BHAIYA LAL Vs. SPECIAL SECRETARY DEPT OF EDUCATION

JUDGEMENT

(1.) THIS second review/recall application filed by the Director, State Shaikshik Anusandhan and Training Parishad, Uttar Pradesh, Lucknow seeks to review/recall the judgment dated 14.7.2004 by which the Court held that so far as Special BTC Course 2004 is concerned, the petitioners belonging to 'Bhar' Tribe shall be entitled to be treated as belonging to Scheduled Tribe for the purposes of training, and thereafter if they succeed in the examination, they will be entitled to be considered, in the category of Other Backward Class, for the purposes of employment as Asstt. Teacher in primary schools. A further direction was issued that the petitioner shall be treated as belonging to Scheduled Tribe, subject to verification of his caste certificate, and that his candidature shall be reconsidered along with the Scheduled Tribe categories. In case he successfully competes the training and the examination, he shall be placed in the category of Other Backward Class for appointment.

(2.) THE applicant had earlier filed a review application and thereafter filed a Special Appeal No. 66 of 2006 against the judgment dated 14.7.2004. THE special appeal was withdrawn to pursue the review petition. THE review application was dismissed on 8.8.2006 on the ground that no liberty was sought from the appellate Court to pursue the review petition. THE applicant again filed a Special Appeal No. 940 of 2006 against the judgment and order dated 8.8.2006 as well as the order dated 14.7.2004. In the Special Appeal the order by which the review petition was decided was set aside and the matter was remanded for fresh consideration of the review petition. THE order reads as follows: "Our order is to be read in the context of the impugned order dated 8.8.2006. If an appeal is withdrawn without liberty to file afresh, it stops only a second appeal from being filed on principles similar to those applicable to suits and applications. In regard to an appealable order, a review application, properly so called under Order 47 can be filed only if the appeal has not been filed. In this case, no such appeal had been filed before the filing of the review application took place. THE appeal which had been filed subsequently was withdrawn on the ground that the review application was intended to be pressed. Thus no legal bar remained to its hearing and entertainment. In any event, an application called a review application might not necessarily be a review application properly so called but it might only be an application for rehearing in the ends of justice and the jurisdiction for entertaining that is retained by the Court at all times in its inherent powers. In the second type of review application, the problems mentioned in the impugned order do not arise, in any case. On these grounds, the impugned order is set aside; the matter is remanded to the Hon'ble single Judge for a fresh consideration of the review petition."

(3.) SHRI L.D. Rajbhar, the counsel for the petitioner has filed his written arguments stating that there is no error apparent on the face of the record in the judgment dated 14.7.2004. He submits that review, should not be heard, as an appeal in disguise and has relied upon Parsion Devi and others v. Sumitri Devi and others, JT 1997 (8) SC 480. He would further submit that the question whether the 'Bhar' Tribe is Scheduled Tribe has been considered and decided in State of Maharashtra v. Milind and others, JT 2000 (Suppl.3) SC 213.