# Zuhair Bin Saghir v. State of U.P. & Ors

- **Citation:** (2022) 11 ILRA 530
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-23
- **Case number:** Special Appeal (D) No. 255 of 2022
- **Bench:** Devendra Kumar Upadhyaya, Saurabh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/zuhair-bin-saghir-v-state-of-u-p-ors-47864
- **Pages:** 8

## Headnote

A. Service Law - Institution of Open
Vigilance
Enquiry
-
U.P.
Vigilance
Establishment Act, 1965 - No doubt, the
very
purpose
of
issuance
of
the
Government Orders is to safeguard the
interest of the government officers from
unnecessary harassment and curb the
tendency
of
making
frivolous
and
anonymous
complaints
against
the
government servants, however, so far as
the institution of open vigilance enquiry is
concerned,
the
procedure,
is
to
be
governed by the provisions contained in
the Vigilance Manual in light of the
provisions of U.P. Vigilance Establishment
Act, 1965. (Para 27)

Learned Single Judge after considering
the purpose and purport of the various
Government Orders has referred to certain
judgments of Hon'ble SC laying down the test
for determination of a particular provision being
mandatory or directory and has held the
Government Orders to be directory. (Para
26)

The facts make it clear that apart from the
preliminary enquiry conducted by the Senior
Superintendent of Police, Moradabad, the
Vigilance Establishment under the provisions of
Vigilance Manual and also in terms of the
provisions
contained
in
U.P.
Vigilance
Establishment Act, 1965 conducted an open
vigilance enquiry which was considered by the
State Government at the appropriate level and
accordingly a decision was taken to launch
criminal prosecution into the allegations against
the appellant-petitioner. (Para 23, 24)

Much emphasis has been laid by the appellantpetitioner on the GO dated 14.04.1981, which
provides that in case any complaint is received
against the employee or the officer, the enquiry
should be conducted by an officer at least two
rank higher than the officer against whom
complaint is made, however, while doing so it
should be kept in mind that the rank of the
enquiry officer should be below the rank of
11 All. Zuhair Bin Saghir Vs. State of U.P. & Ors.
531
punishing authority. The said GO, will have
application in case any fact finding enquiry
results into the institution of any departmental
proceeding. The GO, dated 14.04.1981 will have
no application so far as the open vigilance
enquiry is concerned. (Para 34)

B. Material is significant for instituting
the open vigilance enquiry, and not the
source from where such material is
received by the State Government. (Para
28)

The basis for conducting open vigilance
enquiry in terms of the provisions contained
in Vigilance Manual and also in terms of the
statutory
provisions
contained
in
U.P.
Vigilance Establishment Act, 1965 is the
availability of some material before the
State Government warranting such an
open vigilance enquiry which would
suffice and not the source of material in
respect of allegations of misconduct or
corruption or any other charge against
the employee or officer concerned. (Para
25)

There may be various sources of collecting
and gathering relevant material on the basis
of which the State Government forms an
opinion whether to institute open vigilance
enquiry
or
to
institute
departmental
proceedings
or
to
draw
both
these
proceedings into the allegations available
against the appellant-petitioner. The report of
the fact finding enquiry is one such source.
Another source may be some complaint.
There may be various other sources from
where the State Government may gather
relevant material. However, availability of
such material before the State Government is
important and not as to whether such
material has been received on the basis of
some complaint or through fact finding
enquiry or from any other source. (Para 29)

C. It is well settled, concern of the Court
while exercising its jurisdiction u/Article
226 of the Constitution of India i.e.
while exercising the powers of judicial
review is not the decision; rather the
decision making process. (Para 31)

So far as the factual aspects are concerned, it
is primarily preserve of the executive and
administrative authorities and unless and until
there is any perversity in findings of fact
arriv

## Text

530 INDIAN LAW REPORTS ALLAHABAD SERIES
of birth changed at the fag end of his
service tenure, the same principle would
apply to the Employers as well. The
employer cannot of its own ignore the
High School Certificate which had been
duly verified by the U.P. Board only on
the basis of incorrect date of birth
mentioned in the service records.

22. The notice of retirement
dated 28.05.2021 is set aside. The
petitioner having already retired on
30.09.2021 and having not worked for
more than a year cannot be given arrears
of salary on the principle of 'no work no
pay'. The petitioner shall be allowed to
work up to 30.11.2024 treating his date
of birth as 06.11.1964 giving him
continuity
of
service
and
annual
increments and pay fixation accordingly.
The appropriate order for joining of the
petitioner at his previous place of
posting shall be passed by the Managing
Director, the respondent no. 2 within
four weeks from the date of receipt of
copy of this Order.

23. The writ petition stands allowed.
----------
(2022) 11 ILRA 530
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.11.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE SAURABH SRIVASTAVA, J.

Special Appeal (D) No. 255 of 2022

Zuhair Bin Saghir ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Asit Srivastava, Akhilesh Kumar Kalra

Counsel for the Respondents:
C.S.C.

A. Service Law - Institution of Open
Vigilance
Enquiry
-
U.P.
Vigilance
Establishment Act, 1965 - No doubt, the
very
purpose
of
issuance
of
the
Government Orders is to safeguard the
interest of the government officers from
unnecessary harassment and curb the
tendency
of
making
frivolous
and
anonymous
complaints
against
the
government servants, however, so far as
the institution of open vigilance enquiry is
concerned,
the
procedure,
is
to
be
governed by the provisions contained in
the Vigilance Manual in light of the
provisions of U.P. Vigilance Establishment
Act, 1965. (Para 27)

Learned Single Judge after considering
the purpose and purport of the various
Government Orders has referred to certain
judgments of Hon'ble SC laying down the test
for determination of a particular provision being
mandatory or directory and has held the
Government Orders to be directory. (Para
26)

The facts make it clear that apart from the
preliminary enquiry conducted by the Senior
Superintendent of Police, Moradabad, the
Vigilance Establishment under the provisions of
Vigilance Manual and also in terms of the
provisions
contained
in
U.P.
Vigilance
Establishment Act, 1965 conducted an open
vigilance enquiry which was considered by the
State Government at the appropriate level and
accordingly a decision was taken to launch
criminal prosecution into the allegations against
the appellant-petitioner. (Para 23, 24)

Much emphasis has been laid by the appellantpetitioner on the GO dated 14.04.1981, which
provides that in case any complaint is received
against the employee or the officer, the enquiry
should be conducted by an officer at least two
rank higher than the officer against whom
complaint is made, however, while doing so it
should be kept in mind that the rank of the
enquiry officer should be below the rank of
11 All. Zuhair Bin Saghir Vs. State of U.P. & Ors.
531
punishing authority. The said GO, will have
application in case any fact finding enquiry
results into the institution of any departmental
proceeding. The GO, dated 14.04.1981 will have
no application so far as the open vigilance
enquiry is concerned. (Para 34)

B. Material is significant for instituting
the open vigilance enquiry, and not the
source from where such material is
received by the State Government. (Para
28)

The basis for conducting open vigilance
enquiry in terms of the provisions contained
in Vigilance Manual and also in terms of the
statutory
provisions
contained
in
U.P.
Vigilance Establishment Act, 1965 is the
availability of some material before the
State Government warranting such an
open vigilance enquiry which would
suffice and not the source of material in
respect of allegations of misconduct or
corruption or any other charge against
the employee or officer concerned. (Para
25)

There may be various sources of collecting
and gathering relevant material on the basis
of which the State Government forms an
opinion whether to institute open vigilance
enquiry
or
to
institute
departmental
proceedings
or
to
draw
both
these
proceedings into the allegations available
against the appellant-petitioner. The report of
the fact finding enquiry is one such source.
Another source may be some complaint.
There may be various other sources from
where the State Government may gather
relevant material. However, availability of
such material before the State Government is
important and not as to whether such
material has been received on the basis of
some complaint or through fact finding
enquiry or from any other source. (Para 29)

C. It is well settled, concern of the Court
while exercising its jurisdiction u/Article
226 of the Constitution of India i.e.
while exercising the powers of judicial
review is not the decision; rather the
decision making process. (Para 31)

So far as the factual aspects are concerned, it
is primarily preserve of the executive and
administrative authorities and unless and until
there is any perversity in findings of fact
arrived at by the authority concerned, any
interference by this Court in exercise of its
power of judicial review will be impermissible.
(Para 32)

Special appeal dismissed. (E-4)

Precedent cited:

1. Kumdesh Kumar Sharma Vs St. of U.P. & ors.,
Judgment dated 03.01.2012, Writ Petition No.
4372 (SS) of 2011 (Para 19)

Present
appeal
assails
order
dated
18.05.2022, passed by the learned Single
Judge in Writ-A No.2894 of 2022.

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J. & Hon'ble Saurabh
Srivastava, J.)

(C.M.Application No. 1 of 2022)

1. Having heard the learned counsel
for the appellant-petitioner, learned State
Counsel and having gone through the
averments made in the application seeking
condonation of delay, we find that the delay
in filing this Special Appeal has sufficiently
been explained.

2. Accordingly, application is allowed
and the delay in preferring the Special
Appeal is hereby condoned.

(Oder on memo of Appeal)

3. Heard the learned counsel for the
appellant-petitioner and learned counsel
representing the State-respondents.

4. We have also perused the record
available on this Special Appeal.
532 INDIAN LAW REPORTS ALLAHABAD SERIES

5. By instituting the proceedings of
this intra-court appeal under Chapter VIII
Rule 5 of the Rules of the Court, the
appellant-petitioner has questioned the
order dated 18.05.2022, passed by the
learned Single Judge in Writ-A No.2894 of
2022, whereby the said writ petition has
been dismissed.

6. At this juncture itself, we may note
that by instituting Writ-A No.2894 of 2022,
the appellant-petitioner had challenged the
validity of the order dated 16.03.2022,
passed by the State Government in the
Vigilance
Department
whereby
the
representation made by the appellantpetitioner, dated 16.08.2021 pursuant to an
order passed by this Court on 08.01.2020 in
an earlier Writ Petition No.32018(MB) of
2019, was rejected. The prayer made in the
said
representation
dated
16.08.2022,
which has been rejected by the State
Government by means of order dated
16.03.2022, was that the open vigilance
enquiry conducted against him by the
Vigilance Establishment and consequently
the decision to initiate the criminal
proceedings against him be set aside.

7. The State Government considered
the said representation in compliance of the
order dated 08.01.2020 passed by this
Court in Writ Petition No.32018(MB) of
2019 and rejected the same. It is this order,
as observed above, which was challenged
by the appellant-petitioner before the
learned Single Judge.

8.

Before
delving
into
the
submissions made by the learned counsel
for the respective parties, we may note that
one complaint against the appellantpetitioner was made while he was posted as
District
Magistrate,
Moradabad.
The
preliminary enquiry into the said complaint
was
conducted
by
the
Senior
Superintendent
of
Police,
Moradabad
which was made available to the State
Government,
vide
his
letter
dated
27.04.2017. In the said enquiry report,
dated 27.04.2017 submitted by the Senior
Superintendent of Police, Moradabad, a
recommendation was made to get an open
enquiry
conducted
and
accordingly
direction was issued to the U.P. Vigilance
Establishment for conducting an open
enquiry. The U.P. Vigilance Establishment,
having been so directed, conducted the
open enquiry into the allegations against
the appellant-petitioner and submitted its
report on 11.05.2018 which was considered
and accordingly, Vigilance Establishment
recommended for instituting a criminal
case against the appellant-petitioner and its
investigation.

9. The recommendation made by the
U.P.
Vigilance
Establishment
was
considered and accordingly the State
Government at the appropriate level took a
decision
on
17.07.2018
for
criminal
investigation into the allegations against the
appellant-petitioner.

10. The appellant-petitioner before
filing Writ-A No.2894 of 2022 had
instituted a writ petition bearing No.32018
of 2019(MB) before this Court with the
prayer for quashing the open enquiry report
conducted by the Vigilance Establishment.
Further prayer made by the appellantpetitioner in the said writ petition was that
the State Government may be directed not
to initiate criminal prosecution/proceeding
against him on the basis of the said open
vigilance
enquiry
conducted
on
the
complaint made by the complainantDushyant Raj Chaudhary. It was further
prayed in the said writ petition that
direction be issued to the State Government
11 All. Zuhair Bin Saghir Vs. State of U.P. & Ors.
533
to first comply with the provisions of the
Government Orders dated 09.05.1997,
01.08.1997 and 24.05.2012 and only then
to entertain the complaint and proceed
accordingly in terms of the alleged
mandatory provisions contained in the
Government Order dated 24.05.2012.

11. We may notice that the primary
submission made by the learned counsel for
the appellant-petitioner in the said writ
petition was that the complaint against him
has been enquired into in derogation of the
provisions
contained
in
various
Government Orders mentioned above and
as such on the basis of such enquiry, neither
any open vigilance enquiry could have
been ordered nor any criminal prosecution
could be ordered against him.

12. The aforesaid writ petition was
finally disposed of by this Court by means
of judgment and order dated 08.01.2020,
whereby the Court had directed that the
appellant-petitioner shall move a detailed
representation before the Chief Secretary of
the State of U.P. taking his defence and the
objections against the complaint and in
case any such representation is moved by
the appellant-petitioner, the Chief Secretary
shall
examine
the
same
and
pass
appropriate
speaking
order
after
considering the submissions which may be
made in the representation. The Court in its
order dated 08.01.2020 had also provided
that the State authorities shall not proceed
against the appellant-petitioner till the
representation is decided.

13. In pursuance of the said order dated
08.01.2020,
the
appellant-petitioner
submitted his representation on 16.08.2021
and the Chief Secretary of the State
Government decided his representation by
order dated 16.03.2022, which, as observed
above, was challenged by the appellantpetitioner before the learned Single Judge in
Writ-A No. 2894 of 2022.

14. The learned Single Judge after
considering the case of the respective parties
has dismissed the said writ petition by means
of order dated 18.05.2022 which is under
appeal before us.

15. As has been the case of the
appellant-petitioner
earlier,
the
primary
submission of learned counsel for the
appellant-petitioner is that the complaint
made by the complainant against the
appellant-petitioner ought to have been dealt
with by the State authorities by following the
provisions contained in the Government
Orders, which have been referred to herein
above. It has, thus, been argued that the said
Government Orders being mandatory could
not have been defied by the State authorities
and any deviation from the said Government
Orders not only vitiates the entire action
initiated against the appellant-petitioner but
the same also seriously prejudices him.

16. Learned counsel for the appellantpetitioner has also urged that the Chief
Secretary while deciding the representation
preferred by the appellant-petitioner pursuant
to the order of this Court, dated 08.01.2020
has not given his own views or findings;
rather he has reiterated what ever had
happened earlier and as such the order passed
by the Chief Secretary which was under
challenge before the learned Single Judge
cannot be said to be a reasoned order which
was to be passed by him in pursuance of the
direction issued by this Court by means of its
order dated 08.01.2020.

17. It has also been argued on behalf
of the appellant-petitioner that it is the
admitted case of the parties that the
534 INDIAN LAW REPORTS ALLAHABAD SERIES
complaint made by the complainant against
the
appellant-petitioner
was
not
accompanied by an affidavit and as such in
this view of the matter either the State
authorities ought to have insisted for filing
of affidavit by the complainant or the
complaint would not have proceeded
further in absence of the affidavit, which is
a mandatory requirement in terms of the
Government Orders referred to herein
above for enquiring into any complaint
against the State Government officers,
specially against Class-I officers.

18. Further submission of learned
counsel for the appellant-petitioner is that
certain findings were recorded by this
Court in its order dated 08.01.2020 which
have clearly been ignored by the Chief
Secretary while passing the order dated
16.03.2022 and all these aspects of the
matter have clearly not been taken into
account by the learned Single Judge while
dismissing the writ petition instituted by
the
appellant-petitioner.
Accordingly,
submission is that the order passed by the
learned Single Judge is not sustainable.

19. Impeaching the findings recorded
by the learned Single Judge to the effect
that the Government Orders relied upon by
the appellant-petitioner are not mandatory,
it has been submitted by the learned
counsel
representing
the
appellantpetitioner that considering the purport and
purpose of the said Government Orders, the
provisions contained therein are mandatory
and the purpose is not to cause any
prejudice to the government officer against
whom such unsubstantiated complaint, not
even supported by an affidavit, is received.
To fortify his submission, learned counsel
for the appellant-petitioner relies upon a
judgment dated 03.01.2012, passed by
this Court in Writ Petition No. 4372(SS)
of 2011; Kumdesh Kumar Sharma Vs.
State of U.P. and others, which provides
that various Government Orders issued
from time to time in relation to dealing
with the complaints are to be strictly
followed
as
the
purpose
of
such
Government
Orders
is
not
only
to
safeguard the government officers from
unnecessary harassment but also to curb the
tendency
of
making
frivolous
and
anonymous
complaints
against
the
government servants.

20. On the basis of aforesaid
submissions, it has been prayed that the
order under appeal herein passed by the
learned Single Judge be set aside and the
matter be remitted to the learned Single
Judge for decision afresh.

21.

Learned
Additional
Chief
Standing
Counsel,
Sri
Amitabh
Rai
representing the State-respondents has
vehemently opposed the Special Appeal by
asserting firstly that the Government
Orders being relied upon by the appellantpetitioner do not contain any mandatory
provisions; rather the provisions therein are
directory and in certain circumstances
deviation
from
such
provisions
is
permissible for the State Government
which has to be always vigilant over the
conduct of its officers, specially in a case of
complaint relating to serious of charges and
corruption etc. Sri Rai has secondly
submitted that so far as open vigilance
enquiry
is
concerned,
the
same
is
conducted in terms of the provisions
contained in the Vigilance Mannual of the
State Government and keeping in view the
provisions of U.P. Vigilance Establishment
Act, 1965 which is a State Legislation
enacted for the purposes of enquiring into
the misconduct and other such allegations
from the vigilance angle. He has, thus,
11 All. Zuhair Bin Saghir Vs. State of U.P. & Ors.
535
argued that in case of any open vigilance
enquiry by the Vigilance Establishment, the
Government Orders being referred to by
the appellant-petitioner will have no
application and such vigilance enquiry is to
be conducted independent of the provisions
contained in the Government Orders.
According to Sri Rai, learned State
Counsel, the procedure as per the Vigilance
Mannual which is in vogue in the State of
U.P. is that on receiving any complaint or
on any fact coming to the notice of the
State Government otherwise, an open
vigilance enquiry can be ordered and report
of
such
open
vigilance
enquiry
is
considered by the Vigilance Department in
consultation
with
the
Administrative
Department
and
there
upon
at
the
competent level of the State Government a
decision is taken either to institute
departmental proceedings or to institute
criminal
prosecution
or
both.
His
submission, thus, is that so far as the
vigilance
enquiry
is
concerned,
the
Government Orders relied upon by the
appellant-petitioner do not have any
application. The submission, thus, is that
the learned Single Judge has considered all
these aspects of the matter and has come to
the conclusion that there is no irregularity
or illegality in the order dated 16.03.2022,
passed by the Chief Secretary and hence,
this Special Appeal is liable to be dismissed
at its threshold.

22. We have given our thoughtful
consideration to the rival submissions made
by the learned counsel representing the
respective parties.

23. The facts, as noticed above, make
it clear that apart from the preliminary
enquiry
conducted
by
the
Senior
Superintendent of Police, Moradabad, the
Vigilance
Establishment
under
the
provisions of Vigilance Mannual and also
in terms of the provisions contained in U.P.
Vigilance
Establishment
Act,
1965
conducted an open vigilance enquiry which
was considered by the State Government at
the appropriate level and accordingly a
decision was taken to launch criminal
prosecution into the allegations against the
appellant-petitioner.

24. It is not in dispute that apart from
the fact finding enquiry conducted by the
Senior
Superintendent
of
Police,
Moradabad, another fact finding enquiry
was conducted by a Committee constituted
by the Commissioner, Moradabad Division.
However, these are not the only two fact
finding enquiries on the basis of which the
decision to institute criminal prosecution
against the appellant-petitioner has been
taken, the basis of such decision rather is
the open vigilance enquiry conducted by
the Vigilance Establishment.

25. We are of the opinion that basis
for conducting open vigilance enquiry in
terms of the provisions contained in
Vigilance Mannual and also in terms of the
statutory provisions contained in U.P.
Vigilance Establishment Act, 1965 is the
availability of some material before the
State Government warranting such an open
vigilance enquiry which would suffice and
not the source of material in respect of
allegations of misconduct or corruption or
any other charge against the employee or
officer concerned.

26. So far as the emphasis laid by the
learned counsel for the appellant-petitioner
on the Government Orders referred to
herein above, is concerned, we are in
agreement with the findings recorded by
the learned Single Judge in the order which
is under appeal before us. Learned Single
536 INDIAN LAW REPORTS ALLAHABAD SERIES
Judge after considering the purpose and
purport of the various Government Orders
has referred to certain judgments of
Hon'ble Supreme Court laying down the
test for determination of a particular
provision being mandatory or directory and
has held the Government Orders to be
directory.

27. No doubt, the very purpose of
issuance of the Government Orders being
relied upon by the appellant-petitioner is to
safeguard the interest of the government
officers from unnecessary harassment and
curb the tendency of making frivolous and
anonymous
complaints
against
the
government servants as laid down by this
Court in the case of Kumdesh Kumar
Sharma (supra), however, so far as the
institution of open vigilance enquiry is
concerned, the procedure, in our opinion, is
to be governed by the provisions contained
in the Vigilance Mannual in light of the
provisions of U.P. Vigilance Establishment
Act, 1965.

28. As observed above, we may
emphasize that for instituting the open
vigilance enquiry, it is the material which is
significant and not the source from where
such material is received by the State
Government.

29. There may be various sources of
collecting and gathering relevant material
on the basis of which the State Government
forms an opinion whether to institute open
vigilance
enquiry
or
to
institute
departmental proceedings or to draw both
these proceedings into the allegations
available against the appellant-petitioner.
The report of the fact finding enquiry is one
such source. Another source may be some
complaint. There may be various other
sources from where the State Government
may gather relevant material. However,
availability of such material before the
State Government is important and not as
to whether such material has been received
on the basis of some complaint or through
fact finding enquiry or from any other
source.

30. Learned counsel for the appellantpetitioner has made an attempt to take us to
the factual aspects of the matter by
referring to the extract of the representation
dated 16.08.2021 made by the appellantpetitioner which has been reproduced in the
order dated 16.03.2022 and the finding
recorded by the Chief Secretary thereon.

31. As is well settled, concern of the
Court while exercising its jurisdiction
under Article 226 of the Constitution of
India i.e. while exercising the powers of
judicial review is not the decision; rather
the decision making process.

32. So far as the factual aspects are
concerned, it is primarily preserve of the
executive and administrative authorities
and unless and until there is any perversity
in findings of fact arrived at by the
authority concerned, any interference by
this Court in exercise of its power of
judicial review will be impermissible.

33. As regards the submission of
learned counsel appearing for the appellantpetitioner that this Court in its order dated
08.01.2020 passed in earlier writ petition
filed by the appellant-petitioner that the
vigilance enquiry has been conducted
without
adhering
to
the
provisions
contained in the Government Orders, is
concerned, we may only opine that said
findings contained in the order dated
08.01.2020 will loose its impact in this case
for the reason that the open vigilance
11 All. Vinod Kumar Vs. State of U.P. & Ors.
537
enquiry is to be regulated primarily by the
provisions contained in the Vigilance
Mannual and not in terms of the procedure
as given in the Government Orders.
Further, the order dated 08.01.2020 had
directed the Chief Secretary to consider all
the aspects in the matter which have been
considered by him while passing the order
dated 16.03.2022.

34. Much emphasis has been laid by
the
learned
counsel
representing
the
appellant-petitioner on the Government
Order dated 14.04.1981, which provides
that in case any complaint is received
against the employee or the officer, the
enquiry should be conducted by an officer
at least two rank higher than the officer
against whom complaint is made, however,
while doing so it should be kept in mind
that the rank of the enquiry officer should
be below the rank of punishing authority.
The said Government Order, in our
opinion, will have application in case any
fact finding enquiry results into the
institution of any departmental proceeding.
The Government Order, dated 14.04.1981
will have no application so far as the open
vigilance enquiry is concerned for the
reasons which have been elaborated above.

35. In view of the discussions made
and the reasons given above, in our
considered
opinion,
the
order
dated
18.05.2022, passed by the learned Single
Judge in Writ-A No. 2894 of 2022 does not
warrant any interference by this Court in
this Special Appeal. The Special Appeal is,
thus, hereby dismissed.
----------
(2022) 11 ILRA 537
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.09.2022

BEFORE
THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE AJAY BHANOT, J.

Civil Misc. Review Appl. No. 2 of 2019
in
Spl. Appl. No.1083 of 2019

Vinod Kumar ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Babu Ram Yadav, Sri Salil Krishna

Counsel for the Respondents:
C.S.C.

A. Civil Law - Nature, Scope and Ambit of
Power of review - Code of Civil Procedure,
1908 - Order XLVII, Rule 1 - The settled
law is that power of review is available
only when there is an error apparent on
the face of the record and not on
erroneous decision. If the parties aggrieved
by the judgment on the ground that it is
erroneous, remedy is only questioning the said
order in appeal. The power of review
u/Order XLVII, rule 1, CPC may be opened
inter alia, only if there is a mistake or an
error apparent on the face of the record,
the said power cannot be exercised as is
not permissible for an erroneous decision
to be "reheard and corrected." A review
petition has a limited purpose and cannot
be allowed to be 'an appeal in disguise'.
(Para 5, 7, 9)

It
is
well
settled
that
the
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.
The power of review cannot be confused with
appellate power which enables a superior court
to correct all errors committed by a subordinate
court. It is not rehearing of an original matter. A
repetition of old and overruled argument is not
enough to reopen concluded adjudications.
(Para 5, 6)

B. The error has to be self-evident and is
not to be found out by a process of
reasoning. An error apparent on the face of