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2025 DIGILAW 738 (GAU)

Afjal Hussain Mazumder, S/o. Lt. Samsul Haque Mazumder v. Union Of India, Ministry Of Water Resources, Rep. By The Secy. , Govt. Of India, Water Resources Deptt.

2025-05-08

LANUSUNGKUM JAMIR

body2025
JUDGMENT : (LANUSUNGKUM JAMIR, J.) 1. Heard Mr. F.U. Barbhuiya, learned counsel for the review petitioners as well as Ms. R. Devi, learned CGC appearing on behalf of all the respondents. 2. The present review petition has been filed praying for review of the Order dated 21.03.2017 passed by this Court in WP(C) No. 2202/2015. 3. The learned counsel for the review petitioners, submits that the father of the petitioner No. 1, while serving as a regular driver in the Office of the Executive Engineer, Brahmaputra Board, Barak Valley Division, died on 23.01.2005. Thereafter, the petitioner No.1 was engaged as casual worker on 01.12.2005. The petitioner No. 1 was entrusted to do duty of a driver in the Office of the Executive Engineer, Brahmaputra Board, Barak Valley Division/Respondent No. 5 w.e.f. March, 2007 and he was engaged in watch and ward duty of Night Chowkidar in the Division Office against vacant post on honorarium basis on compassionate grounds. 4. It is submitted that the father of the petitioner No. 2, while serving as a regular Chowkidar in the office of the respondent No. 5, died on 12.09.2006. Thereafter, the petitioner No. 2 was engaged on 10.01.2007 as Chowkidar and subsequently, he was engaged in watch and ward duty at Transit Camp, Silchar at day time on honorarium basis on compassionate grounds. Similarly, the father of the petitioner No. 3 while serving as regular Drafty (Grade-IV) in the office of the respondent No. 5, died on 13.05.2007 and the petitioner No. 3 was engaged as Chowkidar on 20.09.2007 and entrusted with watch and ward duty at Sonia Sub-Division at night time against vacant post on honorarium basis on compassionate grounds. 5. The learned counsel for the review petitioners also submits that while the Respondent Board was searching for a land for implementation of a project in Sonai area, the petitioner No. 4 provided a plot of land measuring 131 kathas to the Respondent Board with a request to provide him a job. Accordingly, the Respondent Board implemented the Amjur Project on the land of the petitioner No. 4 and thereafter, engaged him as M.R. worker on 01.01.2007 in the Office of the Assistant Executive Engineer, Sonai Sub-Division, Brahmaputra Board, Sonai. Thereafter, w.e.f. 02.07.2008, he was engaged in watch and ward duty at Sonai Sub Division at day time. 6. Accordingly, the Respondent Board implemented the Amjur Project on the land of the petitioner No. 4 and thereafter, engaged him as M.R. worker on 01.01.2007 in the Office of the Assistant Executive Engineer, Sonai Sub-Division, Brahmaputra Board, Sonai. Thereafter, w.e.f. 02.07.2008, he was engaged in watch and ward duty at Sonai Sub Division at day time. 6. It is also submitted that the petitioner No. 1 initially got an amount of Rs.1,900/- per month and the other petitioners were paid an amount of Rs.2,000/- per month, which was subsequently increased to Rs.4,500/- per month. All the petitioners got their wages up to the month of July, 2013, however, from the month of August, 2013, the petitioners were not paid the fixed remuneration, in spite of attending regularly in the office of the respondent No. 4. Being aggrieved, the petitioners submitted representations before the authorities for releasing their honorarium/wages, however, there was no response and accordingly, they approached the Assistant Labour Commissioner (Central), Government of India, Cachar to take steps in respect of the engagement and payment of remunerations to the petitioners. Accordingly, the Assistant Commissioner (Central) Government of India, Cachar, by a Letter dated 16.12.2013, wrote to the respondent No. 5 on the subject of non-payment of wages to the casual workers. In response, the respondent No. 5 by a Communication dated 31.12.2013 wrote back stating amongst others that due to non-availability of approval from the competent authority, the casual workers could not be engaged since August, 2013. It is also submitted that the Respondent Board by a Letter dated 06.01.2015, submitted an estimate for engagement of contractual labours for maintenance of various works under Barak Valley Division. Prior to the issuance of the Letter dated 06.01.2015, the Respondent Board had also submitted an estimate for engagement of contractual labours for various maintenance works under Barak Valley Division, Silchar for the period w.e.f. August 2013 to March 2014. However, as the respondents did not take any further steps, the petitioners approached this Court by filing WP(C) No. 2202/2015, which was dismissed by the Order dated 21.03.2017. 7. The learned counsel for the review petitioners, submits that during the course of hearing of the WP(C) No. 2202/2015, the learned counsel for the respondents had submitted that the petitioners were engaged on honorarium basis initially against Harang Drainage Development Scheme and thereafter, to Drainage Development Scheme. 7. The learned counsel for the review petitioners, submits that during the course of hearing of the WP(C) No. 2202/2015, the learned counsel for the respondents had submitted that the petitioners were engaged on honorarium basis initially against Harang Drainage Development Scheme and thereafter, to Drainage Development Scheme. The first scheme was completed in March, 2011 and the later scheme was completed in 2013 and accordingly, after July, 2013 the petitioners could not be engaged under Barak Valley Division as the Board has no estimate for payment of honorarium of engagement and no scheme is available in Barak Valley Division. He submits that the submissions of the learned counsel for the respondents were not inconformity with the records in respect of the engagement of the petitioners against a particular scheme. He submits that the petitioners were engaged against vacant sanctioned post and they have not been engaged against schemes. However, this Court, after hearing the learned counsel for the parties, came to the conclusion that the petitioners were engaged on honorarium basis to a particular scheme and their engagement ends with the completion of such schemes. Further, this Court came to the conclusion that the petitioners could not be engaged from the month of August 2013 onwards due to non-availability of approval from the competent authority. Thereafter, the Writ Petition No. 2202/2015 was dismissed. He, accordingly, submits that the order of the writ petition suffers from an error apparent on the face of the records due to misleading statement of the respondents and therefore, the Order dated 21.03.2017 passed in WP(C) No.2202/2015 may be reviewed. 8. Ms. R. Devi, learned CGC appearing on behalf of the respondents, on the other hand, submits that the petitioners were engaged till July, 2013 as per requirement of the works under which their payments were charged. Initially the petitioners were engaged in Harang Drainage Development Scheme and later on in Amjur Drainage Development Scheme. The first scheme was completed in March, 2011 and handed over to the Government, whereas Amjur Drainage Development Scheme was stopped after completion of embankment portion of the work in the year, 2013. She also submits that all the petitioners were engaged on honorarium basis on working arrangement but their payments were made against various drainage development schemes. The petitioner Nos. She also submits that all the petitioners were engaged on honorarium basis on working arrangement but their payments were made against various drainage development schemes. The petitioner Nos. 1 & 2 were charged against Singla Drainage Development Scheme, the petitioner No. 3 was charged against Amjur Drainage Development Scheme and the petitioner No. 4 was charged against Harang Drainage Development Scheme and none of the petitioners were engaged against any vacant post. It is also submitted that the petitioners had failed to show any error apparent on the face of the record permitting this Court to have a review of the Order dated21.03.2017 passed in WP(C) No. 2202/2015. In that view of the matter, she submits that there is no merit in the present review petition and the same is liable to be dismissed. 9. I have considered the submissions forwarded by the learned counsel for the parties. 10. This Court, after hearing the parties, is of the considered opinion that the grounds raised by the learned counsel for the petitioners were all considered in the Order dated 21.03.2017 passed in WP(C) No. 2202/2015. No materials has been brought before this Court to show that an error had occurred which is apparent on the face of the records or that the petitioners have discovered certain documents which they could not place before this Court despite due diligence while hearing WP(C) No. 2202/2015. 11. It is already a settled position of law that a judgment can be open to review if there is a mistake/error apparent on the face of the records. However, an error that has to be detected by a process of reasoning, cannot be described as an error apparent on the face of the records for court to exercise its powers of review. This Court, therefore, is of the considered opinion that the grounds raised by the learned counsel for the petitioners cannot be a good ground for review. 12. In the case of S. Madhusudhan Reddy Vs. V. Narayana Reddy and others , reported in 2022 SSC OnLine SC 1034 , the Hon’ble Supreme Court has held as under: “31. As can be seen from the above exposition of law, it has been consistently held by this Court in several judicial pronouncements that the Court’s jurisdiction of review, is not the same as that of an appeal. V. Narayana Reddy and others , reported in 2022 SSC OnLine SC 1034 , the Hon’ble Supreme Court has held as under: “31. As can be seen from the above exposition of law, it has been consistently held by this Court in several judicial pronouncements that the Court’s jurisdiction of review, is not the same as that of an appeal. A judgment can be open to review if there is a mistake or an error apparent on the face of the record, but an error that has to be detected by a process of reasoning, cannot be described as an error apparent on the face of the record for the court to exercise its powers of review under Order XLVII Rule 1 CPC. In the guise of exercising powers of review, the Court can correct a mistake but not substitute the view taken earlier merely because there is a possibility of taking two views in a matter. A judgment may also be open to review when any new or important matter or evidence has emerged after passing of the judgment, subject to the condition that such evidence was not within the knowledge of the party seeking review or could not be produced by it when the order was made despite undertaking an exercise of due diligence. There is a clear distinction between an erroneous decision as against an error apparent on the fact of the record. An erroneous decision can be corrected by the Superior Court, however an error apparent on the face of the record can only be corrected by exercising review jurisdiction. Yet another circumstance referred to in Order XLVII Rule 1 for reviewing a judgment has been described as “for any other sufficient reason”. The said pharase has been explained to mean “a reason sufficient on grounds, at least analogous to those specified in the rule” (Refer: Chajju Ram v. Neki Ram and Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius). 13. In the facts and circumstances of the case, I am of the considered opinion that this is not a fit case for review of the Order dated 21.03.2017 passed in WP(C) No. 2202/2015 and accordingly, this review petition is dismissed. 14. However, before parting with the records, this Court has taken notice of Paragraph No. 12 of the affidavit-in-opposition filed by the respondent Nos. 1 to7. The same is reproduced hereinbelow: “12. 14. However, before parting with the records, this Court has taken notice of Paragraph No. 12 of the affidavit-in-opposition filed by the respondent Nos. 1 to7. The same is reproduced hereinbelow: “12. That, with regard to the statement made in paragraph No.9, the deponent begs to state that at present there is no vacant post in Brahmaputra Board to engage on compassionate ground. The petitioners No.1 to 3 have already applied for engagement on compassionate ground. As per the Central Government Rule, up to a maximum of 5% of total vacancies calculated on the basis of directed recruitment vacancies for Group 'C' and 'D' posts including Technical posts that has arisen in the year. This Rule is strictly followed while chronologically preparing the list of candidates for compassionate appointment. Since, the names of the petitioners No.1 to 3 were included in the list they may once again apply for appointment on compassionate ground. The provisions/instructions contained in OM dated 05.05.2003 regarding time limit for compassionate appointment stand withdrawn in view of the Hon'ble Court of Allahabad Judgment dated 07.05.2010 and the cases of compassionate appointment are to be regulated in terms of instructions issued vide OM dated 09.10.1998 as amended from time to time. OM dated 26.07.2012 - Order No.10 of section 6. Further, the petitioner No.4 is not an eligible aspirant for compassionate appointment and his name is not enlisted as aspirant for compassionate appointment. Copy of rules for compassionate appointment of dependents has been annexed at Annexure-II” 15. Considering the averments made at Paragraph No. 12 of the affidavit-in- opposition which is reproduced hereinabove and notwithstanding the dismissal of the review petition, the petitioner Nos. 1, 2 & 3 are given liberty to approach the respondents for appointment on compassionate grounds. In the event, the petitioners Nos. 1, 2 & 3 approach the competent authority for appointment on compassionate grounds, their cases should be considered as per law and if there is any delay, the same should be condoned keeping in view that the WP(C) No. 2202/2015 as well as the present review petition were pending before this Court.