RESERVE ORDER While the Petitioner or MJC No. 5630 of 2011 seeks initiation of proceeding of contempt against the University Authorities, they seeks initiation of proceeding of Contempt against the University Authorities, they seek review of the order dated 28.7.2011 passed in C.W.J.C. No.618 of 2009, by which this Court had directed them to consider the Petitioner’s case for absorption on the post of Compositor with all consequential benefits. 2. Since the order in Review will substantially decide the fate of the Contempt petition I would think it appropriate to decide it first. 3. The Counsel for the Review Petitioner submits that the order of the Single Judge is subject to review for the following reasons:– (i) No doubt the letter of appointment of the Petitioner dated 4.6.1997 mentioned that the Petitioner’s services would be regularized on creation/sanction of the post but fact of the matter is that he was to be deemed as a regular employee in terms of Rule 10(ga) governing Compassionate Appointments. In such circumstances even if the appointment letter had mentioned inadvertently that the Petitioner’s services would be regularized on creation/sanction of post it had to be ignored. Unfortunately the Single Judge on a misconception that the Writ Petitioner was not a regular employee directed the University to consider the Petitioner for absorption on the post of Compositor on which post he claimed to be working since his entry. This misconception was perhaps on account of the argument on behalf of the Petitioner that he was not so, taking advantage of the superfluous words in the appointment letter. The roster clearance prepared on 1.3.2006 also revealed that the Petitioner was on a regular post and, therefore, in the light of the rules and this roster clearance the initial appointment letter had to be ignored. On account of such misconception the Judgment is fit to be reviewed on the principle laid down by Hon’ble Supreme Court in AIR 1954 SC 526 . (ii) Further the Single Judge was led to believe on the basis of this appointment letter that the Petitioner’s services had not been absorbed whereas the rules governing compassionate appointment did not permit a concept of absorption. Thus the Writ had been decided on a mistake of law. (ii) Further the Single Judge was led to believe on the basis of this appointment letter that the Petitioner’s services had not been absorbed whereas the rules governing compassionate appointment did not permit a concept of absorption. Thus the Writ had been decided on a mistake of law. (iii) Moreover Rule 10 provided that the benefit of compassion would not be given twice to a person appointed on such grounds nor would he be promoted to the next grade or his cadre changed. He places reliance on a decision of the Hon’ble Supreme Court reported in (1994) 6 Supreme Court Cases 560 Paragraph 8 wherein it was held that once a person is appointed on compassionate grounds the ground stood consummated and there was no further scope for compassionate consideration. He submits a similar view has been taken in the case of I.G. (Karmik) and others vs. Prahalad Mani Trapathi (2007) 6 SCC page 162 paragraph 12. 4. On the other hand, the Counsel for the Opposite Party submits that the University had not brought the Rules on record in the connected Writ even though they were well within their knowledge and, therefore, review could not be permitted. In his submission everything that had been brought on record had been considered by the Writ Court nothing was ignored and, therefore, there was no error on the face of record. He further submits that the Writ Court had also taken into account that vacancy in Class IV existed therefore Petitioner should have been absorbed in the said post. More so because the University had deputed him the work of a Compositor since the date he joined and therefore equity permitted the same. Even if for sake of argument the order is erroneous the University should go in appeal. He relies on a decision reported in 1975 SC 1500 wherein it was held that a Review should not be lightly entertained. He further places reliance on (1979)4 SCC 389 where the Apex Court set aside the order of review. 5. Since the Court derives its powers of review from Order XLVII Rule 1 CPC and Section 114 CPC let us examine its essential features reproduced below:- 1. He further places reliance on (1979)4 SCC 389 where the Apex Court set aside the order of review. 5. Since the Court derives its powers of review from Order XLVII Rule 1 CPC and Section 114 CPC let us examine its essential features reproduced below:- 1. Application for review of judgment.- (1) Any person considering himself aggrieved,- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. 114. Review.- Subject as aforesaid, any person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred. (b) by a decree or order from which no appeal is allowed by this Code, or (c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.” 6. It is apparent that the words „or for any sufficient reason? gives wide discretion to a Review Court and sets no curbs on it. The limitations have been adhered to by way of precedents and hence I would wish to enumerate some of them. However I may clarify that even while on matters of principles the scope of review is not difficult to follow, it is its application which is tricky and once again subject to scrutiny by the Superior Courts. By way of example is the case of Inderchand Jain (dead) through lrs. v. Motilal (dead) through lrs. However I may clarify that even while on matters of principles the scope of review is not difficult to follow, it is its application which is tricky and once again subject to scrutiny by the Superior Courts. By way of example is the case of Inderchand Jain (dead) through lrs. v. Motilal (dead) through lrs. (2009) 14 SCC 663 where the Apex Court even while upholding the following principles enumerated by the Jaipur Bench of Rajasthan High Court held that its application was wrong. “33. The High Court had rightly noticed the review jurisdiction of the court, which is as under: “The law on the subject- exercise of power of review, as propounded by the Apex Court and various other High Courts may be summarized as hereunder: (i) Review proceedings are not by way of appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. (ii) Power of review may be exercised when some mistake or error apparent on the fact of record is found. But error on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on the points where there may conceivably be two opinions. (iii) Power of review may not be exercised on the ground that the decision was erroneous on merits. (iv) Power of review can also be exercised for any sufficient reason which is wide enough to include a misconception of fact or law by a court or even an advocate. (v) An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit.” In our opinion, the principles of law enumerated by it, in the facts of this case, have wrongly been applied.” (Italics mine) 7. Even though judgment of the Rajasthan High Court more or less sums up, the general principles of review some notable decisions where the Hon’ble Supreme Court applied the aforesaid principles of review are noticed below. 8. Even though judgment of the Rajasthan High Court more or less sums up, the general principles of review some notable decisions where the Hon’ble Supreme Court applied the aforesaid principles of review are noticed below. 8. In the judgment mentioned above Hon’ble Mr Justice S. B. Sinha quoted an earlier decision reported in (2005) 4 SCC 741 Board of Control for Cricket in India and another v. Netaji Cricket Club and others; where the Supreme Court upheld the decision of the Madras High Court admitting Review and held that the High Court could in some circumstances even take into consideration subsequent events for rectifying its mistakes. Relevant paras are reproduced below: “89. Order 47 Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason. 90. Thus a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefore. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words „sufficient reason? in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate. An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit.” 9. In Harinagar Sugar Mills Ltd vs State of Bihar (2006)1 SCC509 the Apex Court upheld the decision of this court refusing review on the ground the Appellants could not reargue and points reheard in a review when there was no error apparent on the face of record; nor can it be for correction of a view taken earlier (1999) 9 SCC 596 . 10. In Haridas Das v. Usha Rani Banik (2006) 4 SCC 78 the Hon’ble Supreme Court on facts held that the review had wrongly been allowed since the reason for the same was not germane to the issue. 11. 10. In Haridas Das v. Usha Rani Banik (2006) 4 SCC 78 the Hon’ble Supreme Court on facts held that the review had wrongly been allowed since the reason for the same was not germane to the issue. 11. In Food Corporation of India and another v. Seil Ltd. and others (2008) 3 SCC 440 the Hon’ble Supreme Court upheld the decision of the High Court in a review petition by which it decided to direct payment of interest additionally on the principal amount it had earlier directed to be paid on the following reasoning; “A writ court exercises its power of review under Article 226 of the Constitution of India itself. While exercising the said jurisdiction, it not only acts as a court of law but also as a court of equity. A clear error or omission on the part of the court to consider a justifiable claim on its part would be subject to review; amongst others on the principle of actus curiae neminem gravabit (an act of the court shall prejudice none). We appreciate the manner in which the learned Judge accepted his mistake and granted relief to the respondents.” 12. Now to briefly discuss the decisions relied upon by the Review Petitioner. In the case of Moran Mar Basselios Catholicos and another v. Most Rev. Mar Poulose Athanasius and others ( AIR 1954 S.C. 526 ) the Court held that the definitive limits fixed by the language in Order 47 Rule 1 permitted review on three grounds i.e. – “(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” and reproduced the opinion of the Judicial Committee that “the words “any other sufficient reason” must mean “a reason sufficient on ground, at least analogous to those specified in the rule”. See- Chhajju Ram v. Neki, AIR 1922 PC 112 (D). This conclusion was reiterated by the Judicial Committee in – „Bisheshwar Pratap Sahi v. Parath Nath, AIR 1934 PC 213 (E) by our Federal Court in – „Hari Shankar v. Anath Nath, AIR 1949 FC 106 at pp. 110, 111 (F). See- Chhajju Ram v. Neki, AIR 1922 PC 112 (D). This conclusion was reiterated by the Judicial Committee in – „Bisheshwar Pratap Sahi v. Parath Nath, AIR 1934 PC 213 (E) by our Federal Court in – „Hari Shankar v. Anath Nath, AIR 1949 FC 106 at pp. 110, 111 (F). Learned counsel appearing in support of this appeal recognizes the aforesaid limitations and submits that his case comes within the ground of “mistake or error apparent on the face of the record” or some ground analogous thereto.” 13. The application of the ratio was in the context of a dispute between two rival sects of the Malankara Jacobite Syrian Christian community regarding the fundamental tenets of their church and the possession and administration of the church properties which had traveled to the Apex Court. The majority judges of the High Court of Travancore had decided the Appeal on a supposed concession made by the defendants lawyer (para 28/29) which the Party sought to refute by an Affidavit of the Advocate and two letters written to him by the Senior Advocate. Firstly a question arose as to whether the affidavit objecting the same could have been filed before the Appeal Court and it was held in the affirmative that the proper procedure was indeed to move the same Court by way of a Review. The Hon’ble Supreme Court thereafter holding that the misconception having been created in the mind was sufficient cause analogous to an error of record, proceeded to make reference to the Affidavit as part of records. The objection that the Affidavits could not be considered was waived on the basis of the view earlier taken by Justice Patanjali Shastri, Judge Madras High Court, in the case of „Govinda Chettiar v. Varadappa Chettiar, AIR 1940 Mad 17 thus holding: “that a misconception by the Court of a concession made by the advocate or of the attitude taken up by the party appears to be a ground analogous to the grounds set forth in the first part of the review section and affords a good and cogent ground for review. The learned Attorney-General contends that this affidavit and the letters accompanying it cannot be said to be part of “the record” within the meaning of Order 47, Rule 1. The learned Attorney-General contends that this affidavit and the letters accompanying it cannot be said to be part of “the record” within the meaning of Order 47, Rule 1. We see no reason to construe the word “record” in the very restricted sense as was done by Denning, L.J., in – Rex v. Northumberland Compensation Appeal Tribunal, Ex Parte Shaw, (1962) 1 KB 338 at pp. 351-352 (K) which was a case of certiorari and include within that term only the document which initiates the proceedings, the pleadings and the adjudication and exclude the evidence and other parts of the record. Further, when the error complained of is that the Court assumed that a concession had been made when none had in fact been made or that the Court misconceived the terms of the concession or the scope and extent of it, it will not generally appear on the record but will have to be brought before the Court by way of an affidavit as suggested by the Privy Council as well as by this Court and this can only be done by way of review. The cases to which reference has been made indicate that the misconception of the Court must be regarded as sufficient reason analogous to an error on the face of the record. In our opinion it is permissible to rely on the affidavit as an additional ground for review of the judgment.” From the aforesaid proposition of law one deduces that a Review Court can proceed to correct a mistake of law and fact not only when apparent on the face of record but also when the error was an assumption, a misconception, which could only be pointed out by way of an Affidavit. So wide is the scope that it is guided only by the legal principle that the act of the Court shall prejudice none. 14. As for the decisions relied upon by the counsel for Opposite party (Contempt Petitioner) in the case reported in (1979) 4 SCC 389 the Apex Court deprecated the fact that a Judicial Commissioner allowed a review on ground that certain documents had not been considered by his predecessor. 14. As for the decisions relied upon by the counsel for Opposite party (Contempt Petitioner) in the case reported in (1979) 4 SCC 389 the Apex Court deprecated the fact that a Judicial Commissioner allowed a review on ground that certain documents had not been considered by his predecessor. Whereas the case reported in AIR 1975 SC 1500 reiterates the general principles of review, that it should not be lightly entertained and should be resorted to only when the Court finds “a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.” 15. Now to proceed to apply the aforesaid principles of review on the case at hand. On going through the records of the connected Writ one finds that it was argued on behalf of the Petitioner that he had been appointed on compassionate grounds on account of his father’s death in 1997 vide letter No.26/1997 dated 4.6.1997 as a fourth grade employee on condition that he would be regularized either on creation of the post as its availability in anticipation of vacancy on class IV post as there was no available vacant class IV post at the relevant time though there were vacancies on the post of compositor which is a class III post. Since the date of his joining the Petitioner was working as a Compositor which was a sanctioned vacant Class III post and was discharging such duties on account of which he represented on various occasions that he be regularized on the Compositor’s post. In the meanwhile the Press Committee of the University took a resolution in the year 2007 that persons who had been appointed on compassionate grounds would be absorbed on the sanctioned and available post equivalent to the pay scale in which they have been appointed. Despite this resolution and a vacancy of the post of Compositor where he was continuously working no decision was taken with regard to his absorption. Hence the Writ petition. 16. In the writ petition the Petitioner had raised the following points of law amongst others; (I) Whether the petitioner is entitled for being regularized on the post against which he was initially appointed on compassionate ground vide office order No.26/97 dated 4.6.1997? Hence the Writ petition. 16. In the writ petition the Petitioner had raised the following points of law amongst others; (I) Whether the petitioner is entitled for being regularized on the post against which he was initially appointed on compassionate ground vide office order No.26/97 dated 4.6.1997? (II) Whether the petitioner, from whom the respondent University is taking work on the post of Compositor with effect from the first date of his initial appointment i.e. 5.6.1997, is entitled for being regularized on the said post of Compositor? 17. One thus finds that the Writ Petitioner represented to the Court that he had not been regularized on Class IV post. He linked his prayer for absorption on a Class III post on such ground and that he had continuously been discharging his duties as a Compositor which was a sanctioned post taking advantage of the faulty appointment letter and gave ambiguous statements in regard to his regularization as is evident from paragraphs 5, 6 and 11 quoted below; “5. That the petitioner at the time of his initial appointment was holding the qualification of matriculation, a pre requisite qualification for appointment on class III post though by annexure-1 he was appointed on Class IV post. 6. That it is stated and asserted here that contrary to the law of the land the respondent no.3 while issuing the order of initial appointment of the petitioner imposed restriction therein by clause no.2 that Petitioner’s appointment will be regularized on getting the post availability or after the post is sanctioned by the State Government. 11. That the petitioner right from very beginning has been writing to the authorities concerned for his absorption but for one or the other reasons the respondent authorities have preferred to sit tight over the matter resulting in non confirmation of the services of the petitioner on the sanctioned and vacant post.” 18. The University filed an equally unsatisfactory, sketchy Counter- Affidavit, raising vague objections as to why the prayer of the Petitioner for absorption was untenable without bringing it to the notice of the Court that the Petitioner was a regular employee. It also failed to bring the Rules pertaining to compassionate grounds on record. It merely stated the following: “7. The University filed an equally unsatisfactory, sketchy Counter- Affidavit, raising vague objections as to why the prayer of the Petitioner for absorption was untenable without bringing it to the notice of the Court that the Petitioner was a regular employee. It also failed to bring the Rules pertaining to compassionate grounds on record. It merely stated the following: “7. That since the petitioner was appointed on compassionate ground in IVth Grade he cannot claim for absorption on the post of Compositor by way of his right under the law whenever the post of compositor is advertised to be filled up the petitioner has right to apply for fresh appointment along with other candidate and his case will be considered according to law.” 19. Even a casual glance at the above reveals that such submission does not take anyone anywhere and hence in such circumstances the Court proceeded to decide the case on the basis of insufficient materials in the manner reproduced below. “What I find that, in between 1997 and 2008, the University has advertised vacancies of some class III post (Annexure-6), but post of Compositor was not advertised, despite the fact that six posts of Compositors were vacant since 1997. Only reason, for this act of respondent authorities of the University, can be that six persons, receiving salary of class IV posts are working against class III Compositor Post, and work is not being hampered. This act of respondent University cannot be considered proper and legal. The stand taken by the respondent that petitioner cannot be absorbed against Class III post, even in the light of the resolution of the Press Committee as his appointment was on the class IV post, if taken to be correct, then also at least he could have been absorbed against Class IV post. Petitioner’s compassionate appointment itself could have been made against vacancy existing in class III post, instead of anticipated vacancy in Class IV post. The University considering the eligibility, qualification of the petitioner and availability of vacancy in Class III post, should have taken decision for compassionate appointment of the petitioner against the existing vacancy. There was no reason for appointing the petitioner against a post, which was not available at the relevant time. The University considering the eligibility, qualification of the petitioner and availability of vacancy in Class III post, should have taken decision for compassionate appointment of the petitioner against the existing vacancy. There was no reason for appointing the petitioner against a post, which was not available at the relevant time. In case, petitioner would have discharged his duties on the post of Compositor, for a few months, the matter would have been different, but continuously for 14 years he is working against this post. He is eligible for being appointed against that post as he posses requisite qualification for the post. There is no reason for not considering Petitioner’s case for regularization, specially when University is not advertising the vacancy. I find that petitioner has genuinely claimed for being absorbed against the post he is working continuously for 14 years. Accordingly, I find that the claim of the petitioner is fit to be allowed. The Vice Chancellor and Registrar of Tilka Manjhi Bhagalpur University are directed to consider Petitioner’s case for absorption on the post of Compositor, against which he is working since 05.06.1997. He shall be allowed all consequential benefits attached to the post, with effect from the date of absorption. The necessary orders in this regard be passed within 8 weeks from the date of production/communication of the order.” (Italics mine). 20. When the order of the Court was not complied with, by the University, a Contempt Application was filed by the Writ Petitioner, in which notices were issued to the University Authorities who then filed the Civil Review. 21. In review petition now the University brings the facts and law before this Court submitting that the Petitioner’s appointment on compassionate ground was a regular appointment and once having been appointed on Class IV post he could not claim absorption on a Class III post. No change of cadre or promotion was permitted to a person appointed on compassionate grounds as per the Rules governing the same. The further submission is that the Petitioner was working on sanctioned vacant post of a durban a class IV post also approved by the Govt. by a letter dated 11.5.2006. 22. Before proceeding any further it would be important to have a glance of the relevant provisions of the rules formulated for Compassionate appointments. The further submission is that the Petitioner was working on sanctioned vacant post of a durban a class IV post also approved by the Govt. by a letter dated 11.5.2006. 22. Before proceeding any further it would be important to have a glance of the relevant provisions of the rules formulated for Compassionate appointments. Rule10,(kha) and (ga) provide as follows; ^^¼10½ vuqdEik ds vk/kkj ij fdlh in ij fu;qfDr gksus ij iqu% mls vuqdEik dk nksckjk ykHk nsrs gq, mldh izkUufr vFkok laoxZ ifjorZu ugha fd;k tk ldsxkA ¼[k½ bl ifji= dk dksbZ ykHk vc rd fu;qDr gks pqds fdlh O;fDr dh laoxZ@in ifjorZu gsrq vuqekU; ugha gksxkA ¼x½ vuqdEik ds vk/kkj ij fu;qDr O;fDr;ksa dh fu;qfDr fu;fer fu;qfDr ekuh tk;sxhA fu;qfDr inkf/kdkjh fu;qDr O;fDr dks mldh fu;qfDr ds laoxZ esa vU; fo’ofo|ky; lsodksa dh Hkkafr] fu;eksa ds vuqlkj iwoZ fu/kkZfjr vof/k ds fy;s ifj{;eku ds rkSj ij j[ksaxsA rRi’pkr ml ij mldh laiqf"V gsrq fo’ofo|ky; fu;e gh iw.kZr% ykxw gksasxsA** 23. Thus it manifest is that as per the Rules on compassionate appointment a person so appointed is deemed a regular employee and the Rules do not permit either cadre change or enhancement of grade. In the first round of litigation, unfortunately the University failed to bring these Rules on record and the decision was rendered without consideration of the same. 24. Further, the Writ Court on account of the deficient quality of assistance proceeded on the assumption that the Petitioner was not even absorbed on the Class IV post and it was on account of this reason it felt that since the Petitioner was eligible for appointment on Class III post and work had been extracted from him of that of a Compositor he should be absorbed as such. Without intending the same the effect of the order was that the Petitioner who had already secured advantage of a Class IV post on ground of compassion was found fit to further claim absorption on a Class III post even though the ground of compassion had stood consummated. This could not be done in view of the express bar of Rule 10. 25. This could not be done in view of the express bar of Rule 10. 25. Also in the case relied upon the Review Petitioner reported in (1994) 6 SCC 560 (State of Rajasthan v Umrao Singh) the Supreme Court had held that once the incumbent had accepted appointment on a certain post his right to be considered on compassionate grounds was consummated or else it would result on an “endless compassion”. 26. Hence in the circumstances of this case when this Court finds that apparently the fate of the Writ was decided on an error on the face of record that the Writ Petitioner was not even absorbed on Class IV post it would be inclined to correct the mistake instead of directing the Review Petitioner to the Appeal Court. More so, because irrespective of the Rules and law now brought on record/pleaded, records reveal that a misconception had been created in the mind of the Court and this Court alone would take responsibility for its fallibility, even though occasioned by the Parties, and set it right. 27. However since there is no gainsaying that the Writ Petitioner could be considered for the post of Compositor after observing rules in its regard, independent of compassionate grounds, and would not be disentitled for consideration just because his initial entry was on such grounds , this Court, as one of equity, would, even while modifying the Order dated 28.7.11 to the extent that it is not incumbent upon the University Authorities to compulsorily consider the Writ Petitioner for absorption on the post of Compositor, think it proper to direct them to proceed with advertisement of the said post, if still sanctioned, available and vacant and consider the claim of the Petitioner, giving him relaxation of age and benefit of experience, if he has been discharging such duties since his appointment, and has requisite qualifications. 28. With these observations both the applications stand disposed off.