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Judgment
The present review petition has been filed for recalling the order dated 27.01.2026 passed in W.P. No. 649/2017.
Learned counsel for the review-petitioner submitted that the respondent was initially appointed on the post of Registrar on an ad hoc basis vide order dated 30.10.1987, mentioning two conditions. First is that the respondent is bound to qualify the accounts exam within two years from the appointment and will have to qualify the selection examination in the first attempt conducted by the Public Services Commission. As the respondent has not completed/complied with the aforesaid conditions, her services were not regularized by the petitioner-department till her retirement.
It is further submitted that the post of Registrar is a Class-II gazetted post and appointment on the post cannot be made without the recommendation of the PSC in terms of the provisions contemplated under Article 320 of the Constitution of India. The appointment of the respondent was given on compassionate grounds, which cannot be made on a Class-II gazetted post according to the provisions of the compassionate appointment policy dated 22.08.1980. It is submitted that this aspect has not been considered at the time of deciding the writ petition. It is further submitted that the Division Bench of this Court vide order dated 22.05.2026 had granted liberty to file a review petition before the writ Court, therefore, present review petition is maintainable.
Per contra, learned counsel for the respondent submitted that the scope in a review petition is very limited and there is no error apparent on the face of the record. It is further submitted that the regular pay scale has already been mentioned in the appointment order dated 27.10.1987, and the aforesaid order has been passed by the Under Secretary of the department and a copy has already been forwarded to higher authorities. The aforesaid appointment order is in the knowledge of all the review petitioner/State.
Since 1987 till the retirement of the respondent, on 30.08.2014, the State Government kept mum. The State cannot be permitted to take the benefit of its own wrong, to take the services continuously for 28 years and thereafter to contend that the respondent, who has rendered 28 years of continuous service, shall not be eligible for regularization or pension.
Heard learned counsel for the rival parties and perused the record.
The Principal question which arises for consideration in the present petition is whether, after the petitioner (respondents in writ petition) had availed the appeal against the order dated 27.01.2026 passed in writ petition no. 649/2017 and the writ appeal preferred there against had already been disposed of by the Division Bench, a subsequnet petition seeking review of the very same order before the learned Single Judge can be entertained. The jurisdiction of a court to review its judgment is not an unrestricted or inherent appellate jurisdiction. Review is a statutory right. Such right can be invoked if the conditions therefore are fulfilled. Order 47 Rule 1 of the Code of Civil Procedure, 1908, in so far as relevant, permits a person aggrieved to seek review of a decree or order. For ready reference and convenience, Order 47 Rule 1 Code of Civil Procedure, 1908 reads as under:-
“1.Application for review of judgment.- (1) Any person considering himself aggrieved,— (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (C) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.”
The expression "but from which no appeal has been preferred" occurring in Order 47 Rule 1 Code of Civil Procedure, 1908 is of considerable significance. The remedy of review and and the remedy of appeal operate in distinct fields. An appeal is a continous of the the original proceedings confers upon the appellate court the jurisdiction to examine the correctness of the order impugned before it within the permissible scope of appeal. Review, on the other hand, is a limited jurisdiction conferred upon the court which pass the order to correct an error apparent on the face of the record, considered discovery of new and important matter or evidence despite exercise of due diligence, or entertaining the matter for any other sufficient reason of a like nature.
The Hon'ble Supreme Court in the case of Rekha Mukherjee vs. Ashish Kumar Das & Ors., (2005) 3 SCC 427 held as follows:-
“17.The suit filed by the Respondents for grant of specific performance of contract was dismissed. The said decree although was appealable but in view of the order dated 15.7.2002, the said decree in its entirety ceased to operate. Order XLVII Rule 1 CPC postulates filing of an application by a person considering himself aggrieved, by a decree or order from which an appeal is allowed but from which no appeal has been preferred, to file an application if he desires to obtain a review from a decree passed against him. An appeal during the pendency of the review petition was, therefore, not maintainable. In terms of Order XLVII Rule 4, the Court may either reject or grant an application for review. In case a review is rejected, the order would not be appealable whereas an order granting an application may be objected at once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit. Rule 8 of Order XLVII of CPC postulates that when an application for review is granted, a note thereof shall be made in the register and the court may at once re-hear the case or make such order in regard to the re-hearing as it thinks fit.”
8.The court further clarified as follows:
“31.The doctrine of eclipse has no application in a case of this nature. An appeal preferred in terms of Section 96 CPC must conform to the requirements contained in Order 41 thereof. An appeal at the time of its filing would either be maintainable or would not be. The High Court, with respect, was not correct in holding that such an appeal could be filed in anticipation. If such a procedure is contemplated in the law; the Respondents herein might not have filed the substantive appeal or would have prayed for withdrawal of the review application before the trial court itself. Having filed a review application on legal advice and having succeeded therein in part, it was not open to it to prefer an appeal against the entire decree dated 20.12.2001 whereby the suit in its entirety was dismissed. The Respondents could have only preferred appeal only from that part of the decree in respect whereof review was not granted. In a suit for specific performance of contract, a prayer in the alternative is ordinarily made to the effect that in the event the court declines to grant a decree for specific performance of contract, it may direct refund of the earnest money with interest. 32. The right of review is a statutory right. Such right can be invoked if the conditions therefore are fulfilled. So is a right of appeal. A right of review and right to appeal stand on different footings although some grounds may be overlapping. If a review is granted, the decree stands modified but such modification of a decree is not an ancillary or a supplemental proceeding so as to be revived upon setting aside the decree granting review.”
A three Judge Bench of the Hon'ble Supreme Court in the case of Thungabhadra Industries Ltd. vs. Govt. of Andhra Pradesh, AIR 1964 SC 1372 held as under:-
“8.Order 47 Rule 1(1) of the Civil Procedure Code permits an application for review being filed “from a decree or order from which an appeal is allowed but from which no appeal has been preferred.” In the present case, it would be seen, on the date when the application for review was filed the appellant had not filed an appeal to this Court and therefore the terms of Order 47 Rule 1(1) did not stand in the way of the petition for review being entertained. Learned counsel for the respondent did not contest this position. Nor could we read the judgment of the High Court as rejecting the petition for review on that ground. The crucial date for determining whether or not the terms of Order 47 Rule 1(1) are satisfied is the date when the application for review is filed. If on that date no appeal has been filed it is competent for the Court hearing the petition for review to dispose of the application on the merits notwithstanding the pendency of the appeal, subject only to this, that if before the application for review is finally decided the appeal itself has been disposed of, the jurisdiction of the court hearing the review petition would come to an end."
Similarly, a three Judge Bench of the Hon'ble Supreme Court in the case of Kunhayammed & Ors. vs. State of Kerala & Anr. (2000) 6 SCC 359 held as follows:-
“36.For our purpose it is Clause (a) Sub-rule(l) which is relevant. It contemplates a situation where "an appeal is allowed" but "no appeal has been preferred". The Rule came up for consideration of this Court in Thungabhadra Industries Ltd. v. The Govt. of A.P. [1964]5SCR174 in the context of Article 136 of the Constitution of India. The applicant had filed an application for review of the order of the High Court refusing to grant a certificate under Article 133 of the Constitution. The applicant also filed an application for special leave to appeal in respect of the same matter under Article 136 along with an application for condonation of delay. The Supreme Court refused to condone the delay and rejected the application under Article 136. When the application for review came up for consideration before the High Court, it was dismissed on the ground that the special leave petition had been dismissed by the Supreme Court. This Court held that the crucial date for determining whether or not the terms of Order 47 Rule 1 (1) CPC are satisfied is the date when the application for review is filed. If on that date no appeal has been filed it is competent for the Court hearing the petition for review to dispose of the application on the merits notwithstanding the pendency of the appeal, subject only to this, that if before the application for review is finally decided the appeal itself has been disposed of, the jurisdiction of the Court hearing the review petition would come to an end. On the date when the application for review was filed the applicant had not filed an appeal to this Court and therefore there was no bar to the petition for review being entertained.
37.Let us assume that the review is filed first and the delay in the SLP is condoned and the special leave petition is ultimately granted and the appeal is pending in this Court. The position then, under Order 47 Rule 1 CPC is that still the review can be disposed of by the High Court. If the review of a decree is granted before the disposal of the appeal against the decree, the decree appealed against will cease to exist and the appeal would be rendered incompetent. An appeal cannot be preferred against a decree after a review against the decree has been granted. This, is because the decree reviewed gets merged in the decree passed on review and the appeal to the superior court preferred against the earlier decree - the one before review - becomes infructuous."
The legal position that follows from the above-mentioned judgments of three Judge Bench of the Supreme Court is that on the date when the review petition is filed no appeal should have been filed. Thereafter, subsequently in case an appeal is filed, the court hearing the review petition is still competent to dispose of the review petition subject only to this that before the application for review is finally decided the appeal itself should not have been disposed of. In case the appeal is disposed of prior to disposal of the review, the jurisdiction of the court hearing the review petition would come to an end.
Now, coming to the argument by the review-petitioners that while disposing of the writ appeal, the Division Bench granted the liberty to avail the remedy of the review before the writ court. In the context of the nature and scope of a liberty granted by the superior court there can be no quarrel with the proposition that an order passed by the Division Bench is binding upon the parties as well as this Court. However, the grant of liberty to avail a remedy available in law cannot be understood as creation of a remedy which the statue does not provide, nor can such liberty be construed as enlargement of the jurisdiction conferred upon the Court by order Order 47 Rule 1 Code of Civil Procedure, 1908. A distinction has to be maintained between "liberty to avail an appropriate remedy in accordance with law" and adjudication declaring that such remedy is legally maintainable. Ordinarily, when a court disposes of proceedings with liberty to a party to avail another remedy, such liberty merely leads it open to the party to approach the competent forum. The forum subsequently approached is, however, still required to examined whether the proceedings instituted before it are maintainable under the governing statutory provisions. A mere liberty to file or avail the remedy of review cannot be construed as a positive declaration that the review shall be maintainable irrespective of the law governing review jurisdiction. Unless the appellate order specifically sets aside the effect of the appellate proceedings, restores the parties to the position obtaining before the appeal was preferred, or expressly adjudicates upon the maintainability of review in the peculiar facts of the case, a general liberty to seek review must necessarily mean liberty to avail such remedy, if otherwise permissible in law. Any contrary interpretation would lead to an anomalous result. It would mean that by merely granting liberty, the conditions prescribed under Order XLVII Rule 1 CPC could be dispensed with and the limited jurisdiction of review could be converted into a further forum of reconsideration after culmination of the appellate proceedings. Such a construction would be contrary to the statutory scheme and the principles explained by the Supreme Court in Thungabhadra Industries Ltd. (supra) and Kunhayammed (supra).
In the present case, the order in writ petition was passed on 27.01.2026. The writ appeal was filed before the Division Bench on 19.05.2026 by the review-petitioner and the same was disposed of 22.05.2026. Thereafter, the present review petition was filed on 30.05.2026. Hence, in view of this legal position above that if before the application for review is finally decided the appeal itself has been disposed of, the jurisdiction of the Court hearing the review petition would come to an end.
Resultantly, this review petition stands dismissed.