# Sonu Kumar Yadav v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2022) 4 ILRA 711
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-25
- **Case number:** Civil Misc. Review Application No. 93 of 2021
- **Bench:** Dr. Kaushal Jayendra Thaker, Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sonu-kumar-yadav-v-state-of-u-p-ors-opp-parties-48301
- **Pages:** 4

## Headnote

C.S.C.

A. Practice and Procedure - Review -
Scope of interference - Special appeal and
writ petition arising out of claim for
appointment on compassionate ground
was dismissed on merit, review against
which filed - Re-argument on the merit of
the matter - Permissibility - Held, Review
is not an appeal in disguise. Rehearing of
the matter is impermissible in the garb of
review - It is an exception to the general
rule that once a judgment is signed or
pronounced, it should not be altered (Para
5 and 11)
Review application dismissed. (E-1)
List of Cases cited :-

## Text

4 All. Sonu Kumar Yadav Vs. State of U.P. & Ors.
711
(2022)04ILR A711
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.02.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE VIVEK VARMA, J.

Civil Misc. Review Application No. 93 of 2021
In Special Appeal No. 755 of 2019

Sonu Kumar Yadav ...Appellant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Appellant:
Sri Sudhakar Pandey

Counsel for the Opp. Parties:
C.S.C.

A. Practice and Procedure - Review -
Scope of interference - Special appeal and
writ petition arising out of claim for
appointment on compassionate ground
was dismissed on merit, review against
which filed - Re-argument on the merit of
the matter - Permissibility - Held, Review
is not an appeal in disguise. Rehearing of
the matter is impermissible in the garb of
review - It is an exception to the general
rule that once a judgment is signed or
pronounced, it should not be altered (Para
5 and 11)
Review application dismissed. (E-1)
List of Cases cited :-
1. Thungabhadra Industries Ltd. Vs The
Government of Andhra Pradesh; AIR 1964 SC
1372
2. Aribam Tuleshwar Sharma Vs Aribam Pishak
Sharma; 1979 (4) SCC 389
3. Meera Bhanja Vs Nirmala Kumari Choudhury;
AIR 1995 SC 455
4. Parsion Devi & ors. Vs Sumitri Devi & ors.;
1997 (8) SCC 715
5. Rajendra Kumar Vs Rambai; AIR 2003 SC
2095
6. Lily Thomas Vs U.O.I.; AIR 2000 SC 1650
7. Inderchand Jain Vs Motilal; (2009) 4 SCC 665
8. Kamlesh Verma Vs Mayawati & ors.; 2013 (8)
SCC 320
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J. & Hon'ble Vivek
Varma, J.)

1.

By
way
of
this
Review
Application, applicant, Sonu Kumar Yadav,
has sought review of the judgment and
order dated 2.7.2019 passed by this Court
(Coram: Justice Govind Mathur and Justice
Vivek Verma) in Special Appeal No.755 of
2019 (Sonu Kumar Yadav Vs. State of U.P.
and others).

2. Factual matrix of the case is that
Sri Rajendra Prasad Yadav father of the
appellant-petitioner while holding the post
of
Constable
in
Provincial
Armed
Constabulary
(PAC)
37th
Battalion,
Kanpur availed five days emergency leave.
He did not return to the duties after
completion of leave period. Looking to the
continuous unauthorized absence, a notice
was issued to Sri Rajendra Prasad Yadav
for initiating disciplinary action against him
and he was placed under suspension under
an
order dated
30th
August,
2005.
Disciplinary proceedings too were initiated
and by the order dated 15th May, 2006 he
was dismissed from service.

3. A missing report was filed by the
present
appellant-petitioner
at
Police
Station Kotwali Bansdeeh. A civil suit
then was filed to have a declaratory decree
relating to death of Sri Rajendra Prasad
Yadav being not seen from a period of
more than seven years. On having such
declaration,
the
appellant-petitioner
712 INDIAN LAW REPORTS ALLAHABAD SERIES
submitted an application to the authority
competent
to
have
appointment
on
compassionate grounds. The application
so submitted came to be rejected, hence, a
petition for writ was filed which was
dismissed. Against the dismissal of writ
petition, special appeal was filed which
was also came to be dismissed vide order
dated 2.7.2019 which is under review
before us.

4. It is submitted by learned counsel
for the review-applicant that the Court has
not properly appreciated the matter and
judgment is not correct.

5. Having heard the learned counsel
for the petitioner (review) and gone
through the grounds taken in the Review
Application, we find that virtually there is
an attempt to re-argue the matter which is
not permissible in a Review Application.
An application for review cannot be treated
to be an opportunity to argue the case on
merits afresh. In the garb of a review
application reargument on merits of the
case cannot be allowed. We are even
fortified in our view by the following
authoritative
pronouncements.
The
suspension was dated 30.8.2005. The
deceased was dismissed from service. This
fact would be relevant which has been
minutely considered by the Division Bench
of the this Court and, therefore, we find no
reason to interfere in the judgment of the
earlier Bench dated 2.7.2019.

6. In Thungabhadra Industries Ltd.
Vs. The Government of Andhra Pradesh
AIR 1964 SC 1372 the Court said:

"A review is by no means an appeal in
disguise whereby an erroneous decision is
reheard and corrected, but lies only for
patent error."

7. In Aribam Tuleshwar Sharma
Vs. Aribam Pishak Sharma 1979 (4)
SCC 389 the Court said:

"... there is nothing in Article 226 of
the Constitution to preclude a High Court
from exercising the power of review which
inheres
in
every
Court
of
plenary
jurisdiction to prevent miscarriage of
justice or to correct grave and palpable
errors committed by it. But, there are
definitive limits to the exercise of the power
of review. The power of review may be
exercised on the discovery of new and
important matter or evidence which, after
the exercise of due diligence was not within
the knowledge of the person seeking the
review or could not be produced by him at
the time when the order was made; it may
be exercised where some mistake or error
apparent on the face of the record is found;
it may also be exercised on any analogous
ground. But, it may not be exercised on the
ground that the decision was erroneous on
merits. That would be the province of a
Court of Appeal. A power of review is not
to be confused with appellate powers which
may enable an Appellate Court to correct
all manner of errors committed by the
Subordinate Court."

8. Again, in Meera Bhanja v.
Nirmala Kumari Choudhury AIR 1995
SC 455 while quoting with approval the
above passage from Abhiram Taleshwar
Sharma Vs. Abhiram Pishak Shartn
(supra), the Court once again held that
review proceedings are not by way of an
appeal and have to be strictly confined to
the scope and ambit of Order 47 Rule 1
CPC.

9. In Parsion Devi and others Vs.
Sumitri Devi and others 1997 (8) SCC
715 it was held that an error, which is not
4 All. Sonu Kumar Yadav Vs. State of U.P. & Ors.
713
self evident and has to be detected by
process of reasoning, can hardly be said to
be error apparent on the face of the record
justifying the court to exercise powers of
review in exercise of review jurisdiction.

10. In Rajendra Kumar Vs.
Rambai, AIR 2003 SC 2095, the Apex
Court has observed about limited scope of
judicial intervention at the time of review
of the judgment and said:

"The limitations on exercise of the
power of review are well settled. The first
and foremost requirement of entertaining a
review petition is that the order, review of
which is sought, suffers from any error
apparent on the face of the order and
permitting the order to stand will lead to
failure of justice. In the absence of any
such error, finality attached to the
judgement/order cannot be disturbed."

11. Thus, Review is not an appeal in
disguise. Rehearing of the matter is
impermissible in the garb of review. It is an
exception to the general rule that once a
judgment is signed or pronounced, it should
not be altered. In Lily Thomas Vs. Union
of India AIR 2000 SC 1650, the Court said
that power of review can be exercised for
correction of a mistake and not to substitute
a new. Such powers can be exercised
within limits of the statute dealing with the
exercise of power. The aforesaid view is
reiterated in Inderchand Jain Vs. Motilal
(2009) 4 SCC 665.

12.

In
Kamlesh
Verma
Vs.
Mayawati and others 2013 (8) SCC 320,
the Court said:

"19. Review proceedings are not by
way of an appeal and have to be strictly
confined to the scope and ambit of Order
47 Rule 1 of CPC. In review jurisdiction,
mere disagreement with the view of the
judgment cannot be the ground for
invoking the same. As long as the point is
already dealt with and answered, the
parties are not entitled to challenge the
impugned judgment in the guise that an
alternative view is possible under the
review jurisdiction.

Summary of the Principles:

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 Chhajju
Ram vs. Neki, AIR 1922 PC 112 and
approved by this Court in Moran Mar
Basselios Catholicos vs. Most Rev. Mar
Poulose Athanasius & Ors., AIR 1954 SC
526, to 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 vs.
Sandur Manganese & Iron Ores Ltd. &
Ors., 2013 (8) SCC 337.

22.2. 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.
714 INDIAN LAW REPORTS ALLAHABAD SERIES

(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." (emphasis supplied)

13. In the case in hand, grounds for
review,
as
above,
and
the
review
application do not satisfy the contours of
entertaining the review petition, hence, we
find no reason to interfere with the well
reasoned order
of
this
Court dated
2.7.2019.

14.
This
review
application
is,
therefore, dismissed.
----------

(2022)04ILR A714
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.04.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE JAYANT BANERJI, J.
Special Appeal No. 148 of 2022

Iqbal Khan ...Appellant
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Devesh Mishra, Sri Rishabh Kesarwani

Counsel for the Respondents:
C.S.C.

A. Service Law - UP Recruitment of
Dependents
of
Government
Servants
Dying in Harness Rules, 1974 - Rule 5 -
Compassionate appointment - Object -
Appointment to the post of Lab Assistant
accepted
-
Claim
for
the
post
of
Pharmacist was made after four years on
the basis of qualification - Permissibility -
Held,
the
object
of
compassionate
appointment is to enable the family of the
deceased - employee to tied over the
sudden financial crisis due to death of the
bread earner which has left the family in
penury and without means of livelihood, it
is an exception to the normal rule of
public employment, it is a concession -
Compassionate Appointment cannot be
treated as a Bonanza - Principle laid down
by Apex Court in Premlata's case that the
dependent/applicant
cannot
seek
the
appointment on compassionate ground on
the higher post than what was held by the
deceased employee as a matter of right,
on the ground that he/she is eligible
fulfilling the eligibility criteria of such
higher post, relied upon. (Para 14 and 21)
Special Appeal dismissed. (E-1)
List of Cases cited :-
1. Hamza Haji Vs St. of Kerala; 2006 (7) SCC
416
2. Shiv Kumar Dubey & ors. Vs St. of U.P. &
ors.; 2014(2) ADJ, 312
3. Civil Misc. Writ Petition No. 13102 of 2010;
U.O.I. Vs Smt. Asha Mishra decided on 7.5.2010
4. Civil Appeal No. 897 of 2021; Central
Coalfields
Ltd.
Through
its
Chairman
&