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2017 DIGILAW 803 (ORI)

State of Odisha v. Sailendra Ku. Samal

2017-07-28

SANJU PANDA, SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S.N. Prasad, J. The instant review petition having been filed by the State of Odisha represented by the Principal Secretary to Government, General Administration Department, Bhubaneswar seeking review of the order passed by this Court in W.P.(C) No.12381 of 2005 dated 21.01.2014. The review petition has been filed on the ground that the order has been passed presuming that the case of the applicant is squarely covered with the case of Satyajit Das and Rudra Narayan Acharya but factually it is incorrect but the Court, while disposing of the writ petition, has not taken into consideration this aspect of the matter. The State authorities has not been provided an opportunity to clarify the issue regarding the dissimilarities of the case of the petitioner with that of the case of Satyajit Das and Rudra Narayan Acharya. The review petition has been filed along with an application to condone the delay having been filed under Section 5 of the Limitation Act, wherein the ground for delay of 403 days has been tried to be explained and on that basis the delay has been sought to be condoned by this Court. 2. Brief facts of the case is that the applicants/opposite parties had appeared in the selection process in pursuance of the advertisement issued in the year 1987-88, inviting applications for the combined competitive examination,1987 and in pursuance of the said advertisement they were selected in the written examination and as such participated in the viva-voce test. The competent authorities have prepared the merit list of the successful candidates on 25.09.1989 in which the opposite party no.1 to the instant review petition was placed at Sl. No.55 whereas the opposite party no.2 was at Sl. No.57. They have been medically examined on 1.9.1989 and accordingly the physical test has held on 3.9.1989. They claimed that the reserved candidates who are below to that of reserved categories were issued with the appointment orders but no such appointment order was issued to them, however vide letter dated 3.5.1990, they were appointed under Rule-8 of Odisha Board of Revenue Rules, 1950 as Sub-Registrar in the lower post of Class-3 and continued as such. They claimed that the reserved candidates who are below to that of reserved categories were issued with the appointment orders but no such appointment order was issued to them, however vide letter dated 3.5.1990, they were appointed under Rule-8 of Odisha Board of Revenue Rules, 1950 as Sub-Registrar in the lower post of Class-3 and continued as such. They claimed that they have submitted representation on 5.6.1990 to the Chief Minister as well Chief Secretary bringing into their notice that there are vacancies in which they could have been observed but the representation being neither considered nor its result was communicated to them, hence they have filed an original application. 3. The functionaries of the State of Odisha have filed their counter affidavit before the Tribunal inter alia stating therein that five candidates including the opposite parties were allowed to join in the finance Department for appointment on O.A.S. Class-II but due to reduction of vacancy of Class-2 posts were withdrawn from the Finance Department but at sympathetic consideration the Government had allowed them for absorption as Sub-Registrar, while the representation of the applicants were under examination. 4. The Tribunal vide order dated 22.03.2005 has dismissed the original application, hence applicants have filed the writ petition being W.P. (C) No. 12381 of 2005, the said writ petition was disposed of vide order dated 21.01.2014 directing the State to appoint the petitioner in O.A.S. Class-II Post retrospectively in the scale of pay to the post of Class-II from the date of their initial appointment and give all the benefit as has been given to Satyajit Das and Rudra Narayan Acharya in aforesaid case as per the notification under Annexure-6. The order passed by this Court in W.P.(C) No.12381 of 2005 is under review by way of the instant review petition on the ground as indicated herein above. 5. The order passed by this Court in W.P.(C) No.12381 of 2005 is under review by way of the instant review petition on the ground as indicated herein above. 5. Learned Senior Counsel appearing for the applicants/opposite parties herein, has vehemently opposed the review petition both on the ground of limitation as well as on merit, while submitting, it has been argued that the instant review petition has been filed after delay of 403 days with the common ground taken in the condonation application of movement of file from one office to another and the original file which is lying in the office of the Advocate General had not been handed over to the General Administration Department which caused delay in filing the review, according to him the reason is not fit to be acceptable while condoning the delay as because the concerned file i.e. ID-65/90 renumbered as ID 76/90 had been handed over to the office of the Advocate General on 17.03.2006 but not returned to the General Administration Department and as such other available file lying with the General Administration. Department has been taken into consideration for filing the review of the order dated 21.01.2014 and accordingly the decision to file review application has been taken which caused 403 days delay, this reason cannot be said to be perfect because it is latches on the part of the authorities and if the file is not traceable, in absence thereof, the review petition should not have been filed. He further submits that the instant review petition has been filed only after the notice in contempt has been issued since the contempt against the authorities for non-compliance of the order dated 21.01.2014 has been filed and when in the said case, notice has been issued vide order dated 20.02.2015 then only the instant review has been filed on 2.3.2015 and as such this review petition is not fit to be entertained on this ground also. 6. 6. So far as the merit is concerned, it has been submitted by him that this Court has passed a conscious order taking into consideration the decision of the Chief Secretary while examining the file along with the other Secretaries, wherein the decision was taken that all the candidates selected in the year 1986-87 to be absorbed in Class-II service, the said proposal was also approved by the Chief Minister but the Law Department has given its opinion to wait due to pendency of the original application before the Tribunal being O.A. No.1265 of 1990 and as such merely on the ground of pending litigation, the decision taken by the Chief Secretary for their absorption in Class-II service should not have been denied to them. He submits that if the litigation would not have been pending before the Tribunal then at that time the applicants would have got their absorption in view of the decision of the Chief Secretary having been approved by the Chief Minister of the State and as such pending litigation will not come in the way of legitimate claim of the applicants, this Court after taking into consideration all these facts has taken conscious decision reversing the order of the Tribunal with a direction to appoint the applicants in O.A.S. Class-II post retrospectively in the scale of pay. 7. Learned Advocate General, having been assisted by the Additional Government Advocate, has vehemently argued that the order dated 21.01.2014 needs to be reviewed only for the reason that there is no post available and it is settled that in absence of a post, no recruitment in either ways can be given. He has demonstrated from the various affidavits and the records pertaining to the Revenue Department to demonstrate that the vacancy is not available. We have heard learned counsel for the parties and perused the documents available on record. 8. Before going into the merit of the issue, it is relevant to discuss the scope of 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. 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. 9. 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 Another 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. 10. So far as the merit of the issue is concerned, we have gathered from the order dated 21.01.2014 that there is a reference in paragraph-8 of the order passed in O.A. No. 1265 of 1990 regarding the discussion of the fate of the decision of the claim of the applicant by the Chief Secretary of the State, for ready reference the said paragraph is being quoted herein below:- “The learned counsel for the applicants is alive to this situation and position of law. His grievance in this case is that as because the State Government have taken a decision to absorb all the candidates sponsored by the O.P.S.C. in Annexure-4 and some of the candidates have got that benefit, the same should not be denied to the applicants. While examining the aforesaid file we find that the Chief Secretary along with other Secretaries took a decision that all the candidates selected in the year 1986-87 should be absorbed in Class-II service. This proposal of the Chief Secretary also was approved by the Chief Minister. The Law Department however gave the opinion that as the matter is pending before the Tribunal it would be better for the Administrative Department to await the decision of the Tribunal. This proposal of the Chief Secretary also was approved by the Chief Minister. The Law Department however gave the opinion that as the matter is pending before the Tribunal it would be better for the Administrative Department to await the decision of the Tribunal. It is stated that because of the pendency of the O.A. and opinion of the Law Department on 17.08.1991, the case of the applicants were not considered.” 11. This Court has observed from going through the record of the original application that the original application has been filed in the year 1990 which was pending before the Tribunal till 23.02.2005 i.e. for a long period of 15 years, and the reason for pendency as we have observed from the order-sheet of the order of the Tribunal, wherein the direction has been issued to the Government Advocate to produce the record to ascertain the vacancy position and also the original decision, wherein the Chief secretary has taken decision along with three other Secretaries for absorption of their service in O.A.S. Class-II but the case before the Tribunal was adjourned time and again for want of relevant document which has been produced only on 20.01.2005 and thereafter the matter was disposed of by the Tribunal vide order dated 22.03.2005. It further appears from the record that the writ petition has been filed by the applicant on 28.09.2005 assailing the order of the Tribunal and this Court has directed vide order dated 6.3.2006 to produce the relevant document including the I.D. 65 of 1990 of the G.A. Department. It further appears that the State has been allowed to file counter affidavit but no affidavit has been filed. It further appears that the State has been allowed to file counter affidavit but no affidavit has been filed. It further appears that the record as directed by this Court vide order dated 6.3.2006 has not been produced and as such this Court, taking into consideration the quoted portion in the order of the Tribunal at paragraph-8, has disposed of the writ petition vide order dated 21.01.2014 on the ground that the Tribunal has taken into consideration while rejecting the claim of the petitioner since more than 15 years have already lapsed after the select list was published in the month of May, 1989, which has not been considered as a proper reason for dismissal of the original application by this Court and this Court after considering the fact that due to pending litigation, the applicant should not be allowed to suffer and also taking into consideration the fact that on earlier occasion with respect to other selectees of the different selection namely Satyajit Das and Rudra Narayan Acharya who were the selectees of the subsequent selection year but they have been allowed their appointment on the basis of the selection held on earlier occasion and the said decision after having been affirmed by this Court in W.P.(C) No.100 of 2011 as also by the Hon’ble Supreme Court in SLP (C) 5320 of 2011 has taken into consideration that when the relief regarding adjustment could be given to Shri Satyajit Das and Rudra Narayan Acharya considering the fact that there were no latches on their part then why that principle would not be applicable in the case of the applicants wherein also there is no fault on the part of the applicant since they have been selected but not taken as O.A.S. Class-II service rather given the service under Sub-Registrar, but even in spite of the decision of the Chief Secretary after having been approved by the Chief Minister, they have not been absorbed and merely on the ground of pending litigation since they should not suffer, as such this Court has passed order while disposing of the writ petition directing the State authorities to absorb them in service from the date with retrospective effect following the principle adopted by the State by which Satyajit Das and Rudra Narayan Acharya were given the benefit. 12. 12. We, in course of hearing of the instant review petition wanted to see the original record wherein the Chief Secretary has taken decision basis upon which this Court has taken decision in order to see the reason under what circumstances the Chief Secretary being the highest authority in the bureaucracy of the State whose decision has also been approved by the Chief Minister of the State but the file could not have been produced in spite of repeated direction rather we have also imposed cost of Rs.1000/- as would be evident from the order dated 21.06.2017 but neither cost has been deposited nor the record has been produced. 13. This Court has again passed the order on 3.7.2017 directing the Chief Secretary to appear in person on 12.7.2017 with respect to know about the whereabouts of the file. On 12.07.2017 an affidavit has been filed by the Chief Secretary that the record has been handed over to the office of the Advocate General which has been received on 17.03.2006 but thereafter the same has not been handed over to the concerned Department in spite of repeated request made in this regard. This Court has further allowed time on 12.07.2017 to the learned Advocate General on his request by way of last chance to find out the record but record could not have been produced. The fact remains that the State has filed a review but without availability of the relevant records basis upon which the Court of law has disposed of the matter. 14. Learned Advocate General has tried to impress upon the Court that there was no vacancy during the relevant time but the thing is that when there was no vacancy during the relevant time then what led the Chief Secretary sitting with other three Secretaries to take decision for absorption of the applicant which has been approved by the Chief Minister of the State and as such non-production of record led us to draw adverse inference upon the State and it is settled that if the relevant record is not produced basis upon which any order has been passed, the original order cannot be reviewed in absence thereof. 15. 15. So far as the production of other record is concerned, we are conscious of the jurisdiction of review that if the record could not have been traced out in spite of due diligence then same can be understood to be a reason for review of the order but we after going through the review petition are not being satisfied that the ground of review can be said to come under the purview of non-production of the document in spite of due diligence, fact remains that these records cannot be said to be the original records basis upon which the order has been passed either by the Tribunal or by this Court under the original jurisdiction. Accordingly, we find no reason to exercise our power of review in the facts and circumstances stated hereinabove so far as merit of the case is concerned. 16. So far as the limitation is concerned, admittedly there is delay of 403 days in filing of review petition that too after notice having been issued in the contempt petition by this Court being CONTC No.1344 of 2014 and only after issuance of notice, the instant review petition has been filed i.e. on 2.3.2015 and as such there is gross latches on the part of the State authorities. 17. We have taken into consideration the ground for condonation of delay that does not convince us to be a sufficient ground to condone the delay since the averments has been made that due to want of the file which has been misplaced from the office of the Advocate General after 17.03.2006 and on account of that fact, the delay has been caused in filing the appeal, since the other file available with the General Administration Department has been made available by the Law Department of the General Administration Department on 22.01.2015 with the opinion to file a review and thereafter the office of the learned A.G. has been instructed to file review application after knowing the fact that the contempt petition has been filed. There is no dispute about the settled principle that while considering the application filed under Section 5 of the Limitation Act, the Court should take liberal view so that the matter be adjudicated on merit but simultaneously it is also necessary to see by the Court of law that the sufficient reason must be there for condonation of delay but in the facts and circumstances of the instant case we find no sufficient reason to condone the delay as discussed above. 18. We, after taking into consideration the ground taken by the State for condonation of delay are not convinced that the same is a sufficient reason to condone the delay of 403 days in filing the review and accordingly for the reason stated hereinabove, we are not inclined to interfere with the order passed by this Court under its review jurisprudence both on merit as well as limitation. Before parting with the order, we direct the State to deposit the cost as directed vide order dated 21.06.2017, if not deposited. In the result, review petition stands dismissed.