & ors. decided on 22.09.2021
5. Kamlesh Verma Vs Mayawati; (2013) 8 SCC
320
6. Perry Kansagra Vs Smriti Madan Kansagra;
(2019) 20 SCC 753
7. Special Appeal No. 147 of 2016; St. of U.P. &
ors. Vs Shyam Lal 425 (S.S) 2011 decided on
05.08.2021
8 All. Anil Kumar Vs. Union of India & Ors.
579
8. S. Nagraj Vs St. of Karn; (1993) Supp. 4 SCC
595
9. M.M. Thomas Vs St. of Kerala & anr.; (2000)
1 SCC 666
10. Pawan Kumar Vs U.O.I. & anr.; 2022 0
Supreme (SC) 391
(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Tejasvi Misra, learned
counsel for the applicant-petitioner and Ms.
Shruti Malviya, learned counsel for the
opposite parties.

2. This review application has been
filed by the applicant-petitioner against the
judgment and order dated 21.01.2019 passed
by Hon'ble Mr. Justice Yashwant Verma in
WRIT - A No. - 38386 of 2017 (Anil Kumar
vs. Union of India and 4 Others) alongwith an
application for condoning the delay in filing
of the review application. The review
application has been placed before the regular
Bench, dealing with the matter after the
transfer of Hon'ble Judge (Hon'ble Mr.
Justice Yashwant Verma) to another High
Court as per the order of Hon'ble Acting
Chief Justice dated 13.11.2018, therefore, the
matter is being heard by this Bench, which is
the regular Bench having jurisdiction to hear
this matter.

3. The registry has reported the review
application to be beyond time by 1037 days
on the date of its presentation, i.e.
20.02.2019. The cause shown in the delay
condonation
application
supported
with
affidavit is sufficient.

4.

Application
allowed.
Delay
condoned.

5. Brief facts of the case are that the
writ petition bearing Writ-A No. 38382 of
2017 (Dharmendra Kumar Vs. the Union
Of India And Others) was filed with a
prayer to quash the impugned orders dated
29.07.2015 and 11.05.2017 passed by
respondent no.4 and a further prayer was
made to direct the respondent authorities to
reinstate the service of petitioner and pay
salary alongwith other benefits also. It is
the case of the petitioner that the petitioner
applied for the post of Constable in RPF
pursuant to the advertisement No.1 of 2011
dated 23.02.2011 issued by respondent
no.5,
i.e.
the
Chief
Secretary
Commissioner, RPF, Northestern Railways
(NER), Gorakhpur. The selection process
for Constable GD Posts, against the
aforesaid
advertisement,
consisted
of
written examination, physical examinations
and
thereafter,
viva
and
document
verification
followed
by
medical
examinations. The petitioner being eligible
filled up the application form and appeared
in the written examination as held pursuant
to
the
aforesaid
advertisement.
The
petitioner qualified the written examination
and was called for physical efficiency test,
which was held on 09.03.2014 at DistrictGorakhpur. Thereafter, the petitioner was
called for document verification and
medical examination on 05.05.2014 as he
had qualified in the written examination as
well as physical eligibility test. Thereafter,
as
the
petitioner
qualified
all
the
examinations as required, his role number
was mentioned in the select list of finally
selected candidate. In paragraph no.12 of
the attestation form, he was required to fill
up certain details. The petitioner filled up
the attestation form on 12.05.2014 but he
did not disclose about the criminal case,
which was lodged against him alongwith
three other persons being Case Crime No.4
of 2008, under Sections 323, 325, 504, 506
IPC, at P.S.-Sujanganj, District-Jaunpur. As
the petitioner was residing at District-
580 INDIAN LAW REPORTS ALLAHABAD SERIES
Allahabad for pursuing his studies as well
as appearing in competitive exams, he had
no knowledge of the aforesaid criminal
case and even otherwise, the Investigating
Officer has told his father that investigation
of the aforesaid case has concluded and
petitioner's name has been dropped.

6. The petitioner received allotment
letter from the authorities concerned in the
month of October, 2014, by which the
petitioner
was
allotted
the
post
of
Constable in RPSF and was sent for basic
training at RPF training Centre in CISF
Training
Centre,
Bhillai
Utai
Durg,
Chhatisgarh.

7. The petitioner has joined his
training on 01.11.2014 and while he was
under training, he received letter dated
29.07.2015 and 11.05.2017 issued by
respondent no.4, in which it was stated that
during the verification, it was found that
one criminal case being Case Crime No. 04
of 2008, U/s 323, 325, 504, 506 IPC, at P.S.
Sujanpur, District-Jaunpur was lodged
against the petitioner, disclosure of which
was not done in the attestation form filled
by the petitioner. The petitioner was
discharged with immediate effect by order
dated 29.07.2015 without taking into
consideration the fact that the petitioner
was not aware of pendency of any criminal
case against him, therefore, he could not
disclose about the same while filing the
attestation form. Hence, the writ petition
no. 52193 of 2015 was filed challenging
the aforesaid orders.

6. The aforesaid writ petition was
finally allowed by the Co-ordinate Bench
of this Court vide order dated 14.12.2016
wherein while quashing the impugned
discharge order dated 29.07.2015 liberty
was granted to the respondents to pass
fresh order in the light of judgment of the
Apex Court in the case of Avtar Singh
Vs. Union of Indian and others, reported
in 2016(8) SCC 471.

7. A certified copy of the aforesaid
order was served upon the respondents
through post alongwith covering letter.
Pursuant to which, the respondent no.4
passed impugned order dated 11.05.2017
rejecting
the
representation
of
the
petitioner,
thus
his
candidature
for
appointment in the Government Service
as Constable in RPF/RPSF was cancelled
with immediate effect.

8. Learned counsel for the petitioner
submits that the impugned order dated
29.07.2015 has been passed on the
ground that the petitioner has suppressed
the fact with respect to pendency of
criminal
case
against
him
in
the
attestation form submitted by him, hence
he is not fit to be appointed as
government servant. Subsequently, the
impugned order dated 11.05.2017 has
been passed wherein the representation of
the petitioner has been rejected on the
ground
of
suppression
of
factual
information
in
the
attestation
form
rendering him unfit for appointment in
the government service.

9. The aforesaid impugned orders
have been challenged by the petitioner in
the writ petition on the following grounds:-

(i) The petitioner has been discharge
from service and his appointment has been
cancelled in violation of directions by this
Court and the guidelines as stated in para
38 of judgment of Hon'ble Apex Court in
the case of Avtar Singh vs. Union of India
and Ors. has not been taken into
consideration. The Apex Court in paragraph
8 All. Anil Kumar Vs. Union of India & Ors.
581
no. 38 of the judgment in Avtar Singh
(supra) has held as under:-

"38.
We
have
noticed
various
decisions and tried to explain and reconcile
them as far as possible. In view of
aforesaid discussion, we summarize our
conclusion thus:

38.1
Information
given
to
the
employer by a candidate as to conviction,
acquittal or arrest, or pendency of a
criminal case, whether before or after
entering into service must be true and there
should be no suppression or false mention
of required information.

38.2
While
passing
order
of
termination of services or cancellation of
candidature for giving false information,
the employer may take notice of special
circumstances of the case, if any, while
giving such information.

38.3 The employer shall take into
consideration
the
Government
orders/instructions/rules, applicable to the
employee, at the time of taking the decision.

38.4 In case there is suppression or
false information of involvement in a
criminal case where conviction or acquittal
had already been recorded before filling of
the application/verification form and such
fact later comes to knowledge of employer,
any of the following recourse appropriate
to the case may be adopted : -

38.4.1 In a case trivial in nature in
which conviction had been recorded, such
as shouting slogans at young age or for a
petty offence which if disclosed would not
have rendered an incumbent unfit for post
in question, the employer may, in its
discretion, ignore such suppression of fact
or false information by condoning the
lapse.

38.4.2 Where conviction has been
recorded in case which is not trivial in
nature, employer may cancel candidature
or terminate services of the employee.

38.4.3 If acquittal had already been
recorded in a case involving moral
turpitude or offence of heinous/serious
nature, on technical ground and it is not a
case of clean acquittal, or benefit of
reasonable doubt has been given, the
employer may consider all relevant facts
available as to antecedents, and may take
appropriate decision as to the continuance
of the employee.

38.5 In a case where the employee has
made declaration truthfully of a concluded
criminal case, the employer still has the
right to consider antecedents, and cannot
be compelled to appoint the candidate.

38.6 In case when fact has been
truthfully declared in character verification
form regarding pendency of a criminal case
of trivial nature, employer, in facts and
circumstances of the case, in its discretion
may appoint the candidate subject to
decision of such case.

38.7 In a case of deliberate suppression
of fact with respect to multiple pending cases
such false information by itself will assume
significance and an employer may pass
appropriate order cancelling candidature or
terminating services as appointment of a
person against whom multiple criminal cases
were pending may not be proper.

38.8 If criminal case was pending but
not known to the candidate at the time of
filling the form, still it may have adverse
impact and the appointing authority would
take
decision
after
considering
the
seriousness of the crime.

38.9 In case the employee is confirmed
in service, holding Departmental enquiry
would be necessary before passing order of
termination/removal or dismissal on the
ground of suppression or submitting false
information in verification form.
582 INDIAN LAW REPORTS ALLAHABAD SERIES

38.10 For determining suppression or
false information attestation/verification
form has to be specific, not vague. Only
such information which was required to be
specifically mentioned has to be disclosed.
If information not asked for but is relevant
comes to knowledge of the employer the
same can be considered in an objective
manner while addressing the question of
fitness. However, in such cases action
cannot be taken on basis of suppression or
submitting false information as to a fact
which was not even asked for.

38.11 Before a person is held guilty of
suppressio
veri
or
suggestio
falsi,
knowledge of the fact must be attributable
to him."

(ii) The impugned orders have been
passed without application of mind and
without
appropriation
of
facts
and
circumstances of the case.

(iii) while rejecting the claim of the
petitioner, the respondents have not
recorded any finding and given any
logical reason for passing the same,
hence
the
entire
action
of
the
respondents is illegal and arbitrary.

(iv) The entire exercise has been
done
without
following
the proper
procedure as provided under law as well
as without considering the facts that to
the best knowledge of the petitioner's
father, the proceeding of the criminal
case
against
the
petitioner
were
dropped.

10. However, in the counter affidavit
filed by the respondent-opposite party, it
has been stated that the impugned orders
have rightly been passed on the ground of
suppression of fact with respect
to
pendency of criminal case, in the attestation
form so submitted by the petitioner,
therefore, the orders impugned do not
suffer any illegality.

11. The aforesaid writ petition was
dismissed by order dated 21.01.2019
wherein the following order was passed:-

"Heard
learned
counsel
for
the
petitioner.
None
appeared
for
the
respondents.

Learned counsel for the petitioner
fairly concedes that this petition would
merit dismissal in light of the order passed
in companion Writ-A No. 38382 of 2017
(Dharmendra Kumar Vs. The Union Of
India And Others).

Accordingly and following the reasons
assigned therein, this writ petition is also
dismissed."

12. The aforesaid order dated
21.01.2019 passed by learned Single Judge
was challenged by means of filing Special
Appeal Defective No. 181 of 2021 on the
ground that while dismissing the writ
petition, though the learned Single Judge
had placed reliance on certain principles
culled out by the Apex Court in the case of
Avtar Singh vs. Union of India and
Others, reported in (2016) 8 SCC 471 but
the fundamental amongst those principles is
enshrined in paragraphs nos. 29 and 30 of
the judgment whereunder, if there had been
any kind of suppression, the employer has
discretion to terminate the service or
condone the omission/suppression of an
employee dependent on the facts of the
case, has not been taken into consideration.
While challenging the order passed in the
writ petition, learned counsel for the
applicant-petitioner submits that learned
Single Judge has not considered the fact
that the railway authorities have kept in
mind the fundamental principles as laid
down in the judgment of Avtar Singh
(supra), while deciding the case of Mukul
Kumar and Sunil Kumar. Though the case
of the applicant-petitioner falls at par that
8 All. Anil Kumar Vs. Union of India & Ors.
583
of Mukul Kumar and Sunil Kumar, but
while considering the discharge of the
petitioner from service, a broad minded
approach has not been taken as done in the
case of Mukul Kumar and Sunil Kumar.
The following order was passed in the
aforesaid special appeal:-

"Learned counsel for the appellant has
submitted that although the learned Single
Judge while dismissing the writ petition has
placed reliance on certain principles culled
out by the Apex Court in Avtar Singh vs.
Union of India and others, (2016) 8 SCC
471 but the fundamental amongst those
principles is enshrined in paragraphs 29
and 30 of the judgment in Avtar Singh
(supra) whereunder, if there had been any
kind of suppression, the employer has
discretion to terminate the service or
condone the omission/suppression of an
employee dependent on the facts of the
case. By placing reliance on orders passed
by Railway Authorities in similar matters of
Mukul Kumar and Sunil Kumar, learned
counsel for the appellant has submitted that
the case of the appellant falls at par with
those of Mukul Kumar and Sunil Kumar
and therefore, while considering discharge
of the petitioner-appellant from service, a
broad minded approach ought to have been
taken by the authority. He has also pointed
out that judgment and order of acquittal of
appellant reveals that there was no fault of
the petitioner-appellant and the incident
had occurred in some other manner, as was
narrated by the prosecution witnesses
during the course of trial.

The matter requires consideration.

Ms. Shruti Malviya, Advocate has
accepted notice on behalf of respondents. She
prays for and is allowed four weeks' time to
file counter affidavit. The petitioner-appellant
will have one week thereafter to file rejoinder
affidavit, if any.

List this matter on 7th April, 2021."

13. Subsequently, on 04.08.2021, the
aforesaid special appeal was dismissed as
withdrawn as the Court opined that the
applicant-petitioner should have filed review
application against the judgment and order
dated 21.01.2019 as once the learned counsel
for the petitioner has conceded for dismissal
of the writ petition, he has no right to
challenge the writ court's order in special
appeal,
therefore,
the
present
review
application has been filed with the following
grounds:-

(i) that the petitioner had never agreed to
get his case dismissed on the ground of
similarity with the case of Dharmendra
Kumar (supra), rather the case of the
petitioner stands on different footing.

(ii) that the petitioner had contested his
case on its own merit and had never
authorized the counsel to claim similarity
with any other case. He further submits that
at the time of submission of attestation form
on 12.05.2014, the petitioner has not
disclosed about the criminal case as the
Investigating Officer had informed his father
that the name of the petitioner has been
dropped during the course of investigation.

(iii) similarly situated candidates has
been reinstated his service and the petitioner
has been discriminated from such candidates.
In the special appeal, the Division Bench of
this Court was pleased to call for an
explanation from the respondents, as to why
and how the case of the applicant-petitioner
has been distinguished from various similarly
placed candidates. Therefore, the present
review application may be allowed on the
aforesaid grounds.

14. Ms. Shruti Malviya, learned
counsel for the respondent submits that
there is no illegality in the order dated
584 INDIAN LAW REPORTS ALLAHABAD SERIES
21.01.2019 passed in writ petition as the
details of pending criminal case was not
disclosed by the petitioner in the attestation
form. There was also no assertion that the
petitioner had no knowledge of this case or
that his statement was not recorded during
the course of investigation. The issue of
deliberate
suppression
was
further
highlighted from a reading of the contents
of the writ petition in which it has been
averred that the father of the petitioner was
assured by the Investigating Officer that his
name
would
be
dropped
from
the
investigation. The impugned order records
that the criminal case is pending trial. This
recital in the order is not disputed by the
petitioner.

15. She further submits that ground
with respect to discrimination from other
similar situated persons, has been taken for
the first time in the special appeal filed by
the applicant-petitioner, which has been
dismissed vide order 04.08.2021 and this
ground has also been taken for the first
time in the review application filed by the
applicant-petitioner, therefore, the same has
not been considered by this Court. In
support of her contention, she relied upon
the judgment of the Apex Court in the case
of Nandkishore Lalbhai Mehta vs New
Era Fabrics P.Ltd.& Ors reported in
(2015) 9 SCC 755, wherein it has been held
that in absence of specific pleading and
document, relief otherwise claimed will not
be considered by the Court. Relevant
paragraphs are as under:-

"20. ...........unless and until there is
an amendment of the pleadings, no
evidence with regard to the facts not
pleaded can be looked into,.....

...............

(i) No amount of evidence can be
looked into, upon a plea which was never
put forward in the pleadings. A question
which did arise from the pleadings and
which was not the subject-matter of an
issue, cannot be decided by the court.

(ii) A court cannot make out a case not
pleaded. The court should confine its
decision
to
the
question
raised
in
pleadings. Nor can it grant a relief which is
not claimed and which does not flow from
the facts and the cause of action alleged in
the plaint.

(iii) A factual issue cannot be raised
or considered for the first time in a second
appeal.

........................

"6. ... It is well settled that in the
absence of pleading, evidence, if any,
produced
by
the
parties
cannot
be
considered. It is also equally settled that no
party should be permitted to travel beyond
its pleading and that all necessary and
material facts should be pleaded by the
party in support of the case set up by it. The
object and purpose of pleading is to enable
the adversary party to know the case it has
to meet. In order to have a fair trial it is
imperative that the party should settle the
essential material facts so that other party
may not be taken by surprise. The
pleadings however should receive a liberal
construction; no pedantic approach should
be adopted to defeat justice on hairsplitting
technicalities.
Sometimes,
pleadings are expressed in words which
may not expressly make out a case in
accordance with strict interpretation of law.
In such a case it is the duty of the court to
ascertain the substance of the pleadings to
determine the question. It is not desirable
to place undue emphasis on form, instead
the substance of the pleadings should be
considered. Whenever the question about
lack of pleading is raised the enquiry
should not be so much about the form of the
pleadings; instead the court must find out
8 All. Anil Kumar Vs. Union of India & Ors.
585
whether in substance the parties knew the
case and the issues upon which they went
to trial. Once it is found that in spite of
deficiency in the pleadings parties knew the
case and they proceeded to trial on those
issues by producing evidence, in that event
it would not be open to a party to raise the
question of absence of pleadings in
appeal."

17. It is thus clear that a case not
specifically pleaded can be considered by
the court only where the pleadings in
substance, though not in specific terms,
contain the necessary averments to make
out a particular case and the issues framed
also generally cover the question involved
and the parties proceed on the basis that
such case was at issue and had led
evidence thereon. As the very requirements
indicate, this should be only in exceptional
cases where the court is fully satisfied that
the pleadings and issues generally cover
the case subsequently put forward and that
the parties being conscious of the issue,
had led evidence on such issue. But where
the court is not satisfied that such case was
at issue, the question of resorting to the
exception to the general rule does not
arise. The principles laid down in Bhagwati
Prasad and Ram Sarup Gupta referred to
above and several other decisions of this
Court following the same cannot be
construed as diluting the well-settled
principle that without pleadings and issues,
evidence cannot be considered to make out
a new case which is not pleaded. Another
aspect to be noticed, is that the court can
consider such a case not specifically
pleaded, only when one of the parties
raises the same at the stage of arguments
by contending that the pleadings and issues
are sufficient to make out a particular case
and that the parties proceeded on that basis
and had led evidence on that case. Where
neither party puts forth such a contention,
the court cannot obviously make out such a
case not pleaded, suo motu"."

16. She has also relied upon the
judgment of this Court in the case of Rama
Kant Prasad and Others vs. Union of
India and others, decided on 07.01.2013
passed in Special Appeal No. 2435 of 2011,
wherein the Court has held that no
indulgence
is
required,
in
case
of
submission of false affidavit by the
candidate.

17. She has further relied upon the
judgment of this Court passed in Special
Appeal No.153 of 2019 (Tej Bahadur
Yadav vs. Union of India and 4 Ors.) along
with bunch of appeals so filed, which have
been dismissed vide order dated 22.09.2021
as the applicants therein have failed to
bring out a case within the four corners of
the conclusions recorded in the case of
Avtar Singh (supra), then the issue of
triviality or nature of the offence and
subsequent acquittal loses its significance
and the most glaring question staring in the
eyes of the appellants is the question of
trust.

18. She, therefore, further submits
that
the
impugned
judgment
dated
21.01.2019 passed by learned Single Judge
does not suffer from any illegality,
therefore, the review application is liable to
the dismissed.

19. I have considered the submissions
made by learned counsel for the parties as
well as perused the material brought on
record.

20. Before considering the merits of
the case, it would be proper to consider the
scope of review application in facts and
circumstances of the case. The basic
586 INDIAN LAW REPORTS ALLAHABAD SERIES
principles in which review application can
be entertained and cannot be entertained
have been eloquently laid down by Hon'ble
the Apex Court in the case of Kamlesh
Verma vs. Mayawati reported in (2013) 8
SCC 320. As has been enumerated in the
aforesaid judgment, the review application
will be maintainable on the following
grounds:-

"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 third ground with respect to any
other sufficient reason has been interpreted
as a reason sufficient on grounds at least
analogous to those specified in the rule.

21. The review application will not be
maintainable on the following grounds:-

(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 reheard and corrected but lies only for
patent error.

(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.

22. The Hon'ble Apex Court in the
case of Perry Kansagra v. Smriti Madan
Kansagra reported in (2019) 20 SCC 753,
on the scope and power of review, has
reiterated the same principles.

23. The law on the subject-exercise of
power of review, as propounded by the
Apex Court and various other High Courts
may be summarized as hereinunder:-

(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
CPC.

(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 longdrawn process of reasoning on the points
where there may conceivably be 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
8 All. Anil Kumar Vs. Union of India & Ors.
587
doctrine actus curiae neminem gravabit.' In
our
opinion,
the
principles
of
law
enumerated by it, in the facts of this case,
have wrongly been applied.

24. The settled position of law
regarding scope and power of review has
been laid down by the Division Bench of
this Court in Special Appeal No.147 of
2016 [State of U.P. Thru. Secy. Revenue
Civil Sectt. Lko. and Ors. vs. Shyam Lal
425(S.S)2011] decided on 05.08.2021,
wherein while deciding the review petition
in para 17, it has been held as under:-

"(17) It has thus been settled in law
that;

(i) the power of review may be
necessitated by way of invoking the
doctrine ''actus curiae neminem gravabit'
which means that no act of the court in
the course of whole of the proceedings
does an injury to the suitors in the court.
It has been held in Food Corporation of
India and Another vs. M/s Seil Ltd. & Ors.
[(2008) 3 SCC 440] that a writ court
exercises its power of review under Article
226 of the Constitution of India itself and
while exercising the jurisdiction it not
only acts as a court of law but also as a
court of equity. A clear error or omission
on the part of the court to consider a
justifiable claim would be subject to
review, amongst others, on the ''actus
curiae neminem gravabit'.

(ii) The mistake or error must be
apparent on the face of record i.e. that it
must strike one on more looking at the
record and would not require any long
drawn process of reasoning. It should not
be an error which has to be fished out and
searched. Such an error must also be
material which undermines the soundness
of the judgment or results in miscarriage of
justice. An error which may be apparent
but is of inconsequential import, that would
not furnish a ground for review.

(iii) An application for review would
also be maintainable for ''any other
sufficient reason', which expression has
been interpreted to mean a reason
sufficient on grounds at least analogous to
those specified in Order 47 Rule 1 C.P.C.,
which are wide enough to include a
misconception of fact or law by a court or
even an Advocate and what other grounds
would constitute sufficient reason depends
on the facts and circumstances of each
case.

(iv) There are limitations on the
exercise of review jurisdiction. Review
proceedings are not by way of appeal. It
cannot be treated like an appeal in
disguise. A rehearing of the matter is not
permissible in law. If there are two views
possible, the power of review cannot be
exercised to substitute the view already
taken in the judgment under review. It is not
for an erroneous decision to be ''reheard
and corrected' in review jurisdiction."

25. In the present facts and
circumstances of the case, wherein keeping
in mind the above principles, this Court
proceeds to consider as to whether the
grounds on which the present review
application has been filed exist, and if yes,
whether on such grounds review would be
permissible.

26. A perusal of the impugned
judgment dated 21.01.2019 goes to show
that learned counsel for the petitioner fairly
conceded
that
the
petition
may
be
dismissed in the light of order passed in
connected Writ-A No.38282 of 2017
(Dharmendra Kumar vs. Union of India and
5 Ors.), whereas in the review petition the
learned counsel for the applicant-petitioner
has submitted that he had never agreed to
588 INDIAN LAW REPORTS ALLAHABAD SERIES
get his case dismissed on the ground of
similarity with the case of Dharmendra
Kumar (supra) as the case of the applicantpetitioner stands of different footings.

27. In the case of Dharmendra Kumar
(supra), though the ground for rejecting the
candidature of the petitioner therein was
the same, i.e. suppression of material facts
regarding pendency of a criminal case in
which he was named as an accused and
trial was pending. But the petitioner therein
while filing the aforesaid writ petition
bearing Writ-A No.38282 of 2017 had not
asserted
that
the
petitioner
had
no
knowledge of this case or that his
statements were not recorded during the
course of investigation. In his case, the
issue
of
deliberate
suppression
was
highlighted from a reading of the contents
of paragraph no.17 of the writ petition, in
which it was averred that the father of the
petitioner therein was assured by the
Investigating Officer that his name would
be dropped from the investigation. The
impugned order in the aforesaid case also
recorded that the criminal case against the
petitioner
therein
was
pending.
Dharmendra Kumar (supra), the petitioner
therein did not dispute about the aforesaid
fact in the writ petition also.

28. In the present case, in para 19 of
the writ petition, the petitioner has clearly
stated that he had no knowledge about his
criminal case and that the Investigating
Officer told his father that the name of the
applicant-petitioner has been deleted in the
charge
sheet
after
concluding
the
investigation and assurance was also given
by him that the name of the petitioner has
to be deleted in the chargesheet. The
aforesaid criminal case was lodged by real
uncle of the applicant-petitioner and after
investigation, charge sheet was submitted
on
08.02.2008
against
four
persons,
namely, Pradeep Kumar, Virendra Kumar,
Santosh Kumar and Mahendra Kumar,
therefore, in the month of June, 2014, on
the assurance has been given by I.O. to the
petitioner's father that the petitioner had not
been charge sheeted, he did not disclose
about the criminal case.

29.

Therefore,
in
the
special
circumstances, wherein the charge sheet
was already been submitted in the year
2008 against four named accused persons
excluding the petitioner, the petitioner did
not deliberately suppress the facts about
pendency of criminal case while submitting
the attestation form in the year 2014 as he
had no knowledge about any chargesheet
being filed against him later or pendency of
criminal trial, hence the case of the
petitioner stands on a different footings
than that of Dharmendra Kumar (supra).

30. This Court also finds that while
dismissing the case of Dharmendra Kumar
(supra), the court concerned had discussed
the judgment of the Apex Court in Avtar
Singh (supra) case and as per the factual
position of the aforesaid case, the Court
finds that the case of the petitioner therein
did not fall within the criteria as enunciated
in para 38 of the aforesaid judgment of
Avtar Singh (supra), whereas from perusal
of the judgment of Dharmendra Kumar
(supra) case, it is found that there is no
discussion regarding the section in which
the FIR was lodged against the petitioner
therein hence, learned counsel for the
petitioner in the present case is to be
believed that in case, had an opportunity of
arguing of the case on merits been given to
the petitioner, his case would have been on
a
different
footings
from
that
of
Dharmendra Kumar (supra) in view of
principles enunciated in paras 38.2, 38.4,
8 All. Anil Kumar Vs. Union of India & Ors.
589
38.8, 38.10 and 38.11 of the judgment of
Avtar Singh (supra).

31. Neither in the counter affidavit
filed by the respondents nor in the
impugned order, it has been specified, as to
whether the petitioner has been charge
sheeted, convicted or acquitted. In such
circumstances, if the case of the petitioner
is seen on its own merits, intervention by
the Court would have been required,
instead of dismissing the same in the light
of Dharmendra Kumar (supra).

32. So far as the second ground as
taken by the applicant-petitioner that the
petitioner has been discriminated from
similarly situated candidates, this Court
finds that plea raised for the first time in
review application cannot be entertained.

33. As the case of the petitioner was
on
different
footings
from
that
of
Dharmendra Kumar (supra) as discussed
above, even if the learned counsel for the
petitioner had conceded for dismissal of the
case in the light of aforesaid judgment, it
was the duty of the learned counsel for the
respondents to point out the difference in
the
two
matters.
Non-disclosure
or
suppression of material facts would be
covered in the category of "any other
sufficient cause", which furnishes a good
ground for review and is wide enough to
include such a cause.

34. At this stage, it would be apt to
refer the judgment in the case of S. Nagraj
vs. State of Karnataka reported in (1993)
Supp. 4 SCC 595, wherein Hon'ble Apex
Court has observed that it is the duty of the
Court to rectify, revise and recall its orders
as and when it is brought to its notice that
certain of its orders were passed on a
wrong or mistaken assumption of facts and
that implementation of those orders would
have serious consequences. Again in the
case of M.M. Thomas vs. State of Kerala
& Another reported in (2000) 1 SCC 666,
the Hon'ble Apex Court has held that the
High Court, as a Court of record, has a duty
to itself to keep all the records correctly
and in accordance with law. Hence, if any
apparent error is noticed by the High Court
in respect of any orders passed by it, the
High Court has not only power, but a duty
to correct it.

35. This Court is of the opinion that
mere
suppression
of
material/false
information in a given case does not mean
that
employer
can
arbitrarily
discharge/terminate an employee from
service. All matters cannot be put in a
straight jacket and a degree of flexibility
and discretion which vests with the
authorities, must be exercised with care and
caution taking all facts and circumstances
into consideration including the nature and
type of lapse. The aforesaid view has been
followed by the Apex Court in the case of
Pawan Kumar vs. Union of India &
Another reported in 2022 0 Supreme (SC)
391. Relevant paragraphs of the judgment
in the case of Pawan Kumar (supra), reads
as follows:-

"13.