Orissa High Court
Smt Kausalya Pradhan vs State Of Orissa And Others on 18 November, 2016
Author: S.N. Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
RVWPET No.41 of 2016
In the matter of an application under Articles 215 of the Constitution of India.
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Smt Kausalya Pradhan ...... Petitioner
- Versus-
State of Orissa and others ...... Opposite Parties
For Petitioner : M/s Sandipani Mishra and A.Kejriwal
For Opp.Parties : Additional Government Advocate.
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PRESENT:
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing and judgment: 18.11.2016
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S.N.Prasad,J. This application is for recall/review of the judgment dated
14.1.2011passed in W.P.(C) No.3321 of 2011 and to hear the writ petition afresh for disposal on merit.
2. Brief fact of the case of the petitioner is that the Women and Child Development Department has floated a scheme popularly known as Anganwadi Scheme under which scheme in each village Anganwadi Centres were opened and workers were appointed to monitor the scheme, the petitioner as a result of which was appointed as Anganwadi Workers in Ranja Anganwadi Centre vide notification no.55 dated 27.4.1993 and started discharging her duty.
Government has come out with a rule to grant promotion from amongst the Anganwadi Workers as lady Anganwadi Supervisor known as junior grade service Anganwadi Supervisor with the scale of pay of Rs.4,750/- -
2Rs.6500/- and according to which if an Anganwadi worker possesses required qualifications of having HSC pass with 10 years of service as Anganwadi Worker would be considered for promotion as Lady Supervisor.
The petitioner is fulfilling all the eligibility conditions for being promoted as Lady Supervisor, the authorities have granted promotion as Lady Supervisor but on contract basis. According to the petitioner there is no provision to grant promotion on contract basis rather the promotion has to be granted on substantive basis on the basis of statutory rule as contained in notification dated 8.10.2007.
The petitioner is continuing with the post of Lady Supervisor on contract basis hence the petitioner claims to be regularized in that post and when it has not been considered the petitioner has approached this court by way of writ petition no.3321 of 2011.
Case of the opposite party in the writ court was that the petitioner is claiming regular promotion as regular Lady Supervisor instead of contractual Lady Supervisor as per the notification dated 8.10.2007. The post of Lady Supervisor is in the cadre known as Junior Grade Service of the Orissa Children and Women Welfare Service which is governed by the recruitment and condition of service of supervisors in the name of the Orissa Children and women Welfare Service Rules,1989 which has been framed by the Government in exercise of power conferred under Article 309 of the Constitution of India.
Government of Orissa has created two numbers of post of Lady Supervisor as per the decision as contained in letter no.9263 dated 4.4.2008 to be filled up on contractual basis, as per which the selection committee convened its meeting held on 23.12.2009, selected the petitioner to be engaged as Lady Supervisor on contractual basis, petitioner was engaged as Lady Supervisor purely on contract basis so she cannot claim to be granted regular appointment by way of promotion to that post on the pretext of the rule as contained in notification dated 8.10.2007. This Court after taking into consideration the fact that the petitioner had been engaged as Lady Supervisor on contract basis and as such she cannot claim to be regularized by way of 3 promotion to the post of Lady Supervisor and accordingly dismissed the writ petition.
3. The instant review petition has been filed seeking recall/review of the order on the ground that this Court has not appreciated the fact in right prospective. It has been stated in the rejoinder that one Jharana Dhal who was appointed as Anganwadi Worker on 6.5.1993 while the petitioner was appointed on 3.5.1993 hence she is senior to her but without considering this aspect of the matter Jharana Dhal had been appointed in the regular post of Lady Supervisor even after serving in the said post for more than one year on contractual basis. According to the petitioner, this Court has not taken into this aspect of the matter hence the review petition has been filed.
4. Learned counsel representing the opposite party-State has submitted that it is not a case of review since this court after taking into consideration the materials available on record has passed well reasoned order and there is not error apparent on the face of it, no new fact had been brought into record by the petitioner and as such the order cannot be reviewed.
5. This Court, before appreciating the argument advanced on behalf of the parties thought it proper to deal with scope of review under Article 226 of the Constitution of India.
The power to review is the creation of a statue. It must be conferred by law either specifically or by necessary implication. Review is 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 mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration had resulted in miscarriage of justice, then certainly this can be said to be ground for review, but the mere fact that different views on the same subject are possible, cannot be said to be a ground to review the earlier judgment passed by a Court of Law.
4This Court has considered the judgment of Hon'ble Apex Court regarding width and scope of power of review as has been rendered in the case of Moran Mar Basselios Catholicos and Anothers Vrs. Most Rev. Mar Poulose Athanasius and Others, reported in AIR 1954 SC 526 particularly at paragraph 32 which reads as under.
"32. Before going into the merits of the case it is as well to bear in mind the scope of the application for review which has given rise to the present appeal. It is needless to emphasise that the scope of an application for review is much more restricted than that of an appeal. Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order XLVII, Rule I of our Code of Civil Procedure, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein.
It may allow a review on three specified, grounds, namely (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed,
(ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason."
In the case of Shivdev Singh v. State of Punjab, reported in AIR 1963 SC 1909, in a review petition filed under Order 47, Rule 1 C.P.C., the Supreme Court held that the power of review of its own order by the High Court inheres in every Court of plenary jurisdiction, to prevent miscarriage of justice or to correct grave and palpable errors committed by it. In doing so, the Court was only upholding the principles of natural justice. This decision indicates that the Court's power of review while exercising jurisdiction under Article 226 of the Constitution extends to correct all errors to prevent miscarriage of justice.
The judgment rendered by Hon'ble Apex Court in the case of Sow. Chandra Kanta and Another Vrs. Sheik Habib reported in AIR 1975 SC 1500 wherein it has been held that "a review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition through different counsel of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient."
5It is the settled proposition as has been held by Hon'ble Apex Court in the judgment discussed herein above the scope of review which can only be done in case of discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, mistake or error apparent on the face of the record and for any other sufficient reason and in the light of this legal position the fact of this review needs to be appreciated.
6. This Court has taken note of the materials available on record while disposing of the writ petition against the petitioner primarily relying upon the engagement order dated 7.1.2010 at Annexure-4 issued by the Collector, Deogarh and the contents of the letter, which is being referred herein above, is quoted below:
"On execution of an agreement on dated 7.1.2010 between Smt. Kaushalya Pradhan and the Collector, Deogarh, Smt. Kaushalya Pradhan is hereby engaged as a contract Lady Supervisor at ICDS Project, Reamal for a period with effect from the date of her actual joining at ICDS Project, Reamal upto the end of February,2010 on a fixed monthly remuneration of Rs.4750.00(rupees four thousand seven hundred fifty)(Lady Supervisor) only subject to the following terms and conditions.
1. She will work under the administrative control of the CDPO of the concerned ICDS project to which she is assigned. She shall perform duties as will be entrusted to her by the concerned CDPO.
2. She may be assigned any other work by the authority as decided by Government from time to time.
3. She shall attend the training programme as fixed by Government from time to time."
7. Prayer made by the writ petition in the writ petition to treat her as regular Lady Supervisor by substituting from contract Lady Supervisor and the said prayer has been denied by this Court for the reason that the petitioner had applied against the post created by the State Government vide letter No.9263 dated 4.4.2008 by which two posts of Lady Supervisor had been created to be filled up on contractual basis in which the petitioner had 6 participated for consideration of her candidature, selected and engaged, started discharging her duty.
It is settled that the nature of employment cannot be changed that too from contractual to regular appointee unless the service is regularized in that cadre. Admittedly in this case the engagement of the petitioner as Lady Supervisor had been done against contractual post created by the government which the petitioner had acceped and after lapse of sometime the writ petition has been filed seeking for direction to promote to the post of Lady Supervisor instead of contractual Lady Supervisor, this prayer has been denied to the petitioner for the simple reason that the promotion to the same post cannot be granted, the petitioner is seeking promotion from contractual Lady Supervisor to regular Lady Supervisor which cannot be allowed to be given to the petitioner.
The main ground taken by the petitioner in the instant case that since one junior Jharana Dhal had been granted regular engagement as Lady Supervisor ignoring her case and that has not been taken into consideration, this Court after taking into consideration the averments made in para-10 where averments has been made in the counter affidavit at para-10 wherein it has been stated that five posts of regular supervisors laying vacant and in the meantime four numbers of posts have been filled up from amongst the matriculate Anganwadi Workers, who had completed at least 10 years regular service. One post was vacant due to non-availability of SC category Anganwadi Worker. But the petitioner was not found eligible for the said post by the District Promotion Committee held on 14.1.2011, this statement has clarifies that the post of Lady Supervisor being of selection post had been decided to be filled up by way of placing the matter for eligible candidates before the District Promotion Committee and after assessment by the District Promotion Committee the post of regular Lady Supervisor had been filled up, in that meeting of the District Promotion Committee, the case of the petitioner had also been taken into consideration but she has not found to be successful, accordingly not selected for regular Lady Supervisor. The petitioner at that time of consideration by the District Promotion Committee was already holding 7 the post of Lady Supervisor on contractual basis as would be evident from the engagement order dated 7.1.2010(Annexure-4) against two posts of Lady Supervisor to be filled up on contract basis.
8. This Court after considering materials available on record has dismissed the writ petition by saying that an employee cannot claim promotion as fundamental right rather right of consideration for promotion is a fundamental right and accordingly rejected the writ petition, candidature of the petitioner had been considered for promotion to the regular post of Lady Supervisor but not found to be successful and accordingly not appointed by way of promotion as regular Lady Supervisor.
This Court found that there is no error apparent on the face of the record or even no new fact has been brought on record which can be said to be making the case to recall/review of the order dated 14.1.2016.
6. This Court after applying the principles of review under the provision of Article 226 of the Constitution of India which is very limited, does not show any reason to review the said order.
Accordingly, the review petition is dismissed.
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S.N. Prasad,J.
Orissa High Court, Cuttack, Dated the 18th November,2016/Palai