Punjab-Haryana High Court
Uma Shankar vs Huda And Others on 9 January, 2013
Author: A.N. Jindal
Bench: A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Review Application No. RS-75-C of 2012 in
R.S.A. No. 1174 of 2011
Date of decision: January 09, 2013
Uma Shankar
.. Appellant
Vs.
HUDA and others
.. Respondents
Coram: Hon'ble Mr. Justice A.N. Jindal
Present: Mr. K.L. Arora, Advocate
for the applicant-appellant.
Mr. J.P. Bhatt, Advocate
for the respondents.
A.N. Jindal, J
The applicant-appellant Uma Shankar has sought to review/re- call the order dated 14.9.2012 passed by this Court.
The appellant, though was appointed as Peon on daily wages on 1.1.1993 and was designated as Fitter Helper on the ground that he was matriculate. However, his service was regularized on19.3.1997. According to the plaintiff he was granted pay scale of Rs.3050-75-3950-80-4590 by the defendants/respondents in view of his educational qualification w.e.f. January, 2001 and the pay of the plaintiff has been fixed at the stage of Rs.3350/- on 1.2.2005 after granting him annual grade increment of Rs.75/-. It was further pleaded that the Haryana Government vide notification No.FD-6/23/3 (FD)-83 dated 23.8.1990 granted the revised pay scales to the technical posts like the one held by the appellant. Thus, the appellant has claimed himself to be on a technical post and as such he was entitled to the pay scale of Rs.1200-2040/- which was later on revised to Rs.4000-6000.
It was further averred that the officials who had been granted pay scale of Rs.950-1400 were granted the pay scale of Rs.3050-4350 on account of the revision of the pay scales of the employees w.e.f. 1.1.1996. The Chief Engineer vide instructions dated 21.7.2000 had also directed to implement the Government Instructions issued vide order dated 23.8.1990. Review Application No. RS-75-C of 2012 in R.S.A. No. 1174 of 2011 -2- The Superintending Engineer HUDA Circle had also endorsed the instructions to the subordinate offices on 26.7.2000. Since the plaintiff was initially not granted the pay scale of Rs.1200-2040 and was not granted the pay scale of Rs.4000-6000, for which he was entitled w.e.f. 1.1.1996 and then w.e.f. 19.3.1997, when he became regular. As such, the plaintiff had issued legal notice to the defendants for granting scale of pay of Rs.4000- 6000 but the respondent declined his request. As per instructions dated 23.8.1990, the pay scale of Rs.4000-6000 was to be granted to those employees who had educational qualifications of matriculation with ITI and not to the others. Though the appellant was awarded the pay scale of Rs.3050-4590 w.e.f. January, 2001, but vide letter dated 2.12.2005, the said pay scale had been withdrawn. He thus claimed to award him the pay scale of Rs.4000-6000/-.
The defendants-respondents submitted written statement wherein they claimed that the plaintiff was appointed as Peon and designated as Helper Fitter, but the required qualification for the post of Helper Fitter was not matric with ITI or ITI without insistence of Matriculation. He was wrongly fixed at the stage of Rs.3350/-. The post of the appellant was not technical but he was wrongly granted the technical scale for which he was not entitled. Merely acquiring the qualification of matriculation with ITI diploma or ITI certificate without insistence on metric does not make him entitled for the pay scale of technical post over which he was not working. The instructions issued vide notification No.FD-16/23/3 (FD)-83 dated 23.8.1990, are not applicable to him. He is not entitled to the pay scale of Rs.3050-4350 from 1.1.1996. He was wrongly given the said pay scale. He is neither entitled to the pay scale of Rs.2040 nor the pay scale of Rs.4000-6000 or Rs.3050-4350 in the revised pay scale.
The trial court vide judgment dated 21.7.2010 dismissed the suit, whereas the first appellate court also dismissed the appeal on 25.9.2010. This court vide judgment dated 14.9.2012 had ascented to the consistent view taken by both the courts below.
Review Application No. RS-75-C of 2012 in R.S.A. No. 1174 of 2011 -3- Now the applicant-appellant has filed the review petition on the following grounds :-
1. Notification dated 16.3.2009 (Ex.DW1/2) are the Rules of 2009 and, therefore, the said rules could not be made applicable retrospectively when the technical scale was granted to the applicant.
In this regard, it may be observed that this notification was not placed reliance in any manner, rather this notification was taken assistance only. The qualification of the Fitter Helper even in the year 2009 is also not that of metric with or without ITI but his minimum qualification was 5th Class pass and only a physically fit for the field post. Even at the time of posting of the appellant as Peon/Fitter Helper, as is indicated from letter Ex.PW2/A, he was only a matriculate, when he was posted as Peon and designated as Fitter Helper, there was no condition that he was required to be ITI Diploma certificate or it was necessary for him to have this qualification.
The next contention as set up by the learned counsel for the appellant is that he was regularized as Fitter Helper on 19.3.1997, in this regard it may be observed that he was appointed as Peon as indicated from the aforesaid letter Ex.PW2/A and was designated as Fitter Helper. No appointment letter has been produced on record by the appellant from where it could be affirmed that he was not appointed as Peon but only a Fitter Helper and the said post is a technical post.
As regards the third contention, though the letter Ex.PW6/6 dated 6.2.2006 records the appellant as Fitter Helper and it is not denied by the respondents that he was not designated as Fitter Helper, yet the respondents have categorically and specifically denied him to be holding a a technical post. The appellant has failed to show by any provisions of law that Fitter Helper was defined as technical post so as to entitle him to the pay scale of Rs.4000-6000.
The learned counsel for the applicant-appellant has mainly placed reliance on the notification dated 23.8.1990 and 26.7.1991 in order Review Application No. RS-75-C of 2012 in R.S.A. No. 1174 of 2011 -4- to claim the relief of higher scale, but the said notification relates to the technical post and not to the post of Peon or a Fitter Helper.
The other contention raised by the learned counsel for the applicant-appellant is that his case is covered by the judgment delivered by the Division Bench of this Court in Civil Writ Petition No. 7928 of 1993, decided on 1.12.1993.
Having considered this contention, the observations made by the Division Bench of this Court on 1.12.1993, are reproduced as under :-
"After hearing the learned counsel for the parties, we are satisfied that all the petitioners are Matriculate and have also qualified I.T.I. certificates. On the basis of these academic and technical qualifications, the petitioners are entitled to the pay scale of Rs.1200-2040 with effect from 1.5.1990 i.e. the date from which the other similarly situated persons are being paid. The respondents are directed to re-fix the pay of the petitioners within a period of three months."
Having gone through this Division Bench judgment it no where indicates if the same relates to the non technical posts like Peon, Sweeper, Mali, Mate, Key Man, Oil Man, Petrol Man, Chowkidar etc. or helper to the technicians. The judgment does not interpret if the posts of Fitter Helper, Plumber Helper or Fitter Coolie were at par and could be treated as technical post. Be that it may, the Special Leave Petition, which was dismissed in limine, cannot be treated as ratio descendi to decide the status of the petitioner.
So far as the next judgment, which has been placed reliance by the learned counsel for the applicant-appellant, i.e. R.S.A. No. 3220 of 2005, decided on 9.3.2006, reads as under :-
"The defendants-State of Haryana and others having lost concurrently before the two courts below, have approached this Court through the present Regular Second Appeal.
The claim of the plaintiffs for declaration and Review Application No. RS-75-C of 2012 in R.S.A. No. 1174 of 2011 -5- consequential relief, claiming that they are entitled to the pay scale of Rs.1200-2040 with effect from April 01, 1993, instead of Rs.950-1400, was decreed by the learned trial court and the appeal filed by the defendants failed before the learned first appellate court.
Both the courts below have relied upon the judgment dated December 01, 1993, rendered in the case of Ram Kishan passed in CWP No.7923 jof 1993, whereby the co-workers of the plaintiffs namely Ram Kishan, Balbir Singh and Suresh Kumar had been granted similar scales.
It is not disputed by the learned counsel for the appellants that in pursuance of the judgment rendered in Ram Kishan's case, relief was granted to the aforesaid persons and it is also not in dispute that the case of the plaintiffs is identical to the aforesaid persons.
Nothing has been shown that the findings recorded by both the courts below suffer from any infirmity or are contrary to the record.
No question of law, much less any substantial question of law, arises in the present appeal.
Dismissed."
Thus in the present case, when the present petitioner was appointed as Peon and was never promoted on a technical post was not entitled to revised grade as per notification dated 23.8.1990 and 26.7.1991. The said judgment also does not discuss if that relates to the non technical posts.
Now coming to the other aspect of the case, the petitioner having lost before both the courts and the findings have been affirmed by this court, could only avail the remedy before the Apex Court but could not apply for review of the judgment. Review jurisdiction is not an appellate jurisdiction where the error of law can be corrected. It is not permissible for an erroneous decision to be reheard and corrected. Similar observations were made by the Calcutta Court in case Joginder Pal Kapoor s. R.L. Review Application No. RS-75-C of 2012 in R.S.A. No. 1174 of 2011 -6- Plantation Pvt. Ltd. 2006 (3) ICC 776 wherein it was observed as under :-
"8. It cannot be disputed that a review will lie on the principles of Order 47 Rule 1 of the Civil Procedure Code read with Section 114. There are any numbers of Supreme Court judgments now suggesting that review jurisdiction is not an appellate jurisdiction where the errors of law can be corrected. It is held by the Supreme Court in 1997 (8) SCC 715 : 1998 (1) Indian Civil Cases (S.C.) 17 (Parsion Devi & Ors. vs. Sumitri Devi & Ors) that a judgment may be open to review, inter alia, if there is a mistake or error apparent on the face of the record. An error which is rot 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 of review ...... The Court further held that in exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be an appeal in disguise. In this judgment, the Supreme Court has relied on Thungabhadra Industries Ltd. v. Govt. of A.P., AIR 1964 Supreme Court 1372, and more particularly, the observations made therein to the following effect :
"What, however, we are not concerned with is whether the statement in the order of September, 1959 that the case did not involve any substantial question of law is an 'error apparent on the face of record'. The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an Review Application No. RS-75-C of 2012 in R.S.A. No. 1174 of 2011 -7- 'error apparent on the face of the record' for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by error apparent. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.
9. The Supreme Court also referred to the decision in Meera Bhanja v. Nirmala Kumari Chowdhury, reported in 1995 (1) SCC 170 as also in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, reported in 1979 (4) SCC 389.
10. While elaborating as to what would not be an error apparent on the face of record, the Supreme Court observed in 1997 (4) SCC 478 : 1997 (2) Indian Civil Cases (SC) 30 (Dokka Samuel v. Dr. Jacob Lazarus Chelly):
"The omission to cite an authority of law is not a ground for reviewing the prior judgment saying that there is an error apparent on the face of the record, since the Counsel has committed an error in not bringing to the notice of the Court the relevant precedents."
Thus, in the light of the aforesaid observations, the review application is not maintainable.
Dismissed.
January 09, 2013 (A.N. Jindal) deepak Judge