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2017 DIGILAW 633 (ORI)

Bilash Kumar Behera v. State of Odisha

2017-06-27

SANJU PANDA, SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S. N. Prasad, J. 1. This application under Order 47, Rule 1 read with Section 151 of Civil Procedure Code whereby and where under review of the order dated 17.1.2017 passed by this Court in W.P.(C) Nos.17571 and 1697 of 2016 has been sought for. 2. The writ petitions have been filed against the order dated 5.8.2016 passed in O.A.Nos.861 and 1493 of 2014 passed by the Odisha Administrative Tribunal, Bhubaneswar whereby and where under grievance of the petitioner to fix his seniority above the opposite party no.4 with effect from 27.5.1997 has been rejected. This Court, while disposing of the writ petitions, has passed order rejecting the claim of the petitioner while upholding the order passed by the Tribunal. Learned counsel for the review petitioner has submitted that the order passed by this Court in its writ jurisdiction has been assailed before the Hon’ble Supreme Court in Special Leave to Appeal(C) Nos.13729-12730/2017 which was dismissed as withdrawn vide order dated 4.5.2017 at the behest of the petitioner to withdraw the petitions with liberty to approach the High Court by way of review petition, in turn thereof, the instant review petition has been filed. 3. Learned counsel for the petitioner has submitted that the grounds for review of the order to the effect that this Court has not passed order in right prospective, decision rendered by the Hon’ble Apex Court has not been taken into consideration appropriately, prayer made by the petitioner regarding fixation of seniority has not been answered, petitioner is working under the same establishment and as such even though he has been engaged afresh by virtue of fresh advertisement issued by the opposite parties, he cannot be deprived of seniority under the Orissa Service of Engineers(Validation of Appointment) Act,2002 which has been approved by the Apex Court in the case of Amarendra Kumar Mohapatra and others vrs. State of Orissa reported in 2014(4) SCC 583 . According to the learned counsel for the petitioner as per Validation Act, 2002 the petitioner will be deemed to have been in service and accordingly his seniority ought to have been counted. Learned counsel for the petitioner vehemently argued while placing the review petition that this aspect of the matter has not been taken into consideration while disposing of the writ petitions. 4. Learned counsel for the petitioner vehemently argued while placing the review petition that this aspect of the matter has not been taken into consideration while disposing of the writ petitions. 4. Learned counsel for the State-opposite party has vehemently argued while opposing the prayer advanced on behalf of the petitioner and has submitted that there is no reason to review the order since this Court has passed well reasoned order confirming the order passed by the Tribunal regarding grievance of the petitioner. He has further submitted that scope of review is very limited and it can only be done in case of discovery of new and important fact or evidence which, after the exercise of due diligence, was not within the applicant's knowledge could not be produced by him at the time when the order was passed, mistake or error apparent on the face of the record and for any other sufficient reason, but after going through the review petition the petitioner has not made out a case for review of the order, hence on this ground the review petition has to be dismissed. He further submits that even though the order having been assailed before the Hon’ble Apex Court, wherein the Hon’ble Apex Court has been pleased to refuse to interfere with the order on merit and that is the reason the petitioner has taken liberty to withdraw the petitions in order to approach the High Court by way of review petition, which itself shows that there is no merit in the review petition. He further submits that so far as the ground taken by the review petitioner, the same has already been discussed in detail in the order which is under review and whatever ground has been taken in the review petition/writ petitions, that is appeal in disguise and it is settled that review cannot be entertained in disguise of appeal. 5. We have heard learned counsel for the parties and perused the averments made in the review petition. 6. We, before going through the review petition, thought it proper to discuss the scope of the review. 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. 6. We, before going through the review petition, thought it proper to discuss the scope of the review. 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. We have taken into consideration the grounds made by the review petitioner in the review petition seeking review of the order and on its perusal we have found that this Court has taken into consideration the entire aspects of the matter while dealing with the claim of the review petitioner. This Court has taken into consideration the judgment rendered by the Hon’ble Apex Court in the case of Amarendra Kumar Mohapatra and others vrs. State of Orissa(supra) wherein the Apex Court has formulated the parameter to fix the seniority and this Court, after taking into consideration the ratio laid down in that case, has passed detailed order which is sought to be reviewed in the instant review petition, basis upon which this Court has given specific finding that the petitioner cannot be given seniority on the basis of the Validation Act,2002 for the reason that on the date of judgment pronounced by the Apex Court in the case of Amarendra Kumar Mohapatra and others vrs. State of Orissa(supra) the petitioner has already been in regular establishment after being appointed on regular basis by virtue of fresh advertisement issued by the opposite party-State and as such he cannot be categorized in the coverage of adhoc employee, hence he cannot be allowed to get benefit of seniority in pursuance to the Validation Act,2002. 8. Learned counsel for the review petitioner has vehemently argued that this Court while disposing of the writ petitions has not taken into consideration the question regarding fixation of seniority but we find no merit in his argument since it has been answered by us in the judgment since an employee cannot get seniority without any finding regarding the date of appointment since we have already held in the judgment sought to be reviewed that the petitioner cannot get benefit on the basis of Validation Act,2002 as because being fresh appointee his seniority will be counted from the date of entry into service by virtue of the fresh advertisement. Accordingly, we, after discussing all these aspects of the matter, has held that the petitioner cannot come under the coverage of the judgment rendered by the Apex Court in the Case of Amarendra Kumar Mohapatra and others vrs. State of Orissa(supra) and as such he cannot be given benefit of seniority from the date when the Validation Act,2002 came into force. We have taken into consideration all aspects of the matter while disposing of the writ petitions but the petitioner has again reiterated the same grounds which has already been answered by this Court in the judgment sought to be reviewed. 9. We, after discussing in detail, have found that no ground to review the order has been made out. Further, there is no error apparent on the face of the record, rather the review application has been filed in the garb of an appeal which is not at all permissible. 10. In the result, according to our considered view, there is no reason to review the order. Accordingly, the review petition stand dismissed.