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2004 DIGILAW 378 (ORI)

STATE OF ORISSA v. BENUDHAR DAS

2004-08-24

L.MOHAPATRA, SUJIT BARMAN ROY

body2004
JUDGMENT : L. Mohapatra, J. - These two review petitions are directed against the order dated 30.7.2003 passed by this Court dismissing W.P.(C) No. 6780 of 2003 and W.P.(C) No. 6781 of 2003. 2. Both the above writ applications were filed by the State of Orissa against the judgment delivered by the Orissa Administrative Tribunal in Original Application No. 83 of 2001 and O.A. No. 286 of 2001. The aforesaid two Original Applications were disposed of by a common order giving rise to the aforesaid two writ applications at the instance of the State. From the judgment delivered by the Tribunal, it appears that the applicants therein (opposite parties in both the writ applications) filed the Original Applications praying for quashing the select list prepared by the Orissa Public Service Commission and also for a direction to the State authorities to promote them, with effect from the date the respondents 3 to 10 therein were promoted with consequential benefits. It further appears that the dispute related to placement in the select list as well as for promotion from amongst the officers working as O.A.S. Class-I (Sr. Branch). When the above two writ applications filed by the State were taken up for admission, the Court found that the State is not the aggrieved party and it was not necessary on the part of the State to expouse cause of a particular officer or group of officers and same should have been left to the parties to the proceeding to file their cases before the appropriate Court. Keeping the above in mind, both the writ applications were dismissed at the stage of admission. It will not be out of place to state that when the writ applications were taken up for admission, seven officers who were not parties to both the writ applications had filed an application for intervention. It further appears that after dismissal of the writ applications at the stage of admission, applications were filed in both the cases for recalling the order dated 30.7.2003 and pending disposal of the aforesaid two applications the present review petitions have been filed. 3. It further appears that after dismissal of the writ applications at the stage of admission, applications were filed in both the cases for recalling the order dated 30.7.2003 and pending disposal of the aforesaid two applications the present review petitions have been filed. 3. Learned Advocate General appearing for the State in the aforesaid review petitions submitted that the W.P.(C) No. 6780 of 2003 and W.P.(C) No. 6781 of 2003 were taken up for admission on 30.7.2003 when some other writ applications challenging the very same judgment of the Tribunal were pending consideration before this Court and had the same been brought to .the notice of the Court, the above two writ applications filed by the State could not have been disposed of without hearing the real affected parties who had filed writ application before this Court which were pending consideration. It was further submitted by the learned Advocate General that the writ applications having been dismissed at the stage of admission without notice to the opposite parties, right of the opposite parties for a hearing in the matter was taken away and in all fairness in order to meet the ends of justice both the writ applications filed by the State should be heard along with other pending writ applications. It was also contended by the learned Advocate General that the learned Additional Government Advocate who was representing the State had no knowledge about pendency of the connected writ applications, as a result of which same could not be brought to the notice of the Court. 4. After disposal of both the writ applications, it appears that the opposite party No. 1 has filed a petition for implementation of the judgment of the Tribunal through counsel. In W.P,(C) No. 6780 of 2003 the opposite party No. 2 has also filed similar application. Learned counsel appearing for the aforesaid opposite parties in the aforesaid two writ applications opposed the stand taken by the State in the review petitions and it was submitted that the scope of review is very limited and grounds on which review is sought for is unknown to law. In support of their contention, learned counsel appearing for the aforesaid opposite parties have referred to some decisions. Reliance was placed on a decision of the Apex Court in the case of S.I. Rooplal and Another Vs. Lt. In support of their contention, learned counsel appearing for the aforesaid opposite parties have referred to some decisions. Reliance was placed on a decision of the Apex Court in the case of S.I. Rooplal and Another Vs. Lt. Governor Through Chief Secretary, Delhi and Others, The Apex Court in Para - 25 of the judgment of the aforesaid decision observed as follows ; "Before concluding, we are constrained to observe that the role played by the respondents in this litigation is far from satisfactory. In our opinion, after laying down appropriate rules governing the service conditions of its employees, a State should only play the role of an impartial employer in the inter se dispute between its employees. If any such dispute arises, the State should apply the rules laid down by it fairly. Still if the matter is dragged to a judicial forum, the State should confine its role to that of an amicus curiae by assisting the judicial forum to arrive at a correct decision. Once a decision is rendered by a judicial forum, thereafter the State should not further involve itself in litigation. The matter thereafter should be left to the parties concerned to agitate further, if they so desire. When a State, after the judicial forum delivers a judgment, filed review petition, appeal etc. it gives an impression that it is expousing the cause of a particular group of employees against other group of its own employees, unless of course there are compelling reasons to resort to such further proceedings. In the instant case, we feel the respondent has taken more than necessary interest which is uncalled for. This act of the State has only resulted in waste of time and money of ail concerned". Relying on the aforesaid observation it was contended by the learned counsel that by filing a review petition the State is trying to expouse the cause of a particular group of officers and there is no reason why State should support cause of a particular group of officers. 5. Relying on the aforesaid observation it was contended by the learned counsel that by filing a review petition the State is trying to expouse the cause of a particular group of officers and there is no reason why State should support cause of a particular group of officers. 5. In the Case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and Ors., reported in AIR 1970 SC 1047 the Apex Court by interpreting Article 226 of the Constitution of India and Order 47, Rule 1 of the CPC observed as follows : "x x x It is true as observed by this Court in Shivdeo Singh v. State of Punjab AIR 1963 SC 1909 ; there is nothing in Article 226 of the Constitute to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court". Similar view have also been taken by the Apex Court in some other decisions cited at the Bar and therefore we have not referred to those decisions in this order. 6. Before entering into the question with regard to scope of interference in a review, it is necessary to refer to some facts which are necessary for consideration by this Court. Both the writ applications out of which the review petitions arise were filed on 9.7.2003 and both the writ applications were dismissed at the stage of admission by order dated 30.7.2003. 7. Both the writ applications out of which the review petitions arise were filed on 9.7.2003 and both the writ applications were dismissed at the stage of admission by order dated 30.7.2003. 7. One Rabindranath Das who was a respondent before the Tribunal in the Original Application was also an opposite party in the writ applications filed by the State before this Court. Challenging the judgment of the Tribunal he has also filed W.P.(C) No. 713 of 2003 on 22.1.2003. The said writ application was taken up on 12.5.2003 and this Court directed the learned counsel appearing for the petitioner therein to furnish a copy of the writ application on the learned counsel appearing for the opposite parties 3, 4 and 5 and the learned Additional Government Advocate presented in Court accepted notice on behalf of the State. Notice was also issued on the question of admission to opposite party No. 2. As an interim measure, it was directed that if any action is taken by the State pursuant to the judgment of the Tribunal, the same shall be subject to the result of the writ application. It further appears that one Raj Kishore Choudhury and Mrutunjaya Tripathy who are opposite parties 1 and 2 in W.P.(C) No. 6781 of 2003 had entered caveat in the said case. It also appears that some of other opposite parties had also entered caveat in the said case. From the office note, it also appears that the opposite parties 3 and 4 had already entered appearance in the said case by 22.7.2003. It is, therefore, clear that at least the learned counsel for the State was aware that W.P.(C) No. 713 of 2003 was pending consideration before this Court on 30.7.2003 when both the writ applications filed by the State were taken up for admission. The very fact that W.P.(C) No. 723 of 2003 and the writ applications out of which the review petitions arise had been filed against the "same judgment, it was duty of the learned counsel for the State to bring the same to the notice of the Court. Had it been brought to the notice of the Court, the writ applications filed by the State could not have been dismissed at the stage of admission without hearing the petitioners in W.P.(C) No. 713 of 2003 who was opposite party No. 16 in W.P.(C) No. 6780 of 2003. Had it been brought to the notice of the Court, the writ applications filed by the State could not have been dismissed at the stage of admission without hearing the petitioners in W.P.(C) No. 713 of 2003 who was opposite party No. 16 in W.P.(C) No. 6780 of 2003. It is clear that the two writ applications out of which the review petitions arise were dismissed by this Court on consideration as mentioned earlier without knowing that an affected party had already approached this Court in a separate writ application which was pending consideration on the date the both the writ applications were dismissed. We are, therefore, satisfied that both the writ applications out of which the review petitions arise were dismissed without hearing the affected party as the first pendency of W.P.(C) No. 713 of 20-03 filed by the affected party was not brought to our notice. 8. Now the question that arises for consideration is whether on such a ground the Court can allow the review petitions and direct rehearing of all the writ applications. In case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and Ors. (supra), the Apex Court has specifically held that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Limitations are that the same should be exercised on the discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made. Only ground on which such jurisdiction should not be exercised is that the decision rendered was erroneous on merits. From the discussions made above, it is very clear that the writ applications were dismissed at the stage of admission even though one of the affected parties who was an opposite party in one of the writ applications had filed a separate writ application challenging the order of the Tribunal and the same was not considered on the date of dismissal. It may be possible that the learned Additional Government Advocate who was representing the State on that date was not aware of the pendency of such a case and therefore on discovery of the said fact when the Court feels that in the greater interest of justice all the parties should be heard, in our considered view, it can always review it's earlier order in order to hear all the parties and deliver an effective judgment and do justice to the parties. Apart from the above it also appears that the applications filed by the State in both the writ applications for recalling the order dated 30.7.2003 are still pending consideration and no orders have been passed. 9. On consideration of the above facts and circumstances of the case, we are of the view that in the greater interest of justice which is paramount for any Court, the review petitions should be allowed and accordingly we allow both the review petitions, and set aside the order dated 30.7.2003 passed in W.P.(C) Nos. 6780 and 6781 of 2003. We further direct that the aforesaid two writ applications along with all connected writ applications be listed before the assigned Bench. Sujit Barman Roy, C.J. I agree. Final Result : Allowed