Navin Sinha, J.

1. Heard learned counsel for the petitioner and the State. This review application has been filed for review of the order in C.W.J.C. No. 4932 of 2009 (Vijay Kumar vs. State of Bihar & Ors.). The petitioner was not a party respondent and no relief had been sought against him. Sri Vijay Kumar had prayed for payment of salary only claiming that he had been selected and appointed as a Panchayat Teacher contending that despite representations salary was not being paid. It was not even the case of Sri. Vijay Kumar that any other had been wrongly appointed because of which salary was not being paid to him. The Court directed the Principal Secretary, Department of Human Resources, to examine his grievances and pass appropriate orders on the representation. No orders for holding enquiry with regard to any appointments were made.

2. The District Superintendent of Education, Madhepura (not the Principal Secretary) passed orders on 28.11.2009. It does not deal with the issue for payment of salary to Sri Vijay Kumar. Under the garb of the order of the Court it proceeds to examine the legality of the petitioners appointment and terminates his service.

3. The petitioner filed C.W.J.C. No. 7597 of 2010 contending that his appointment had been cancelled without any enquiry or notice to show cause/opportunity of hearing. An objection was also taken that the District Superintendent of Education had no jurisdiction to pass the order in terms of the direction of the Court.

4. In C.W.J.C. No. 7597 of 2010, it was ordered as follows:-

Annexure-1 is a fall out of the direction issued by the High Court by a learned Single Judge contained in Annexure-7. In that view of the matter, submission of the learned counsel that he was not heard and the consequence of Annexure-1 is upon him can be looked into by the concerned Judge if the petitioner moves a review application before the competent Judge.

This writ application is disposed of with the above liberty.

5. Thus the review application.

6. The Court is not concerned with the merits of the order dated 28.11.2009 and the defence of the petitioner which is yet to be adjudicated on merits. The question for consideration is whether a writ proceeding would be the appropriate remedy or the review jurisdiction.

7. In : (1993)4 SCC 216 (Ramchandra Ganpat Shinde vs. State of Maharashtra) a writ petition was filed for a mandamus to hold election in accordance with final voters list as published. The appellants sought review of the order seeking a direction to hold election on a subsequent voters list. The application was dismissed. It was held that the earlier order could not be reviewed because the appellants were not parties to the proceedings. It was not a case of irregularity in the exercise of jurisdiction to be set right by review. A third party had no right to file an application for review. If the petitioner was not a party in C.W.J.C. No. 4932 of 2009 and there were no directions with regard to him, he cannot invoke the review jurisdiction. Any order against him shall have to be scrutinized on its own merits in an independent writ application filed by him.

8. In : (2004)6 SCC 126 (Pohla Singh vs. State of Punjab) it was held that if an order is obtained adverse to a person without impleading him a party respondent a review application at the behest of the aggrieved shall lie. In the present case no orders had been passed by the Court on the request of Sri Vijay Kumar adverse to the petitioner. The respondent misutilised the order of the Court out of context to visit the petitioner with consequences. It was an independent cause of action for him.

9. It has been noticed that the petitioner was not party to C.W.J.C. No. 4932 of 2009 and no relief whatsoever had been sought against him of any manner. The order dated 28.11.2009 by the District Superintendent of Education and not by the Principal Secretary did not have even semblance of justification under the order of the Court. The order was in complete abuse of the order of the Court. It had therefore to be tested on its own merits in a fresh proceeding under Article 226 and not in the review jurisdiction which is limited and restricted as compared to the writ jurisdiction. The order dated 28.11.2009 is wholly unconnected with the order in C.W.J.C. No. 4932 of 2009.

10. The power of review under Article 226 of the Constitution as observed in : (2005)13 SCC 289 (Rajender Singh vs. Lt. Governor, Andaman and Nicobar Island) is limited as observed at Paragraph-16:-

16. The power, in our opinion extent to correct all errors to prevent miscarriage of justice. The Court should not hesitate to review their own earlier order when there exists an error on the face of the record and the interest of justice so demand in appropriate cases.

11. In : (2008)3 SCC 440 [: 2008(2) PLJR (SC) 108] (Food Corporation of India vs. SEIL Ltd.) it was observed as follows:-

25...A writ court exercises its power of review under Article 226 of the Constitution of India itself. While exercising the said 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 on its part would be subject to review; amongst others on the principle of actus curiae neminem gravabit (an act of the court shall prejudice none)....

12. The Supreme Court in : (2011)8 SCC 670 (State of Uttaranchal vs. Sunil Kumar Vaish) has observed at Paragraph-17 as follows:--

17. Of late, we have come across several orders which would indicate that some of the Judges are averse to decide the disputes when they are complex or complicated, and would find out ways and means to pass on the burden to their brethren or remand the matters to the lower courts not for good reasons. Few Judges, for quick disposal, and for statistical purposes, get rid of the cases, driving the parties to move representations before some authority with a direction to that authority to decide the dispute, which the Judges should have done. Often, causes of action, which otherwise had attained finality, resurrect, giving fresh causes of action. Duty is cast on the Judges to give finality to the litigation so that the parties would know where they stand.

13. The Court was inclined to direct the petitioner to seek recall of the order dated 21.1.2011 in C.W.J.C. No. 7597 of 2010. Learned counsel however submits that he may be permitted to convert the present application into one under Article 226 of the Constitution.

14. If the petitioner were to be directed to move for recall of the order dated 21.1.2011, undoubtedly, it shall consume more time even while he remains out of service denied hearing on merits by the Court also.

15. Keeping in mind the developments that have taken place and the maxim Actus curiae neminem gravabitan--an act of the Court shall prejudice no man, permission is granted to convert the present application into one under Article 226 of the Constitution of India during the course of the day. It is also considered proper to direct that the petitioner is not required to pay fresh Court fee. That already filed shall suffice. The application shall be stamped report and placed for admission by the Registry in the next week before the appropriate Bench according to roster. Liberty is granted to the petitioner for reasons discussed in the present order to motion the appropriate Bench for an out of turn hearing.