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Judgment
Saurabh Lavania, J
Heard Sri G.C.Verma, learned counsel for the review applicant/petitioner and learned counsel for the State-respondents, Sri Amit Sharma.
Present review application has been filed for reviewing the judgment and order dated 27.01.2017, whereby this Court after recording the finding, quoted hereinunder, dismissed the writ petition and affirmed the order dated 09.08.1998 passed by U.P. State Public Services tribunal (in short "Tribunal") in claim petition No.278/V/(F)/1992, whereby Tribunal dismissed the claim petition and affirmed the order of termination dated 31.03.1992.
"Petitioner was engaged as Junior Clerk in a short term vacancy on temporary basis on 22.06.1991 and after joining of regular employee, he was ceased . Admittedly, petitioner had no right to hold post since his appointment was temporary and on short term basis. Hence, we find no error on the part of Tribunal in dismissing claim petition."
Before the Tribunal, the petitioner challenged the order of termination dated 31.03.1992 and also sought the consequential reliefs.
The reliefs sought by the petitioner before the Tribunal are quoted under for ready reference:-
"Wherefore, it most respectfully prayed that this Hon'ble Tribunal may be please to much the impugned order dated 31.03.1992 (contained in Annexure no.1 to this petition) with a declaration that the petitioner continues in his service and is entitled to his fully pay, which he would have been entitled in absence of the impugned order.
Any other orders or direction appropriate in the circumstances of the case and deemed just and proper by the Hon'ble Tribunal may also be passed along with cost of this claim petition."
The Tribunal after considering the material available on record dismissed the claim petition of the petitioner vide order dated 05.05.1998, with following observation:-
"From the perusal of annexure No.1 it is clearly proved that the petitioner was working on daily wages basis and his services had been terminated w.e.f. after noon of 31.03.1992. The petitioner being a daily wager he could not be treated to be ad-hoc appointee even he could not be regularized under any of Government order for regularization of ad-hoc services of Government Servant. In these circumstances I am fully convinced with the contention of the learned Presenting Officer that the petitioner has no lien in respect of the post of a Junior Clerk, as such the termination order is legal and justified."
Aggrieved by the order dated 05.05.1998 passed by the Tribunal and order of termination dated 31.03.1992 the petitioner filed the writ petition, in which the judgment and order dated 27.01.2017, under review, was passed.
Brief facts of the case are that initially the petitioner was appointed in the pay scale of Junior Clerk vide order dated 22.06.1991, against short term vacancy on the post of Head Clerk, by the opposite party no.4, Principal, Government Industrial Training Institute, Bareilly. The appointment was purely temporary and conditioned. The condition of appointment was to the effect that the appointment would come to an end automatically, if Directorate any person on the post in question. The relevant portion of appointment order dated 22.06.1991 reads as under:-
"क्षेत्रीय सेवायोजन कार्यालय, बरेली द्वारा सम्प्रेषित सूची से विभागीय चयन समिति द्वारा संस्तुति के आधार पर पंजीयन नं0-सी.1881/91 श्री ओम नरेश पुत्र श्री लल्लू प्रसाद को अवकाशकालीन रिक्ति के विरूद्ध कनिष्ठ लिपिक पर वेतनमान रू 950-20-1150-द0रो0-25-1500 में पुर्णतयाः अस्थायी रूप से नियक्ति किया जाता है। निदेशालय द्वारा मुख्य लिपिक पद पर तैनाती होने पर श्री ओम प्रकाश की सेवाएं स्वतः समाप्त समझी जायेगी।
"On 31.07.1991, an order was issued by the opposite party no.4. The order dated 31.07.1991 also reflects that the appointment of the petitioner was in the pay scale of Junior Clerk against the post of Senior assistant and was purely temporary and conditional,. The condition in the appointment was to the effect that the appointment of petitioner would come at an end automatically, if an appointment is made on the post of Senior Assistant by the Director. The relevant portion of order dated 31.07.1991 is quoted below:-
"इस संस्थान के पत्रांकःस्था0/क0लि0/नि0/91/3153-53 दिनांकः 22-06-1991 में आंशिक संशोधन करते हुए श्री ओम नरेश को वरिष्ठ लिपिक सहायक के विरूद्ध कनिष्ठ लिपिक वेतनमान रू 950-20-1150-द0रो0-25-1550 में पूर्णतया अस्थाई रूप से नियुक्त किया जाता है। निदेशालय द्वारा वरिष्ठ सहायक की तैनाती किये जाने पर श्री ओम नरेश की सेवाएं स्वतः समाप्त समझाी जाएंगी।"
Thereafter vide order dated 12.11.1991 he was transferred to Government Industrial Training Institute, Anwala, Bareilly and while was working at Anwala, vide order dated 31.03.1992, the services of the petitioner came to an end. The relevant portion of order dated 31.03.1992 reads as under:-
"राज0औ0प्र0सं0आंवला, बरेली में कनिष्ठ लिपिक के पद पर दैनिक वेतन पर कार्यरत कर्मचारी श्री ओम नरेश की सेवाएं दिनांक 31.03.1992 के उपरान्त समाप्त की जाती है।"
Aggrieved by the order dated 31.03.1992, the petitioner filed the claim petition before Tribunal, which was dismissed on 05.05.1998.
The writ petition filed against the aforesaid order was dismissed by the judgment and order dated 27.01.2017, under review.
Before us, while pressing the review application, the arguments, as advanced by the learned counsel for petitioner Sri G.C.Verma, are summarized as under:-
(i) The appointment of the petitioner was on temporary basis and he was terminated vide order dated 31.03.1992 treating him to be daily wage, and that for without giving proper opportunity of hearing.
(ii) After being appointed as temporary basis at Government Industrial Training Institute, Bareilly the petitioner was transferred to Government Industrial Training Institute, Anwala, Bareilly on clear regular vacancy, treating the petitioner as regular employee and thus the termination of the services of petitioner treating him as daily wage was/is not justified rather illegal.
(iii) The order of termination dated 31.031992 was passed in violation of terms of appointment.
(iv) It is also submitted that while passing the judgment and order dated 27.01.2017 this Court has not taken note of the entire facts of the case as such the present review petition has been filed.
We put a query to Sri G.C.Verma, who appeared for review petitioner, that which appointments/engagements are included in expression "temporary appointee" and whether " temporary appointee" is governed by the Rules which says that prior to passing of order of termination simplicitor an opportunity of hearing should be given to a "temporary appointee".
To aforesaid, the learned counsel for the review petitioner could not place any Rule and also failed to explain the term/expression "temporary appointee".
We have heard learned counsel for the petitioner and perused the record.
It transpires from the record, which is admitted position, that the appointment of petitioner was purely temporary and against short term vacancy, which was made on 22.06.1991 and came to an end vide order dated 31.03.1992. The petitioner worked for a very short period/span. The services of the petitioner were not regularized on the post of Junior Clerk and contrary to the same there is neither any pleading nor an order, on record.
Before coming to the conclusion that whether the reasoning given by this Court while dismissing the writ petition vide judgment and order dated 27.01.2017 is perfectly valid or not, we would like to consider the expression "temporary appointee" and right to hold the post by a "temporary appointee".
In regard to aforesaid the Division Bench of this Court in the case of (Dharmendra Kumar Tiwari Vs. State of U.P. and others) reported in 2002 All LJ 1216, after observing, as under, dismissed the writ petition.
"4. Learned counsel for the petitioner submitted that the petitioner has a right to continue till a regularly selected candidate is available for the post. We do not agree with this submission. There is no such legal principle that a temporary employee has a right to continue on the post till a regularly selected candidate is available for that post. Rather, the legal position is just the reverse, namely, that a temporary employee has no right to the post, and hence he has no right to continue even if the post continues to exist. An ad hoc appointee is also a temporary appointee. The expression 'temporary appointee' is a general expression under which there are several sub-categories, e.g. casual appointee, daily wage appointee, ad hoc appointee and even a probationer. All such sub-categories fall within the general category of a temporary appointee, as contrasted to a permanent appointee. The legal position is that a temporary appointee has no right to the post and it is not correct to say that a temporary appointee has a right to continue till a regularly selected candidate is available for the post.
Learned counsel for the petitioner has brought to our notice certain interim orders passed by the Lucknow Bench of this Court vide Annexures 3 and 4 to the writ petition. These are interim orders and hence are no precedents. The law is well settled by the Supreme Court in various decisions that a temporary employee has no right to the post vide State of U.P. v. Kaushal Kishore, (1991) 1 SCC 691 : (1991 AIR SCW 793), Triveni Shankar Saxena v.State of U.P., 1992 Supp (1) SCC 524 : AIR 1992 SC 496 : (1992 All LJ 230) etc. Since the law has been clearly laid down on this point by the Supreme Court anything contrary held by the Lucknow Bench of this Court is not good law."
In the case of Indian Drugs & Pharmaceuticals Ltd. Vs. Workmen, Indian Drugs & Pharmaceuticals Ltd. (2007) 1 SCC (L&S) 270, the Hon'ble Apex Court observed as under:-
"13. It may be mentioned that a daily- rated or casual worker is only a temporary employee, and it is well settled that a temporary employee has no right to the post vide State of U.P. v. Kaushal Kishore Shukla [(1991) 1 SCC 691 : 1991 SCC (L&S) 587 : (1991) 16 ATC 498] . The term "temporary employee" is a general category which has under it several sub-categories e.g. casual employee, daily-rated employee, ad hoc employee, etc.
The distinction between a temporary employee and a permanent employee is well settled. Whereas a permanent employee has a right to the post, a temporary employee has no right to the post. It is only a permanent employee who has a right to continue in service till the age of superannuation (unless he is dismissed or removed after an inquiry, or his service is terminated due to some other valid reason earlier). As regards a temporary employee, there is no age of superannuation because he has no right to the post at all. Hence, it follows that no direction can be passed in the case of any temporary employee that he should be continued till the age of superannuation."
It is also settled principle of law that if an order of termination is "termination simpliciter" then in that case the opportunity of hearing before passing the order of termination is not required.
In the instant case of termination dated 31.03.1992, as appears from the order itself, is termination simpliciter. Thus, there was no need to provide opportunity of hearing to the petitioner before issuing it.
Considering the facts of the case particularly, nature of the appointment of the petitioner, which for a very short span and purely temporary appointment, and the principle settled with regard to right to hold the post vests in the daily wages or temporary appointee, mentioned hereinabove, we are of the view that the reasons given by the Division Bench, while passing the judgment and order dated 27.01.2017, under review, are perfectly valid.
In addition to above, though we have considered the facts of the case while coming to the conclusion aforesaid, we would like to add the scope of review.
In this regard Hon'ble the Apex Court in the case of M/s. Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh represented by the Deputy Commissioner of Commercial Taxes, Anantapur, AIR 1964 SC 1372, The Apex Court held that a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected. but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.
Hon'ble the Apex Court in Subhash Vs. State of Maharastra & Another, AIR 2002 SC 2537, the Apex Court emphasised that Court should not be misguided and should not lightly entertain the review application unless there are circumstances falling within the prescribed limits for that as the Courts and Tribunal should not proceed to re-examine the matter as if it was an original application before it for the reason that it cannot be a scope of review.
This Court in the case of Bhagwant Singh Vs. Deputy Director of Consolidation & Another, AIR 1977 All. 163, rejected the review application filed on a ground which had not been argued earlier because the counsel, at initial stage, had committed mistake in not relying on and arguing those points, held as under:-
It is not possible to review a judgment only to give the petitioner a fresh inning. It is not for the litigant to judge of counsel's wisdom after the case has been decided. It is for the counsel to argue the case in the manner he thinks it should be argued. Once the case has been finally argued on merit and decided on merit, no application for review lies on the ground that the case should have been differently argued."
In Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909, in a review petition filed under Order 47 Rule 1 CPC the Supreme Court held that the power of review under Article 226 of the Constitution of India, in reviewing its own orders, every Court including High Court inheres plenary jurisdiction, to prevent miscarriage of justice or to correct grave and palpable errors committed by it.
Further, the review lies only on the grounds mentioned in Order 47, Rule 1 read with Section 141 CPC. The party must satisfy the Court that the matter or evidence discovered by it at a subsequent stage could not be discovered or produced at the initial stage though it had acted with due diligence. A party filing a review application on the ground of any other " sufficient reason" must satisfy that the said reason is analogous to the conditions mentioned in the said provision of C.P.C.
Thus, in view of the abovesaid facts, review can be allowed only on (1) discovery of new and important matter of evidence which, after exercise of due diligence, was not within the knowledge of the person seeking review, or could not be produced by him at the time when the order was made, or (2) when some mistake or error on the face of record is found, or (3) on any analogous ground. But review is not permissible on the ground that the decision was erroneous on merits as the same would be the province of an Appellate Court.
In View of the above discussion , the law of review can be summarized that it lies only on the grounds mentioned in Order 47, Rule 1 CPC . The party must satisfy the Court that the matter or evidence discovered by it at a subsequent stage could not be discovered or produced at the initial stage though it had acted with due diligence. A party filing a review application on the ground of any other' sufficient reason' must satisfy that the said reason is analogous to the conditions mentioned in Order 47, Rule 1 CPC. Under the garb of review, a party cannot be permitted to re-open the case and to gain a full-fledged inning for possible for the Court to take a view contrary to what had been taken earlier. Review lies only when there is error apparent on the fact of the record and that fallibility is by the over-sight of the Court.
Hon'ble Supreme Court in the case of Zahira Habibullah Sheikh Vs. State of Gujarat, (2004) 5 SCC 353, after placing reliance on its earlier judgments i.e. P.N. Eswara Iyer etc. Vs. Registrar Supreme Court of India, (1980) 4 SCC 680; Sutherdraraja Vs. State, (1999) 9 SCC 323; Ramdeo Chauhan Vs. State of Assam, AIR 2001 SC 2231; and Devender Pal Singh Vs. State of NCT of Delhi, AIR 2003 SC 3365; observed that review applications "are not to be filed for the pleasure of the parties or even as a device for ventilating remorselessness, but ought to be resorted to with a great sense of responsibility as well."
For the foregoing reasons, the review application lacks merit.
Hence, dismissed with no order as to costs.