Gujarat High Court
District Primary Education Officer vs Jugalkishor J. Patel on 24 November, 2003
Author: H.K. Rathod
Bench: H.K. Rathod
JUDGMENT H.K. Rathod, J.
1. Heard learned advocate Mr.H.S. Munshaw and Ms. S.K.Mandavia for the applicants District Primary Education Officers of the Districts concerned; Mr. I.S.Supehia, learned advocate for the original petitioners and Mr. Siraj Gori and Mr. M.R. Mengde, learned AGP for the State. In one group of the present miscellaneous civil applications, the applicant District Primary Education Officer is praying for review and recall of the orders passed by this Court dated 19th December, 2001 and for taking into consideration the GR dated 16th October, 1993 and dismiss the aforesaid main petitions filed by the original petitioners. In one group of the present Misc. Civil Applications, the applicants - original petitioners are praying for taking action against the respondent authorities for their having committed breach of the orders of this court. Since the whole group of these petitions is arising out of the common orders of this court, raising similar questions, all these applications have been decided by this common judgment.
2. During the course of hearing, learned advocate Mr. Supehia appearing for the original petitioners has not seriously objected the applications filed by the applicants Panchayat authorities for condonation of delay in filing the present review applications. Hence, the delay caused in filing the present review applications is condoned.
3. Brief facts leading to the filing of the present applications are to the effect that this court has passed common orders on 19th December, 2001 in Special Civil Application No. 8871 of 1999 and other cognate matters and has directed the respondent Panchayat to implement the GR dated 5th July, 1991 while granting benefit of the Higher Grade at the end of 9-18-27 years of service. Necessary directions have also been issued by this court to pay, if any amount is due, in favour of the original petitioners with 12 per cent interest from the due date. Said common orders were passed by this court on the basis of other three orders which have been enumerated in the order itself by this court. Relevant observations made by this court while considering the said three decisions of this court are as under:
"This Court has passed these orders while considering two decisions of this court, one in special civil application no. 10204 of 1998 dated 25.8.1999 (Coram : R.K. Abichandani,J.) and the second one in special civil application No. 6589 of 1995 dated 11th April, 1996 (Coram : R.K. Abichandani,J.). It is necessary to be noted that the order passed by this Court (Coram : R.K.Abichandani,J.) in special civil application no. 6589 of 1995 on 11th April, 1996 was challenged by the respondent authority before the Division Bench of this Court by filing letters patent appeal no. 586 of 1996 and the said letters patent appeal has been dismissed by the Division Bench of this Court by order dated 30th September, 1999.
In the result, rule is accordingly made absolute in each of the petitions with no order as to costs."
4. The order made by this court on 19th December, 1991 after considering the aforesaid decisions of this court was challenged by the respondent Panchayat authority before the Division Bench of this court by filing letters patent appeals. No. 1070 of 2002 in Special Civil Application No. 8871 of 1999 with Letters Patent Appeal No. 1071 of 2002 in Special Civil Application No. 2853 of 2002 with Letters Patent Appeal No. 1072 of 2002 in SPECIAL CIVIL APPLICATION No. 8872 of 1999 with LETTERS PATENT APPEAL No. 1073 of 2002 in SPECIAL CIVIL APPLICATION No. 2865 of 2000 with Letters Patent Appeal No. 306 of 2002 in SPECIAL CIVIL APPLICATION No. 5853 of 2000 with LETTERS PATENT APPEAL NO. 305 of 2002 in SPECIAL CIVIL APPLICATION No. 1668 of 2000 with LETTERS PATENT APPEAL NO. 143 of 2003 in SPECIAL CIVIL APPLICATION No. 1093 of 2000. In LETTERS PATENT APPEAL No. 1768 of 1999, the order made by this Court (Coram :R.Balia,J.) in SPECIAL CIVIL APPLICATION No. 10204 of 1998 dated 25.8.1999 was under challenge whereas the rest of the letters patent appeals were arising out of the order of this court dated 19th December, 2001. Group of the aforesaid letters patent appeals came to be decided by the Division Bench of this Court (Coram : B.J.Shethna and R.R. Tripathi,JJ) on 11.9.2003. Relevant observations made by the Division Bench of this Court in para 2,3 and 4 of its judgment dated 11.9.2003 are reproduced as under:
"2. After the matters were heard for quite some time, the learned advocates appearing for the appellants sought permission to withdraw these appeals with a view to approach the learned Single Judge by filing appropriate review applications. The learned advocate submitted that they will like to approach the learned Single Judge with a request to review the order under challenge in these appeals and with a further request to incorporate the contentions raised by them in case the review applications are not accepted. The learned Advocate also requested that taking into consideration the nature of the controversy involved in these appeals and the extent of the financial implications which are likely to arise from the orders of the learned Single Judge, suitable observations be made so as to see that the learned Single Judge entertains the review applications despite the belated filing of such applications.
3. The learned Assistant Government Pleader Shri Sood submitted that taking into consideration the financial implications of the order/s of the learned Single Judge, the Government will also like to file review applications and the same may also be directed to be considered by the learned Single Judge.
4. Having heard the learned advocates and having perused the order/s passed by the learned Single Judge in the aforesaid petitions, it is deemed fit that the permission to withdraw these appeals, with a view to file review applications be granted. Permission is accordingly granted. In our considered opinion, it is deemed fit to request the learned Single Judge to consider the review applications, if filed by the present appellants within a fortnight from today with appropriate directions for condonation of delay, which the learned Single Judge is requested to consider in light of the facts of the case."
5. As a result of the withdrawal of the letters patent appeals have been filed by the original respondent Panchayat authority for review of the order of this court dated 19th December, 2001 under Order 47, Rule (1) of the Code of Civil Procedure. Order 47 Rule (1) of the Code of Civil Procedure is relevant and material for the purpose of the present applications and, therefore, same is reproduced as under:
"1. Application for review of judgment.- (1) Any person considering himself aggrieved -
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed,or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or the 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 appearing 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."
6. Thus, from the bare reading of Order 47, Rule (1) of the Code of Civil Procedure, it appears that it shall apply when any person considers himself aggrieved (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred) bya decree or order from which no appeal is allowed,or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or the order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. The explanation to Order 47, Rule (1) of the Code of Civil Procedure provides 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.
7. In light of this back ground, it is necessary to mention one important fact that the common order passed by this court on 19th December, 2001 is verbatim same to the order passed by the learned Single Judge of this Court (Coram : R.K. Abichadani,J.) in Special Civil Application NO. 6589 of 1995 dated 11th April, 1996. It is also made clear that the order passed by the learned Single Judge of this Court (R.K.Abichandani,J.) in SPECIAL CIVIL APPLICATION No. 6589 of 1995 was challenged before the Division Bench of this Court and the said letters patent appeal against the order in SPECIAL CIVIL APPLICATION No. 6589 of 1995 was also dismissed by the Division Bench of this Court. Till this date, no further challenge to the decision of the learned Single Judge of this Court in SPECIAL CIVIL APPLICATION No. 6589 of 1995 as confirmed by the Division Bench of this Court in letters patent appeal no. 586 of 1996 dated 30th September, 1996.
8. Today, Mr. H.S.Munshaw and Ms. S.K. Mandavia appearing for the Panchayat authority has vehemently submitted before this court has passed the order dated 19th December, 2001 by relying upon the GR dated 5th July, 1991 but without considering the another GR dated 16th October, 1993. It was their submission that the GR dated 5th July, 1991 has been clarified and amended by way of GR dated 16th October, 1993 in the name of clarification and in that clarification, relevant question has been clearly clarified by the State Government that the selection grade, when it is given to the employee, it amounts to promotion. The option which has been provided in item no. 15 of the GR dated 5th July, 1991 is not only relevant to senior scale only but it also includes selection grade. According to their submissions, therefore, the clarification includes the selection grade and for that, option was available to the primary teacher and not only to the teacher those who have received the senior scale benefit. This aspect has been clarified by the State Government. It was also clarified by them before this court that on what basis, senior scale is available to the employee and on what basis, the selection grade is available to the employee. Both the learned advocates jointly pointed out before this court that the selection grade is available to the teacher considering 20 per cent quota of senior teacher in existing post and senior scale is available to the teacher after completion of 17 years service as a teacher. It was, therefore, submitted that once either of the benefit namely senior scale or the selection grade has been availed by the employee, then, the benefit of higher grade granted by the State Government in the GR dated 5th July, 1991 cannot be granted and it is necessary for the concerned teacher to make it clear that he shall remain in the selection grade / senior scale or to get the higher grade benefit. Thus it is their submission that those who have received benefit of senior scale/selection grade cannot claim the benefit of higher grade. It was their submission that earlier while this court was considering the main matters and before the passing of the order dated 19th December, 1991, through over sight, they could not point out this clarification made by the State Government by way of GR dated 16th October, 1993 and as a result thereof, this Court has passed the order dated 19th December, 2001 without considering the clarification as issued by the Government in the Form of GR dated 16th October, 1993. It was pointed out by the learned advocate Ms. Mandavia that that item no.8 and 9 of the Government Resolution dated 16th October, 1993 where the contingency has been made clear in one case senior scale period is not over and in another case, period of senior scale is over and the selection grade is available but in item no. 9, question has been raised that if the employee has received selection grade and/or senior scale for 17 years of service, then, whether he can give option for accepting the Higher Pay Scale as per the provisions of item no.15 of the GR dated 5.7.1991 or not. The question raised in item (9) has been answered in the said GR dated 16th October, 1993 that it is provided that the option could be given in terms of item No.(15) of the GR dated 5.7.1991. Therefore, on this material, the submission is that the concerned petitioners were receiving at the relevant time selection grade and, therefore, they should have to give option either to continue in the selection grade or they should have to continue with the higher grade benefit. In some cases, no such option has been given and in some cases, such option has been given and those who have not given option have continued in the higher grade benefit, means, they were getting double benefit. Those who have given benefit, they are to remain in higher grade or selection grade. Accordingly, their fixation was carried out by the department and ultimately as a result thereof, recovery has been ordered by the department. Therefore, it is the submission of Ms. Mandavia as well as Mr. Munshaw that the petitioners are not entitled for double benefit of selection grade and higher grade which was wrongly given and enjoyed by the petitioners and, therefore, considering this clarification as per GR dated 16th October, 1993, the department was right in refixing the salary of the petitioner and such fixation of the salary on the basis of the clarification has resulted into recovery and, therefore, considering the GR dated 5th July, 1991 in light of the clarification as per the GR dated 16th October, 1993, the department was right in passing the orders and, therefore, the petitioners are not entitled for the double benefits. Learned advocate Ms. Mandavia and Mr. Munshaw both have pointed out and emphasized on the relevant conditions incorporated in the GR dated 16th October, 1993 that in respect of those who have retired prior to 1st August, 1994, no recovery should be effected from their salary and no refixation can be carried out by the department and this condition has been interpreted by both the learned advocates and it was submitted that it would apply to the facts that once GR dated 5th July, 1991 has scrapped by introducing the second GR dated 16th August, 1994 and as a consequence of that, initial higher grade benefit of 9-18-27 years service has been changed to 9-20-31. Both have also relied upon item 3/29 which is relating to the selection grade wherein specific provision has been made that the selection grade available to the employee then higher grade benefit will be available from the date on which selection grade come to an end and not from the other date. It was their submission that in view of such detailed provisions made in the GR dated 16th October, 1993, the order passed by this court in the main matters on 19th December, 2001 is required to be revised and recalled and the petitions are required to be dismissed as the petitioners are not entitled for such reliefs in view of the clarifications contained in the GR dated 16th October, 1993.Save and except the aforesaid submissions, no other submissions have been made by the learned advocate Ms. Mandavia and Mr. Munshaw. No other documents have been produced or shown to this court by them because their arguments have centered to this issue alone.
9. On the other hand, learned advocate Mr. Supehia appearing for the original petitioners has submitted that the review applications are not maintainable under Order 47, Rule (1) of the CP Code. He raised objections about delay caused in filing of such an applications for review. He also submitted that the common order made by this court on 19th December, 2001 is verbatim same to the order made by this Court (Coram : R.K.Abichandani,J.) and, therefore, that order has merged in appeal and, therefore, if any change is made by this court relying upon the clarification, it would amount to change in respect of the orders passed by this Court (Coram : R.K.Abichandani,J.) as confirmed in appeal by the Division Bench of this Court and, therefore, these applications for review are required to be dismissed as the order sought to be reviewed is based upon the other three earlier orders of this Court. He also submitted that the present review applications are required to be rejected only on the ground that at the relevant time when this court was considering the main matters, clarification as per the GR dated 16th October, 1993 was not placed by the respondents before this court. He also submitted that the review applications cannot be entertained because it is not a discovery of any new documents; it is not the case of the present applicants Panchayat authority that they were unaware of the GR dated 16th October, 1993 or that they were not having knowledge of the said resolution. He also submitted that the present applicants have not given any sufficient and satisfactory reason for not producing the said GR at the relevant time before this court and, therefore, the case of the applicants original respondents is not falling within the scope and ambit of Order 47, R.(1) of the CP Code. He also submitted that if any document is not produced or any submission is not made before the court at the relevant time, then, on such a ground, it is not open for the parties to file review application for getting chance of rehearing. It was also his submission that the review is not amounting to rehearing but it is based upon certain principles laid down by the apex court in respect of Order 47, Rule (1) of the CP Code. He also contended before this court that the GR dated 5th July, 1991 is applicable to the petitioners and accordingly, benefits were granted to the petitioners and enjoyed by the petitioners. According to him, item no.15 of the said GR is relating to senior scale and not relating to the selection grade. He also emphasized that now the clarification cannot be considered against the petitioners because prior to that clarifications, all the petitioners had retired from service and, therefore, the said clarification dated 16th October, 1993 is not applicable to the petitioners. He also submitted that the said GR dated 16th October, 1993 is not a mere clarification but it is an amendment of the GR dated 5th July, 1991. He also submitted that such clarification and amendment of the GR dated 5th July, 1991, as per GR dated 16th October, 1993 shall come into effect from the date on which it was issued i.e. 16th October, 1993 and not from the date on which the GR dated 5th July, 1991 was issued. Thus, it is his submission that the clarification or amendment as per GR dated 16th October, 1993 shall have prospective effect and not the retrospective effect unless is specified in the amendment itself. He also submitted that if the State Government has not made any provisions and not made any clarification in the original resolution, then, mere subsequent clarification in any of the provisions is not binding to the employees and if any clarification is contrary to the original GR itself, then, it is not binding to the petitioners. He also submitted that the Government has no power or authority to issue any administrative instructions or circular or clarification which is contrary to the main resolution. He also submitted that the said clarification is contrary to the scheme itself as per the GR dated 5th July, 1991. He also submitted that some of the provisions are not at all there in the GR but are incorporated by virtue of the clarification which is having conflict with the original resolution and, therefore, this clarification is not applicable to the petitioners as it is contrary to the main resolution and, therefore, such classification now cannot be looked into by the Court while examining the matters, as once, it has already been decided by this Court. In light of these submissions, he emphasized on item No.(xvii) and, therefore, same is reproduced as under:
"xvii) This scheme shall come into effect from 1st June, 1987.This scheme shall supersede the order of various departments regarding grant of senior scale on completion of 17 years of service."
10. Relying upon the said item (xvii), he submitted that item no. (xv) of the GR dated 5th July, 1991 is relating to the grant of senior scale and not relating to the grant of selection grade. He further submitted that if the selection grade is incorporated or included in Item No. 15 along with the senior scale, then, it is also necessary to make such provision similar to item (xvii) that now the scheme of selection grade is also superseded by the GR dated 5th July, 1991. No such provision has been made in the GR dated 5th July, 1991 as regards selection grade and, therefore, it was his submission that the subsequent clarification and the amendment is totally contrary to the GR dated 5th July, 1991 and, therefore, same is not applicable to the case of the present petitioners. He also submitted that this clarification dated 16th October,1993 is not having any retrospective effect; there is no such indication in the said GR dated 16th October, 1993 and, therefore, same shall not apply to the present petitioners. He also submitted that the senior scale and the selection grade both are different and distinct thing. Merely pointing out in the clarification that the selection grade is amounting to promotion that does not alter the original character of granting the selection grade. He also submitted that the senior scale is having some connection with the length of service. Similarly, higher grade is also having some connection with the length of service but the selection grade is having no connection with the length of service and, therefore, option is available to the employee qua senior scale and higher grade because both are relating to length of service and are also dependent upon the length of service but the selection grade is altogether different benefit available to the senior teacher in 20 per cent quota from the existing posts and, therefore, it is not linked with the length of service but it is linked with a particular benefit available to the senior teacher at the relevant time if he is covered or included or falling in 20 per cent of the quota. He also pointed out that none of the petitioners at the relevant time were receiving the senior scale and all of them were receiving the selection grade and, therefore, question of giving option is not at all arising. However, the department has demanded the options, rightly or wrongly and in response to such demand for option, some of the petitioners concerned have given their options, rightly or wrongly but legally speaking, if the question is examined by this court, according to his submissions, the grant of selection grade benefit is totally different and distinct from the senior scale and were rightly received and enjoyed by the petitioners and against that, no option is necessary for getting the benefit of the higher grade as per the GR dated 5th July, 1991 and whatever clarification made by the Government subsequently after the period of two and half years vide GR dated 16th October, 1993 is not applicable to the facts and circumstances of the present case as the petitioners have retired prior to that resolution and also because the said clarification made by the GR dated 16th October, 1993 is not having retrospective effect but is having prospective effect. According to him, on this ground, present miscellaneous civil applications filed by the Panchayat authorities are required to be rejected. It is also his submissions that the present application seeking review of the orders dated 19th December, 2001 are also liable to be rejected as they are not satisfying the requirements of Order 47, Rule (1) of the Code of Civil Procedure. In the midst of the dictation of this order, learned advocate Ms. Mandavia sought leave to submit something. She was permitted and it was therefore submitted by her that one decision of this court in Special Civil Application No. 9133 of 1994 and other allied matters decided by this Court (Coram : Akshay Mehta, J.) on 28.6.2002 is relevant and may be taken into consideration. Relying upon the said order of this Court, it was submitted by Ms. Mandavia that in the said judgment, this court has considered the clarification and has come to the conclusion that the option is available to the employees who are receiving the selection grade. Relying upon the said decision, she further submitted that the interpretation accepted by this court in the said decision is required to be considered by this Court. Considering the provisions of Order 47, Rule (1) of the Code of Civil Procedure, since the applicants Panchayat authorities are seeking review of the Order of this Court dated 19.12.2001, the order of this Court (Coram : Akshay Mehta, J.) dated 28.6.2002 cannot be considered by this Court as it is subsequent to the orders of this court dated 19.12.2001 as per the provisions of Order 47, Rule (1) of the CP Code. However, without entering into that aspect, this Court has perused the order of this Court (Coram : Akshay Mehta,J.) dated 28.6.2002 in SPECIAL CIVIL APPLICATION No. 9133 of 1994 and other allied matters. According to my opinion, said decision is not applicable to the peculiar facts and circumstances of the present case.
11. I have considered the submissions made by the learned advocates for the parties at length. The present review applications are mainly based on the clarification issued by the Government vide GR dated 16th October, 1993 in respect of the earlier GR dated 5th July, 1991. By relying upon the said clarification as per GR dated 16th October, 1993, merits of the matter have been argued that the petitioners are also governed by clause 15 of the GR dated 5th July, 1991 and, therefore, they ought to have given option or they ought to have remained continued with the selection grade or with the higher grade, this being the alternative effect of clarification dated 16th October, 1993.
12. It is an admitted fact that the order sought to be reviewed dated 19th December, 2001 was passed by this court in presence of the learned advocates for the parties. At that time, reliance was placed by the petitioners on the earlier judgment and order of this Court (Coram : R.K.Abichanani,J.) in aforesaid petition and such proposition advanced by the learned advocate for the petitioners at the relevant time was not objected by the learned advocates for the respondents. At that time, reliance was also not placed by the learned advocates for the present applicants on the clarification dated 16th October, 1993. Learned advocate for the petitioners at that time relied upon three other decisions in the same subject matter including the order of the Division Bench of this Court against which no submissions were made by the learned advocates for the present applicants/original respondents. Therefore, this court passed the orders dated 19th December, 2001 relying upon the order of this Court (Coram : R.K. Abichandani,J.) on the similar line, without any slightest change and then the orders of this court were challenged before the Division Bench of this Court and those appeals were withdrawn on the ground that the appellants want to file the review applications as the matter is having severe financial implications upon the State Government but at the relevant time, when the Court was considering the main matter, there was no whisper about the clarification dated 16.10.1993 and it is also not the case of the present applicants/respondents that the said GR was pointed out by them before this court at that time. However, the fact remain that all the appeals were withdrawn with a view to file the review applications and, therefore, it is the duty of the applicants Panchayat authorities to satisfy this court as to whether the present revision applications are maintainable or not. Considering the averments made by the applicants in the present review applications, nowhere the applicants have contended that they were unaware or were not having the knowledge of the said clarification made by the Government by GR dated 16th October, 1993 which is necessary and required to be made in view of the provisions made in Order 47, Rule (1) of the Code of Civil Procedure. Looking to the language of Order 47, R.(1) of the CP Code, review is not available to any person, if he is not able to satisfy the court about the discovery of new and important matter or the evidence which after 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 the order was made on account of some mistake or error apparent on the face of the record or for any other sufficient reason desirous to obtain review of the order made against him.
13. Keeping in view the language of Order 47, R.(1) of the Code of Civil Procedure, I have gone through the applications for review filed by the applicants before this Court. None of the applications for review is satisfying the basic requirement and/or ingredients of Order 47, R.(1) of the Code of Civil Procedure. The applicants have not been able to point out before this Court in these applications for review as to why the clarification dated 16th October, 1993 has not been pointed out by them before this court while this court was considering the matters; on what ground, it was not pointed out before this court at the relevant time. It has also not been pointed out as to whether the particular clarification was within their knowledge or not at the relevant time or that they were subsequently mad aware of it. No such averments have been made by the applicants in the present review applications. Thus, the applications seeking review of the order dated 19.12.2001 are not satisfying the basic requirement of Order 47, R.(1) of the Code of Civil Procedure. It is also not the submission of either Mr. Munshaw or Ms. Mandavia that the present applications for review are satisfying the basic requirements of Order 47, R.(1) of the Code of Civil Procedure. The observations made by the apex court in the matter of NORTHERN INDIA CATERERS (INDIA) LTD. Vs. LT.GOVERNOR OF DELHI, reported in AIR 1980 SC 674 are important and relevant in the facts and circumstances of the case. Therefore, relevant observations made by the Hon'ble apex court in the said judgment are reproduced as under:
"It is well-settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision in the case. Normally the principle is that a judgment pronounced by the Court is final and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. If the attention of the Court is not drawn to a material statutory provision during the original hearing the Court will review its judgment. The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice. Sajjan Singh v. State of Rajasthan [1965] 1 S.C.R. 933, 948; G. L. Gupta v. D. N. Mehta [1971] 3 S.C.R. 748, 760; O. N. Mahindroo v. Distt. Judge Delhi & Anr. [1971] 2 S.C.R. 11, 27 referred to. Power to review its judgment has been conferred on the Supreme Court by Article 137 of the Constitution read with the provisions of a law made by Parliament or the rules made under Article 145. In a civil proceeding an application for review is entertained only on a ground mentioned in O. XLVII, Rule 1 of the Code of Civil Procedure and in a criminal proceeding on the ground of an error apparent on the face of the record (Order XL r. 1, Supreme Court Rules 1966). Whatever be the nature of the proceedings a review proceeding cannot be equated with the original hearing of a case and the finality of the judgment delivered by the Court will not be reconsidered except "where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility."
14. In the said decision, ultimately, the apex court has held that the judgment based on such factual foundation was not open to review merely because some alternative situations were not presented before the court. It was also held in the said decision that a review in the counsel's mention cannot repair the verdict once given.
15. Recently, the Hon'ble Apex Court has also considered the question of review in the matter of Rejendra Kumar and Others v/s. Rambhai and others, reported in 2003 AIR SCW 92. The observations made by the HOn'ble Apex Court in para 5 of the said judgment are reproduced as under:
"5. On perusal of the order under challenge, it is clear that the High COurt without considering the question whether the judgment/order sought to be reviewed suffered from any error, entered upon the exercise of reappreciating the evidence and on such reappreciation of evidence redetermined the compensation by reducing the amount to the extent noted earlier. 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."
16. The apex court has discussed the principles of review in the matter of Lily Thomas etc. etc. v. Union of India and Others, reported in 2000 AIR SCW page 1760. The observations made by the Hon'ble Apex Court in para 52 and 55 of the said judgment are reproduced as under:
"52. 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. This Court in Patel Narshi Thakershi v. Pradyumansinhji Arjunsinhji, AIR 1970 SC 1273 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. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error. This Court in S. Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595 held;
" Review literally and even judicially means re-examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the Courts and even the statutes lean strongly in favour of finality of decision legally and properly made.Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest Court indicating the circumstances in which it could rectify its order the Courts culled out such power to avoid abuse of process or miscarriage of justice. In Prithwi Chand Lal Choudhury v. Sukhraj Rai, AIR 1941 FC 1 the Court observed that even though no rules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the house of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae v.Bijai Govind SIngh (1836) 1 Moo PC 117 that an order made by the COurt has final and could not be altered.
"..... nevertheless, if by misprison in embodying the judgments, by errors have been introduced, these Court possess, by Common Law, the same power which the Courts of record and statute have of rectifying the mistakes which have crept in.... The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.' Basis for exercise of the power was stated in the same decision as under:
'It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard.' Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove he error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Art. 137 of the Constitution, Our Constitution makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Art. 137 of the Constitution. And Cl.(c) of Art. 145 permitted this COurt to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order 40 had been framed empowering this Court to review an order in civil procedure on grounds analogous to Order 47 Rule 1 of the Civil Procedure Code. The expression 'for any other sufficient reason' in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order 40, Rule 1 of the Supreme Court Rules, this Court has the inherent power to make such orders as may be necessary in the interest in justice or to prevent the abuse of process of Court. The Court is, thus, not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice. "
The mere fact that two views on the same subject are possible is no ground to review the earlier judgment passed by a Bench of the same strength."
53. x x x
54. x x x
55. It follows, therefore, that the power of review can be exercised for correction of a mistake and 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 an appeal in disguise. The mere possibility two views on the subject is not a ground for review. Once a review petition is dismissed, no further petition of review can be entertained. The rule of law following the practice of the binding nature of the larger Benches and not taking different views by the Benches of co-ordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Art. 136 or Art. 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment."
17. In the peculiar facts and circumstances of the case, the principles laid down by the apex court and the observations made by the apex court in the aforesaid decision are fully applicable in view of the similar situation. Common order was passed by this court on 19.12.2001 based upon the GR dated 5th July, 1991 and also based upon the earlier decision of this Court (Coram : R.K. Abichandani,J.) which was confirmed in appeal. Now merely referring to the clarification and mentioning that some alternative situations were not presented at the relevant time, that cannot be made a ground for review of the order dated 19.12.2001 passed by this court. Considering the observations made by the Hon'ble apex court that a review in the counsel's mention cannot repair the verdict once given, I am of the view that ground assigned for review would not repair verdict given by this court earlier relying upon the GR dated 5th July, 1991 as well as the earlier decision of this Court (Coram : R.K. Abichandani,J.) as confirmed by the Division Bench.
18. I have also considered the matter from the different angle because the GR dated 5th July, 1991 when it was published and made applicable, it was granting higher grade benefit in favour of the primary teachers and other government employees. Item NO. (xv) of the said GR is therefore reproduced as under:
"xv) The employees who have already availed the benefit of senior scale if so desired can give option to continue in the senior scale or opt for this Scheme. In case of option to come to this scheme, the pay fixation will be done as if he had not availed the benefit or senior scale.
The difference in pay and allowance if any will be adjusted against the benefit to be accrued under this scheme."
19. Thus, bare reading of item (xv) of the GR dated 5th July, 1991 makes it clear that it is relating to senior scale and not the selection grade as nowhere it has been mentioned about the selection grade. Similarly, item (xvii) makes it clear that the scheme shall come into effect from 1st June, 1987; the scheme shall supersede the order of various departments regarding grant of senior scale on completion of 17 years of service. Nowhere it mentions that it is relating to the selection grade and that it will supersede the selection grade. Meaning thereby, by clarification dated 16.10.1993 to include the selection grade to be read in item no. (xv) of the GR dated 5th July, 1991 does nothing else but to read something which is not exactly there in the GR dated 5th July, 1991. Administrative and executive directions or clarification, if they are necessary to be issued, then, they cannot go against the basic requirement of the GR dated 5th July, 1991. GR dated 5th July, 1991 is relating to only senior scale and admittedly not relating to selection grade. Now, by way of clarification in the form of GR dated 16.10.1993, something is sought to be added which is not there in the original GR dated 5th July, 1991 and, therefore, such clarification and the amendment cannot be made applicable to the employees those who are governed by the original GR dated 5th July, 1991. This aspect has been examined by the apex court in the matter of LAXMAN DUNDAPPA DHAMANEKAR AND ANOTHER VERSUS MANAGEMENT OF VISHWA BHARATA SEVA SAMITI AND ANOTHER reported in 2002 Supreme Court Cases (L & Is) 63. In the said matter, the apex court has considered administrative law and has held that the the Governing statute must empower issue of administrative instructions to supplement the statutory rules. It has also been held that they should be to fill the gaps in the rules and not be inconsistent with them.
20. The review applications filed by the applicants are not maintainable under Order 47, Rule (1) of the Code of Civil Procedure. Therefore, it can be rejected only on that ground. But according to my opinion, controversy remains with the parties which give another round of litigation. Therefore, I have decided the merits also. The whole trouble started because of the Government Resolution dated 16.10.1993 clarifying and amending the earlier Government Resolution dated 5th July, 1991. The said Government Resolution dated 16th October, 1993 was not placed before this Court while this Court was passing the common orders dated 19.12.2001. No such submissions were made at the relevant time. By virtue of the Govt. Resolution dated 16.10.1993, whole Government Resolution dated 5.7.1991 has been virtually changed. When there is no provision made in the Government Resolution dated 5.7.1991 about selection grade, it was included in the Government Resolution dated 16.10.1993. This being totally changed the main Government Resolution dated 5.7.1991. The State Government has no power to pass such contradictory another Government Resolution dated 16.10.1993 which adversely affect the legal rights of the employees as granted in the Government Resolution dated 5.7.1991. That too without giving any opportunity to such employees. The option, refixation and recovery are the result of the Government Resolution dated 16.10.1993, otherwise, there is no such question arises at all. Therefore, the Government Resolution dated 5.7.1991 is required to be read as it is . No alteration or clarification is permitted. The view taken by the Hon'ble Apex Court in the matter of Sisir Kumar Mohanty and others versus State of Orissa and others, reported in AIR 2002 SC page 2314 is relevant in the facts of the present case. Relevant observations made in para 10 and 12 of the said judgment are reproduced as under:
"10. xxx The submissions advanced no doubt require a serious consideration as to the true interpretation of the resolution - no addition or deletion can ever be said to be permissible as otherwise an order which happen to be bad at the beginning may through the process of affidavits gets validated by additional grounds later brought out : As a proposition of law, there cannot be any manner of doubt in regard thereto. The effect of the resolution shall have to be judged on the basis of the document itself and no other external aid is permissible. xxxxx
12.xxxxx xxxxx As the position is well settled that while interpreting statutes/government orders, they have to be read as a whole and construction given has to be a harmonious one, considering the resolution as a whole we are firmly of the view that that the contention of the petitioners that a single cadre for all police ministerial officers irrespective of the office / level they were working had been created under this resolution cannot be accepted. Consequently, we also conclude that there is no force/merit in the contention of the petitioners that they were entitled to be considered for promotion for posts occurring in the higher ranks in the office of D.I.G./ I.G./ D.G.P. after this Resolution was issued.
21. The above view and the ratio laid down by the apex court in the above decision is fully applicable to the facts of the present case. If the Government Resolution dated 5.7.1991 is read as it is without aid of the Government Resolution dated 16.10.1993, the selection grade was not at all included. Therefore, it apply to only senior scale and not the selection grade. The scheme of senior scale is superseded as per item no. (xvii) of the GR dated 5.7.1991. But no such provision is made for selection grade because both are different and distinct benefits. Therefore, both are different and distinct benefits. Therefore, original petitioners are entitled for both benefits of selection grade and higher grade. No option is necessary.Therefore, the Government Resolution dated 16.10.1993 itself is contrary to the Government Resolution dated 5.7.1991 in so far as it is relating to the selection grade.
22. Therefore, considering the observations made by the apex court in the aforesaid decision, at the time when the GR dated 5thJuly,1991 was issued, there was no mention made by the State Government that it will apply also to the selection grade and subsequently the State Government by way of clarification/amendment in the form of GR dated 16th October, 1993 included the selection grade too which was not there at all in the original GR dated 5th July, 1991 and, therefore, the clarification/amendment as per GR dated 16th Oct. 1993 is contrary to the original GR dated 5/7/1991 and it is not applicable to the employees those who have already availed the benefits under the GR dated 5th July, 1991. It is also relevant to be noted that whatever clarification and amendment issued by the Government is not binding to the Court. The Court has to see the original resolution first and if the original resolution is having any ambiguity, then, the court can consider the clarification. Here, considering item (xv) of the GR dated 5th July, 1991, this court is of the view that there is no ambiguity of any nature whatsoever and as such, clarification qua item No. (xv) of the GR dt. 5.7.1991 is totally inapplicable to the facts of the present case. Bare reading of item (xv) and (xvii) of the GR dated 5th July, 1991, it is clear that the option has been provided to the employees who were receiving the senior scale because that scheme was superseded by GR dated 5th July, 1991. Thus, it can be said that the said GR dated 5th July, 1991 is not superseding the selection grade. Senior Scale and the Selection Grade both are different and distinct things and both are independent rights received by the employees because of their service conditions. Senior scale is having connection with the length of service whereas the higher grade is also having connection with length of service but the selection grade is not having connection with the length of service and, therefore, the employees those who are receiving senior scale may not be entitled for double benefit by getting higher grade because both are relating to, ultimately, depending upon the length of service and, therefore, double benefit can be covered but the selection grade is not based on the length of service but it is based on 20 per cent quota of the existing posts and, therefore, according to my opinion, the clarification issued by the Government vide GR dated 16.10.1993 in respect of item no. (xv) of the GR dated 5th July, 1991 is totally contrary to the scheme of the GR dated 5th July, 1991 as regards selection grade.
23. It is also necessary to consider one submission made by Mr. Munshaw as well as Ms. Mandavia and Mr. Supehia regarding condition mentioned in the GR dated 16th August, 1994 that those teachers who have retired prior to 16th August, 1994, in their case, no recovery has to be ordered and their salary will not be refixed by he department but in case if any teacher has retired upto 31st July, 1994 but has not received higher grade benefit because of the administrative reason, then, that teacher is entitled for such benefit according to the GR dated 5th July, 1991 and accordingly their pension is required to be fixed. It is the submission of Mr. Munshaw as well as Ms. Mandavia on behalf of the Panchayat authorities in these review applications that this recovery and refixation of salary is pertaining to the applicability of the GR dated 16th August, 1994 because of change in their higher grade 9-18-27 to 9-20-31, whatever refixation, if resulted in recovery, then only, recovery orders cannot be issued but in other cases, the Government is entitled to recover the amount from the employees. According to my opinion, said interpretation sought to be made by the learned advocate Mr. Munshaw as well as Ms. Mandavia that the teacher who has retired prior to 1st August, 1994 is not governed by the GR dated 16th August, 1994 and, therefore, their salary is required to be refixed is apparently incorrect and such question cannot arise at all. The GR dated 16th August, 1994 is applicable only to the teachers those who are in service at the relevant time but who retired prior to 1st August, 1994, that resolution is not applicable and, therefore, question of refixation of their salary as per the said GR and then recovery etc. are the imaginary questions. In reality, such questions are contrary to the said GR itself. According to my opinion, this will not apply to the teachers who have retired prior to 1st August, 1994 and would get the benefit under GR dated 5th July, 1991. The Recovery Orders which have been issued by the Department only by relying upon the GR dated 16th October, 1993 are illegal in respect to the petitioners. In case if any recovery is required, then, no recovery has to be made and ordered and refixation of salary also not permissible as this clause is applicable to the facts of the petitioners. Naturally, all the petitioners were receiving the benefit of selection grade and higher grade as per GR dated 5.7.1991 and they are not required to give any option because selection grade and higher grade both are different and distinct from each others and the petitioners are entitled for both and yet the department has obtained option, refixed their salary as per GR dated 16.10.1993 which has resulted into recovery from the pension of the petitioners and, therefore, the petitioners filed the aforesaid petitions before this court. According to my opinion, said exercise of the respondents is totally illegal and contrary to the GR dated 5.7.1991 as well as the conditions incorporated in the GR dated 16th August, 1994. I am of the opinion that the respondents have erroneously interpreted clause (xv) and (xvii) of the GR dated 5.7.1991 while keeping in view the clarification dated 16th October, 1993. In fact, according to this Court's opinion, such clarification dated 16th October, 1993 itself is wrong, illegal and contrary to the Scheme of the GR dated 5.7.1991. I am of the opinion that if that clarification is correct, then, there must be provision in the GR dated 5.7.1991 superseding the Scheme of Selection Grade too but the same is lacking in the GR dated 5.7.1991. I am of the opinion that the conjoint reading of the GR dated 5.7.91, item no. (xv) and (xvii) thereof in particular makes it clear that it is relating to senior scale and not the selection grade and therefore, according to my opinion, the submissions made by Mr. Munshaw as well as Ms. Mandavia in that regard cannot be accepted and the same are, therefore, rejected for the reason that as regards those who have retired prior to 1st August, 1994, the Government has no power to recover any amount and the Government is also not having any power to refix their salary. There is also an object why these provisions have been made because by implementing the GR dated 16th August, 1994, whole GR dated 5th July, 1991 has been amended by the Government meaning thereby, that after scraping of the GR dated 5th July, 1991 by GR dated 16th August, 1994, the GR is applicable and then, the question would arise about refixation and recovery as a consequence thereof but as regards those who have retired prior to 1st August, 1994, in their respect, question of refixation and recovery thereof cannot arise as the GR dated 16.8.1994 is not applicable to the petitioners and, therefore, according to my opinion, the respondents are not entitled to recover any amount from the petitioners and they are not entitled to refix the salary on the basis of the said clarificatory resolution dated 16.10.1993.
24. In view of the above observations and considering the entire facts and circumstances, considering the scope of Order 47, Rule (1) of the Code of Civil Procedure, according to my opinion, the review applications filed by the Panchayat authorities are not maintainable in view of the aforesaid discussion and also in view of the fact that they are not satisfying the requirements of Order 47, Rule (1) of CP Code. I am of the opinion that there is no merit in any of the contentions raised by the learned advocate Mr.Munshaw and Ms. Mandavia on the ground that the clarification dated 16th October, 1993 is not incorrect and the same is contrary to item no. (xv) and (xvii) of the GR dated 5th July, 1991 and, therefore, clarification in the form of GR dated 16th October, 1993 is not applicable to the petitioners and para (xv) and (xvii) of the GR dated 5th July, 1991 is relating to only senior scale and not relating to the selection grade and the petitioners are entitled for both the benefits namely selection grade as well as higher grade under GR dated 5th July, 1991 and it was rightly granted initially by the department to the petitioners and was rightly enjoyed by the petitioners. Hence all these applications for review filed by the Panchayat authorities are dismissed. It is directed to the original respondents to comply with the directions issued by this Court by order dated 19.12.2001 in letter and spirit within six weeks from the date of receipt of copy of this order. In the facts and circumstances of the case, there shall be no order as to costs.
25. In view of the aforesaid orders and directions, applications filed by the original petitioners for implementation of the orders dated 19.12.2001 are also disposed of since further time has been granted by this court as aforesaid. In the facts and circumstances of the case, there shall be no order as to costs.