Gujarat High Court
Dinesh Bamjibhai Sureja vs State Of Gujarat on 11 March, 2022
Author: Sonia Gokani
Bench: Sonia Gokani
C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 491 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 2382 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DINESH BAMJIBHAI SUREJA
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR AR THACKER(888) for the Appellant(s) No. 1
for the Respondent(s) No. 2,3,4,5,6
MS MAITHILI MEHTA, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 11/03/2022
CAV JUDGMENT
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C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 (PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. The appellant is the original petitioner who had approached this Court by filing Special Civil Application No. 2382 of 2017 where he sought the relief at para 33 as follows:
"(A) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondent authorities to forthwith pay to the petitioner monthly regular pension, gratuity amount leave encashment amounts, arrears of pay towards salary, arrears of pay towards 6th Pay Commission, arrears of pay towards 7th Pay Commission and other dues of the petitioner alongwith interest @ 18% p.a. from the date they became due till realization for the reasons stated in the Memo of Application and in the interest of justice.
(B) To issue a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondent authorities to pay interest @ 18% p.a. on late payment of retirement benefit and arrears of salary.
(C) Pending admission, hearing and final disposal of the above Special Civil Application to direct the respondents to pay provisional pension to the petitioner at earliest.
(D) The Hon'ble Court be pleased to direct the payment of costs on the respondents.
(E) The Hon'ble Court may kindly be pleased to grant any other appropriate relief as the nature circumstances of the case may require."
2. After filing of the petition, the respondents fixed the provisional pension on 23.03.2017 and nothing happened thereafter. The appellant sought the directions for the Page 2 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 respondent to pay the regular pension, gratuity amount, leave encashment and other retiral benefits to the appellant who served lastly as a lecturer.
2.1. The appellant was appointed on 02.01.1987 as an Assistant Teacher in Alfred High School, Bhuj after following due procedure. He since was having the requisite qualification, he was appointed as lecturer in Chemistry in R.R. Lallan College on 29.07.1988 through the regular channel. Thereafter, he was transferred to H. & H.B.Kotak Institute of Science, Rajkot on 28.06.1990. He was also appointed as lecturer in Government College by a notification, however, his services were not regularized on the ground that he could not pass the G.P.S.C. examination.
2.2. According to the petitioner, when he was in the college as an ad-hoc lecturer, there was no examination held by the G.P.S.C. and when it was held, he was not permitted to appear in the examination on account of the overage. For no fault of the appellant when, the G.P.S.C. did not hold the examination in time, and he became overage and thus, he should not be blamed for not passing the G.P.S.C. 2.3. He approached the High Court by way of filing Special Civil Application No. 4102 of 2001 for regularization of Page 3 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 services. The said petition was dismissed on 15.07.2002 and hence, he preferred the Letters Patent Appeal No. 485 of 2002. Upon dismissal of the LPA, his services came to be discontinued from college on 27.01.2003 and thereafter, he was sent to his original place in the parent department as an Assistant Teacher in the school and he was posted in the school in Rajkot vide order dated 03.02.2003.
2.4. He preferred Special Civil Application No. 15651 of 2003 on being transferred to the school on 27.01.2003. He was permitted to make representation during the pendency of the petition and vide order dated 17.02.2005, he was once again transferred to respondent no.5 College as a lecturer. As per his request, he was once again placed back at H. & H.B. Kotak Institute of Science on 02.09.2005 and he therefore withdrew his SCA 15651 of 2003.
2.5. He had also preferred Special Leave Petition which was converted in Civil Appeal No. 3033 of 2005 after the leave was granted. On giving certain directions to the State Government, the SLP was dismissed on 17.01.2008. The Review Application was also not entertained by the Apex Court.
2.6. He once again preferred Special Civil Application No. Page 4 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 6786 of 2009 before this Court challenging the decision of the State of issuing the Government Resolution dated 23.06.2009 affecting the service conditions of the appellant as per his original appointment dated 27.09.1988 which was dismissed by this Court on 08.07.2009. He was reverted to his original position in wake of this dismissal.
2.7. The appellant was appointed as Assistant Teacher in the school vide order dated 22.07.2007. He worked as a lecturer in the respondent no. 5 college between 01.01.2006 to 21.07.2007. The arrears of salary of the 6 th Pay Commission as recommended had not been paid to him. He was lastly appointed in the respondent no.6 school on 06.09.2013. He since worked without any intervention of the Court for 10 years and similarly situated persons who were appointed on ad-hoc basis were regularized by the Government by Resolution dated 03.08.2011, the appellant had made representation to the Government. Thereafter, he preferred Special Civil Application No. 3385 of 2014 for treating him as regularly appointed in college. The said petition is pending.
2.8. He continued to work with the respondent no.6 and retired on 31.05.2016. Since he was not paid the pension and other retiral benefits although six months had already passed Page 5 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 and he also not paid the benefit of 6 th and 7th Pay Commission, he approached this Court by way of Special Civil Application No. 2383 of 2017 with the aforementioned reliefs.
2.9. Learned Single Judge allowed the petition and directed the respondent to pay the pension and other benefits on the basis of the last salary drawn. It also directed to set aside the recovery.
2.10. The respondent preferred LPA No. 1686 of 2019 where the Court without hearing the appellant passed the order directing the State to file a Review Application aggrieved by the decision of the learned Single Judge. There was no occasion for the Bench to adjudicate the matter on merit. The grievance that was raised by the State was with regard to the last salary drawn by the petitioner. The Court did not interfere with the order of the learned Single Judge.
2.11. The Review Application being Misc. Civil Application No. 01 of 2019 was preferred by the respondent with the Delay Condonation Application where the delay was condoned and the Review Application was heard by the learned Single Judge. The Court passed the following order on 16.04.2021: -
"At the same time, without expressing any opinion on the merits of the said aspect, since the Division Bench has observed and it is also the position that Page 6 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 the issue and the dispute about the last pay drawn was not adjudicate in the writ petition, it is kept open for the petitioner to get it determined in independent proceedings."
3. Aggrieved by this order, the petitioner is before this Court. It is the serious grievance on the part of the petitioner that the review under Order 47 Rule 1 of the Civil Procedure Code offers limited grounds and the case of the State did not fall under any of the criteria, therefore, it is urged that the review would never be maintainable. There being no error apparent on the face of the record, only relying on the order of the Division Bench, the review could not be permitted. The Court also relied on its judgment in SCA 13928 of 2011 and SCA 1255 of 2002 for the payment of pension to be made on the basis of last salary drawn. Therefore, the Courts have rightly set aside the recovery and directed the respondent to pay the pension and other benefits on the basis of the last salary drawn.
3.1. It is also urged that the recovery is set aside and as per Rule 43 of the Gujarat Civil Service Rules, 2002, the appellant is entitled for the pension considering his last salary drawn. It is a settled position that last 10 months' salary is to be counted for the calculation of the pension. He further has urged that in this appeal to quash and set aside the judgment Page 7 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 and order dated 16.04.2021 passed by the learned Single Judge in MCA No. 01 of 2019 in SCA No. 2382 of 2017 insofar as the observations made in para 6.3 with a further direction to the respondents to calculate and pay all the retiral benefits to the appellant.
4. Affidavit-in-reply has been filed by the Deputy Director, Office of the Directorate of Pension and Provident Fund, Gandhinagar - respondent no.4 herein, according to whom, the pension case was presented before the office of Director of Pension and Provident Fund by the District Education Officer, Rajkot by a letter dated 12.08.2015 and as the retirement date was due on 31.05.2016, as a matter of course, the file had been presented before the retirement and hence, the case of the petitioner was verified on 09.03.2016.
4.1. According to him, under Rule 9(60) of the Gujarat Civil Services (Pension) Rules, 2002, the powers are delegated in favour of the different authorities. While verifying the pension case presented before the Pension and Provident Fund Department, it came to be knowledge of the department that he was serving as an Assistant Teacher and no original papers were produced. The fixation was sought with reference to his pay scale as a lecturer serving in a particular college falling Page 8 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 under the Education Department. Therefore, clarification was sought vide communication dated 09.03.2016 from the Office of the District Education Officer returning the file so as to ensure that the clarification is received, the pension would be fixed. This, according to the respondent, is the reason for not paying the remaining benefits.
5. In rejoinder affidavit, the petitioner has reiterated all the details. According to him, after almost 10 months of his retirement, on 23.03.2017 his pension had been fixed by the authorities whereas in fact as per the Government Resolution, the pension papers are to be prepared before two years of the retirement and the authorities have fixed his pension on the lower scale and the amount has been deducted without issuing any notice. Before taking any criminal action, show cause notice has been a must however, the same was not granted and after one and a half year of the filing of the petition, the respondent is liable towards the excess payment.
It is further the say of the appellant that the State Government made the order on 23.03.2017 for payment of pension, gratuity and arrears after one year of his retirement.
He has been paid some amount but not as per the Pension Rules. The appellant was paid Rs. 13,590/- as the amount of pension however, as per the last salary drawn, he is entitled Page 9 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 to Rs. 17,280/-. He is also not been paid the gratuity amount as per the last salary drawn and the respondents cannot reduce the same.
5.1. According to the appellant, since he worked from 01.01.2006 to 17.07.2009 with respondent no.5, the arrears of salary towards 6th Pay Commission is to be paid by the respondent no.5 - Kotak Science College.
5.2. He has heavily relied on the decision of State of Punjab vs. Rafiq Masih [AIR 2015 SC 696]. At the time of retirement no order was passed and till today, no order is passed by the authority, therefore, he cannot be denied his dues. He has not been issued any show cause notice after his retirement and no opportunity has been given, therefore, straightway the recovery could not be made.
6. The District Education Officer - respondent no.3 by way of additional affidavit-in-reply has contended that during the career, the appellant has served as a Teacher. He was on a post where the appointment was made in a grant-in-aid secondary school. As per the policy of the State Government and more particularly the Notification dated 29.07.1988, the appellant's services could be availed at a grant-in-aid Government College. The prescription of the policy envisaged Page 10 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 vide notification dated 29.07.1988 that during the period of service of a teacher at the grant-in-aid college, the person shall be paid the pay scale of a lecturer and right to avail such pay scale would persist only till the person continues to serve at the grant-in-aid college, however, the moment he is reverted to the pay scale of a teacher from the pay scale of the lecturer, he will have to be covered as per the notification dated 29.07.1988.
6.1. According to him, the grievance of pensionary benefits would not remain since the appellant has been paid Rs.
8,86,748/- towards gratuity, Rs. 2,86,204/- towards GPF and Rs. 1,73,208/- towards group insurance. The pension paid to the appellant as per the 7th Pay Commission Recommendation and his last pay drawn as a teacher would need to be regarded.
6.2. The respondent no.3 - Dr. Sandeep Bhatt, Senior Superintendent at Commissioner of Schools, Gandhinagar also filed affidavit-in-reply where he has emphasized that the wrong salary was attached at the post of lecturer and therefore, the recovery proceedings were initiated by the State Authorities which was set aside by the learned Single Judge. This was done by considering the decision of the Apex Page 11 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 Court, however, so far as the last pay drawn aspect is concerned, the same has been kept open for the appellant to get it determined in the independent proceedings. According to the respondent, the appellant was placed at a pay scale of 9300-34800 in the grade pay of Rs. 5400/- and when he was sent back to the Government Secondary School, the scale was same but the grade pay was Rs. 4400/-, however, inadvertently, the salary and incidental benefits were fixed and paid in the grade pay of Rs. 5400/-. Hence, the salary which was wrongly paid to the appellant which was attached with the post of lecturer was needed to be recovered.
6.3. It is urged that by continuing the wrong done in the past will result into the financial loss to the public exchequer and the appellant will get the pension fixed on the wrong pay scale attached with the post of a lecturer. The salary is always attached with the post of an employee and hence, the wrong salary does not permit him to continue getting the wrong pension.
7. Learned advocate Mr. A.R.Thacker assisted by learned advocate Mr. Shivang Thacker has extensively argued and urged that the case does not fall under the review of jurisdiction. The Court ought not to have interfered when it Page 12 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 itself had chosen to decide based on the decision of the Apex Court that the last 10 months salary drawn by the appellant shall need to be considered. He further has urged that relegating the appellant to any independent proceeding is undesirable when he approached this Court where one of the issues also concerns the last drawn salary. According to him, in the similar case, the pension has been paid on the last drawn salary. The Court had failed to appreciate that filing a fresh petition would amount to further delay and loss to the appellant. Such order lead to multiplicity of proceedings and delay in getting the pension at the last salary drawn. The Court itself had observed that the pension is to be paid on the last salary drawn. Being aware of the law and yet he had been given the opportunity to file a fresh petition would lead to multiplicity of proceedings and delay.
7.1. The appellant has relied on the following judgments: -
(i) Shri Ram Sahu vs. Vinod Kumar Rawat [2020 (12) scale 415]
(ii) Kabari Pvt Ltd. vs. Shivnath Shroff and Others [AIR 1996 SC 742]
(iii) Asharfi Devi vs. State of U.P. [2019 (5) SCC 86]
(iv) Kamlesh Verma vs. Mayawati [AIR 2013 SC 3301]
(v) Sushil Kumar Singhal vs. Pramukh Sachiv Irrigation Page 13 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 Deptt [2014 (16) SCC 444]
(vi) Abhayanand Sachhidanand Saxena vs. General Manager, Western Railway [SCA 13924/2005, Decided on 19.01.2015]
(vii) Bhavnagar Municipal Corporation vs. Rajnikant Jamnadas Jani [LPA 720/2017, Decided on 27.04.2017]
(viii) Abdulkadir Sultanmiya Ladman vs. Government of Gujarat [SCA 1255/2002, Decided on 11.02.2016]
(ix) Girishbhai Jivrajbhai Dave vs. Bhavnagar Municipal Corporation [SCA 13928/2011, Decided on 05.06.2017]
8. Learned Assistant Government Pleader Ms. Maithili Mehta has along the line of the affidavit-in-reply strenuously argued before the Court that once the petitioner has been granted the wrong salary, continuing the wrong will harm the public exchequer. His actual salary after being posted as a teacher in the school although continued as 9300-34800, his grade pay had reduced to Rs. 4400/- from Rs. 5400/-.
9. Firstly, considering the review jurisdiction, the Apex Court in case of Shri Ram Sahu vs. Vinod Kumar Rawat [2020 (12) scale 415] discussed as under: -
"6. While considering the aforesaid question, the scope and ambit of the Court's power under Section Page 14 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 114 read with Order 47 Rule 1 CPC is required to be considered and for that few decisions of this Court are required to be referred to.
6.1 In the case of Haridas Das vs. Usha Rani Banik (Smt.) and Others, (2006) 4 SCC 78 while considering the scope and ambit of Section 114 CPC read with Order 47 Rule 1 CPC it is observed and held in paragraph 14 to 18 as under:
"14. In Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170 it was held that:
"8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. In connection with the limitation of the powers of the court under Order 47 Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution, this Court, in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389 speaking through Chinnappa Reddy, J. has made the following pertinent observations:
'It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits.
That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to Page 15 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 correct all manner of errors committed by the subordinate court.' "
15. A perusal of Order 47 Rule 1 shows that review of a judgment or an order could be sought: (a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of the record or any other sufficient reason.
16. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR 1979 SC 1047, this Court held that there are definite limits to the exercise of power of review. In that case, an application under Order 47 Rule 1 read with Section 151 of the Code was filed which was allowed and the order passed by the Judicial Commissioner was set aside and the writ petition was dismissed. On an appeal to this Court it was held as under: (SCC p. 390, para 3) "It is true as observed by this Court in Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909 there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate court."
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17. The judgment in Aribam case has been followed in Meera Bhanja. In that case, it has been reiterated that an error apparent on the face of the record for acquiring jurisdiction to review must be such an error which may strike one on a mere looking at the record and would not require any longdrawn process of reasoning. The following observations in connection with an error apparent on the face of the record in Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale, AIR 1960 SC 137 were also noted:
"An error which has to be established by a longdrawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from selfevident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ."
18. It is also pertinent to mention the observations of this Court in Parsion Devi v. Sumitri Devi, (1997) 8 SCC
715. Relying upon the judgments in Aribam and Meera Bhanja it was observed as under:
"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 selfevident 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'." 6.2 In the case of Lily Thomas vs. Union of India, (2000) 6 SC 224, it is observed and held 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.Page 17 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022
C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 It is further observed in the said decision that the words "any other sufficient reason" appearing in Order 47 Rule 1 CPC must mean "a reason sufficient on grounds at least analogous to those specified in the rule" as was held in Chhajju Ram vs. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos vs Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526. 12.3 In the case of Inderchand Jain vs. Motilal, (2009) 14 SCC 663 in paragraphs 7 to 11 it is observed and held as under:
7. Section 114 of the Code of Civil Procedure (for short "the Code") provides for a substantive power of review by a civil court and consequently by the appellate courts. The words "subject as aforesaid"
occurring in Section 114 of the Code mean subject to such conditions and limitations as may be prescribed as appearing in Section 113 thereof and for the said purpose, the procedural conditions contained in Order 47 of the Code must be taken into consideration. Section 114 of the Code although does not prescribe any limitation on the power of the court but such limitations have been provided for in Order 47 of the Code; Rule 1 whereof reads as under:
"17. The power of a civil court to review its judgment/decision is traceable in Section 114 CPC. The grounds on which review can be sought are enumerated in Order 47 Rule 1 CPC, which 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, Page 18 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment of the court which passed the decree or made the order.' "
8. An application for review would lie inter alia when the order suffers from an error apparent on the face of the record and permitting the same to continue would lead to failure of justice. In Rajendra Kumar v. Rambai this Court held: (SCC p. 514, para 6) "6. The limitations on exercise of the power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed."
9. The power of review can also be exercised by the court in the event discovery of new and important matter or evidence takes place which despite exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when the order was made. An application for review would also lie if the order has been passed on account of some mistake.
Furthermore, an application for review shall also lie for any other sufficient reason.
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 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."
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7. The dictionary meaning of the word "review" is "the act of looking, offer something again with a view to correction or improvement". It cannot be denied that the review is the creation of a statute. In the case of Patel Narshi Thakershi vs. Pradyumansinghji Arjunsinghji, (1971) 3 SCC 844, this Court has held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise.
8. What can be said to be an error apparent on the face of the proceedings has been dealt with and considered by this Court in the case of T.C. Basappa vs. T.Nagappa, AIR 1954 SC 440. It is held that such an error is an error which is a patent error and not a mere wrong decision. In the case of Hari Vishnu Kamath vs. Ahmad Ishaque, AIR 1955 SC 233, it is observed as under:
"It is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned counsel on either side were unable to suggest any clearcut rule by which the boundary between the two classes of errors could be demarcated." 8.1 In the case of Parsion Devi vs. Sumitri Devi, (Supra) in paragraph 7 to 9 it is observed and held as under:
7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v.
Govt. of A.P., AIR 1964 SC 1372 this Court opined:
"What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an 'error apparent on the face of the record'). The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be Page 20 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 erroneous. Similarly, even if the statement was wrong, it would not follow that it was an 'error apparent on the face of the record', for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error."
8. Again, in Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170 while quoting with approval a passage from Aribam Tuleshwar Sharma v. Aribam Pishak Sharma (supra) this Court once again held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.
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 selfevident 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".
8.2 In the case of State of West Bengal and Others vs. Kamal Sengupta and Anr., (2008) 8 SCC 612, this Court had an occasion to consider what can be said to be "mistake or error apparent on the face of record". In para 22 to 35 it is observed and held as under:
"22. The term "mistake or error apparent" by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not selfevident and detection thereof requires long Page 21 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision.
23. We may now notice some of the judicial precedents in which Section 114 read with Order 47 Rule 1 CPC and/or Section 22(3)(f) of the Act have been interpreted and limitations on the power of the civil court/tribunal to review its judgment/decision have been identified.
24. In Rajah Kotagiri Venkata Subbamma Rao v. Rajah Vellanki Venkatrama Rao (18991900) 27 IA 197 the Privy Council interpreted Sections 206 and 623 of the Civil Procedure Code and observed: (IA p.205) "... Section 623 enables any of the parties to apply for a review of any decree on the discovery of new and important matter and evidence, which was not within his knowledge, or could not be produced by him at the time the decree was passed, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. It is not necessary to decide in this case whether the latter words should be confined to reasons strictly ejusdem generic with those enumerated, as was held in Roy Meghraj v. Beejoy Gobind Burral, ILR (1875) 1 Cal 197. In the opinion of Their Lordships, the ground of amendment must at any rate be something which existed at the date of the decree, and the section does not authorise the review of a decree which was right when it was made on the ground of the happening of some subsequent event." (emphasis added)
25. In Hari Sankar Pal v. Anath Nath Mitter, 1949 FCR 36 a fiveJudge Bench of the Federal Court while considering the question whether the Calcutta High Court was justified in not granting relief to non-Page 22 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022
C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 appealing party, whose position was similar to that of the successful appellant, held: (FCR p.
48) "That a decision is erroneous in law is certainly no ground for ordering review. If the court has decided a point and decided it erroneously, the error could not be one apparent on the face of the record or even analogous to it. When, however, the court disposes of a case without adverting to or applying its mind to a provision of law which gives it jurisdiction to act in a particular way, that may amount to an error analogous to one apparent on the face of the record sufficient to bring the case within the purview of Order 47 Rule 1, Civil Procedure Code."
26. In Moran Mar Basselios Catholicos v. Mar Poulose Athanasius (supra) this Court interpreted the provisions contained in the Travancore Code of Civil Procedure which are analogous to Order 47 Rule 1 and observed: "32. ... Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order 47 Rule 1 of our Code of Civil Procedure, 1908, the court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified grounds, namely,
(i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason. It has been held by the Judicial Committee that the words 'any other sufficient reason' must mean 'a reason sufficient on grounds, least analogous to those specified in the rule'."
27. In Thungabhadra Industries Ltd. v. Govt. of A.P. (supra) it was held that a review is by no means an appeal in disguise whereof an erroneous decision can be corrected.
28. In Parsion Devi v. Sumitri Devi (Supra) it was held as under: (SCC p. 716) "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 Page 23 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 the record. An error which is not selfevident 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'. There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be 'an appeal in disguise'."
29. In Haridas Das v. Usha Rani Banik, (supra) this Court made a reference to the Explanation added to Order 47 by the Code of Civil Procedure (Amendment) Act, 1976 and held:
"13. In order to appreciate the scope of a review, Section 114 CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the court since it merely states that it 'may make such order thereon as it thinks fit'. The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing 'on account of some mistake or error apparent on the face of the records or for any other sufficient reason'. The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict. This is amply evident from the Explanation to Rule 1 of Order 47 which states that the fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appealable the aggrieved party has adequate and efficacious Page 24 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 remedy and the court should exercise the power to review its order with the greatest circumspection."
30. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma (Supra) this Court considered the scope of the High Courts' power to review an order passed under Article 226 of the Constitution, referred to an earlier decision in Shivdeo Singh v. State of Punjab (Supra) and observed: (Aribam Tuleshwar case (Supra), SCC p. 390, para 3) "3. ... It is true as observed by this Court in Shivdeo Singh v. State of Punjab (Supra), there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate court."
31. In K. Ajit Babu v. Union of India, (1997) 6 SCC 473, it was held that even though Order 47 Rule 1 is strictly not applicable to the tribunals, the principles contained therein have to be extended to them, else there would be no limitation on the power of review and there would be no certainty or finality of a decision. A slightly different view was expressed in Gopabandhu Biswal v. Krishna Chandra Mohanty, (1998) 4 SCC 447). In that case it was held that the power of review granted to the tribunals is similar to the power of a civil court under Order 47 Rule 1.
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32. In Ajit Kumar Rath v. State of Orissa, (1999) 9 SCC 596, this Court reiterated that power of review vested in the Tribunal is similar to the one conferred upon a civil court and held: (SCC p. 608, paras 3031) "30. The provisions extracted above indicate that the power of review available to the Tribunal is the same as has been given to a court under Section 114 read with Order 47 CPC. The power is not absolute and is hedged in by the restrictions indicated in Order 47. The power can be exercised on the application of a person on 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 order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it. It may be pointed out that the expression 'any other sufficient reason' used in Order 47 Rule 1 means a reason sufficiently analogous to those specified in the Rule.
31. Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out in Order 47, would amount to an abuse of the liberty given to the Tribunal under the Act to review its judgment."
33. In State of Haryana v. M.P. Mohla, (2007) 1 SCC 457 this Court held as under: (SCC pp. 46566, para
27) "27. A review petition filed by the appellants herein was not maintainable. There was no error apparent on the face of the record. The effect of a judgment may have to be considered afresh in a separate proceeding having regard to the subsequent cause of action which might have arisen but the same by itself may not be a ground for filing an application for review."
34. In Gopal Singh v. State Cadre Forest Officers' Assn., (2007) 9 SCC 369 this Court held that after Page 26 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 rejecting the original application filed by the appellant, there was no justification for the Tribunal to review its order and allow the revision of the appellant. Some of the observations made in that judgment are extracted below: (SCC p. 387, para 40) "40. The learned counsel for the State also pointed out that there was no necessity whatsoever on the part of the Tribunal to review its own judgment. Even after the microscopic examination of the judgment of the Tribunal we could not find a single reason in the whole judgment as to how the review was justified and for what reasons. No apparent error on the face of the record was pointed, nor was it discussed. Thereby the Tribunal sat as an appellate authority over its own judgment. This was completely impermissible and we agree with the High Court (Sinha, J.) that the Tribunal has travelled out of its jurisdiction to write a second order in the name of reviewing its own judgment. In fact the learned counsel for the appellant did not address us on this very vital aspect."
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 1 CPC.
(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 selfevident 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.Page 27 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022
C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022
(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."
9. To appreciate the scope of review, it would be proper for this Court to discuss the object and ambit of Section 114 CPC as the same is a substantive provision for review when a person considering himself aggrieved either by a decree or by an order of Court from which appeal is allowed but no appeal is preferred or where there is no provision for appeal against an order and decree, may apply for review of the decree or order as the case may be in the Court, which may order or pass the decree. From the bare reading of Section 114 CPC, it appears that the said substantive power of review under Section 114 CPC has not laid down any condition as the condition precedent in exercise of power of review nor the said Section imposed any prohibition on the Court for exercising its power to review its decision. However, an order can be reviewed by a Court only on the prescribed grounds mentioned in Order 47 Rule 1 CPC, which has been elaborately discussed hereinabove. An application for review is more restricted than that of an appeal and the Court of review has limited jurisdiction as to the definite limit mentioned in Order 47 Rule 1 CPC itself. The powers of review cannot be exercised as an inherent power nor can an appellate power can be exercised in the guise of power of review.
10. Considered in the light of the aforesaid settled position, we find that the High Court has clearly overstepped the jurisdiction vested in the Court under Order 47 Rule 1 CPC. No ground as envisaged Page 28 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 under Order 47 Rule 1 CPC has been made out for the purpose of reviewing the observations made in para 20. It is required to be noted and as evident from para 20, the High Court made observations in para 20 with respect to possession of the plaintiffs on appreciation of evidence on record more particularly the deposition of the plaintiff (PW1) and his witness PW2 and on appreciation of the evidence, the High Court found that the plaintiff is in actual possession of the said house. Therefore, when the observation with respect to the possession of the plaintiff were made on appreciation of evidence/material on record, it cannot be said that there was an error apparent on the face of proceedings which were required to be reviewed in exercise of powers under Order 47 Rule 1 CPC. At this stage, it is required to be noted that even High Court while making observations in para 20 with respect to plaintiff in possession also took note of the fact that the defendant nos. 1 and 2 - respondents herein themselves filed an application being I.A. No.1267 of 2012 which was filed under Section 151 CPC for getting the possession of the disputed house from the appellants and the said application was dismissed as withdrawn. Therefore, the High Court took note of the fact that even according to the defendant nos. 1 & 2 the appellants were in possession of the disputed house. Therefore, in light of the fact situation, the High Court has clearly erred in deleting para 20 in exercise of powers under Order 47 Rule 1 CPC more particularly in the light of the settled preposition of law laid down by this Court in the aforesaid decisions."
9.1. In case of Kabari Pvt Ltd. vs. Shivnath Shroff and Others [AIR 1996 SC 742], the Code held thus: -
"22. In our view there is force in the contention of the learned counsel for the appellants that the expression "from which an appeal is allowed"
appearing in Clause (a) of Order 47 Rule 1 of the Code of Civil Procedure, should be construed liberally keeping in mind the underlying principle involved in Order 47 Rule 1 (a) that before making the review Page 29 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 applications no superior court has been moved for getting the self same relief, so that for the self same relief two parallel proceedings before two forum are not taken."
9.2. In case of Asharfi Devi vs. State of U.P. [2019 (5) SCC 86], there was an appeal against the review order. The Court held that the appeal does not arise out of the main order but arise out of the review order only. The Court examined the matter only with a view to find out as to whether the High Court was right in dismissing the review application and thereby justified in upholding the main order holding that it did not contain any error or mistake apparent on face of record. It held that review order was passed in confirmity with requirements of Order 47 Rule 1 of the CPC, therefore, the High Court rightly concluded that the main order impugned in the review application did not contained any factual or legal error within the meaning of Order 47 of CPC so as to entitle review Court to recall same in its review jurisdiction.
"15. In the light of these three reasons, we find no good ground to invoke extraordinary powers under Article 142 of the Constitution and permit the appellants(legal representatives of original appellant) to question the legality of main order dated 14.03.2008 in this appeal.
16. Now coming to the merits of the case, we have to only examine the question as to whether the High Court was right in dismissing the review application filed by the original appellant holding that there was Page 30 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 no error apparent on the face of the main order dated 14.03.2008 within the meaning of Order 47 Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code")."
10. With the settled position of law, as discussed above, when applied to the facts of the instant case, it is quite clear that the review will not be maintainable when there is a repetition of old and overruled arguments or there are minor mistakes of inconsequential import. The review proceedings also cannot be equated with original hearing of the case. It is not an appeal in disguise whereby the erroneous decision could be reheard and corrected, but, only when there is a patent error. Review can not be maintainable unless there is a materiel error, manifest on the face of the order, which undermines its soundness of results in miscarriage of justice.
The mere possibility of two views on the subject also cannot be a ground for review.
11. As could be noticed from the order which is impugned here, the learned Single Judge has taken note of the observations made in the order of the LPA Bench that the issue of last pay drawn was not adjudicated in the petition.
There was no finding recorded with regard to the last pay drawn and the pension is always to be determined on the basis of the last pay drawn at the time of retirement. The Page 31 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 Court held thus: -
"6. Recapitulating the facts about the services of the original petitioner, from the College at Bhuj, he was transferred to Rajkot College. From the Science College at Rajkot, the petitioner was sent back to work as Teacher in the Government School at Limbas, Kheda, thereafter at Mohandas Gandhi Vidhyalay at Rajkot, where he worked as Teacher till he retired on 31st May, 2016. The facts show that the petitioner retired as Teacher. As stated, the grievance of the petitioner was that he was not paid pension and the retirement benefits.
6.1 The Letters Patent Bench is right in making observations in its order quoted in para-2.1 above that the issue of last pay drawn was not to be adjudicated in the petition. It is also not incorrect to say that finding was not recorded in the petition regarding last pay drawn. There will be no gainsaying that the pension would be determined on the basis of the last pay drawn of the retiree-employee.
6.2 The case of the authorities is that when the petitioner was appointed as Teacher, the fixation of his pay was wrongly done in the higher grade which he continued to receive till superannuation. While the recovery sought to be effected by the authorities on the basis of such fixation has not been permitted in the order dated 28th February, 2019 in view of the law laid down by the Supreme Court in Syed Abdul Kadir (supra) and Rafik Masih (supra), for the future fixation and payment of the pension, the authorities may have their own reasons to make the last admissible pay drawn by the petitioner, as basis for fixation of pension of the petitioner.
6.3 At the same time, without expressing any opinion on the merits of the said aspect, since the Division Bench has observed and it is also the position that the issue and the dispute about the last pay drawn was not adjudicated in the writ petition, it is kept open for the petitioner to get it determined in independent proceedings.
7. The present application is allowed in terms of the Page 32 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 above observations and clarification and to the said extent."
12. It would be necessary to refer to at this stage the original order dated 28.02.2019 passed in SCA 2382/2017 where the Court referred to the stand of the respondent State as evinced in the affidavit-in-reply where it contended that there was an excessive payment to the petitioner and hence, there was a need for recovery with interest to the tune of Rs.
12,54,234/- which was for the period from July, 2009 to May, 2016. The Court also noted the contention that the petitioner was paid the pension which was not as per the last drawn salary. It also referred to various decisions including the decision in case of Rafiq Masih (supra) where the Supreme Court reaffirmed the position that where the employer had committed an error of paying to the employee more than what was due, in absence of misrepresentation or fraud at the end of the employee, recovery of such amount would be harsh and inequitable and in case of Syed Abdul Kadir (supra) where the Apex Court observed that relief is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employee from hardship that will be caused to him if recovery is ordered.
13. All in all, while considering the base original order, the Page 33 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 Court was focused on the recovery which has been made by the respondent. The Court held that recovery was barred in law and the recovery from the salary of the petitioner would not have been recovered. The Court directed the respondent authority to calculate the pension on the basis of the last pay drawn and pay the remaining benefits.
13.1. When this was challenged before the LPA Bench, the directions issued are as follows: -
"Heard Shri Krutik Parikh, learned Assistant Government Pleader for the State - appellant.
Learned Assistant Government Pleader has sought to argue that the learned Single Judge although has not adjudicated upon nor recorded any finding with regard to correct last pay drawn by the original petitioner - respondent herein but the operative parts of the judgment and order of the learned Single Judge intends that the original petitioner - respondent herein would be entitled to a higher grade pay than the actual admissible to him.
Since there is no finding recorded by the learned Single Judge with regard to the last pay drawn by the original petitioner - respondent herein nor such issue having been adjudicated upon, it would be appropriate that the State may apply before the learned Single Judge for appropriate modification or the review of the order.
With the above observations, the appeal stands disposed of."
13.2. The Court had left two options open either for modification of the review of the order, if permitted, or the Page 34 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 respondent to move before the learned Single Judge for having noticed that there was no finding with regard to the last pay drawn by the present appellant, nor such issue has been adjudicated upon. The State instead moving an application for modification moved only for the review of the judgment.
13.3. The Division Bench has noticed the absence of any adjudication in relation to the last pay drawn by the appellant.
It has mere focused on the recovery made by the respondent -
State without following the procedure under law. While so doing, it of course touched upon the issue of last salary drawn and the continuity of the pay scale along with the inadvertence grade pay of Rs. 5400/- instead of Rs. 4400/-, however, the question of last salary drawn was not adjudicated upon although it was the base on which the recovery had been made by the authority. Therefore, without touching the issue of the last salary drawn, the Court could not have decided the aspect of recovery. Therefore, the Division Bench had permitted the respondent - State to seek modification of the order noticing the absence of any adjudication of this issue or go for the review. The State made a choice and went for the review of the order.
Page 35 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 13.4. In absence of any apparent error on the face of the record, which would go to the root of the matter, the Court could not have reviewed its own order and it could not have, after having noticed the pension to be drawn on the last salary drawn, kept the issue open for being decided in a separate proceedings when in fact it itself while quashing and setting aside the order of recovery had noted that the pension need to be drawn on the basis of the last salary drawn. There does not appear to be any mistake. Absence of discussion on the last salary drawn was permitted to be adjudicated by way of modification of the order by the Division Bench and yet, the State has chosen to file the review application. The review would have its own limited jurisdiction. As the case would not fall within the review jurisdiction, the observation at para 6.3 shall need to be interfered with.
13.5. The Court needs to also consider Rule 43, Rule 134 and Rule 137 of the Gujarat Civil Service (Pension) Rules, 2002: -
"43. Pensionable Pay:
(1) The `Pensionable Pay' means the average pay earned by a Government employee during the last ten months' service.
(2) For the purpose of sub-rule(1) `pay' means pay as defined in rule-9(53) drawn by a Government Page 36 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 employee in officiating or substantive capacity on permanent and/or temporary or tenure post.
Explanation-1: If a Government employee immediately before his retirement or death while in service or having been absent from duty on leave for which leave salary is payable or having been suspended had been reinstated without forfeiture of service, the pay which he would have drawn had he not been absent from duty or suspended, shall be the pay for the purposes of this rule.
Provided that any increase in pay (other than the increment referred to in Explanation-4 below) which is not actually drawn shall not form part of this pay.
Explanation-2 : If, during the last ten months of his service, a Government employee had been absent from duty on extraordinary leave, or had been under suspension, the period whereof does not count as service, the aforesaid period of leave or suspension shall be disregarded in the calculation of the pensionable pay and equal period before the ten months shall be included.
Explanation-3: If a Government employee immediately before his retirement or death while in service had been absent from duty on extraordinary leave or had been under suspension, the period whereof does not count as service, the pay which he draw immediately before proceeding on such leave or being placed under suspension shall be the pay for the purpose of this rule.
Explanation-4: If a Government employee immediately before his retirement or death while in service was on leave other than extraordinary leave and earned an increment which was not withheld during the first six months of the period of leave, such increment, though not actually drawn, shall form part of his pensionable pay.
Explanation-5: However it will be open to any Government employee to exercise an option, which shall be final, within one month from the date of his retirement to have his pension revised-recalculated on the basis of thirty six months' or twenty months' Page 37 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 average `pay' as may be beneficial to him.
Explanation-6: The pay drawn by a Government employee while on foreign service shall not count for pension. In such a case the pay which the Government employee would have drawn under the Government had he not been sent on foreign service, shall alone be taken into account while calculating pensionable pay.
Explanation-7: Where a pensioner who is re-employed in Government service, elects in terms of clause (a) of subrule (1) of rule 28 to retain his pension for earlier service and whose pay on reemployment has been reduced by an amount not exceeding his pension, the element of pension by which his pay is reduced shall be treated pay for calculation of pensionable pay.
134. Recovery and adjustment of dues other than dues pertaining to Government residential accommodation :
(1) For the dues other than the dues pertaining to occupation of Government residential accommodation as referred to in clause (b) of sub-
rule (3) of rule 133, the pension sanctioning authority shall take steps to assess the dues other than Incometax deduction two years before the date on which a Government employee is due to retire on superannuation;
(2) The assessment of Government dues referred to in sub-rule (1) shall be completed by the Head of Office twelve months prior to the date of the retirement of the Government employee.
(3) The dues as assessed under sub-rule (2) including those dues which come to notice subsequently and which remain outstanding till the date of retirement of the Government employee, shall be adjusted against the amount of death-cum-retirement gratuity payable to the Government employee on his retirement.
(4) After ascertaining and assessing the Government dues which still remain outstanding on the date of Page 38 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 retirement of a Government employee, the Pension Sanctioning Authority shall show them as recoverable Government dues in the last pay certificate.
(5) A certificate regarding Government dues outstanding from the Government employee on the date of retirement shall be attached to the pension papers of the Government employee while forwarding the same to the Director of Pension and Provident Fund.
137. Completion of pension papers :
The Pension Sectioning Authority shall complete Part I of Form-21 not later than twelve months before the date of retirement of the Government employee."
14. The Court also needs to consider the decision in case of Girishbhai Jivrajbhai Dave vs. Bhavnagar Municipal Corporation [SCA 13928/2011, Decided on 05.06.2017], where the question was of withholding of the pension where the petitioner was initially a Daily Wager and them became Junior Clerk and thereafter promoted as Inspector and thereafter was further promoted as Superintendent and thereafter further promoted as Assistant Commissioner.
The Court relying on Rule 43 of the of GCS (Pension) Rules, 2002 and considering the pensionable pay being average pay earned by the government employee during the last 10 month of service, on noticing that he served on the post of Assistant Commissioner for almost two years until he reached the age of superannuation in November, 1999 and he Page 39 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 also received the salary of the post, accordingly the same was allowed. Reduction of the pension was not permitted.
14.1. Likewise, the decision in case of Abdulkadir Sultanmiya Ladman vs. Government of Gujarat [SCA 1255/2002, Decided on 11.02.2016] was also concerned with the employee of railway who was retired in the year 1999 and the judgment and order passed by the Central Administrative Tribunal where his salary drawn at the time of last service was not regarded. This Court held that the pension of the retired Government servant is to be fixed in terms of his last drawn salary considering his total length of pensionable service and accordingly, the petition was allowed.
14.2. In case of Bhavnagar Municipal Corporation vs. Rajnikant Jamnadas Jani [LPA 720/2017, Decided on 27.04.2017], similar issue had arisen and the Court relying on Rule 43 of the GCS (Pension) Rules, 2002 had held that the pensionable pay would mean the average pay earned by the government employee during the last 10 months of service.
"5. Having considered the submissions canvassed on behalf of learned advocates appearing for the parties and having gone through the material produced on record, it is not in dispute that the petitioner retired from service on 31.5.2000. At that time, he was in the Page 40 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 pay scale of Rs.8500-14000/- and his last basic pay was Rs.10,425/- per month. However, after his retirement, the original respondent no.1-present appellant received the communication from the State Government, wherein the direction was given to the respondent-Corporation to grant the pay scale on scale to scale basis. Accordingly, after the retirement of the petitioner, the respondentCorporation revised the pay scale of the petitioner to Rs.8000-13000/- and last basic monthly salary was fixed at Rs.9925/- instead of Rs.10425/-. On the basis of the same, pension of the petitioner was fixed. Therefore, the question involved in the present appeal is whether it is open for the appellant-original respondent to fix the pension of the petitioner on the basis of the revised pay scale after the date of his retirement.
7. From the aforesaid Rule, it is clear that "pensionable pay" means the average pay earned by a government employee during the last ten months' service. In the present case, it is not in dispute that during last ten months service before the date of retirement of the petitioner, he was in the pay scale of Rs.8500- 14000/- and he was getting Rs.10425/- per month. Thus, the respondent-Corporation ought to have fixed the pension of the petitioner on the basis of his average pay during last ten months service. However, after the retirement of the petitioner, his last monthly basic salary was fixed at Rs.9925/- and his pension was fixed on the basis of the same. Thus, we are of the view that the respondent-Corporation has wrongly fixed the pension of the petitioner. Thus, the petitioner is entitled to get monthly pension @Rs.5213/-instead of Rs.4963/- as fixed by the Corporation at the time of his retirement.
8. In view of the aforesaid discussion and in view of the reasoning recorded by the learned Single Judge, we are of the view that the learned Single Judge has not committed any error while allowing the petition and directing the respondent-Corporation to revise the pension of the petitioner considering his last ten months salary for calculation of pension which was Rs.10425/- on the date of his retirement. Learned Single Judge has also not committed any error while Page 41 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022 C/LPA/491/2021 CAV JUDGMENT DATED: 11/03/2022 directing the respondent-Corporation to pay interest @6% and to give other benefits and also revision of all other benefits. Accordingly, we see no reason to interfere with the order passed by the learned Single Judge. As the period of three months granted by the learned Single Judge while allowing the petition is already over, we direct the appellant to comply with the direction issued by the learned Single Judge within a period of two months from the date of receipt of this order. However, it is made clear that this order is passed in the facts of the present case."
15. The rule being quite clear and Rule 137 provides for the pension papers to be prepared 12 months before the date of retirement, we deem it appropriate not to send the matter back to the learned Single Judge and instead as we had already heard both the sides, for this being a legal issue and we have noticed that the issue is squarely covered by the various decisions by the statutory provisions itself, hence, the Court could not have, in writ jurisdiction, kept this issue open when it itself had decided the matter referring to the decisions of this Court rendered in SCA 13928/2011 and SCA 1255/2002.
16. Resultantly, the present Letters Patent Appeal is ALLOWED quashing and setting aside the findings and observations made by the learned Single Judge at para 6.3 of Misc. Civil Application No. 01 of 2019 in Special Civil Application No. 2382 of 2017. It is further being directed that respondents shall calculate and pay to the appellant all the retirement benefits on the basis of the last drawn salary as held and directed in the judgment dated 28.02.2019 as discussed hereinabove.
(SONIA GOKANI, J) (HEMANT M. PRACHCHHAK,J) Bhoomi Page 42 of 42 Downloaded on : Sat Dec 24 12:37:06 IST 2022