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2025 DIGILAW 699 (JHR)

The State of Jharkhand v. Rajeshwar Prasaad, S/o Late Ganesh Prasad Sinha

2025-03-03

DEEPAK ROSHAN

body2025
JUDGMENT : DEEPAK ROSHAN, J. 1. Heard learned counsel for the parties. 2. This review application has been preferred by the petitioners for review of the order dated 15.03.2021 passed in W.P.(S) No. 1935 of 2014.Since, the petitioners have sought review of the writ court order; as such, brief facts as per the pleadings made in the writ petition requires to be enumerated herein, which reads as under: - (i) The Writ Petitioner (Respondent No. 1 herein) had filed the writ petition praying inter-alia for a direction upon the respondent authorities (Petitioners herein) to pay the entire retiral benefits including unpaid wages, gratuity, earn leave, ACP, group insurance, etc. along with pension. Writ Petitioner further prayed for a direction upon the respondent-authorities especially State of Jharkhand to determine the service condition for regularization of service in the Minor Irrigation Department, State of Jharkhand as directed by the State of Bihar at the time of deputation w.e.f. 11.01.2000 from Bihar Hill Area Lift Irrigation Corporation (hereinafter referred as BHALCO) to Minor Irrigation Department at Ranchi Minor Irrigation Monitoring and Valuation Division, which was subsequently shifted to Dhanbad. The Writ petitioner had also prayed for quashing of the order contained in Memo No. 1168 dated 26.10.2013 issued by the office of Executive Engineer, Minor Irrigation Diversion, Dhanbad; whereby the revision of pay of the writ petitioner in the 6th Pay Scale which was given earlier vide letter No. 279 dated 20.03.2009 was withdrawn. (ii) The Writ Petitioner had joined service of BHALCO as Store Keeper on 01.11.1975 and worked till 10.01.2000.Subsequently, he was sent on deputation to the sanctioned post of correspondence clerk in Minor Irrigation Department, Ranchi for three years w.e.f. 11.01.2000 though the service conditions of the Writ Petitioner were to be decided by the Department subsequently; but the same was never done. On 20.03.2009, vide office order No. 279; the benefit of 6th Pay Revision Commission was made applicable to the writ petitioner w.e.f. 01.01.2006. The Writ petitioner subsequently retired from service from the Minor Irrigation Division, Dhanbad on 31.03.2013. After his superannuation, the Writ petitioner made a representation before the respondent-authorities for payment of arrear of salary and other retiral benefits. Pursuant thereto, the Respondent-State of Jharkhand has withdrawn the benefit given to the Writ Petitioner on account of revision of pay scale on the basis of the recommendation made by 6th pay revision. After his superannuation, the Writ petitioner made a representation before the respondent-authorities for payment of arrear of salary and other retiral benefits. Pursuant thereto, the Respondent-State of Jharkhand has withdrawn the benefit given to the Writ Petitioner on account of revision of pay scale on the basis of the recommendation made by 6th pay revision. The action of the Respondents was challenged by the petitioner by preferring a writ application being W.P.(S) No.1935 of 2014. (iii) After hearing the parties, vide order dated 15.03.2021, the writ petition was allowed and the following order was passed:- “15. In view of the aforesaid facts and discussions, all the three issues has been decided in favour of the petitioner. As such, the impugned letter as contained in memo no. 1168 dated 26.10.2013, is hereby, quashed and set aside. The petitioner shall make a representation before the respondent no. 4 for that period when he was posted at BHALCO and if any amount is still due; then the respondent State of Bihar shall calculate the same and take a decision on the claim of the petitioner and pay the same. So far as the claim of regularization is concerned; in view of the aforesaid findings; the respondent-State of Jharkhand shall take a formal decision for regularization of this petitioner in view of the fact that it was not a case of transfer on deputation rather it has been held to be appointment on deputation for the sole reason that the petitioner was never repatriated and the parent organization was on the verge of closure and is in winding up process and as per the statement of learned counsel for JHALCO, it has never revived….” 2. It has been submitted by learned counsel for the petitioners that respondent No. 1 retired from the office of Executive Engineer, Minor Irrigation Division, Dhanbad on deputation basis, as such, he would be considered as employee of BHALCO. He has further submits that since the respondent No. 1 was still an employee of BHALCO therefore his case is covered by the Judgment of the Hon’ble Supreme Court dated 22.11.2013 passed in Civil Appeal No. 10515/2013 (arising out of SLP(C) No. 30291/2011) i.e. State of Jharkhand & Ors. v.Harihar Yadav & Ors. 3. He has further submits that since the respondent No. 1 was still an employee of BHALCO therefore his case is covered by the Judgment of the Hon’ble Supreme Court dated 22.11.2013 passed in Civil Appeal No. 10515/2013 (arising out of SLP(C) No. 30291/2011) i.e. State of Jharkhand & Ors. v.Harihar Yadav & Ors. 3. It has also been submitted that there is no delay in filing the instant review application as the Contempt (Civil) Case No. 798 of 2021 was disposed off vide order dated 17.06.2022 as a reasoned order dated 28.04.2022 was passed by the present petitioners. Thereafter, the respondent No. 1 filed a Civil Miscellaneous Petition being C.M.P. No. 589 of 2022 for restoration of the Contempt (Civil) Case No. 798 of 2021 which was finally restored vide order dated 24.02.2023. He has further submitted that the cause of action for filing the instant review arose on 09.02.2024 when an order was passed in Contempt (Civil) Case No. 798 of 2021 wherein it was observed that the reasoned order dated 28.04.2022 issued by the Secretary, Department of Minor Irrigation, Government of Jharkhand cannot be treated as compliance of order dated15.03.2021 passed in W.P.(S) No. 1935 of 2014. 4. Per contra, learned counsel for the respondent No. 1 has submitted that the review petition filed by the petitioners suffers from grave delay and latches as the same has been filed on 21.3.2024 i.e., after more than 3 (three) years from the passing of order dated 15.03.2021 in W.P.(S) No. 1935 of 2014. The order for passing of formal order of regularization was passed in W.P.(S) No. 1935 of 2014 on 15.03.2021 and therefore the submission of the petitioners that cause of action arose only on 09.02.2024 cannot be sustained. The Contempt (Civil) Case No. 798 of 2021 was dropped vide order dated 17.06.2022 on the submission of the Petitioners/Respondent Authorities that the order has been complied with. However, the said submission was false as the order for regularization was not passed by the petitioners and therefore the respondent No. 1 filed C.M.P. No. 589 of 2022 for restoration of Contempt (Civil) Case No. 798 of 2021 and considering the said facts, this Court restored the Contempt (Civil) Case No. 798 of 2021 to its original file vide order dated24.02.2023 passed in C.M.P. No. 589 of 2022. 5. 5. It has further been submitted that there is no ground for review in the instant case as the twin test of exercise of power of review i.e., error of fact or law apparent on record and any new fact which could not be brought after exercise of due diligence, is not fulfilled in the present case. The judgment of Hon’ble Apex Court passed in Civil Appeal No. 10515/2013 relied upon by the petitioners is on a different fact which is not applicable to the present case. Moreover, the said judgment of the Hon’ble Apex Court was delivered on 22.11.2013 itself much prior to the order sought to be reviewed; hence the same was very much in possession of the Review-Petitioners. Relying upon said submissions, learned counsel for the respondent No. 1 has prayed that the review petition filed by the petitioners is not maintainable and hence deserves to be dismissed. 6. Heard learned counsel for the parties and perused the documents available on records including the order sought to be reviewed. This Court before proceeding to examine as to whether this case is a fit case for review of the order dated 15.03.2021 passed in W.P.(S) No. 1935 of 2014, deem it fit and proper to refer the scope of review and the jurisdiction of the review court. The Hon’ble Apex Court in the case of Moran Mar Basselios Catholicos and Anr. v. Most Rev. Mar Poulose Athanasius and Ors., AIR 1954 SC 526 , has explained the scope of review and the grounds when review jurisdiction can be exercised. Para 32 of the judgment reads as under:- “32. Before going into the merits of the case it is well to bear in mind the scope of the application for review which has given rise to the present appeal. It is needless to emphasis 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 1 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 1 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 record and (iii) for any other sufficient reason.” 7. In the above referred case, the Hon’ble Apex Court has carved out the principles to be followed by the Review Court and facts which is required to be seen while exercising the power of review is that there must be an error apparent on the face of record or the fact which is important for just and appropriate appreciation of the lis which could not have been brought to the notice of the Court in spite of due diligence. 8. The petitioners have preferred the instant review on the ground that the case of the respondent No. 1 is covered by thejudgment of the Hon’ble Supreme Court dated 22.11.2013 passed in Civil Appeal No. 10515/2013 (arising out of SLP(C) No. 30291/2011)titled State of Jharkhand & Ors. v. Harihar Yadav & Ors. This Court has gone through the judgment dated22.11.2013 passed by the Hon’ble Supreme Court in the above referred case, the order dated 16.06.2011 passed by the Division Bench in L.P.A. No. 77 of 2009 and order dated 12.01.2009 passed by the Coordinate Bench in W.P.(S) No. 2935 of 2009. The petitioners in W.P.(S) No. 2935 of 2009 were the employees of BHALCO who have approached the High Court for absorption in JHALCO. The Hon’ble Supreme Court vide judgment dated 22.11.2013 closed the issue of absorption of employees of BHALCO in JHALCO. 9. However, the issue involved in the present case is different. The respondent No. 1 had filed writ petition being W.P.(S) No. 1935 of 2021 for regularization of service in the Minor Irrigation Department, State of Jharkhand. The issue involved in the writ application was “whether the case of the Respondent No. 1 will be treated as transfer by deputation or appointment by deputation”. The respondent No. 1 had filed writ petition being W.P.(S) No. 1935 of 2021 for regularization of service in the Minor Irrigation Department, State of Jharkhand. The issue involved in the writ application was “whether the case of the Respondent No. 1 will be treated as transfer by deputation or appointment by deputation”. The said issue was decided in favour of the Respondent No. 1 / Present Writ Petitioner with a direction that the State of Jharkhand to pass a formal order of regularization. Thus, the case of the respondent No. 1 cannot be said to be covered by the judgment dated 22.11.2013 passed by the Hon’ble Supreme Court in Civil Appeal No. 10515/2013. 10. Further, this Court has referred the scope of review rendered in the judgment referred to hereinabove wherein there are two requirements to exercise the power of review i.e., (i) there must be an error apparent on the face of record and (ii) that the fact which is important for just and appropriate appreciation of the lis but could not have been brought to the notice of the Court in spite of due diligence. As stated hereinabove, the judgment dated 22.11.2013 passed by the Hon’ble Apex Court in Civil Appeal No. 10515/2013 is not applicable in the present facts for the reasons stated in the foregoing paragraphs. Even otherwise, the same cannot be a ground for review of the order dated 15.03.2021 passed in W.P.(S) No. 1935 of 2014 as the present petitioners cannot be said to be in ignorant of the judgment dated 22.11.2013 passed by the Hon’ble Supreme Court in Civil Appeal No. 10515/2013. 11. Further, the present petitioners have filed the review of the order dated 15.03.2021 in W.P.(S) No. 1935 of 2014. This Court directed that a formal order of regularization be passed in light of the fact that the case of Respondent No. 1 was of appointment on deputation. The contempt case being Contempt (Civil) Case No. 798 of 2021 was disposed of vide order dated 24.02.2023 based on the submission on the part of the petitioners herein that the order dated 15.03.2021 passed in W.P.(S) No. 1935 of 2014 has been complied with. Therefore, the Respondent No. 1 had filed C.M.P. No. 589 of 2022 for restoration of Contempt (Civil) Case No. 798 of 2021 which was allowed vide order dated 24.02.2023. 12. Therefore, the Respondent No. 1 had filed C.M.P. No. 589 of 2022 for restoration of Contempt (Civil) Case No. 798 of 2021 which was allowed vide order dated 24.02.2023. 12. Even the submission of the present petitioners that the cause of action for filing review arose only on 09.02.2024 when order was passed in Contempt (Civil) Case No. 798 of 2021, is misconceived and devoid of merit as the petitioners have sought review of the order passed in W.P.(S) No. 1935 of 2014 and not the review of the order whereby the Contempt (Civil) Case No. 798 of 2021 was restored. This Court finds that the dropping of the Contempt (Civil) Case in the first instance was on the basis of the submission of the State of Jharkhand that the order passed in W.P.(S) No. 1935 of 2014 has been complied with. 13. This Court further finds that the review application is filed after more than 3 (three) years of the passing of the order in W.P.(S) No. 1935 of 2014 and no plausible explanation is given by the petitioners for such delay and latches in filing of the review application. In the case of State of Madhya Pradesh & Anr. v. Bhailal Bhai & Ors, AIR 1964 SC 1006 , the Hon’ble Apex Court has categorically held that normally the limitation prescribed for any proceeding under the Limitation Act shall be considered to be reasonable in a Writ Proceeding under Article 226 of the Constitution of India and any period beyond that shall be normally considered to be unreasonable. The intent of the Legislature in the matters of writ proceedings is also evident from the fact that there is only 30 days limitation prescribed for filing an appeal. In the present fact of the case, there is a delay of almost 3 (three) years which has not been explained by the petitioners; as such, the present review application is also hit by latches. 14. This Court, after taking into consideration the facts in its entirety and the law laid down by the Hon’ble Apex Court with respect to the power of review, is of the view that the instant review petition deserves to be, and is, hereby dismissed. However, there shall be no order as to cost.