Sanjeev Kumar ORDER
Sanjeev Kumar, J.
1. This order shall dispose of the application filed by applicant seeking review of the judgment dated 02.07.2018 passed by this Court in SWP No. 1029/2015.
2. The writ petition SWP No. 1029/2015 was allowed by this Court on 02.07.2018 holding the promotion granted in favour of the applicant-respondent No. 2 as Reader by virtue of order dated 27.07.2009, impugned in the writ petition, not justified in law. This Court also quashed the promotion of the applicant as Reader granted by the High Court vide its order dated 27.07.2009. It may be noted that in paragraph No. 39, in place of "Reader" the "Bench Secretary" has been written due to typographical error. Non-applicant No. 1 has moved a separate application seeking correction of the aforesaid clerical error which shall be dealt with separately.
3. Mr. R.A. Jan, learned senior Advocate, appearing for the applicant, while elaborating the grounds on which the review is sought submits that the judgment sought to be reviewed is vitiated due to several errors apparent on the face of record. It is submitted that under Rule 6 of the High Court Staff (Condition of Services) Rules, 1968, the Chief Justice is empowered to lay down the qualification of a member of service and determine the mode of recruitment and in exercise of aforesaid power the Chief Justice of this Court vide order dated 27.03.2007 had approved the waiting-list for the post of Reader indicating the name of the applicant, as prepared by the Selection Committee. He also contends that as per the approval granted by Hon'ble the Chief Justice, the wait list was to remain in force for a period of one year w.e.f. 01.04.2007. It is the submission of the learned senior counsel that since three vacancies of Reader became available during the currency of the wait list and therefore, the applicant being the only candidate in the wait list was considered, though belatedly, with the approval of Hon'ble the Chief Justice. It is, thus, submitted that the order dated 27.07.2009, whereby the applicant was appointed as Reader, was in consonance with law. It is next contended by the learned senior counsel that in law a selection body is competent to initiate process of selection for existing as well as anticipated vacancies and that the wait list, if legitimately prepared, could be utilized to fill up such anticipated vacancies which may fall vacant during the currency of the life of the wait list.
4. Learned senior counsel has broadly emphasized upon the aforesaid grounds and urged that this Court while deciding the writ petition vide judgment dated 02.07.2018 committed an error apparent on the face of record and quashed the selection of the applicant which was otherwise in consonance with law now fairly settled by the Supreme Court.
5. Having heard learned senior counsel for the applicant and perused the record, it would be appropriate for us to first deal with the argument of the learned senior counsel that the power of review vested in the Constitutional Courts is all pervasive and would be available to correct all mistakes. To buttress his submission, learned senior counsel relies upon a judgment of the Supreme Court rendered in the case of Board of Control For Cricket, India v. Netaji Cricket Club; MANU/SC/0019/2005 : 2005(4) SCC 741. It is trite that scope of an application for review is much more restricted than that of an appeal. The powers of this Court are not wider than the powers conferred upon the Civil Court by virtue of Section 114 of the Code of Civil Procedure read with Order 47 Rule 1 CPC. Though, the grounds on which the review can be sought as given in the Code of Civil Procedure are only enumerative and not exhaustive. The term "for any other sufficient reason" is wide enough to encompass the grounds other than those enlisted in Order 47 Rule 1 CPC but such other grounds or reason should be ejusdem-generis to the grounds given in the aforesaid provisions of the Code of Civil Procedure.
6. As is rightly held by the Supreme Court in the case cited by the learned counsel for the applicant that "what would constitute sufficient cause", would depend upon the facts and circumstances of the case and the term "sufficient reason" given in Order-47 Rule 1 of the Code is wide enough to include misconception of fact or law by a Court or even a defect. An application for review may also be necessitated by a party invoking the doctrine of 'actus curiae neminem gravabit'.
7. While we are in agreement with the learned senior counsel that the powers of review vested in this Court are wide in amplitude, yet we would hasten to add that while exercising such powers the Court cannot sit in appeal to correct mere errors of law or fact, unless such errors are apparent on the face of record. In the backdrop of aforesaid position, we have considered the grounds for seeking review of the judgment urged by the learned senior counsel on behalf of the applicant.
8. Indubitably, when the process of selection for appointment of Reader by promotion was initiated by the High Court, recruitment to the post of Reader was governed by a Full Court decision of the High Court dated 27.04.2001 and the qualification prescribed for the post was law graduate and in case no candidate from the specified categories possessed the prescribed qualification the selection was to be made from amongst other categories of the staff of the High Court. Obviously, the applicant also threw her hat in the ring, though she was neither a law graduate nor was belonging to the specified category. She was holding the post of Head Assistant at the relevant point of time. The process of selection was admittedly made for a solitary post of Reader. There was no mention in the notification for filling up any anticipated vacancies likely to be available in near future. There was also no mandate with the selection committee to prepare any waitlist. Otherwise also, the concept of preparation of a waitlist in the matter of promotion is alien to service jurisprudence. Once process for promotion is initiated for a particular number of posts, may be by way of selection, the moment the candidates selected are appointed by promotion to the notified vacancies, the list gets exhausted. It may be true that while initiating the process of selection for making promotions, the competent authority may also permit the selection against the anticipated vacancies also but this has to be done at the time of issuance of notification inviting applications from the in service candidates to be considered in the selection process. Admittedly, this has not happened in the instant case.
9. The only mandate with the selection committee was to fill up one post of Reader by way of selection amongst the eligible candidates on the basis of prescribed test. The test was conducted and one S. Joginder Singh, Head Assistant made the grade and was, accordingly, appointed. The vacancies that became available after the aforesaid selection, may be due to the retirement of incumbents, were required to be notified afresh inviting all stake holders to stake their claims in the process to be initiated afresh. The candidates like the applicant who were next in the order of merit in the earlier selection could not have constituted a reservoir to supply the future or even anticipated vacancies. We have thoroughly considered this aspect and have come to the conclusion that modus operandi adopted by the High Court to appoint the applicant by way of promotion by operating the wait list was not in consonance with law and was an action per se arbitrary.
10. The plea of the learned counsel for the applicant that the appointment of the applicant by promotion as Reader made in the year 2009 was governed by the Full Court decision dated 27.04.2001 is also untenable and cannot be accepted. Once we have held that neither the waitlist was envisaged to be prepared for the selection, nor the candidate figuring in the so called wait list could have been picked up to supply the vacancy that had arisen after the select list had been exhausted, the vacancies, that occurred after the process of selection was over and the select list had been exhausted, were required to be filled up in terms of the Rules in vogue at the time these were to be taken up for filling up. In the absence of any statutory mandate to fill up a vacancy within a specified time, the Rules which are in vogue at the time the avenues of promotion are thrown open would govern such promotions. The law in this regard is well settled by the Supreme Court in the case of Deepak Aggarwal & another v. State of U.P and others; MANU/SC/0273/2011 : 2011 (6) SCC 725. Paragraph Nos. 17 and 22 which are relevant in the context of controversy raised by the applicant deserve to be noticed and are, therefore, reproduced hereunder:-
"17. The short question that arises for consideration is as to whether the appellants were entitled to be considered for promotion SWP No. 1589/2014 Page 8 of 13 on the post of Deputy Excise Commissioner under the 1983 Rules, on the vacancies, which occurred prior to the amendment in the 1983 Rules on 17th may, 1999. Under the unamended 1983 Rules, the petitioners would be eligible to be considered for promotion by virtue of Rule 5(2). Bye virtue of the Note to Rule 8, a combined eligibility list has to be prepared by arranging the names of Assistant Excise Commissioner and Technical Officers in order of seniority as amended by the date of their substantive appointment. The appellants were, therefore, clearly in the feeder cadre of the post for promotion to the post of Deputy Excise Commissioner. Rule 7 provides that the Appointing Authority shall determine the vacancies to be filled during the course of the year and the number of vacancies. There is no statutory duty cast upon the State to complete the selection process within a prescribed period. Nor is there a mandate to fill up the posts within a particular time. Rather the proviso to Rule 2 enables the State to leave a particular post unfilled."
Similarly in paragraph No. 22, it is held thus:-
"22. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the 'rules in force' on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah's case (supra) lays down any particular time frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants have been taken away by the amendment. The judgments cited by learned counsel for the appellants namely B.L. Gupta v. M.D. (supra), P. Ganeshwar Rao v. State of Andhra Pradesh (Supra) and N.T. Devin Katti and Ors. V. Karnataka Public Service Commission & Ors. (supra) are reiterations of a principle laid down in Y.V. Rangaiah's case (supra)."
11. In view of the clear dictum of law laid down by the Supreme Court in the aforesaid case and reiterated in the case of State of State of Tripura and others v. Nikhil Ranjan Chakraborty and others; MANU/SC/0054/2017 : 2017(3) SCC 646, it cannot be contended that date of occurrence of vacancy is relevant to determine the applicability of the Recruitment Rules. It is equally well settled that no employee has a right of promotion but has only right to be considered for promotion according to the Rules. Chances of promotion are not condition of service and, therefore, defeasible in accordance with law. Unless, there is statutory mandate to fill up a vacancy within a prescribed period, it is always left to the wisdom and discretion of the employer to fill up the vacancy as and when it deems fit and proper and the employee who has a right of consideration for promotion cannot dictate to his employer that available vacancy should be filled up immediately on occurrence. It is in the backdrop of this legal position, we, in the judgment sought to be reviewed, concluded that the promotion to the post of Reader in the year 2009 when the applicant was promoted was governed by the Order No. 579 dated 24.10.2008 issued by Hon'ble the Chief Justice in exercise of powers conferred upon him in terms of Section 6 of the High Court Staff (conditions of Service) Rules, 1968 and the vacancy was to be supplied by way of promotion only from amongst the Section Officers (Adm) having the qualification of graduation in law and in the absence of availability of such candidates, by way of selection from amongst the candidates from other equivalent cadres. The applicant was only a Head Assistant and, therefore, was not holding the post equivalent to Section Officer. That being so, we have rightly concluded that she was not eligible to be promoted as Reader.
12. In view of all what we have stated herein above, we do not find any substance in this application nor do we find any sufficient reason to review the judgment dated 02.07.2018. Consequently, this application is dismissed.
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