Orissa High Court
Section 151 Of Civil Procedure Code vs Commissioner-Cum- Secretary To .... ... on 8 August, 2025
Author: S.K. Panigrahi
Bench: S.K. Panigrahi, G. Satapathy
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 20-Aug-2025 13:31:03
IN THE HIGH COURT OF ORISSA AT CUTTACK
RVWPET No.121 of 2024
(In the matter of an application under Order 47 Rule 1 read with
Section 151 of Civil Procedure Code, 1908)
Smt. Amrita Das .... Petitioner(s)
-versus-
Commissioner-cum- Secretary to .... Opposite Party (s)
Government of Odisha, Health &
F.W. Department &Ors.
Advocates appeared in this case through HybridArrangement Mode:
For Petitioner(s) : Mr.Bhabani Sankar Tripathy, Adv.
For Opposite Party(s) : Mr. Saswat Dash, AGA
CORAM:
DR. JUSTICE S.K. PANIGRAHI
MR. JUSTICE G. SATAPATHY
DATE OF HEARING:-08.05.2025
DATE OF JUDGMENT: -08.08.2025
Dr. S.K. Panigrahi, J.
1. In this Review Petition, the Petitioner seeks recall of the judgment dated 09.04.2024 passed in W.P.(C) No. 10087 of 2021, on the ground that her past NRHM service was wrongly excluded from consideration for regularization, despite binding departmental resolutions and judicial precedents that were not placed before the Court.
I. FACTUAL MATRIX OF THE CASE:
2. Petitioner was appointed as a contractual Staff Nurse under the NRHM Scheme on 21.08.2009 at SDH, Bhanjanagar. She continued Page 1 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 20-Aug-2025 13:31:03 under the NRHM scheme till 12.07.2012. On 12.07.2012, she was appointed by OP No.3 on contractual basis under General Healthcare, which continued from time to time.
3. Petitioner filed OA No. 982/2016 before the Odisha Administrative Tribunal (OAT) seeking regularization of her service from 21.08.2015. She relied on the GA Dept. Resolution dated 17.09.2013 read with 16.01.2014, and H&FW Resolution dated 21.09.2010, which allowed counting NRHM service for regularization.
4. On 11.10.2018, the OAT dismissed her claim, holding that NRHM service cannot be counted towards the 6-year period required for regularization. However, the Tribunal directed that her service from 13.07.2012 under General Healthcare could be counted for regularization.
5. Petitioner challenged the Tribunal's decision in WP(C) No. 10087/2021. She relied on a common judgment dated 02.01.2019 in OA Nos. 1901(C), 1902(C), and 1903(C) of 2017, where the Tribunal had upheld regularization of similarly situated Staff Nurses by counting NRHM service.
6. The State challenged the Tribunal's decision in favour of similarly placed Staff Nurses by filing three separate writ petitions, WP(C) No. 19896/2021 (Rashmita Swain), WP(C) No. 19898/2021 (Minati Kumari Sahoo), and WP(C) No. 20042/2021 (Anuradha Mishra), which were all dismissed on merits by the Division Bench of this Court on 08.03.2022 and 28.03.2022 respectively (Annexure-4 Series). Thereafter, Page 2 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 20-Aug-2025 13:31:03 the State preferred Special Leave Petitions bearing SLP(C) Nos. 19050, 19051, and 19575 of 2022, which were also dismissed by the Supreme Court on 02.11.2022 and 09.11.2022, thereby upholding the decisions granting regularization by counting service rendered under NRHM.
7. Review is sought of the judgment dated 09.04.2024 in WP(C) No. 10087/2021, which dismissed the petitioner's writ petition.
II. PETITIONER'SSUBMISSIONS:
8. Learned counsel for the Petitioner(s) earnestly made the following submissions in support of his contentions:
(a) The High Court failed to consider H&FW Department Resolutions dated 27.12.2008 and 21.09.2010, which expressly permitted counting NRHM service towards regularization.
(b) The petitioner was not aware of the dismissal of SLPs by the Supreme Court and writ petitions by the High Court at the time of the writ hearing on 09.04.2024, despite due diligence.
(c) The judgment under review erroneously relied upon inapplicable precedents, namely Chandra Sekhar Sahoo v. State of Odisha, which pertained to a Sikhya Sahayak and not a Staff Nurse, and Dhyan Singh v. State of Haryana (2022) 10 SCC 656, which involved a distinct and unrelated factual matrix, thereby rendering their application to the present case legally untenable.
(d) The case of the petitioner is squarely covered by the binding precedents in the cases of Rashmita Swain, Minati Kumari Sahoo, and Page 3 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 20-Aug-2025 13:31:03 Anuradha Mishra, where counting of NRHM service was upheld by both this Court and the Supreme Court.
(e) The question whether NRHM service can be counted is no longer res integra, having been settled conclusively in favour of similarly situated staff.
(f) Established legal principle: "non-consideration of vital material documents or evidence" or "error apparent on the face of the record"
are valid grounds for review under Order 47 Rule 1 CPC. III. ANALYSIS OF THE JUDGMENT IN WP(C) NO. 10087 OF 2021:
9. Learned counsel for the Opposite Parties earnestly made the following submissions in support of his contentions:
(a) The Court held that the petitioner's service under the NRHM (schematic engagement) could not be considered for regularization, as such engagement falls outside the purview of regular contractual service eligible for regularization under government policy.
(b) The Court relied on its earlier decision in Chandra Sekhar Sahoo v.
State of Odisha and the Supreme Court's ruling in Dhyan Singh v. State of Haryana1, both of which held that past service under a scheme-based appointment cannot be counted for regularization.
(c) The Court found no legal infirmity in the Tribunal's reasoning and conclusion that only service rendered under General Healthcare, and not under NRHM, could be considered for computing the qualifying period for regularization.
1 (2022) 10 SCC 656 Page 4 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 20-Aug-2025 13:31:03
(d) Since the legal position on this issue was deemed settled, the Court concluded that the petitioner's writ petition lacked merit and thus warranted no interference with the impugned Tribunal order. IV. COURT'S REASONING AND ANALYSIS:
10. Having given our anxious consideration to the rival submissions and carefully examined the record, this Court is of the opinion that the review petitioner has made out valid grounds for review. The impugned judgment appears, on its face, to have overlooked critical materials and to have proceeded on a legal premise that is inconsistent with binding authority. This calls for corrective intervention under the limited but important scope of review jurisdiction to secure the ends of justice.
11. At the outset, it is useful to recapitulate the scope of review under Order 47 Rule 1 CPC. A review is not an appeal; it cannot be used for mere re-appreciation of evidence or to relitigate issues that the Court has already decided. However, if there is a patent error or omission in the judgment, or if significant new evidence emerges that was not available earlier, the Court has the power, and indeed the duty, to correct such an error.
12. The Supreme Court in Parison Devi v. Sumitri Devi2 has underscored that a mistake or error apparent on the face of the record is a valid ground for review, but an error that needs long-drawn reasoning to expose would not qualify. The relevant excerpts are produced below: 2
(1997) 8 SCC 715 Page 5 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 20-Aug-2025 13:31:03 "Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has limited purpose and cannot be allowed to be "an appeal in disguise."
13. Likewise, in the case of State of West Bengal v. Kamal Sengupta3 clarifies that an error must be manifest and self-evident, not one that can only be detected by a process of elaborate reasoning. The relevant excerpt is produced below:
"An error contemplated under the Rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. In other words, it must be an error of inadvertence. It should be something more than a mere error and it must be one which must be manifest on the face of the record."
14. Crucially, failure to consider a material fact or document that is part of the record can amount to an error apparent, as it implies a glaring omission that strikes at the correctness of the judgment. Additionally, the discovery of new and important matter or evidence, which despite due diligence was not within knowledge or could not be produced earlier, is a distinct ground for review. The third catch-all ground, "any other sufficient reason", has been judicially interpreted to mean reasons analogous to the first two grounds, e.g. to prevent a 3 (2008) 8 SCC 612 Page 6 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 20-Aug-2025 13:31:03 miscarriage of justice or to correct a palpable wrong. In this background, we proceed to examine the petitioner's grounds.
15. On perusal of the judgment under review it is evident that the H&FW Department Resolution dated 21.09.2010, as well as the earlier 27.12.2009 resolution, received no discussion or mention. This is a striking omission, considering that the entire case of the petitioner was premised on these resolutions. The 2010 Resolution constitutes the heart of the matter, it is the rule that, according to the petitioner, gives her the right to count NRHM service for regularization. Indeed, the Tribunal's decisions in favor of other nurses, later affirmed by this Court, explicitly relied on that resolution's contents. By not addressing this resolution, the Single Judge's reasoning remained incomplete and, with due respect, misdirected.
16. The Court reasoned that NRHM being a scheme, service under it cannot be counted, a principle derived generally from case law, but failed to consider that the State itself had made a specific exception/clarification through the 2010 policy for health staff. This Court finds that such an omission is apparent on the face of the record. The resolution was part of the petitioner's documents and formed a "vital material" in adjudicating her rights. Non- consideration of a policy that is directly applicable is the quintessential example of an error that can be corrected in review. It is not a matter of second-guessing the Court's view on facts, but a clear legal misstep: the Court decided the case without reference to the Page 7 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 20-Aug-2025 13:31:03 governing rule. This satisfies the test of an error apparent, as it does not require any inferential leap, one look at the case file and the applicable government orders would reveal the oversight.
17. Moreover, the impact of considering the 2010 Resolution is significant. That resolution, in unequivocal terms, directed that if a contractual employee under H&FW Dept had prior service in a scheme like NRHM before being brought into the regular fold, such past service would count towards the length of service for regularization (subject to verification and fitness), effectively treating the engagement as continuous. This policy decision by the State government distinguished Odisha's situation from the generic scenario in Dhyan Singh (Supra). It created a legitimate expectation among employees like the petitioner that their entire service would be honored for regularization. By disregarding this, the impugned judgment, with respect, fell into error.
18. The reliance on Dhyan Singh (Supra) by the Division Bench needs to be viewed in context. In that case, the Supreme Court dealt with a scenario where employees of a project scheme were terminated on closure of the scheme and later given fresh appointments; those employees sought counting of their past service for pay fixation and pension. The Supreme Court held that in absence of any specific rule or promise, scheme service cannot be counted for such benefits, as scheme posts are not part of the regular cadre. This Court finds that the principle from Dhyan Singh (Supra) while undoubtedly correct in Page 8 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 20-Aug-2025 13:31:03 a general sense, does not apply straightaway to the petitioner's case. The crucial difference is the presence of a specific rule or promise here: the H&FW Department's resolutions of 2008/2010 are that promise by the employer (State of Odisha) which was absent in Dhyan Singh(Supra). In fact, the Supreme Court in that case acknowledged that in Haryana, the absorption was treated as fresh appointment with no claim of past service except for pension, as explicitly stated in appointment letters and policy. Contrast that with Odisha's policy which, far from denying credit for past service, explicitly allowed it for the purpose of regularization, though not necessarily for seniority or pension, which are separate issues.
19. Thus, the Dhyan Singh (Supra) ruling is distinguishable on facts and law. Applying it without noting the contrary local policy was a mistake. Similarly, Chandra Sekhar Sahoo (Supra) did not consider the H&FW Dept's 2010 resolution (which was not relevant to that case) and was dealing with a different department and scheme. That decision cannot override the specific policy applicable to Staff Nurses in the Health Department. Therefore, the impugned judgment's heavy reliance on those two precedents, to the exclusion of the more pertinent ones, is misplaced. This legal misapplication is apparent from the record and led to an erroneous dismissal of the writ petition.
20. Perhaps the most compelling ground is the failure to consider the coordinate Bench judgments of this Court which had settled the issue in favour of counting NRHM service. By the time the Division Bench Page 9 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 20-Aug-2025 13:31:03 decided in W.P.(C) No.10087/2021 in April 2024, the Division Bench's decisions in Rashmita Swain, Minati Sahoo, Anuradha Mishra (Supra) were extant and binding. In those cases, the High Court examined the same policy framework and fact pattern, and upheld the right of Staff Nurses to have their NRHM tenure counted. For instance, the Division Bench explicitly held that, pursuant to the H&FW Dept Resolution dated 21.09.2010, the past service rendered under NRHM must be counted toward the six-year period necessary for regularization, if the staff nurse was later absorbed against a regular contractual post. It was also clarified that the subsequent GA Dept resolutions of 2013-14 would not apply retrospectively to take away benefits from those who were appointed when the earlier policy was in force. The Division Bench found the State's action of shifting the regularization date by excluding NRHM service to be unsustainable and directed restoration of the earlier dates with consequential benefits.
21. In light of these binding pronouncements, the question of counting NRHM service was not open to be re-decided differently by a co- ordinate court. The doctrine of stare decisis and judicial comity mandated that the Division Bench follow the Division Bench's interpretation of the policy. The failure to adhere to these precedents, presumably because they were not cited to the Court, constitutes an error apparent on the face of the record. It is not a mere possibly wrong decision but a decision given in ignorance of binding law, Page 10 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 20-Aug-2025 13:31:03 which qualifies as per incuriam. Our legal system provides the review mechanism precisely to correct such slips. It would be a travesty to let stand two sets of judgments in the same High Court taking diametrically opposite views on the identical issue of NRHM service counting, especially when one set has been affirmed by the Apex Court. On this ground as well, the petitioner is entitled to review.
22. The dismissal of the State's SLPs by the Supreme Court in November 2022, though coming in the form of a non-speaking order, is a significant development that cemented the finality of the Division Bench judgments. The petitioner's assertion that she was not aware of this at the time of hearing her writ in 2024 is credible, given that such orders are sometimes not widely reported or communicated promptly. These dismissal orders, copies of which have now been produced in the review, qualify as new and important matter in the sense of Order 47 Rule 1, they are evidence of the law having been settled in the highest court in comparable matters. While a non- speaking dismissal of an SLP does not amount to a binding precedent, it does mean that the High Court's decision stood undisturbed and the State's arguments were not accepted by the Supreme Court. In practical terms, it removed any uncertainty about the legitimacy of counting NRHM service. Had this fact been conveyed to the Single Judge, it is reasonable to assume it would have materially influenced the outcome. Thus, the later discovery of this fact reinforces the need Page 11 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 20-Aug-2025 13:31:03 for review, it can be catalogued under any other sufficient reason to prevent injustice.
23. In sum, this Court finds that the judgment dated 09.04.2024 suffers from manifest errors: (a) it did not consider the applicable departmental resolutions and binding case-law, and (b) it applied distinguishable precedents in a situation governed by a special policy. These errors are apparent on the face of the record and have led to an erroneous dismissal of a meritorious claim. Permitting the judgment to stand would perpetuate an injustice to the petitioner, who would remain singled out unfairly, even as her peers have obtained regularization with the benefit of their full service. The Supreme Court has observed that a review is justified if it is necessary to correct an order based on a palpably wrong premise or to prevent a miscarriage of justice. This is one such case.
24. Before concluding, it is worth addressing a concern: the State's counsel argued that the review would open a floodgate or that the petitioner's initial appointment under NRHM was not under a sanctioned government post and thus cannot be regularized. This Court is not persuaded by that argument, because the very intent of the 2010 Resolution was to give value to those services for regularization precisely upon absorption against sanctioned posts. The petitioner's absorption in 2012 was against a regular sanctioned post, contractual Staff Nurse in the government hospital. Once that absorption happened, the policy steps in to say her prior scheme Page 12 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 20-Aug-2025 13:31:03 service will count towards the period of eligibility. There is no illegality or constitutional infirmity in such a policy; it is rather in furtherance of the equitable one-time measures encouraged (though with caution) by the Supreme Court in Secretary, State of Karnataka v. Umadevi4 and State of Karnataka v. M.L. Kesari5. Here, the State itself crafted the scheme for regularization, the Court is merely ensuring its fair implementation. Additionally, this Court must uphold consistency, the law as interpreted in 2022 by the Division Bench should be uniformly applied. Denying this petitioner the same benefit would not only violate Article 14 but also erode public confidence in the uniform application of law.
V. CONCLUSION:
25. For the reasons stated above, we find that the present Review Petition merits acceptance on grounds of error apparent on the face of the record and non-consideration of binding precedents and material resolutions. The judgment dated 09.04.2024 in W.P.(C) No. 10087 of 2021 is accordingly reviewed and recalled, and the writ petition is restored and allowed on merits. The order dated 11.10.2018 passed by the Odisha Administrative Tribunal in O.A. No. 982/2016 is set aside, and it is directed that the petitioner's service from 21.08.2009, including her period under NRHM, shall be treated as continuous for the purpose of regularization. The respondents are directed to regularize the petitioner's service with effect from 21.08.2015, being 4 AIR 2006 SUPREME COURT 1806 5 AIR 2010 SUPREME COURT 2587 Page 13 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 20-Aug-2025 13:31:03 the date immediately following completion of six years from her initial engagement.
26. The petitioner shall be entitled to notional seniority and pay fixation from the said date. However, no arrears of salary shall be payable for the period prior to the issuance of actual regularization orders, in line with the relief granted in similarly placed cases. If already regularized, the petitioner's service record shall be revised accordingly, and her pay and benefits refixed to reflect continuity from 21.08.2015. The entire exercise shall be completed within three months from the date of communication of this order. The authorities are further directed to apply this ruling uniformly to similarly situated employees, so as to avoid multiplicity of litigation.
27. Accordingly, this RVWPET is disposed of.
28. There shall be no orders as to costs.
(Dr. S.K. Panigrahi) Judge G. Satapathy, J.I agree.
(G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 8th August, 2025/ Page 14 of 14