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2013 DIGILAW 2431 (ALL)

Ram Shankar Verma v. State of U. P.

2013-09-26

ABDUL MATEEN, DEVI PRASAD SINGH

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JUDGMENT Devi Prasad Singh, J.: - This is an application under Chapter-V, Rule 12 of the Rules of Court for review of judgment and order dated 30-5-2013 on the ground that there is error apparent at the face of record since this Court could not consider the factual position with regard to right of contractual appointment in terms of Gov­ernment order dated 7-6-2010. 2. While arguing on behalf of the ap­plicant, Sri A.K. Tiwari, learned Senior Counsel assisted by Sri R.N. Sharma, sub­mits that S.K. Bhatia was appointed on contract basis on 30-12-2010 while the ap­plicant petitioner was working as Profes­sor and Head of Department in the Medi­cal College, Meerut. It is submitted that more than two persons were working on the post of Professor in different depart­ments of Medical Colleges, hence it be­lies the stand of the State Government that only one contract appointment can be made against category-B post or against sanctioned post under the category. 3. It is submitted that once Dr. S.K. Bhatia could have been appointed on con­tract basis in pursuance of the Govern­ment order there is no occasion to treat the petitioner differently than him. 4. It is argued that the finding recorded in para 31 of the judgment that appoint­ment can be done against sanctioned va­cancies of different posts falling in 4 cat­egories relating to regular vacancies, is erroneous and factually incorrect in view of the amended Service Rules of 2005. It is submitted that since no regular appoint­ment could be done on the post of Pro­fessor by promotion or direct recruitment, until under personal promotion scheme the promotions are done like in the case of the petitioner. The petitioner's appoint­ment does not suffer from any impropri­ety or illegality. Hence finding recorded therein, suffers from apparent error at the face of record. 5. The Government order dated 30-7-2010 categorises the contractual appoint­ment into 4 categories i.e., Professor, As­sociate Professor, Assistant Professor and Lecturer/Clause 5 of the Government order dated 30-7-2008 reveals that the ap­pointment on contractual basis, shall be done against sanctioned post. The Gov­ernment order dated 30-7-2008 speaks for sanctioned post, relevant portion is repro­duced as under: Meaning thereby, the appointment of retired doctors in pursuance of the Gov­ernment order shall be done only against sanctioned post. Rule 15 of Service Rules provides that personal promotion shall be done within the own post of incumbent to the post of Professor. The Gov­ernment order dated 30-7-2008 speaks for sanctioned post, relevant portion is repro­duced as under: Meaning thereby, the appointment of retired doctors in pursuance of the Gov­ernment order shall be done only against sanctioned post. Rule 15 of Service Rules provides that personal promotion shall be done within the own post of incumbent to the post of Professor. Hon'ble Supreme Court interpreted the word, "personal pro­motion" as a benefit which comes to an end after retirement of incumbent. Differ­ent judgments of Hon'ble Supreme Court have been referred in the impugned judg­ment and order dated 30-5-201 3. 6. Appendix B of Service Rules un­der Columns 1 and 2, refers to the post of Professor, Associate Professor, Assistant Professor and Lecturer. Even if for the sake of argument of learned Senior Counsel it is accepted that under the amended Rules, there is no post of regular Profes­sor which may be filled up by promotion, it shall not make out a ground to substi­tute the personal promotion done under Rule 15 with regular promotion on a sanc­tioned post. Hardship or inconvenience or stagnation in service does not create a ground to treat personal promotion equiva­lent to regular promotion or regular post of Professor. 7. The purpose of personal promotion and the right flowing from it has been dealt with in the judgment. The anomaly cre­ated by the amended Rules if any, requires to be considered by Legislatures and not by this Court. Since the Government or­der (supra) does not confer right to the appointment by personal promotion, it may not be made applicable to a post which has not been duly sanctioned in accordance with Service Rules. 8. Attention has not been invited to any provision in the Rule which may indi­cate that personal promotion shall be at par with regular promotion. Rather Clause (g) of Rule 3 provides that member of ser­vice means a person substantively ap­pointed under Rules to a post in the cadre of service whereas, Clause (k) of Rule 3 defines personal promotion as a time bound promotion of substantively ap­pointed person in the cadre who fulfils re­quired qualifying service, prescribed quali­fication and experience. Rather Clause (g) of Rule 3 provides that member of ser­vice means a person substantively ap­pointed under Rules to a post in the cadre of service whereas, Clause (k) of Rule 3 defines personal promotion as a time bound promotion of substantively ap­pointed person in the cadre who fulfils re­quired qualifying service, prescribed quali­fication and experience. Virtually, personal promotion is the upgradation of some post which an incumbent is holding during the course of employment after completion of qualifying service and subject to fulfilment of prescribed qualification and experience and it comes to an end after retirement of incumbent as discussed in the judgment. 9. Any other attempt of Court except an attempt to correct an apparent error or an attempt not based on any ground men­tioned in Order XLVII, Rules 1 and 2, CPC, would amount to an abuse of power to review its judgment, vide, 2000 (1) LBESR 380 (SC): (1999) 9 SCC 596 , Ajit Kumar Rath v. State of Orissa. 10. Power of review conferred on the Court may be exercised when error is apparent at the face of record under Or­der XLVII, Rules 1 and 2 of CPC. It is the statutory power conferred on Court. It is neither inherent power nor a power to reappreciate the evident, vide (2000) 6 SCC 224 , Lily Thomas v. Union of India. 11. It must be borne in mind that re­view is perfectly distinguished from an appeal i.e., quite clear from statutory pro­vision (Order XLVII, Rule 1 of CPC) that the primary intention of granting a review is the reconsideration of the same sub­ject by the same Judge as contra-distin­guished to an appeal which is a hearing before another Tribunal, vide (2005) 2 SCC 334 , Ishwar Singh v. State of Rajasthan. 12. In sum and substance, review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent er­ror where without any elaborate argument one could point to the error and say here is a substantial point of law which states one in the face, and there could reasonably be no two opinion entertained about it, a clear case of error apparent on the face of the record would be made out vide, (2006) 4 SCC 78 , Haridas Das v. Usha Rani Banik. 13. In (2008)9SCC612, State of West Bengal & Ors. 13. In (2008)9SCC612, State of West Bengal & Ors. v. Kamal Sen Gupta, their Lordships of Hon'ble Supreme Court held that error apparent at the face of record means mistake which prima facie is visible and does not require any detail examination. 14. In (1995) 1 SCC 170 , Meera Bhanja (Smt.) v. Nirmala Kumari Chaudhary (Smt.), followed by (1997) 8 SCC 715 , Parsion Devi v. Sumitri Devi, their Lordships of Hon'ble Supreme Court held that power of review does not mean to exercise de novo hearing except the error apparent at the face of record in view of Order XLVII, Rule 1 of CPC. 15. In JT2012 (12) SC 565, Akhilesh Yadav v. Vishwanath Chaturvedi & Ors., their Lordships of Hon'ble Supreme Court held that an erroneous decision in itself does not warrant a review of each deci­sion in absence of error apparent at the face of record. 16. In a case reported in 2012 (30) LCD 1594, Haryana State Industrial Development Corporation Ltd. v. Mawasi & Ors. Etc., while interpreting Order XLVII, Rule 1 of CPC, rein­stating the ground of review, their Lordships of Hon'ble Supreme Court held that in guise of seeking review, the petitioner cannot ask for de novo hearing of an appeal. 17. Subject to aforesaid proposition of law, we do not find any ground which may be treated as error apparent at the face of record. The impugned judgment is a reasoned one specifically indicating therein that persons enjoying higher post under personal promotional scheme, may not be treated as persons regularly pro­moted on higher post and the Government order creates rights on contractual appoint­ment only against regular sanctioned post of the 4 categories and not otherwise. 18. In view of the above, the applica­tion lacks merit hence rejected in limine. Application rejected.