Uttarakhand High Court
Dr. Sanjay Singh Chauhan vs State Of Uttarakhand on 21 June, 2024
Bench: Manoj Kumar Tiwari, Pankaj Purohit
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Review Application No. 7265 of 2023
Review Application No. 7268 of 2023
In
Writ Petition (S/B) No. 484 of 2014
Dr. Sanjay Singh Chauhan
And Others ...Petitioners
Versus
State of Uttarakhand
and Others ...Respondents
Mr. Arvind Vashistha, Sr. Advocate, assisted by Mr.
Vivek Pathak, Advocate for the petitioners.
Mr. G.S. Negi, Addl. C.S.C. for the State.
Mr. C.S. Rawat, Advocate for respondent no. 4 and
5/National Health Mission.
Mr. Rahul Consul, Advocate for NRHM.
Date: 21.06.2024
Hon'ble Manoj Kumar Tiwari, J.
Hon'ble Pankaj Purohit, J.
(Per: Hon'ble Manoj Kumar Tiwari, J.) Respondent nos. 1 and 4 have filed separate applications seeking review of the judgment dated 03.04.2018, as corrected on 02.05.2018. In Review Application No. 7265 of 2023, there is a delay of 1323 days and in Review Application No. 7268 of 2023, there is a delay of 1328 days.
2. Although, objection to the delay condonation application has been filed, however, in view of the explanation offered by the applicants, we are inclined to condone the delay. Accordingly, the delay condonation applications (IA No. 7266 and 7269 of 2023) are allowed.
23. By judgment dated 03.04.2018, the Writ Petition was allowed and it was held that petitioners, who were appointed as Medical Officer, Ayurvedic under National Rural Health Mission (NRHM) are entitled to pay parity with Allopathic Medical Officers and Dental Medical Officers. Operative portion of the order sought to be reviewed is extracted below:-
"10. In the instant case, the duties discharged by the petitioners viz-a-viz Allopathic Medical Officers and Dental Medical Officers are of equal sensitivity and quality, even the responsibility and reliability are the same. The classification made by the State Government is irrational.
11. Accordingly, the writ petition is allowed. The State/respondents are directed to pay and release the salary to the petitioners at par with Allopathic Medical Officers and Dental Medical Officers from the date when the same was paid to the Allopathic and Dental Medical Officers, within a period of three months from today with arrears."
4. The said judgment was challenged before Hon'ble Supreme Court by State of Uttarakhand by filing SLP No. 33645 of 2018, which was dismissed vide order dated 24.03.2022. The order passed by Hon'ble Supreme Court is extracted below:-
"Having heard learned counsel for the parties and considering the facts and circumstances of the case, we do not find any ground for interference with the order passed by the High Court. The special leave petition is, accordingly, dismissed.
However, we may only clarify that the respondents who are Ayurvedic doctors will be entitled to be treated at par with Allopathic Medical Officers and Dental Medical Officers under the National Rural Health Mission (NRHM/NHM) Scheme.
After the order was passed, learned counsel for the petitioners made a statement that petitioners would like to file a review petition before the High Court. It is not for this Court to issue any such direction. It is always open to the 3 petitioners to pursue such remedy as may be available to them in law."
5. From the order passed by Hon'ble Supreme Court, it is revealed that Hon'ble Supreme Court has gone into merits of the case and held that "Ayurvedic Doctors will be entitled to be treated at par with Allopathic Medical Officers and Dental Medical Officers under the National Rural Health Mission (NRHM/NHM) Scheme." The said order further reveals that the counsel appearing for State had sought permission to file review application before the High Court and such permission was not expressedly granted, but, it was observed that "it is always open to the petitioners to pursue such remedy as may be available to them in law." State Government sought review of the order dated 24.03.2022, however, its prayer was rejected by Hon'ble Supreme Court vide order dated 09.08.2023.
6. State Government has now approached this Court for review of the judgment dated 24.03.2022 after dismissal of SLP and rejection of its review petition by Hon'ble Supreme Court.
7. Learned counsel for the review applicant relied upon a judgment rendered by Hon'ble Supreme Court in the case of State of Rajasthan v. Surendra Mohnot, (2014) 14 SCC 77 for contending that in a case where a judgment results in miscarriage of justice, then also a superior Court can review its judgment.
4Paragraph no. 26 of the said judgment is reproduced below:-
"26. In the case at hand, as the factual score has uncurtained, the application for review did not require a long-drawn process of reasoning. It did not require any advertence on merits which is in the province of the appellate court. Frankly speaking, it was a manifest and palpable error. A wrong authority which had nothing to do with the lis was cited and that was conceded to. An already existing binding precedent was ignored. At a mere glance it would have been clear to the Writ Court that the decision was rendered on the basis of a wrong authority. The error was self- evident. When such self-evident errors come to the notice of the Court and they are not rectified in exercise of review jurisdiction or jurisdiction of recall which is a facet of plenary jurisdiction under Article 226 of the Constitution, a grave miscarriage of justice occurs. In appeal the Division Bench, we assume, did not even think it necessary to look at the judgments and did not apprise itself of the fact that an application for review had already been preferred before the learned Single Judge and faced rejection. As it seems, it has transiently and laconically addressed itself to the principle enshrined in Section 96(3) of the Code of Civil Procedure, as a consequence of which the decision rendered by it has carried the weight of legal vulnerability."
8. Mr. Rahul Consul, learned counsel appearing for NRHM relied upon a judgment rendered by Hon'ble Supreme Court in the case of State of Gujarat and Ors. Etc. v. Dr. P.A. Bhatt & Ors. Etc. (Civil Appeal Nos. 8553- 8557 of 2014), where it was held that Ayurvedic doctors are not performing same work as Allopathic doctors, therefore, Ayurvedic doctors are not entitled to pay equal to Allopathic doctors. The said judgment was rendered on 26.04.2023, while judgment sought to be reviewed was passed on 03.04.2018.
9. Order XLVII (1) of the Code of Civil Procedure, 1908 provides for review of a 5 judgment, and explanation to Order XLVII (1), reads as under:-
"Explanation.- 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."
10. A Constitution Bench of Hon'ble Supreme Court in the case of Beghar Foundation v. K.S. Puttaswamy (Aadhaar Review-5 J.), (2021) 3 SCC 1 has held that change in the law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review.
11. Thus, review of a judgment cannot be sought only on the ground that in a subsequent judgment, a superior Court has taken a view different from the view taken in the judgment inter-partes between the parties. This aspect has been considered in detail by Hon'ble Supreme Court in the case of State (NCT of Delhi) and another v. K.L. Rathi Steels Ltd. and others, (2023) 9 SCC 757. Paragraph nos. 94 & 95 of the said judgment are reproduced below:-
"94. Now, the unanimous judgment of the larger Bench of five Judges in Indore Development Authority case holds the field. However, in para 365 of the said judgment or in any other paragraph, there is no observation that on overruling the decision in Pune Municipal Corpn. as well as all decisions following Pune Municipal Corpn., the overruled decisions have to be reviewed. The said observation is conspicuous by its absence obviously for the reason that such a review is impermissible having regard to the Explanation to Order 47 Rule 1 CPC which aspect has been elaborately discussed above. In fact, the Explanation to Order 47 Rule 1 CPC has not been noticed by the two learned Judges constituting the majority in Indore Development Authority v. Shailendra.6
95. There is another aspect which ought to be considered. That in two matters i.e. in the very case of Pune Municipal Corpn. (decided on 24-1-2014) which has been overruled by Indore Development Authority (decided on 6-3-2020) by a Bench of five Judges but the judgment has also been recalled vide order dated 16-7-2020. Similarly, another judgment dated 31-8-2016 passed by this Court following Pune Municipal Corpn. has been recalled by order dated 15-2-2022 by this very Bench. I must be forthright in saying that the recalling of the said orders/judgment dated 24-1-2014 and 31-8-2016 was done so in the absence of any arguments being advanced on the maintainability of review petitions itself as in the present cases and without taking into consideration the Explanation to Order 47 Rule 1CPC. I find that the Explanation to Order 47 Rule 1CPC is a bar to the very maintainability of these review petitions in these cases. Hence, before hearing the civil appeals/special lave petitions on merits, the orders passed recalling the decision passed earlier would call for reconsideration."
12. In the case of State of M.P. and others v. Steel Authority of India Ltd., (2002) 10 SCC 144, Hon'ble Supreme Court rejected prayer for review of its judgment on the basis of a subsequent judgment of the Court, with the following observation:-
"2. There can be no review of the judgment dated 5-4-1999, on the basis of a subsequent judgment of the Court (ECIL case dated 5-5- 1999), even assuming that the latter judgment is relevant on the question. (See principle behind Order 47 Rule 1 CPC Explanation.) Further exemption in ECIL was claimed under Article 285 whereas the judgment in the present case is not based on Article 285. It may be true that the writ petition in the present case was dismissed in limine and there was no scope for relying on Article 299 in the High Court but no such question was raised before the Board of Revenue. In any event, on a reference to Lal Chand and Lalji Khimji it was decided on merits that this was not a case of a contract for exemption entered into under executive power but this was a case of a contract executed under statutory power. In the present case a specific statutory power for exemption was exercised. ECIL case held that the Government's letter in that case was only an offer and created no estoppel against the statute but in that case no reliance was placed on any provision like 7 Section 58 of the Code, which exempts cases of relief granted by way of contract. In the present case the letter is in the nature of an acceptance by the State Government of the request of the Central Government for exemption."
13. This Court is not inclined to review the judgment dated 03.04.2018. Review of a judgment can be sought by a person aggrieved on limited grounds:-
(i) due to discovery of new and important matter or evidence which, after exercise of due diligence was not within the knowledge of the person aggrieved or such matter or evidence could not be produced by him at the time when the decree was passed or order made.
(ii) due to a mistake or error apparent on the face of the record.
(iii) on account of any other sufficient reason.
14. In the case of Chhajju Ram v. Neki, AIR 1922 PC 112, the Privy Council held that there cannot be a review on the ground that the judgment proceeded on an incorrect exposition of law. It was further held that if a decision is erroneous in law that is not a ground for ordering review. Therefore, subsequent events or the fact that the court took a different view in a subsequent case is not a sufficient reason for granting review.
15. In the case of Lily Thomas and others v. Union of India and others, (2000) 6 SCC 224, it was held by Hon'ble Supreme Court that the power to review is not an appeal in disguise.
8Paragraph 52 of the judgment is reproduced below:-
"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. Pradyumansinghji Arjunsinghji [(1971) 3 SCC 844 : 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 a 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 : 1994 SCC (L&S) 320 : (1994) 26 ATC 448] held : (SCC pp. 619-20, para 19) "19. Review literally and even judicially means re-examination or reconsideration. 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 Raja 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 : 2 MIA 181] that an order made by the Court was final and could not be altered:
'... nevertheless, if by misprision in embodying the judgments, errors have been introduced, these courts possess, by common law, the same 9 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 the 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 Article 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 Article 137 of the Constitution. And clause (c) of Article 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 XL had been framed empowering this Court to review an order in civil proceedings 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 XL Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of 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."10
16. In the present case, this Court held that classification made between petitioners vis-a-
vis allopathic medical officers and dental medical officers is irrational and further that petitioners are entitled to same salary, as was being paid to allopathic and dental medical officers. The said view was expressly affirmed by Hon'ble Supreme Court in second paragraph of the order dated 24.03.2022. Thus, after affirmation of the view, taken by this Court, by Hon'ble Supreme Court, there is no scope of review of the judgment dated 03.04.2018, and doctrine of merger would apply.
17. It is now well settled that review is not an appeal in disguise and no one can be permitted to re-argue the case on merits under review jurisdiction. Hon'ble Supreme Court in the case of Sanjay Kumar Agarwal v. State Tax Officer reported in (2024) 2 SCC 362, has held as under:-
16.5. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise".
18. For the aforesaid reasons, the review applications are rejected.
(Pankaj Purohit, J.) (Manoj Kumar Tiwari, J.) 21.06.2024 U.U.