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2017 DIGILAW 367 (ORI)

Sanatan Behera v. State of Odisha

2017-04-06

SANJU PANDA, SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S.N. Prasad, J. The instant review petition has been filed for review of the judgment dated 21.12.2016 passed by this Court in W.P.(C) No.5548 of 2016. 2. Learned senior counsel Mr. J.K. Rath representing the review petitioner has argued the case at length and has submitted that this Court while disposing of the writ petition has not taken into consideration the fact that there is recommendation of the Odisha Public Service Commission for creation of post of Assistant Professor in Haepatology and in that view of the matter the Government is proceeding to create a post and as such the Court ought to have taken into consideration this aspect of the matter while dismissing the writ petition by not interfering with the corrigendum dated 6.2.2016. Learned senior counsel tried to impress upon the Court by referring the documents like the communication dated 1.3.2016 issued by the Secretary, Odisha Public Service Commission, Cuttack addressed to the Principal Secretary to Government, Health and Family Welfare Department, Bhubaneswar whereby and where under request has been made by the O.P.S.C. before the Administrative Department to take immediate measures pertaining to downgrade the posts of Associate Professors to that of the Assistant Professors as well as noting of the functionaries of the Government including the Departmental Minister and on the strength of the documents it has been argued that the post would be deemed to have been created, hence the corrigendum dated 6.2.2016 is contrary to the decision of the Government, which this Court while disposing of the writ petition has not taken into consideration. Secondly, the corrigendum dated 6.2.2016 has also been assailed as without jurisdiction since the same has not been issued by the Government. 3. Learned Additional Government Advocate representing the State of Odisha has vehemently opposed the submission of the learned Senior counsel representing the review petitioner by arguing that this Court has taken into consideration all aspects of the matter and thereafter the order has been passed, hence same need not be reviewed. He submits that admittedly there is no vacancy of Assistant Professor in Haepatology discipline and this Court after being satisfied from the record pertaining to strength of the post of the discipline has consciously passed this order and thereafter refused to interfere with the corrigendum dated 6.2.2016. He submits that admittedly there is no vacancy of Assistant Professor in Haepatology discipline and this Court after being satisfied from the record pertaining to strength of the post of the discipline has consciously passed this order and thereafter refused to interfere with the corrigendum dated 6.2.2016. He further submits that so far as the contention of the learned Senior counsel representing the petitioner that the post has been created by downgrading post of Associate Professor to that of Assistant Professor which is not correct since there is no decision in this regard by the Government and merely on the basis of the noting in the departmental file it cannot be presumed that it is the decision of the government. He submits that the departmental minister cannot be said to be competent authority for taking any decision regarding downgrading of the higher post to lower post as per the provision of rules of executive business as has been framed by the State of Orissa in exercise of power under Article 166(3) of the Constitution of India. He emphasizes that under the rule of executive business any decision has to be taken by the State Government and the decision of the State of State can only be said if there is approval by the Cabinet but from the noting which has been relied upon by the learned senior counsel it is not the decision of the State having not been approved by the Cabinet, rather decision of the Government is that in absence of the post no recruitment process be initiated and when the Government has come across that there is no vacancy in the post of Assistant Professor of Haepatology, corrigendum dated 6.2.2016 has been issued, on the strength of the submission it has been argued that the order passed by this Court needs no interference. 4. We have heard learned counsel for the parties at length. We have perused the orders passed under writ jurisdiction which pertains to the filling up of the post of Assistant Professor under Haepatology discipline which the review petitioner sought to be directly recruited on the strength of the fact that he is continuing on adhoc basis after being selected by the selection committee although not under the vacant post of Assistant Professor in the Haepatology discipline rather against vacant post of Associate Professor in the same discipline. According to the review petitioner, government has come up with an advertisement in terms of the order passed by the Hon’ble Apex Court and in the light of the same he has made his application but subsequently corrigendum has come out on 6.2.2016 showing vacancy position as nil against the Haepatology Department of the post of Assistant Professor which has been challenged by him in the writ petition on the ground that the Odisha Public Service Commission has requested to the Government to downgrade the post of Associate Professor to that of Assistant Professor and the Government is considering it. This Court, after hearing the parties at length, has passed the order in detail and has not interfered with the decision of the authority dated 6.2.2016 by which nil vacancy has been shown in the Haepatology Department of the post of Assistant Professor on the basis of the record of the cadre strength which has been produced by the State authority and on its perusal this Court has found that in the Haepatology discipline there is only one sanctioned vacancy which has already been occupied by one incumbent and as such the Government after knowing this fact, after issuance of advertisement No.15 of 2015-2016, has come out with a corrigendum dated 6.2.2016. Accordingly, this Court has dismissed the writ petition. 5. Learned Senior Counsel representing the review petitioner has argued the case reiterating the same argument which has been argued by the learned counsel for the petitioner Mr. P.C. Mohapatra and A.K. Panigrahi in the writ petition and tried to impress upon the Court that the order passed by this Court under writ jurisdiction needs interference by invoking the provisions of review. We are not impressed upon the argument advanced on behalf of the learned counsel for the review petitioner on the following reasons: (i) This Court, while passing order by not interfering with the decision of the government dated 6.2.2016, has taken into consideration the actual cadre strength of the post of Assistant Professor in Haepatology Department and on its perusal since strength has been found to be one which has been occupied by one doctor and as such this Court after taking into consideration non-availability of vacancy has approved the decision of the government reason being that without any vacancy no recruitment can be made. (ii) Hon’ble Apex Court has directed to consider cases of adhoc employees working in the department, there is no dispute that the Hon’ble Apex Court has directed but this Court after taking into consideration the fact that the post is not available, hence passed order that there cannot be any question of consideration of candidature of a candidate. (iii) The review petitioner is claiming his right to be appointed on substantive basis merely on the ground that he is continuing on adhoc basis as would be evident from the appointment letter dated 15.7.1993 but this Court has taken into consideration the nature of appointment which is purely adhoc for a period of one year or until orders of the Government, hence specific finding has been given on account of the fact that a person is continuing on adhoc basis in a post cannot claim as matter of right to hold the post on substantive basis unless selected against sanctioned post. (iv) The learned senior counsel while pressing upon the review petition has raised two questions i.e. (a) That Odisha Public Service Commission has requested the State authorities to downgrade the post of Associate Professor in Haepatology Department to that of Assistant Professor; (b) The request of the Odisha Public Service Commission is being considered by the administrative department which has been recommended by the Departmental Minister and as such it will be said to be an order of the Government, hence the corrigendum dated 6.2.2016 will be said to be contrary to the decision of the Government. We after going through the request of the Odisha Public Service Commission dated 1.3.2016 as contained in letter No.1204 whereby and where under request has been made to the Principal Secretary to Government, Health & Family Welfare Department, Bhubaneswar to downgrade the two posts of Associate Professors to that of Assistant Professors. We after going through the request of the Odisha Public Service Commission dated 1.3.2016 as contained in letter No.1204 whereby and where under request has been made to the Principal Secretary to Government, Health & Family Welfare Department, Bhubaneswar to downgrade the two posts of Associate Professors to that of Assistant Professors. We have also gone through the noting of the departmental authorities and the noting of the departmental Minister but that is the internal communication of the department having not taken the shape of valid order in the eye of law reason being that a decision is said to be decision of the State Government if approved by the Cabinet and issued by virtue of an office order or notification but we have not come across any decision of the authority in this regard in the shape of an office order or notification and as such the noting of the departmental authorities including departmental Minister cannot be said to be an order in the eye of law, rather we have taken into consideration the order which has been issued by the Additional Secretary to the Government (Annexure-10 dated 6.2.2016) whereby and where under the Department of Haepatology has been shown to be nil vacancy for the recruitment year 2010-2011, for filling up post in pursuance to the advertisement No. 15 of 2015-16 (impugned in the writ petition), which is official communication made by the Additional Secretary to the Government of Odisha to the Secretary, Odisha Public Service Commission. We, after taking into consideration the stand of the authorities taken in the corrigendum dated 6.2.2016, have came to a definite finding that when there is no post available in the particular department, the Court cannot direct to fill up post merely on the ground that the particular person is working on adhoc basis in a particular post, rather the requirement of recruitment rule is that first vacancy is to be ascertained and then only advertisement is to be issued. However, in this case, initially advertisement has been issued showing one vacancy in the Haepatology Department of the post of Assistant Professor but subsequently when the authorities have came to know that no vacancy is available, then they came out with the corrigendum dated 6.2.2016. Accordingly, we declined to interfere with the decision of the Government taken by then by way of issuance of corrigendum dated 6.2.2016. 6. Accordingly, we declined to interfere with the decision of the Government taken by then by way of issuance of corrigendum dated 6.2.2016. 6. It is not in dispute that 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. This 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. 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. 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.” It 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 these review petitions need to be appreciated. 7. Case of the facts in hand which has been considered by this Court to the effect that in absence of vacancy no appointment can be made. So far as legality and propriety of the corrigendum dated 6.2.2016 is concerned, this Court has given specific finding that on verification of the total cadre strength of the post of Assistant Professor in Haepatology Department the corrigendum has been issued, as such we declined to interfere with the corrigendum dated 6.2.2016. The review petitioner now sought to review the order on the basis of the fact which has already been reiterated by the earlier counsel from which we are not impressed upon to exercise jurisdiction conferred to review the order reason being that no new or important matter or evidence, which after examination of diligence was not within applicant’s knowledge or could not be produced by him when the order was passed and could not be able to point out any mistake or error apparent on the face of the record or for any other reason, hence it is not a fit case to review the order passed by this Court. 8. 8. In view of the discussions made by us with respect to the factual aspects as well as the legal position, we are not inclined to review the order passed by this Court in W.P.(C) No. 5548 of 2016 dated 21.12.2016. Accordingly, the review petition is dismissed.