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2016 DIGILAW 2012 (GUJ)

Vankar Jayeshbhai Dhanjibhai v. State of Gujarat

2016-09-07

ABHILASHA KUMARI

body2016
JUDGMENT : ABHILASHA KUMARI, J. This Misc. Civil Application has been preferred by the applicant, with the following prayers: “A. Your Lordships may be pleased to admit and allow this application. B. Your Lordships may be pleased to pass appropriate order for review/clarification/ recall of the order dated 23.04.2015 passed in Special Civil Application No. 324 of 2015, to the effect that the application of applicant for compassionate appointment be decided as per the applicable Scheme as per settled law; C. Your Lordships may be pleased to grant such other and further reliefs as may be deemed fit and proper by this Hon'ble Court in the interest of justice;” 2. The brief background in which the application has been filed is that, the applicant had earlier filed Special Civil Application No. 324/2015, inter-alia, with a prayer to quash and set aside the communications dated 18.05.2012 and 23.05.2012, issued by the respondents and to direct them to consider the application of the applicant for the grant of appointment on compassionate grounds. Further, directions had been sought to give the applicant ex-gratia payment. 3. The above-mentioned petition was disposed of by an order dated 23.04.2015, passed by this Court, without entering into the merits of the petition. The Court found that the impugned order did not contain any reasons, therefore, it was quashed and set aside and the following directions were issued: “11. The order dated 23.05.2012 passed by respondent No. 3 is, accordingly, quashed and set aside. The respondents are directed to consider the case of the petitioner for the grant of lumpsum financial aid under the Government Resolution dated 05.07.2011, afresh, by passing a reasoned order, in accordance with law. This exercise shall be completed within a period of eight weeks from the date of the receipt of a copy of this order. 11. The petition is disposed of, in the above terms, without entering into the merits of the case. 12. Direct service of this order is permitted.” 4. It appears that pursuant to the above order, the respondents rejected the application of the applicant for the grant of lump-sum compensation in accordance with the policy of the State Government dated 05.07.2011 Aggrieved by the rejection, the applicant preferred another petition, being Special Civil Application No. 14338/2015, which came to be rejected by an order dated 06.04.2016, passed by this Court (Coram: J.B Pardiwala, J.). The applicant filed a Letters Patent Appeal against the above-mentioned order dated 06.04.2016, being Letters Patent Appeal No. 378/2016 in Special Civil Application No. 14338/2015. Before the Division Bench, learned counsel for the applicant/appellant submitted that he has filed a Review Petition, seeking review of the order passed by “the learned Single Judge”. He, therefore, sought permission to withdraw the appeal, which was granted by an order dated 26.07.2016 and the appeal was dismissed, as withdrawn. The Division Bench, however, indicated that after the adjudication of the Review Petition, liberty is granted to the applicant to approach this Court in case of difficulty. Under the circumstances, the present application for the review/clarification/recall of the order dated 23.04.2015, passed in Special Civil Application No. 324/2015 has been preferred before this Court. 5. Mr. Jigar D. Dave, learned advocate for the applicant has submitted that the order dated 23.04.2015, passed by this Court in Special Civil Application No. 324/2015, especially the directions contained in paragraph-11 thereof, are coming in the way of the applicant. As per this order, the respondents have been directed to consider the application of the applicant/petitioner for the grant of a lump-sum amount. Pursuant to the said order, the respondents have rejected the application of the applicant, which order has been upheld by this Court by the order dated 06.04.2016, passed in Special Civil Application No. 14338/2015. In Special Civil Application No. 324/2015, the petitioner had prayed for the grant of appointment on compassionate grounds as well as ex-gratia payment. This Court ought to have held that the application of the applicant/petitioner be considered for the grant of compassionate appointment, as well. It is further submitted that the applicant’ is without appointment and his right to life, which includes that of appointment is being adversely affected by the above order. According to him, this is a sufficient ground for the recalling/rectification/clarification of the order of this Court. 6. It is further submitted that the respondent authorities have failed to interpret the order dated 23.04.2015, passed by this Court in Special Civil Application No. 324/2015, in a proper manner. They have not taken into account the fact that this Court did not decide the petition on merits. 6. It is further submitted that the respondent authorities have failed to interpret the order dated 23.04.2015, passed by this Court in Special Civil Application No. 324/2015, in a proper manner. They have not taken into account the fact that this Court did not decide the petition on merits. As this Court has not decided the question regarding the application of the applicant for the grant of compassionate appointment, the respondents ought to have considered the case of the applicant from that angle. It is submitted that this Court has issued directions to the respondent to consider the application of the applicant for the grant of lump-sum compensation as per the Policy dated 05.07.2011, which was prevalent at that point of time. However, it was not the policy in vogue at that point of time when the applicant made the application. It is contended that as per the principles of law enunciated by the Supreme Court in Canara Bank v. M. Mahesh Kumar, reported in (2015) 7 SCC 412 , it is improper to keep the cases of compassionate appointment pending for years together, therefore, this aspect ought to have been decided at the earliest. 7. It is further submitted as per the decision of the Supreme Court in Canara Bank v. M. Mahesh Kumar (supra), an administrative or executive order cannot have retrospective effect so as to take away a right accrued to the applicant. The applicant possessed the requisite qualifications for compassionate appointment on the date on which he made the application. On that date, the Government Resolution dated 05.07.2011 was not in force, therefore, the respondents ought to have considered the application as per the relevant policy. 8. That, this Court has not decided the petition on merits, but has only quashed and set aside the impugned order, as being one without reasons. The Court has also not dealt specifically with the question to decide the application as per the Scheme in force, therefore, it cannot be said that this question has been adjudicated upon finally. 9. It is submitted that there is a misunderstanding on the part of the respondent authorities in the interpretation of the order of this Court which is required to be reviewed/clarified/ recalled, in the interest of justice. 10. 9. It is submitted that there is a misunderstanding on the part of the respondent authorities in the interpretation of the order of this Court which is required to be reviewed/clarified/ recalled, in the interest of justice. 10. In support of his submissions, learned advocate for the applicant has further placed reliance upon the following judgments of the Supreme Court: (i) Vijaya Ukarda Athor (Athawale) v. State of Maharashtra, reported in (2015) 3 SCC 399 . (ii) Shivdeo Singh v. State of Punjab, reported in AIR 1963 (SC) 1909 . (iii) MGB Gramin Bank v. Chakrawarti Singh, reported in 2013 (10) SCALE 223 . (iv) State of Rajasthan v. Surendra Mohnot, reported in (2014) 14 SCC77. 11. The application has been opposed by Mr. Niraj Ashar, learned Assistant Government Pleader. He has submitted that in paragraph-11 of the order dated 23.04.2015, passed by this Court, which is sought to be reviewed, the Court has directed the respondents to consider the application of the petitioner as per the Government Resolution dated 05.07.2011 The case of the petitioner was considered as per the said Government Resolution and was rejected. The order of rejection was challenged by the petitioner by filing another petition, being Special Civil Application No. 14338/2015. This petition also came to be rejected by the order dated 06.04.2016, passed by this Court (Coram: J.B Pardiwala, J.). This order was challenged by filing Letters Patent Appeal No. 378/2016 before the Division Bench. However, the applicant has withdrawn the appeal by submitting that he has filed a review petition against the order of the learned Single Judge. However, before the Division Bench, the applicant has not specified against which order the review petition has been filed, whether against the order that is the subject-matter of the Letters Patent Appeal, or otherwise. In any case, the appeal has been withdrawn with liberty to approach the Court in case of difficulty. It is further submitted that the prayers made by the applicant in the present application deserve to be rejected, as it would amount to rehearing the petition, which has been disposed of without entering into the merits of the case. That, no error apparent on the face of the order passed by this Court has been pointed out. None of the permissible grounds for review have been made out. That, no error apparent on the face of the order passed by this Court has been pointed out. None of the permissible grounds for review have been made out. The applicant is seeking to convert the present review proceedings into appellate proceedings, which is not permissible in law. 12. In support of the above submissions, learned Assistant Government Pleader has placed reliance upon the following judgments: (i) N. Anantha Reddy v. Anshu Kathuria, reported in (2013) 15 SCC 534. (ii) Pioma Industries and Imperial Soda Factory v. Union of India, reported in 1998 (2) GLH 288. (iii) Judgment dated 12.08.2016, passed by the Division Bench of this Court in Misc. Civil Application No. 959/2015 in First Appeal No. 631/2005 in the case of Kashibhai Ishwarbhai Patel v. Special Land Acquisition Officer. (iv) Judgment dated 16.10.2014, passed by this Court in Misc. Civil Application No. 2768/2014 in Special Civil Application No. 10262/2013 in the case of State of Gujarat v. Vijaykumar B. Parmar. 13. This Court has heard learned counsel for the respective parties at length, perused the averments made in the application and other documents on record. 14. It would be appropriate to first peruse the judgments cited on behalf of the applicant. 15. Learned counsel for the applicant has relied upon the judgment in the case of Canara Bank v. M. Mahesh Kumar (supra), in which the Supreme Court was dealing with a case regarding appointment on compassionate grounds and the applicability of the old Scheme (1993) vis-a-vis the substituted Scheme for ex-gratia payment (2005). It was held that the grant of family pension or payment of terminal benefits cannot be treated as a substitute for providing employment assistance. It was further held that the claim of compassionate appointment under a scheme of a particular year cannot be decided based on the subsequent scheme that came into force much after the claim. 16. In the present case, the earlier Scheme for compassionate appointment was substituted by the new policy contained in the Government Resolution dated 05.07.2011, whereby the State Government has done away with the policy of granting appointment on compassionate grounds, but has replaced it with a scheme for the grant of lump-sum financial assistance. In the prayer-clause of Special Civil Application No. 324/2015, the applicant had prayed for the quashing and setting aside of the two communications dated 18.05.2012 and 23.05.2012, issued by the respondents. In the prayer-clause of Special Civil Application No. 324/2015, the applicant had prayed for the quashing and setting aside of the two communications dated 18.05.2012 and 23.05.2012, issued by the respondents. Both those communications were pertaining to the rejection of the applications of the applicant seeking lump-sum financial assistance under the policy dated 05.07.2011 This aspect is clear from the said communications which are on record. This has also been recorded by the order of this Court dated 23.04.2015 In that petition, the impugned order dated 23.05.2012 was quashed and set aside because it did not contain any reasons and was a non-speaking order. When the applicant had, himself, made an application for the grant of lump-sum compensation that came to be rejected, after the quashing and setting aside the impugned order without entering into the merits of the case, this Court directed the respondents to consider the case of the applicant, afresh, for the grant of lump-sum financial aid under the Government Resolution dated 05.07.2011, by passing a reasoned order. It is now sought to be argued before this Court that in the prayer-clause made in the said petition, the applicant/petitioner had also sought directions to the respondents for giving the petitioner appointment on compassionate grounds. This Court has not adjudicated the petition on merits. As the application of the applicant for the grant of lump-sum compensation had been rejected and the said order of rejection was challenged before this Court, it was this order that was set aside and the matter remanded for fresh hearing by directing the respondents to decide the application afresh. As such, there does not appear to be any error apparent on the face of the order of this Court that requires its recall, modification or clarification. 17. The second judgment relied upon by the applicant is in the case of Vijaya Ukarda Athor (Athawale) v. State of Maharashtra (supra), wherein it is held that in a case of compassionate appointment there is a need for proper consideration of facts and applicable norms, including the changed norms. The principles of law enunciated in this judgment cannot be disputed. However, as this Court has not decided the case of the applicant on merits, the judgment would not be applicable. 18. In the case of Shivdeo Singh v. State of Punjab (supra), learned counsel for the applicant has relied upon the following paragraph: “8. The principles of law enunciated in this judgment cannot be disputed. However, as this Court has not decided the case of the applicant on merits, the judgment would not be applicable. 18. In the case of Shivdeo Singh v. State of Punjab (supra), learned counsel for the applicant has relied upon the following paragraph: “8. The other contention of Mr. Gopal Singh pertains to the second order of Khosla, J., which in effect, reviews his prior order. Learned counsel contends that Art. 226 of the Constitution does not confer any power on the High Court to review its own order and, therefore, the second order of Khosla, J., was without jurisdiction. It is sufficient to say that there is nothing in Art. 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. Here the previous order of Khosla, J., affected the interests of persons who were not made parties to the proceeding before him. It was at their instance and for giving them a hearing that Khosla’ J. entertained the second petition. In doing so, he merely did what the principles of natural justice required him to do. It is said that the respondents before us had no right to apply for review because they were not parties to the previous proceedings. As we have already pointed out, it is precisely because they were not made parties to the previous proceedings, though their interests were sought to be affected by the decision of the High Court, that the second application was e entertained by Khosla, J.” 19. The Court is at a loss to understand how, and in what manner, learned advocate for the applicant intends to derive advantage from this observation of the Supreme Court in the present case. 20. In State of Rajasthan v. Surendra Mohnot (supra), the Supreme Court has delineated the scope and manner of exercise of review power under Article-226 of the Constitution of India in review proceedings and has described what constitutes an error apparent on the face of the record. Reliance has been placed by the learned advocate for the applicant on the following paragraph: “28. Reliance has been placed by the learned advocate for the applicant on the following paragraph: “28. We have already stated the legal position with regard to legal impact as regards the concession pertaining to the position in law. That apart, we think that an act of the Court should not prejudice anyone and the maxim actus curiae neminem gravabit gets squarely applicable. It is the duty of the Court to see that the process of the court is not abused and if the court's process has been abused by making a statement and the same court is made aware of it, especially the writ court, it can always recall its own order, for the concession which forms the base is erroneous.” 21. In MGB Gramin Bank v. Chakrawarti Singh (supra), the learned advocate for the applicant has relied upon the following paragraph: “5. Every appointment to public office must be made by strictly adhering to the mandatory requirements of Articles 14 and 16 of the Constitution. An exception by providing employment on compassionate grounds has been carved out in order to remove the financial constraints on the bereaved family, which has lost its bread-earner. Mere death of a Government employee in harness does not entitle the family to claim compassionate employment. The Competent Authority has to examine the financial condition of the family of the deceased employee and it is only if it is satisfied that without providing employment, the family will not be able to meet the crisis, that a job is to be offered to the eligible member of the family. More so, the person claiming such appointment must possess required eligibility for the post. The consistent view that has been taken by the Court is that com-passionate employment cannot be claimed as a matter of right, as it is not a vested right. The Court should not stretch the provision by liberal interpretation beyond permissible limits on humanitarian grounds. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years.” 22. On the other hand, learned Assistant Government Pleader has relied upon the judgment of the Supreme Court in the case of N. Anantha Reddy v. Anshu Kathuria (supra), wherein, while elaborating upon the scope of review jurisdiction of the High Court, it was observed as under: “6. It is improper to keep such a case pending for years.” 22. On the other hand, learned Assistant Government Pleader has relied upon the judgment of the Supreme Court in the case of N. Anantha Reddy v. Anshu Kathuria (supra), wherein, while elaborating upon the scope of review jurisdiction of the High Court, it was observed as under: “6. A careful look at the impugned order would show that the High Court had a fresh look at the question whether the appellant could be impleaded in the suit filed by the respondent No. 1 and, in the light of the view which it took, it recalled its earlier order dated 08.06.2011 The course followed by the High Court is clearly flawed. The High Court exceeded its review jurisdiction by reconsidering the merits of the order dated 08.06.2011 The review jurisdiction is extremely limited and unless there is mistake apparent on the face of the record, the order/judgment does not call for review. The mistake apparent on record means that the mistake is self evident, needs no search and stares at its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit rehearing of the matter on merits.” 23. In Pioma Industries and Imperial Soda Factory v. Union of India (supra), also relied upon by the learned Assistant Government Pleader, a Division Bench of this Court has held as below: “9. It is required to be noted that review of judgment is not permissible merely for the purpose of rehearing and for a fresh decision of the case. The normal principle is that the judgment pronounced by the Court is final and departure from the principle is justified only when circumstances of a substantially compelling character makes it necessary to do so. In the case of Chandra Kanta v. S.K Habib, 1975 AIR (SC) 1500, the Apex Court held as under: “… A review of a judgment is a serious step and reluctant resort to it is proper only when a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility…” 10. Ordinarily, if a party is aggrieved by the judgment of a Court, the appropriate remedy for the party is to file an appeal against that judgment. Remedy by way of an application for review is misconceived. Ordinarily, if a party is aggrieved by the judgment of a Court, the appropriate remedy for the party is to file an appeal against that judgment. Remedy by way of an application for review is misconceived. In the instant case, the Court is called upon to set aside the judgment of the Division Bench by giving its finding on the two questions raised. That would certainly amount to exercising the appellate powers over the decision of another Division Bench and that is exceeding the jurisdiction of this Court. As held by the Apex Court in the case of Meera Bhanja v. Nirmala Kumari Choudhary, (1995) 1 SCC 170 , review must be confined to error apparent on the face of the record without requiring any long-drawn process of reasoning. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order-47 Rule-1 of the Civil Procedure Code. An error apparent on the face of the 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 points where there may conceivably be two opinions. The petitioners could have challenged the decision by way of an appeal. ***** It is required to be kept in mind that the statutorily undefined powers of review are in practice to be exercised in a very-very narrow compass. The error must be such that which can be felt by a simple touch of the order and not which could be dug out after a long drawn process of reasoning. The fact that if counsel is required to argue the matter afresh, even on a point, it cannot be said to be grave or palpable error or a patent mistake. It is not possible to say that view taken by the Court earlier is not a possible view and there is no question of entertaining this application.” 24. In the Judgment dated 12.08.2016, passed in Misc. Civil Application No. 959/2015 in First Appeal No. 631/2005, the Division Bench, while elaborating on the scope of review jurisdiction held as below: “67. In Haridas Das v. Smt. Usha Rani Banik (supra), cited by Mr. Niraj Ashar, learned Assistant Government Pleader, the Supreme Court has held as below: 14. In the Judgment dated 12.08.2016, passed in Misc. Civil Application No. 959/2015 in First Appeal No. 631/2005, the Division Bench, while elaborating on the scope of review jurisdiction held as below: “67. In Haridas Das v. Smt. Usha Rani Banik (supra), cited by Mr. Niraj Ashar, learned Assistant Government Pleader, the Supreme Court has held as below: 14. In Meera Bhanja v. Smt. Nirmala Kumari Choudary [ AIR 1995 SC 455 ] it was held that: “It is well settled law that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1, CPC. In connection with the limitation of the powers of the Court under Order XLVII, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma speaking through Chinnappa Reddy, J. has made the following pertinent observations: It is true there is nothing in Article 226 of the Constitution to preclude the 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 be exercise of the power of review. The power of review may be exercised on the discovery of new and important matter of 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 merit. That would be in 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 error committed by the Subordinate Court.” 25. Further, in the judgment dated 16.10.2014, rendered in Misc. Civil Application No. 2768/2014 in Special Civil Application No. 10262/2013, this Court has held as below: “10. A power of review is not to be confused with appellate power which may enable an appellate Court to correct all manner of error committed by the Subordinate Court.” 25. Further, in the judgment dated 16.10.2014, rendered in Misc. Civil Application No. 2768/2014 in Special Civil Application No. 10262/2013, this Court has held as below: “10. A perusal of the said order further reveals that no mistake or error has been committed by the Court, while passing the said order. While making submissions, learned Assistant Government Pleader has not raised any submission regarding there being an error apparent on the face of the order. Hence in the view of this Court, as the order dated 28.02.2014 does not suffer from any error apparent on the face of it, the prayer for review of the said order cannot be granted.” 26. Another judgment relied upon is that of the Supreme Court in the case of Meera Bhanja v. Smt. Nirmala Kumari Choudary, the relevant extract of which has already been reproduced hereinabove. 27. Having heard learned counsel for the respective parties and after consideration of the above principles of law that emerge from the observations of the Supreme Court and this Court, it can be stated that, though there is nothing in Article-226 of the Constitution of India to preclude the High Court from exercising the power of review in order to prevent a miscarriage of justice or to correct a grave and palpable error committed by it, however, said power is to be exercised only on certain grounds such as when there is discovery of new and important matter or evidence which was not within the knowledge of the person seeking the review even though after exercise of due diligence. The second ground for review is where a mistake or error apparent on the face of the record is found. The error apparent has to be such that is palpable and obvious on the face of the record and not an error that has to be established by a long drawn out process of reasoning where there can be more than one opinion. It has been reiterated by the Courts again and again that review jurisdiction cannot be exercised in a manner so as to convert review proceedings into appellate proceedings. The power of review is not to be confused with appellate power. It has been reiterated by the Courts again and again that review jurisdiction cannot be exercised in a manner so as to convert review proceedings into appellate proceedings. The power of review is not to be confused with appellate power. It is also not to be exercised on the ground that the decision was erroneous on merits. Review proceedings should not be used as a ploy to reopen and re-hear the matter. 28. Examining the case of the applicant in light of the above principles of law, it is apparent that there is no error apparent in the order sought to be reviewed. Moreover, it has not been passed on the merits of the case. As the case of the petitioner for the grant of lump-sum financial assistance was rejected by the non-speaking order dated 23.05.2012, without assigning any reasons, the said order was quashed and set aside and the respondents were directed to consider the application of the petitioner for the grant of lump-sum compensation afresh. This direction was given as the application which was rejected was for the grant of lump-sum financial aid only. Though, in the petition, the applicant had made a prayer for the grant of compassionate appointment as well as for the grant of lump-sum compensation, however, the impugned order only referred to the grant of lump-sum compensation as the application of the petitioner was for that purpose. The petitioner was aware that the policy had changed and had claimed lump-sum financial aid from the respondents. 29. No adjudication of the petition on merits took place. It is not as though the Court has passed any order against the petitioner. Had the petitioner been aggrieved, he could have challenged the said order but he accepted it. The order of this Court is clear enough and it cannot be said that the respondents have misinterpreted the same. The applicant had no grouse against the order until the respondents rejected his application. As the decision on the application was unfavourable to the applicant, he challenged the same by filing another petition, being Special Civil Application No. 14338/2015, which was rejected by this Court (Coram: J.B Pardiwala, J.) on 06.04.2016 30. The applicant had no grouse against the order until the respondents rejected his application. As the decision on the application was unfavourable to the applicant, he challenged the same by filing another petition, being Special Civil Application No. 14338/2015, which was rejected by this Court (Coram: J.B Pardiwala, J.) on 06.04.2016 30. It is significant to note that the applicant has preferred a Letters Patent Appeal against the above-mentioned order and not against the order dated 23.04.2015, passed in Special Civil Application No. 324/2015, that is sought to be reviewed. The subject-matter of the Letters Patent Appeal before the Division Bench was, therefore, the order dated 06.04.2016, passed in Special Civil Application No. 14338/2015, rejecting the application of the petitioner after a fresh decision as per the directions contained in the order sought to be reviewed. 31. The applicant had accepted the order dated 23.04.2015, which was passed in the presence of his learned advocate. As already stated earlier, the order sought to be reviewed does not suffer from any error apparent on its face. Neither has any such error been pointed out by the learned advocate for the applicant. The order is clear, therefore, no clarification is required. No other ground of review has been made out. The order is not one on merits, therefore, there is no decision against the petitioner. 32. For the aforestated reasons and as no grounds for review have been made out, the application fails and is rejected.