Himachal Pradesh High Court
Shri Yashpal Singh & Others vs State Of Himachal Pradesh & Another on 24 August, 2016
Bench: Mansoor Ahmad Mir, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Review Petition No. 2 of 2016 .
Judgment reserved on: 9.8.2016 Date of Decision: 24.8.2016.
Shri Yashpal Singh & others. ...Petitioners Versus State of Himachal Pradesh & Another. ...Respondents of ______________________________________________________________ Coram The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
rt Whether approved for reporting? Yes.
For the Petitioners: Mr.Hamendra Singh Kashyap and Ms.Nitika Bhutani, Advocates.
For the Respondents: Mr. Shrawan Dogra, Advocate General, with Mr.M.A.Khan, Additional Advocate General, and Mr.J.K. Verma, & P.M. Negi, Deputy Advocate Generals, for the respondents.
Tarlok Singh Chauhan, Judge By medium of this petition under Article 215 of the Constitution of India and under Order XLVII Rule 1 read with Section 151 CPC, the petitioners have sought review of the judgment dated 6.10.2015, whereby Letters Patent Appeal preferred by them came to be dismissed.
2. The petitioners vide order dated 24.9.2008 were appointed as Patwaris in the regular pay scale. However, vide orders dated 23.1.2009 and 27.2.2009, respectively, the aforesaid order dated 24.9.2008 was withdrawn on the ground that the same was erroneously issued in contravention to the sanction accorded by the State Government vide its letter dated 22.1.2009, whereby ::: Downloaded on - 15/04/2017 21:04:17 :::HCHP 2 Review Petition No. 2 of 2016 the petitioners in fact were required to be appointed on contract basis and not on regular basis.
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3. This action of the respondents was assailed by way of CWP No. 740 of 2009, which along with other connected matters came to be dismissed vide judgment dated 6.10.2015. The petitioners have sought review of the judgment on the ground that of the respondents have taken a misleading and contrary stand before this Court, as none of the instructions/notifications or office rt orders ever provided for filling up of the five vacant posts against which the petitioners were ordered to be appointed on contract basis. It is further averred that recital in the letter dated 19.1.2009 or even the subsequent letter dated 22.1.2009, which form the basis of the decision, only suggest and talk about sanction and filling up the sanctioned posts of Patwaris and nothing more.
We have heard learned counsel for the parties and have gone through the material placed on record.
4. Section 114 of the Code of Civil Procedure (for short the "Code') reads thus:-
"114. Review--
Subject as aforesaid, any person considering himself aggrieved--
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by this Court, or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit."::: Downloaded on - 15/04/2017 21:04:17 :::HCHP 3 Review Petition No. 2 of 2016
Order 47 of the Code reads thus:-
"Review .
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 of
(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 rt within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review."
5. This Court in M/s Harvel Agua India Pvt. Ltd. Vs. State of H.P. and others, Review Petition No. 4084 of 2013, decided on 9.7.2014, after taking in the consideration the law on the subject, laid down certain broad principles with regard to maintainability/non-maintainability of a petition for review and the same are as under:-
(A) When the review will be maintainable:-
(i) Discovery of new and important matter or evidence which, after the exercise of due ::: Downloaded on - 15/04/2017 21:04:17 :::HCHP 4 Review Petition No. 2 of 2016 diligence, was not within knowledge of the petitioner or could not be produced by him;
.
(ii) Mistake or error apparent on the face of the record'
(iii) Any other sufficient reason.
(B) When the review will not be maintainable:-
(i) A repetition of old and overruled argument is
of
not enough to reopen concluded
adjudications.
rt
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with
the original hearing of the case.
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error.
(v) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.::: Downloaded on - 15/04/2017 21:04:17 :::HCHP 5 Review Petition No. 2 of 2016
(x) Review is not maintainable on the basis of a subsequent decision/judgment of a .
coordinate or larger Bench of the Court or of a superior Court.
(xi) While considering an application for review, court must confine its adjudication with regard to the material which was available at of the time of initial decision. The happening of some subsequent event or development rt cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.
(xii) Mere discovery of a new or important matter or evidence is not sufficient ground for review. The parties seeking review has also to show that such mater or evidence was not within its knowledge and even after exercise of due diligence, the same could not be produced before the Court earlier.
However, it may be clarified that the aforesaid principles are only broad guidelines and not caste-iron imperatives.
6. Judged in the light of the aforesaid principles, it would be noticed that the entire case of the petitioners' case hinges around the letters dated 19.1.2009 and 22.1.2009 and therefore, it is necessary to reproduce the contents of both these letters, in their entirety and same read thus:-
"No.Rev.A(B) 1-6/2007 Government of Himachal Pradesh, Revenue Department.
From:
The Director, Land Records, H.P. Shimla-9.::: Downloaded on - 15/04/2017 21:04:17 :::HCHP 6 Review Petition No. 2 of 2016
Dated: Shimla-171002 Dated:19.01.2009 Sub:- Regarding sanction to fill up the vacant posts of .
Patwaris in Mohal Side.
Sir, In continuation of this Department letter Even No. dated 02.01.2009, on the subjected cited above, I have directions to say that as per the rule of the Government sanction is granted to fill up the available 100 vacant posts of Patwaris on contract basis in the districts amongst the trained Patwari of candidates after completion of all codal formalities.
Sr. No. District Nos. of candidates
1. Bilaspur 01
2. rt Chamba 07
3. Hamirpur 07
4. Kangra 03
5. Kinnaur 26
6. Kullu 17
7. Lahaul and Spiti 05
8. Mandi 02
9. Shimla 12
10. Sirmour 07
11. Solan 06
12. Una 07
Total 1000
You are, therefore, requested to take further action with immediate effect to fill up the vacant posts of Patwaris and after filling up the posts, the detailed position and information regarding the vacancies/trained Patwari candidates may please be sent to this office.
Yours sincerely, Sd/-
Under Secretary (Revenue), Govt. of Himachal Pradesh.
* * * No.Rev.(LR)A(3) 3/2008-552-63 Directorate Land Record, Himachal Pradesh Shimla-9 Dated: Shimla 22/1/2009.
To The Deputy Commissioner, Kinnaur at Reckong Peo Himachal Pradesh.
Subject: Regarding sanction to fill up the vacant post of Patwaris on Mohal side.
Sir, ::: Downloaded on - 15/04/2017 21:04:17 :::HCHP 7 Review Petition No. 2 of 2016 On the above subject it is submitted that sanction has been obtained vide letter No. Rev.-(ACB)1-6-2007 dated 19/1/2009 to the Financial Commissioner-cum- Principal Secretary (Revenue) to fill up the five (5) vacant post of .
Patwaris on contract basis amongst the available trained Patwari candidates in this District after full filling of all codal formalities.
Therefore, you are requested to take immediate necessary action to fill up the vacant post of Patwaris and detailed status report of vacancy alongwith information of trained Patwari candidates may be sent to this Directorate after filling up of the post.
of Yours faithfully, Sd/-
Director Land Record,
rt HP Shimla-9.
Endst. No. As above.-5563 Dated 22-1-2009.
Copy to:
The financial Commissioner-cum-Principal Secy.(Rev.) to the Govt. of HP w.r.t. his above referred letter for information.
Sd/-
Director Land Record, HP Shimla-9."
(underline supplied by us)
7. It is clearly evident from the letter dated 19.1.2009 that as many as 100 vacant posts of Patwaris to be filled up on "contract basis" came to sanctioned by the Government and whereas vide letter dated 22.1.2009, Deputy Commissioner, Kinnaur was specifically communicated the sanction of the Government regarding filling up of 5 vacant posts of Patwaris on "contract basis." Therefore, obviously, the appointment of the petitioners on regular basis was dehors the sanction granted by the Government.
8. It is more than settled principle that a mistake committed by an officer of the Government or conduct of the Government servant in violation of its duty will not operate as estoppel against the Government and it in turn is free to rectify the said mistake as soon as the same comes to its notice. This aspect ::: Downloaded on - 15/04/2017 21:04:17 :::HCHP 8 Review Petition No. 2 of 2016 of the matter has been considered in detail in the judgment sought to the reviewed and thus there is no error, much less an error .
apparent on the face of the record calling for interference by this Court.
9. In addition to the above, the question now sought to be raised in this petition cannot be gone into because the power of of review cannot be exercised on the ground that the decision is either incorrect or erroneous on merits, as the same lies only within rt the ambit of higher Court having appellate power. It is the Hon'ble Apex Court which alone is in a position to correct the error committed by the subordinate Courts by virtue of power of appeal.
Notably, even this power has already been exercised by the Hon'ble Apex Court while deciding SLP Nos. 7838-7839 of 2016, 7845 of 2016, 7884 of 2016, 7890 of 2016 and 7891 of 2016, wherein the judgment in question had been assailed and came up for hearing on 29.4.2016 and the following order came to be passed:-
"Delay condoned.
We are not inclined to entertain these special leave petitions which are dismissed.
Pending application(s), if any, shall stand disposed of."
10. Having said so, no case for review is made out. On the other hand we are of the considered view that the instant petition has been filed only with an intent to gain an unfair benefit to which the petitioners are otherwise not entitled and resultantly the same ::: Downloaded on - 15/04/2017 21:04:17 :::HCHP 9 Review Petition No. 2 of 2016 is dismissed with costs of `25,000/- to be paid to H.P. High Court Bar Association Welfare Fund.
.
(Mansoor Ahmad Mir) Chief Justice.
(Tarlok Singh Chauhan),
24th August 2016 Judge.
of
(KRS)
rt
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