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Judgment
This Review Petition is filed seeking the following relief:
"...pleased to allow the review petition by setting aside the order of the Hon'ble High Court in W.P.No.46393 of 2018, dated 01.12.2023 and pass other or further orders as are deemed fit and proper..."
This Court by an order, dated 01.12.2023 disposed of the Writ Petition bearing No.46393 of 2018 and the relevant portion of the order is as follows:
'14. Learned Senior Counsel appearing for the petitioner submitted that the petitioner would retire from the services on 31.12.2023 on attaining the age of superannuation and sought a direction for the relief as prayed for in the writ petition.
15.The learned Special Government Pleader appearing on behalf of the respondents fairly submitted that the facts are not in dispute and the correspondence between the office of the Advocate General and the 2nd and 3rd respondents offices is not denied.
16.Learned Government Pleader appearing for the respondents further submitted that the 2nd respondent has issued G.O.Rt.No.75, dated 30.01.2020 and pursuant to it, this Court in I.A.No.2 of 2018 in the present W.P.No.46393 of 2018 directed the 4th respondent to pay minimum of the time scale of pay assigned to the post of sweeper/last grade service i.e., Rs.13,000/- in the time scale of Rs.13,000-40270. The Government vide G.O.Ms.No.64, dated 15.06.2021, had revised the above time scale of pay and that the petitioner is being paid Rs.19,000/- per month, which is the minimum of the time scale of pay assigned to the post of last grade service.
17.It is also contended by the learned Government Pleader appearing for the respondents that the regularization of part-time persons can be done only in terms of G.O.Ms.No.112, dated 23.07.1997, which stipulates 10 years of minimum service and the Government has considered the case of the petitioner and found that the petitioner is not eligible and that the conditions cannot be relaxed.
18.Heard the rival contentions, perused the entire record. This Court is mindful of the fact that ordinarily under Article 226 directions cannot be issued for absorption, regularization or permanent continuance. It is not in dispute that the petitioner has been working for 36 years in the post of part-time Masalchi (Sweeper). Sanction was accorded to the 4th respondent establishment by the Hon'ble High Court and the same is evidenced by the proceedings of the High Court of Andhra Pradesh at Hyderabad, which reads as under: "ORDER: R.O.C.No.1886/84-D6 dt/16-5-1984. The High Court is pleased to pass the following Order:-In the circumstances stated by the Advocate-General, Andhra Pradesh, Hyderabad in his letter read above, sanction is hereby accorded to him for the appointment of one part-time Masalchi on a monthly wage of Rs.75/- (Consolidated) for his office use."
19.It is also not out of place to note the fact that the Cabinet had passed a resolution approving the request of the office of Advocate General with an observation that the said post is to be filled up from surplus staff. The petitioner's case should have been considered, but was not. This Court is constrained to observe that when an employee has been in continuous service from 1986 in a post where the High Court had accorded permission vide Order: R.O.C.No.1886/84-D6, dt.16.05.1984, the authorities seem to have craftily avoided regularization and up-gradation of the said post.
20.This Court is of the view that this is a fit and deserving case, where directions can be issued to the respondents for the relief as sought for by the petitioner in the writ petition. By a catena of decisions, the Hon'ble Supreme Court held that the High Court can issue a writ of mandamus and also direct the authorities.
21.In Y.Mahaboob Sheriff and Sons V. Mysore State Transport Authority, Bangalore and Others1, a Constitution Bench of the Hon'ble Supreme Court held in Para-11 as follows:
"11.The next question is what order should be passed in the circumstances. This depends on the exigencies of each case, for this Court is not confined by the technical rules relating to issue of writs by the English Courts. In T.C. Basappa v. T. Nagappa [(1955) 1 SCR 250: (AIR 1954 SC 440), this Court observed as follows at p.256 (of SCR): (at p. 443 of AIR):
"The language used in Articles 32 and 226 of our Constitution is very wide and the powers of the Supreme Court as well as of all the High Courts in India extend to issuing of orders, writs or directions including writs in the nature of habeas corpus, mandamus, quo warranto, prohibition and certiorari as may be considered necessary for enforcement of the fundamental rights and in the case of the High Courts, for other purposes as well. In view of the express provision in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law."
22.In The Comptroller and Auditor General of India, Gian Prakash, New Delhi and Another V. K.S. Jagannathan and Another2, the Hon'ble Supreme Court in Para-20 held as follows:
'20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion."
23.In Hari Krishna Mandir Trust V. State of Maharashtra and Others3, the Hon'ble Supreme Court in Paras-100 and 101 held as follows:
'100. The High Courts exercising their jurisdiction under Article 226 of the Constitution of India, not only have the power to issue a writ of mandamus or in the nature of mandamus, but are duty-bound to exercise such power, where the Government or a public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a statute, or a rule, or a policy decision of the Government or has exercised such discretion mala fide, or on irrelevant consideration.
101.In all such cases, the High Court must issue a writ of mandamus and give directions to compel performance in an appropriate and lawful manner of the discretion conferred upon the Government or a public authority."
24.In view of the law declared by the Hon'ble Apex Court in the decisions stated supra and in the facts and circumstances of the instant case, this Court is of the considered opinion that the case of the petitioner deserves to be considered and it is directed to the respondents that the judgment of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka vs. Umadevi and the judgment rendered by the Division Bench of this Court in W.P.No.38283 of 2022 and batch, dated 13.07.2023, be taken into account for issuing appropriate proceedings for regularization/absorption within a period of two weeks from the date of receipt of a copy of this order. Further, all consequential benefits, allowances and post retirement benefits, as applicable to the post, and arrears, if any, shall be paid to the petitioner, after her retirement
25.With the above observations, the writ petition is disposed of. No order as to costs.
I.A. No.1 of 2024 is filed by respondents-State, on the ground that there is an error apparent on the face of the record that the Court ought to have taken into consideration Section 7 of Act No.2 of 1994, as there is a bar on regularization except in terms of G.O.Ms.No.212, dated 22.04.1994, and G.O.Ms.No.112, dated 23.07.1997.
It is the specific grievance of the review petitioners that, apart from these two G.Os. and Act No.2 of 1994, there is no other policy of regularization enabling the State to regularize the services of the writ petitioner, whereas this Court directed the regularization of the respondent.
Mr. S. Rahul Reddy, learned Special Government Pleader for review petitioners, tried to impress upon this Court that the said G.Os. and their contents ought to have been taken into consideration, while directing the regularization of services of petitioner with benefits.
On the other hand, Mr. Shri D. Prakash Reddy, learned Senior Counsel representing Mr. Sriram Polali, learned counsel on record for writ petitioner/respondent, submitted that the respondent-employee has been in continuous service since 1986 as the High Court had accorded permission vide R.O.C. No.1886/84-D6, dated 16.05.1984. That the authorities, citing one reason or other have not considered her case for regularization, that even as per the G.Os., the case of respondent is a fit case for regularization of services.
It is submitted by learned Senior Counsel that the scope of an application filed under Order XLVII Rule 1 read with Section 114 of the CPC is very limited, and that the counsel for review petitioners is estopped from delving into the merits of the matter, (that the decision ought to have been arrived at on the basis of the G.Os. and the prevailing policy). Learned Senior Counsel further submitted that the learned Single Judge has taken into consideration the respective G.Os., being pressed into service at the review petition stage again.
Learned Senior Counsel submitted that, the learned Single Judge has considered the said G.Os., and has taken into account for arriving at the conclusion, and that the counsel is estopped from raising such grounds.
That the matter cannot be reheard on merits in a review petition. That the scope of review petition filed under Order XLVII Rule 1 would get expanded if permitted, that the same is not the intent and purport of the law laid down by the Hon'ble Apex Court.
Learned Senior Counsel relied upon the judgment of the Hon'ble Apex Court in S. Murali Sundaram v. Jothibai Kannan and Others4 and invited the attention of this Court to paragraph Nos.16, 17, 18, and 23 thereof. Reliance is also placed on the judgment of the Hon'ble Apex Court in Government of NCT of Delhi, Through Its Secretary, Land and Building Department and Another v. K.L. Rathi Steels Limited and Others5. Attention is drawn to paragraph Nos.42 to 45 and 56 thereof.
Placing reliance on these two judgments, it is contended that there is neither discovery of any new record/matter nor any mistake or error apparent on the face of the record, nor any sufficient reason has been put forth for exercise of power of review under Order XLVII Rule 1 read with Section 114 of the CPC.
Heard learned counsels, perused the record, considered the submissions.
Writ petitioner was appointed as a part-time Masalchi in the establishment of respondent No.4, i.e., the learned Advocate General's Office/learned Chief Law Officer of the State (New Telangana) in the erstwhile High Court for the State of Andhra Pradesh, on 27.02.1986 on a temporary basis. It is not in dispute that proposal was sent to upgrade one of the posts of part-time Sweeper into that of a full-time Sweeper in the office of the learned Advocate General/learned Chief Law Officer of the State and to permit respondent No.4 to absorb the petitioner into the upgraded post. These facts are not in dispute.
The Secretary to Government, Legal Affairs, sought information from the High Court. It is also not in dispute that successive Chief Law Officers of the State who had assumed duties (three of the Chief Law Officers), reiterated the request for upgradation of post and recommended the name of respondent/writ petitioner for regularization. It is also not in dispute that the petitioner retired in December, 2023.
This Court recorded these facts in this review petition only to reiterate that the petitioner has put in service for more than thirty-seven (37) years.
Be that as it may, the scope of a review petition is very limited. Under the guise of review, submissions cannot be advanced on the merits of the matter. Learned Special Government Pleader tried to impress upon this Court by inviting attention of this Court to G.O.Ms.No.212 and G.O.Ms.No.112, as well as the contents of those G.Os and Act No.2 of 1994.
This Court is not inclined to show indulgence in the submissions canvassed as no error apparent on the face of the record has been demonstrated, nor has any sufficient reason been put forth, nor is there any discovery of a new and important matter. In the absence of any such grounds being shown or demonstrated before this Court, the power of review cannot be exercised.
The law on the subject matter of review is declared by the Hon'ble Apex Court in a catena of judgments.
It is trite to extract paragraph Nos.16, 17, and 23 of the judgment of the Hon'ble Apex Court in S. Murali Sundaram (supra). The following are the relevant paragraphs:
“16.While considering the aforesaid issue two decisions of this Court on Order 47 Rule 1 read with Section 114CPC are required to be referred to? In Perry Kansagra3 this Court has observed that while exercising the review jurisdiction in an application under Order 47 Rule 1 read with Section 114CPC, the Review Court does not sit in appeal over its own order. It is observed that a rehearing of the matter is impermissible in law. It is further observed that review is not appeal in disguise. It is observed that power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. It is further observed that it is wholly unjustified and exhibits a tendency to rewrite a judgment by which the controversy has been finally decided.
17.After considering a catena of decisions on exercise of review powers and principles relating to exercise of review jurisdiction under Order 47 Rule 1CPC this Court had summed up as under : (Perry Kansagra case [Perry Kansagra v. Smriti Madan Kansagra3, SCC pp. 768-69, para 15.1]
“15.1.‘33. ... “... (i) Review proceedings are not by way of appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1CPC.
(ii)Power of review may be exercised when some mistake or error apparent on the fact of record is found. But error on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.
(iii)Power of review may not be exercised on the ground that the decision was erroneous on merits.
(iv)Power of review can also be exercised for any sufficient reason which is wide enough to include a misconception of fact or law by a court or even an advocate.
(v)An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit. (As observed in : Inderchand Jain v. Motilal, (2009) 14 SCC 663, p. 675, para 33)
It is further observed in the said decision that an error which is required to be detected by a process of reasoning can hardly be said to be an error on the face of the record.
23.From the aforesaid it appears that the High Court has considered the review application as if it was an appeal against the order passed by the High Court in Writ Petition No. 8606 of 2010. As observed hereinabove, the same is wholly impermissible while deciding the review application. Even if the judgment sought to be reviewed is erroneous the same cannot be a ground to review the same in exercise of powers under Order 47 Rule 1CPC. An erroneous order may be subjected to appeal before the higher forum but cannot be a subject-matter of review under Order 47 Rule 1CPC."
On a perusal of the law laid down by the Hon'ble Apex Court, it is apparent that the power of review cannot be exercised merely on the ground that the decision was erroneous on merits. It is also trite law that an erroneous order may be the subject matter of an appeal but can never be the subject matter of a review under Order XLVII Rule 1 read with Section 114 of the CPC.
The judgment of Hon'ble Apex Court in Government of NCT of Delhi Through Its Secretary, Land and Building Department (supra) also speaks on the same lines. Paragraph 56 of the said judgment reads as follows:
'56. After considering a host of decisions with a fine-tooth comb, the Court went on to cull out the principles of review in para 35 of the decision which is extracted hereunder : (Kamal Sengupta case37 [SCC pp. 637-38]
"35.The principles which can be culled out from the abovenoted judgments are:
(i)The power of the Tribunal to review its order/decision under Section 22(3)(f) of the Act is akin/analogous to the power of a civil court under Section 114 read with Order 47 Rule 1CPC.
(ii)The Tribunal can review its decision on either of the grounds enumerated in Order 47 Rule 1 and not otherwise.
(iii)The expression "any other sufficient reason" appearing in Order 47 Rule 1 has to be interpreted in the light of other specified grounds.
(iv)An error which is not self-evident and which can be discovered by a long process of reasoning, cannot be treated as an error apparent on the face of record justifying exercise of power under Section 22(3)(f).
(v)An erroneous order/decision cannot be corrected in the guise of exercise of power of review.
(vi)A decision/order cannot be reviewed under Section 22(3)(f) on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.
(vii)While considering an application for review, the tribunal must confine its adjudication with reference to material which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.
(viii)Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier."
The Hon'ble Apex Court in Parson Devi And Others v Sumitri Devi And Others6 held as follows:
"9.Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise".
The Hon'ble Apex Court in Perry Kansagra v. Smriti Madan Kansarga7 held as follows:
"...15.1. In Inderchand Jain [Inderchand Jain v. Motilal, (2009) 14 SCC 663 : (2009) 5 SCC (Civ) 461] it was observed in paras 10, 11 and 33 as under: (SCC pp. 669 & 675)
"10.It is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A rehearing of the matter is impermissible in law. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order.
11.Review is not appeal in disguise. In Lily Thomas v. Union of India [Lily Thomas v. Union of India, (2000) 6 SCC 224 : 2000 SCC (Cri) 1056] this Court held: (SCC p. 251, para 56)
'56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise.'
33.The High Court had rightly noticed the review jurisdiction of the court, which is as under:
'The law on the subject—exercise of power of review, as propounded by the Apex Court and various other High Courts may be summarised as hereunder:
(i)Review proceedings are not by way of appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.
(ii)Power of review may be exercised when some mistake or error apparent on the fact of record is found. But error on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.
(iii)Power of review may not be exercised on the ground that the decision was erroneous on merits.
(iv)Power of review can also be exercised for any sufficient reason which is wide enough to include a misconception of fact or law by a court or even an advocate.
(v)An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit.' ..."
The Hon'ble Apex Court in S. Murali Sundaram (supra) reiterated the principles laid down in Perry Kansagra (supra).
While exercising the power of review, this Court cannot convert the review proceedings into that of an appeal. The Court has to confine itself to the scope and ambit of the power of review.
The submissions canvassed by learned counsel for review petitioners are intruding into the merits of the case. Any consideration of such submissions on merits would amount to a rehearing of the matter.
This Court is not inclined to delve into the merits of the case, as any attempt to delve into the merits of the case in a review would be contrary to the law laid down by the Hon'ble Apex Court. The prescribed grounds mentioned in Order XLVII Rule 1 of CPC have been elaborately discussed by the Hon'ble Apex Court in a catena of judgments. The power to review is not absolute and is hedged by the restrictions indicated in Order XLVII Rule 1 of CPC. Learned counsel for review petitioners tried to venture into the merits of the case, which cannot be appreciated.
No error apparent on the face of the record is demonstrated, nor sufficient reason is shown for entertaining the review. A review petition is not an appeal in disguise.
For reasons aforesaid, review petition being devoid of merits, is liable to be dismissed and is accordingly dismissed. Needless to state that the benefits to which the petitioner is entitled shall be granted within a period of two (2) weeks from the date of receipt of a copy of this order, since it is almost two (2) years of passing of the order of learned Single Judge.