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2023 DIGILAW 1128 (PAT)

Shambhoo Sharma v. State of Bihar

2023-10-05

ARUN KUMAR JHA, P.B.BAJANTHRI

body2023
P. B. Bajanthri, J. – Learned counsel for the review petitioners submitted that this matter may be taken up along with Serial No. 130, Civil Review No. 309 of 2018 and connected matters. 2. On an earlier occasion we have made an observation that the review petitioners are not entitled to have the benefit of old pension in view of the fact that they were appointed on substantive post subsequent to the date of introduction of New Pension Scheme of the State of Bihar. In this regard, we have already taken note of the decision of the Apex Court in the case of State of Bihar and Ors. vs. Rajmati Devi and Anr. (Civil Appeal No. 3900-3901 of 2022) [: 2022 (4) BLJ 13 (SC)] decided on 20.05.2022. 3. In view of these factual aspects of the matter and the fact that each of the review petitioners have been substantively appointed to a particular post subsequent to the introduction of New Pension Scheme. Therefore, they are not entitled to have any benefit under the Old Pension Scheme in view of the fact that Old Pension Scheme cease to be existing as on the date of petitioners substantive appointment. 4. Accordingly, these Civil Review petitions are dismissed. Date: 05-10-2023 (At 02:15 p.m.) 5. Even though these matters were taken up along with Review Application No. 29 of 2023 (at serial no. 1) in the morning session, but, learned counsel for the review petitioners Mr. Rakesh Upadhyay was not present at that time. Therefore, in order to give him opportunity, he has been heard in the afternoon. 6. Learned counsel for the petitioner has not disputed the dates and events relating to New Pension Scheme, which was introduced on 01.09.2005 whereas each of the review petitioners were stated to have been appointed in the year 2012 on the post of Teacher. The Teacher post is governed by Rules called ‘Bihar Special Primary Teachers Appointment Rules, 2010 (for short ‘Rules, 2010), which was introduced with effect from 08.06.2010. 7. The review petitioners were stated to have questioned the validity of certain statutory provisions including portion of the Rules, 2010 cited supra. 8. Learned counsel for the petitioner submitted that the present matters are covered by the decisions rendered in the case of Birendra Prasad and Ors. vs. The State of Bihar and Ors. 7. The review petitioners were stated to have questioned the validity of certain statutory provisions including portion of the Rules, 2010 cited supra. 8. Learned counsel for the petitioner submitted that the present matters are covered by the decisions rendered in the case of Birendra Prasad and Ors. vs. The State of Bihar and Ors. (C.W.J.C. No. 3911 of 2010) decided on 01.10.2010 by the learned Single Judge and in the case of The State of Bihar and Ors. vs. Nagendra Prasad Arya (Letters Patent Appeal No. 1818 of 2010) [: 2011 (2) BLJ 342] decided on 26.03.2011 by the Division Bench of this Court. Further, he has made every endeavour to recall the judgment and order dated 05.04.2018 passed in C.W.J.C. No. 25362 of 2013 and other connected matters while furnishing synopsis, list of dates and events and written submission on behalf of the review petitioners. These matters could have been taken note of if the C.W.J.C. No. 25362 of 2013 is heard. On the other hand, we are dealing with the Civil Review Petition. Moreover, the scope of Civil Review is limited to the extent under Order 47 Rule 1 of C.P.C. The Apex Court in the cases of S. Murali Sundaram vs. Jothibai Kannan and Others reported in 2023 SCC OnLine SC 185 and Arun Dev Upadhyaya vs. Integrated Sales Service Ltd and Anr., reported in 2023 LiveLaw (SC) 506 elaborately discussed under what circumstances Court can review the order with reference to Order 47 Rule 1 of C.P.C. It would be relevant to quote Paragraph 14 to 17 of decision rendered in the case of S. Murali Sundaram (supra): – “14. At the outset, it is required to be noted that by the impugned judgment and order the High Court has allowed the review application filed under Order 47 Rule 1 CPC and has set aside the judgment and order dated 03.03.2017 passed in Writ Petition No. 8606 of 2010. While allowing the review application the High Court has observed and held that the earlier judgment and order dated 03.03.2017 in Writ Petition No. 8606 of 2010 was erroneous. While allowing the review application the High Court has observed and held that the earlier judgment and order dated 03.03.2017 in Writ Petition No. 8606 of 2010 was erroneous. Therefore, question which is posed before this Court for consideration is whether in the facts and circumstances of the case the High Court is justified in allowing the review application filed under Order 47 Rule 1 CPC and setting aside the reasoned judgment and order passed in main writ petition? 15. While considering the aforesaid issue two decisions of this Court on Order 47 Rule 1 read with Section 114 CPC are required to be referred to? In the case of Perry Kansagra (supra) this Court has observed that while exercising the review jurisdiction in an application under Order 47 Rule 1 read with Section 114 CPC, the Review Court does not sit in appeal over its own order. It is observed that a rehearing of the matter is impermissible in law. It is further observed that review is not appeal in disguise. It is observed that power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. It is further observed that it is wholly unjustified and exhibits a tendency to rewrite a judgment by which the controversy has been finally decided. After considering catena of decisions on exercise of review powers and principles relating to exercise of review jurisdiction under Order 47 Rule 1 CPC this Court had summed upon as under: – “(i) Review proceedings are not by way of appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. (ii) Power of review may be exercised when some mistake or error apparent on the fact of record is found. But error on the face of 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 the points where there may conceivably by two opinions. (iii) Power of review may not be exercised on the ground that the decision was erroneous on merits. But error on the face of 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 the points where there may conceivably by two opinions. (iii) Power of review may not be exercised on the ground that the decision was erroneous on merits. (iv) Power of review can also be exercised for any sufficient reason which is wide enough to include a misconception of fact or law by a court or even an advocate. (v) An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit.” 16. It is further observed in the said decision that an error which is required to be detected by a process of reasoning can hardly be said to be an error on the face of the record. 17. In the case of Shanti Conductors (P) Ltd. (supra), it is observed and held that scope of review under Order 47 Rule 1 CPC read with Section 114 CPC is limited and under the guise of review, the petitioner cannot be permitted to reagitate and reargue questions which have already been addressed and decided. It is further observed that an error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of record justifying the court to exercise its power of review under Order 47 Rule 1 CPC.” 9. The aforementioned decision of the Apex Court is aptly applicable to the present case(s) for the reasons that in the Civil Review, main matter cannot be re-opened and adjudicated. Moreover, the cited decisions on behalf of review petitioners in the cases of Birendra Prasad’s and The State of Bihar and Ors. vs. Nagendra Prasad Arya (supra), this Court has not examined the applicability of the then Bihar Pension Rules, 1950, in particularly, Rule 58, which reads as under: – “58. The service of a Government servant does not qualify for pension unless it conforms to the following three conditions: – First – The service must be under Government. Second – The employment must be substantive and permanent. Third – The service must be paid by Government. The service of a Government servant does not qualify for pension unless it conforms to the following three conditions: – First – The service must be under Government. Second – The employment must be substantive and permanent. Third – The service must be paid by Government. These three conditions are fully explained in the following sub- sections.” It is to be noted that for the purpose of claiming Old Pension Scheme, the petitioners should have been in service against substantive post as on 31.08.2005, whereas New Pension Scheme was introduced on 01.09.2005 read with the petitioners’ appointment is in the year 2012. Further, it is to be noted that the Bihar Special Primary Teachers Appointment Rules, 2010 was introduced on 08.06.2010, under which each of the review petitioners were selected and appointed, which is much later than the introduction of New Pension Scheme on 01.09.2009. The cut off date for claiming Old Pension Scheme has been dealt by the Apex Court in the case of State of Bihar and Ors. vs. Rajmati Devi and Anr. (Civil Appeal No. 3900- 3901 of 2022) decided on 20.05.2022. Therefore, the Civil Review Petition cannot be examined on merits also. 10. Learned counsel for the review petitioners submitted that there is an element of arbitrariness insofar as introduction of New Pension Scheme dated 01.09.2005 is concerned with reference to vacancies which were occurred prior to 01.09.2005 and filled up after 01.09.2005. The petitioners were stated to have been appointed against vacancies prior to 01.09.2005. That may not be relevant for the reasons that the Rules, 2010 was issued in the year 2010 which is subsequent to the introduction of New Pension Scheme. Even if there is any arbitrariness element, the same cannot be examined in the light of Apex Court’s decision in the case of State of Bihar and Ors. vs. Rajmati Devi and Anr. (supra). 11. Learned counsel for the review petitioners further argued the principle of reading down insofar as certain portions of Rules, 2010 read with New Pension Scheme introduced on 01.09.2005 is concerned. The principle of reading down cannot be examined in the Civil Review Petition. In other words, learned counsel for the review petitioners are re-arguing the main matter in the Civil Review Petition and it is not permissible. The principle of reading down cannot be examined in the Civil Review Petition. In other words, learned counsel for the review petitioners are re-arguing the main matter in the Civil Review Petition and it is not permissible. Therefore, we do not find any reason to revisit our decision already taken in the first session and accordingly the review petitions stand dismissed.