Gujarat High Court
Salot vs State
Author: Harsha Devani
Bench: Harsha Devani
MCA/351/2012 14/ 14 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD MISC.CIVIL APPLICATION - FOR DIRECTION No.351 of 2012 In CIVIL REVISION APPLICATION No.259 of 2010 ========================================= SALOT MAKSUD AMADBHAI - Applicant(s) Versus STATE OF GUJARAT & 6 - Opponent(s) ========================================= Appearance: PARTY-IN-PERSON for Applicant(s): 1, MR BIPIN BHATT, ASSISTANT GOVERNMENT PLEADER for Opponent(s): 1, NOTICE SERVED BY DS for Opponent(s): 1 - 3,5 - 7. MR DG SHUKLA for Opponent(s): 4, ========================================= CORAM : HONOURABLE MS. JUSTICE HARSHA DEVANI Date : 07/03/2012 ORAL ORDER
1. By this application, the applicant seeks modification or cancellation of direction issued by this court vide judgment and order dated 3rd February, 2011 made in Civil Revision Application No.259/2010 with Civil Application for stay No.15532/2010. Though various reliefs have been prayed for in the application, it appears that the applicant who appears in person seeks review of the earlier judgment passed by this court, inter alia, on the ground that the revision under section 115 of the Code of Civil Procedure (hereinafter referred to as 'the Code') was not maintainable against the impugned judgment and order dated 20th October, 2010 passed by the learned Additional District Judge and Presiding Officer, 2nd Fast Track Court, Rajkot in Civil Miscellaneous Appeal No.83/2010.
2. The applicant Dr. Salot Maksud Amadbhai who appears in person, invited attention to the order dated 3rd February, 2011 passed by this court whereby the captioned civil revision application has been disposed of with a direction to the trial court to decide the civil suit filed by the applicant herein preferably within a period of four months from the date of receiving a copy of the said order. It is further directed that the interim order passed by the court on 15th December, 2010 in terms of paragraph 5(B) of the said application shall continue till Regular Civil Suit No.80/2010 is finally decided by the Civil Judge (S.D.), Rajkot. The applicant submitted that by the said order, the revision stands virtually allowed without any decision on merits and despite the fact that the revision itself was not maintainable against the order impugned therein. The attention of the court was drawn to the fact that the order dated 20th October, 2010, which was subject matter of challenge in the revision before this court was passed by the learned Additional District Judge & Presiding Officer, 2nd Fast Track Court, Rajkot in Civil Miscellaneous Appeal No.83 of 2010 in an appeal against the order passed by the 13th Additional Senior Civil Judge, Rajkot on the application for interim injunction at Exhibit -5. Referring to section 115 of the Code and more particularly the proviso thereto, it was submitted that a revision is not maintainable under the said provision except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. It was submitted that considering the nature of the order which was subject matter of challenge in the civil revision application, even if the civil revision application were decided in favour of the respondents-original revisionists, the same would not have finally disposed of the suit and as such, the revision itself was not maintainable. It was further submitted that since against the order passed by the appellate court a writ petition could have been filed before this court, the applicant filed a caveat application in the proposed special civil application that may be filed by the respondents. However, the respondents instead of filing a writ petition under Article 227 of the Constitution of India filed the captioned civil revision application and obtained ex parte stay against the order passed by the appellate court. It was submitted that in the revision, the applicant herein had made an application seeking vacation of the ex parte order drawing the notice of the court to the fact the civil revision application itself was not maintainable. However, the said application came to be disposed of by the court vide order dated 19th January, 2011 on the ground that the main matter was coming up for hearing for admission as well as for interim relief on 25th January, 2011 and, therefore, the said application was not required to be entertained at that stage. Subsequently, by the order under review, the civil revision application came to be disposed of by directing the trial court to decide the suit within a period of four months as recorded hereinabove. It was submitted that apart from the fact that the court did not have jurisdiction to entertain the civil revision application, the trial court has not concluded the trial within a period of four months as directed by the High Court. It was submitted that the delay has occasioned on account of the respondents not supplying necessary documents to the applicant - plaintiff. It was submitted that under the circumstances, in the interest of justice, the order dated 3rd February, 2011 passed by this court in the above referred civil revision application is required to be reviewed as the court had no jurisdiction to pass such an order. It was submitted that the order under review having been passed on a civil revision application which was not maintainable, the same amounts to a mistake apparent on record warranting intervention in exercise of review jurisdiction.
3. It was further pointed out that the applicant herein was an adhoc tutor of Pharmacology and that his services had been terminated without following the principle of 'last come, first go'. It was submitted that several of his juniors have still been retained and he alone has been singled out and meted out discriminatory treatment.
4. Vehemently opposing the application, Mr. Bipin Bhatt, learned Assistant Government Pleader submitted that the application has been filed belatedly after a period of almost one year and as such, the application deserves to be dismissed on this ground alone. It was further submitted that the revision application was maintainable inasmuch as the proviso to section 115 of the Code says that a revision is maintainable where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. It was submitted that 'other proceedings' would include appellate proceedings and as such, the order passed by this court would finally dispose of the appeal proceedings and as such, the revision was maintainable under section 115 of the Code.
4.1 As regards the submission regarding the respondents having given a go-bye to the principle of "last come, first go" while terminating the services of the applicant, the learned Assistant Government Pleader referred to the affidavit filed by the Under Secretary, Health and Family Welfare Department in the present application wherein it has been averred from the list of persons supplied by the applicant who according to him have been retained though they were junior to him, the persons mentioned at serial number 3, 4, 7, 9, 10, 13, 15, 19, 24 and 25 have cleared GPSC examination and are selected. Those mentioned at serial number 5, 6, 8, 11, 12, 17 and 22 have not cleared the examination and hence are not selected. It is clarified that so far as the said persons are concerned, their ad hoc services will be terminated as and when GPSC advises them to terminate the same in accordance with the General Administration Department Circular. As regards the candidates mentioned at serial number 14, 18, 20, 21, 23 and 26, it has been submitted that they have not appeared in the GPSC examination after the appointment and hence they have been continued as adhoc appointees. It is further averred that the principle of 'last come first go' will not be applicable because ad hoc appointment is terminated as and when it is advised by the GPSC to do so. That a proposal was made by the Health and Family Welfare Department to the GPSC for continuation of ad hoc service of the applicant, however the GPSC did not agree to the said proposal and advised the State Government to terminate the ad hoc service of the applicant because the applicant had not cleared the GPSC examination held in relation to Advertisement No.98/2007-2008.
4.2 Referring to the order dated 17th December, 2009 made by this court in Miscellaneous Civil Application No.1663/2007 at page 1574 wherein an application had been made before this court to review and/or recall its order dated 4th August, 1999 passed in Special Civil Application No.404 of 1986 and to restore the said special civil application to file and thereafter consider the same in accordance with law and on merits, it was submitted that the court in the facts of the said case restored the special civil application and directed the Registry to notify the same for hearing. It was submitted that similar treatment be accorded in the present case and at best, the court may recall the earlier order and restore the civil revision application on file to be decided on merits.
5. Mr. D.G. Shukla, learned advocate appearing on behalf of the respondent No.4 - Gujarat Public Service Commission has denied the averments made in the above-referred affidavit-in-reply filed on behalf of the respondents No.2 and 3 wherein, it is stated that so far as the persons mentioned at serial number 5, 6, 8, 11, 12, 17 and 22 of the list of officers serving as ad-hoc Pharmacology Tutor (Class-2) in Government Medical College of Gujarat State as furnished by the applicant along with the present application are concerned, their ad hoc services will be terminated as and when GPSC advises to terminate in accordance with para 2(6) of General Administration Department Circular dated 27th August, 1997. Mr. Shukla submitted that it is for the Government to approach the GPSC with details regarding the candidates who have not cleared the GPSC examination and thereafter terminate their services. That it is only after the Government approaches the GPSC with the names of candidates that the GPSC advises it whether or not to terminate the services of a particular candidate in accordance with the said circular. It was submitted that in the present case, the Government has not approached the GPSC in respect of the above referred candidates and as such, the question of GPSC advising the Government to terminate the services of the applicant alone does not arise and that, no such advice has been given by the GPSC.
6. The facts as appearing from the record indicate that the applicant herein had challenged the termination of his services by instituting a suit in the court of the learned Additional Senior Civil Judge being Regular Civil Suit No.80/2010. In the said suit, the applicant moved an application Exh.5 with a prayer to grant interim relief against the order of termination. The said application came to be rejected vide order dated 14th July, 2010 passed by the learned Additional Senior Civil Judge, Rajkot. The applicant carried the matter in appeal before the learned Additional District Judge and Presiding Officer, 2nd Fast Track Court, Rajkot in Civil Miscellaneous Appeal No.83/2010 who by a judgment and order dated 20th October, 2010 set aside the order passed by the trial court and granted interim injunction in terms of paragraph 2 of the application till final disposal of the suit. Against the said order, the respondents herein filed the captioned civil revision application.
7. Thus, it is apparent that what was subject matter of challenge before this court was an order passed by the first appellate court setting aside an order refusing to grant interim relief. The applicant herein moved an application for vacation of interim relief granted by this court, specifically contending that a revision was not maintainable against an order granting interim injunction in favour of the applicant - plaintiff. The said application was not decided as the main matter was to come up for hearing within a short period. However, when the main matter came up for hearing the court instead of deciding the same on merits, disposed of the revision by directing the trial court to decide the suit within a period of four months from the date of receipt of a copy of the said order and further directed that the interim relief granted earlier shall continue till the final disposal of the suit. Thus, in effect and substance, the civil revision application stood allowed without deciding the same on merits. However, unfortunately for the applicant, the matter did not rest there, as the civil suit also could not be disposed of within the time frame stipulated by this court, resulting in irreparable injury to the applicant as delineated hereinafter. From the submissions made by the learned advocate for the GPSC, it appears that the applicant in the year 2005-2006 had cleared the GPSC examination and was called for oral interview and was selected and declared passed but his name was kept on the waiting list, which was in force till 4th June, 2008. However, the applicant at the relevant time was not appointed against any permanent post. Thereafter he had once again appeared in the examination and cleared the written examination, and appeared for oral interview but was not selected. It appears that the applicant once again appeared for the examination held by the GPSC and cleared the written examination. However, since in the meanwhile his services were terminated and in view of the interim order passed by this court in the captioned revision application, there was no interim relief operating in his favour, the applicant was treated as being over age and not permitted to appear in the oral interview. Had the applicant been in service, he would be entitled to relaxation of age and would have been permitted to appear in the oral interview. Thus, though the applicant had succeeded on merits before the appellate court, the non-deciding of the revision application on merits appears to have caused irreparable injury to the applicant as the said examinations are now over and he has lost his chance to appear in the oral interview and now the respondents are in the process of filling up the vacancy on account of termination of his service. It is in the aforesaid backdrop, that the applicant has filed the present review application.
8. Examining the case on merits, the review has been filed mainly on the ground that there is an error apparent on the face of the record inasmuch as the civil revision application was not maintainable. Section 115 of the Code postulates that the High court may call for the record of any case which has been decided by any court subordinate to such high court and in which no appeal lies thereto, and if such subordinate court appears to have (a) exercised a jurisdiction not vested in it by law, or (b) failed to exercise a jurisdiction so vested, or (c) acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit. However, the proviso thereto lays down that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding.
9. Examining the facts of the present case in the light of the aforesaid statutory provision, what was subject matter of challenge before the appellate court was an order passed by the trial court refusing to grant interim injunction in the suit instituted by the applicant - plaintiff. The appellate court reversed the judgment of the trial court and granted an interim injunction. It is settled legal position that appeal is a continuation of the suit. Under the circumstances, the provisions of proviso to section 115 of the Code have to be construed accordingly. As is evident from the facts on record, the civil revision application though was not disposed of on merits, amounted to allowing the application in favour of the respondents herein as the interim injunction granted by the appellate court was stayed till the final disposal of the suit. Thus, it is evident that though the order passed by this court was made in favour of the party applying for revision, the same did not finally dispose of the suit. The contention that the order which was subject matter of challenge before this court was an order passed by the appellate court which would fall within the ambit of words 'other proceedings' as envisaged under the proviso to section 115 and that the said proceeding had been brought to an end, is required to be stated only to be rejected. It is apparent that upon the appellate court passing the order which was the subject matter of challenge in the revision, the appeal proceedings stood disposed of. It is not as if the order passed by this court in the captioned revision application had finally disposed of the appeal proceeding. The applicant is, therefore, fully justified in contending that the revision itself was not maintainable and as such any order passed thereon was without jurisdiction.
10. Section 114 read with Order XLVII of the Code make provision for review. Rule 1 of Order XLVII lays down that any person considering himself aggrieved by a decree or order referred to therein, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the order. The present review has been filed on the ground that the order made by the court in the captioned civil revision application suffers from an error apparent on the face of the record, inasmuch as the revision itself was not maintainable and as such, no order could have been passed thereon by this court, as well as on the ground that the court had not decided the revision on merits under the belief that the same would be decided within the stipulated time limit, however, since the trial is not yet over despite the said period having elapsed and is not likely to be over in the near future, there is sufficient reason to review the earlier order passed by the court.
11. The Supreme Court in the case of Inderchand Jain vs. Motilal, (2009) 14 SCC 663, has held that 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. The court further held that 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. It was further observed that 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.
12. In the facts of the present case, it is apparent that there is an error apparent on the face of record insofar as the judgment which is subject matter of review is concerned, inasmuch as when the revision itself was not maintainable, this court did not have the jurisdiction to pass any order disposing of the application with directions to the trial court to dispose of the suit within a stipulated time frame and continuing ex parte interim relief earlier granted in favour of the revisionists. Moreover, rule 1 of Order XLVII of the Code also contemplates filing of a review for any other sufficient reason. From the facts noted hereinabove, which are self speaking, it is apparent that there was sufficient reason for filing the present review inasmuch as the applicant has been highly prejudiced by non-deciding of the revision on merits as well as subsequent delay in adjudication of the suit. In the present case, as noted hereinabove, initially the judgment and decree of the appellate court granting interim relief in favour of the applicant came to be stayed by an ex parte order and subsequently, the revision had been virtually allowed without the same being decided on merits, by directing the trial court to decide the suit within a stipulated time frame. Thus, at no point of time the applicant was given any opportunity to address the court on the question of grant of interim relief or on the merits of the revision. To compound the miseries of the applicant, the suit could not be decided within the stipulated time frame on account of non-cooperative attitude of the respondents, inasmuch as the necessary documents requested for by the applicant had not been furnished and he had to make applications under the Right to Information Act for obtaining the same, which consumed considerable time. In the interregnum, as noticed earlier, the applicant has not been permitted to appear in the oral interview on account of being over age. Thus, this is a fit case for review of the earlier order passed by this court disposing of the main civil revision application firstly on the ground that there is a mistake apparent on the face of the record inasmuch as the court lacked jurisdiction to entertain and decide the revision; and secondly on the ground that there is sufficient reason to review the said order for the reasons set out hereinabove.
13. It may be noted that the applicant, though has made submissions only on merits, has without expressly stating before the court, given an indication as to why he has been singled out for such discriminatory treatment. On a perusal of the name of the applicant and the names of the persons who, though junior to him have been retained, the reason for such discriminatory treatment is evident, which is highly unfortunate.
14. In the light of the aforesaid discussion, this court is, of the view that this is a fit case for exercise of powers of review under section 114 of the Code. The application, therefore, succeeds and is accordingly allowed. The order dated 3rd February, 2011 passed by this court in Civil Revision Application No.259/2010 with Civil Application No.15532/2010 is hereby recalled. On merits, it is held that the civil revision application against an order of the first appellate court allowing an application for interim injunction would not be maintainable in the light of the proviso to section 115 of the Code. The civil revision application, therefore, is rejected as not maintainable. The interim relief granted earlier stands vacated. Consequently, the order dated 20th October, 2010 passed by the learned Additional District Judge and Presiding Officer, 2nd Fast Track Court, Rajkot in Civil Miscellaneous Appeal No.83/2010 would stand revived.
15. At this stage, Mr. Bipin Bhatt, learned Assistant Government Pleader seeks permission to convert the civil revision application into a special civil application. In the facts and circumstances of the case, the request is declined. Needless to state that it is always open for the respondents to file appropriate proceedings including a writ petition under Article 227 of the Constitution challenging the judgment and order dated 20th October, 2010 passed by the learned Additional District Judge and Presiding Officer, 2nd Fast Track Court, Rajkot in Civil Miscellaneous Appeal No.83/2010 and seek exclusion of the time taken in prosecuting the present revision application, if the question of delay in filing the said proceeding arises.
( Harsha Devani, J. ) hki