JUDGMENT V.G. Palshikar, J.
1. These four review petitions are directed against our judgment dated 30th January, 2002 whereby we accepted the report submitted by the Municipal Commissioner, Nagpur. In order to fully appreciate the contentions raised on behalf of the review applicants it will be necessary to note the past history of this litigation.
2. The writ petition was filed in public interest by the petitioner Bhalchandra Joshi alleging severe irregularities, possible corruption and violation of Recruitment Rules. In the matter of recruitment several categories in the employment of Municipal Corporation, Nagpur it was alleged that several Corporators are involved in malpractices and have used their offices to secure employment to the persons of their choice by-passing Recruitment Rules framed in that behalf. Rule was therefore issued and replies in detail from the contesting respondents were received. The contesting respondents included some of the Corporator as also ex-Mayor of the city of Nagpur. All the allegations made by the petitioner were traversed and denied.
3. However looking to the public interest involved and serious allegations of malpractices this Court deemed it fit to direct factual inquiry into entire allegations to be made by some responsible officer. It, therefore, passed the following order on 7-3-2001:
4. "C.A. No. 1162/2001. The learned Counsel appearing for the respondent No. 3 Ashok Choudhari informs that the respondent No. 3 has expired. Petitioner to delete the name. This petition has been filed in public interest highlighting the manner in which the appointments in Municipal Corporation, Nagpur is made. The petitioner has even gone to specify on record the consideration required to be paid by the appointees for the said posts. It is submitted that after this Court vacated the stay in the matter of appointments, about 450 appointments have been made through back door by the Councillors of Nagpur Municipal Corporation, and therefore the petitioner seeks directions that an inquiry should be made into the matter of these appointments. We therefore, direct the Municipal Commissioner to examine these appointments which are not made in regular manner by calling applications through advertisements, conduction of examinations, interviews, and if he is prima facie satisfied identify such appointments and take appropriate steps. We make it clear that the respondent Municipal Corporation shall not regularise any such appointment made illegally and through back door procedure. The Municipal Commissioner to place his report on affidavit before this Court on or before 30th June, 2001. We are fixing a time bound programme for the said purpose so that the petition can be finally disposed of. Steno copy of the order be furnished to the learned Counsel for the parties to act upon".
From the above order it will be seen that for proper adjudication of the list factual report was called for from the Municipal Commissioner, Nagpur.
5. Factually the Municipal Commissioner, Nagpur directed the Additional Municipal Commissioner and the Labour Officer, Nagpur to conduct the inquiry as directed by this Court. Inquiry was conducted by two officials and the report was submitted to the Municipal Commissioner, Nagpur. The Commissioner, Nagpur Municipal Corporation then examined the entire report carefully, scrutinized all the documents and papers related thereto and consciously endorsed the report and submitted it to this Court as directed by this Court by the aforesaid order. When this report came up before us we accepted the same by-passing the following order:
"The grievances of the petitioner were sought to be remedied by directing an inquiry into the allegations by the Commissioner. The enquiry report has been received and accepted. All the irregularities are noted and the Commissioner shall in accordance with the report, take appropriate action as per the conclusions mentioned in the report. Action to be taken within 3 months from the date of this order. Nothing survives in the petition. The same is accordingly disposed of."
6. What we have done therefore is to dispose of the writ petition filed in public interest after accepting the report as made by the Municipal Commissioner, Nagpur and directed implementation of the report by Municipal Commissioner, Nagpur. The report did not pertain only irregularity in appointments made but also certain other aspects and malpractices complained of in main writ petition. Action was directed to be taken in respect of all aspects as mentioned in the report of the Municipal Commissioner, Nagpur. It appears that as consequences of this direction and in obedience of the writ issued by this Court to implement this report service of 116 Municipal employees came to be terminated.
7. One review petition being Review Petition No. 95 of 2002 is therefore filed in the representative capacity by those affected employees of the Nagpur Municipal Corporation. Another review petition being Review Petition No. 72 of 2002 is filed by parties to the petition some of whom were Corporators. By these review petitions petitioners prayed as under:
8. Review Petition No. 72 of 2002 "i) review and recall the order dated 30-1-2002 passed in Writ Petition No. 3498/1993 (Annexure-D) and be further pleased to hear the applicants before disposing the Writ Petition No. 3498/1993.
ii) during the pendency of the review application stay the effect and operation of this Hon'ble Court's order dated 30-1-2002 in Writ Petition No. 3498/1993 (Annexure-D) and
iii) grant such other relief as this Hon'ble Court may deem the applicants as being entitled to in the facts and circumstances of the present application."
9. Review Petition No. 95 of 2002 "i) review and recall the order dated 30-1-2002 and be further pleased to hear the applicants before disposing the Writ Petition No. 3498/1993.
ii) direct the respondent 2 to recall all orders issued pursuant to the order dated 30-1-2002 passed by this Hon'ble Court in Writ Petition No. 3498/1993 including the orders of revision and termination the specimens of which are annexed hereto as Annexures-G to L.
iii) during the pendency of the review application stay the effect and operation of this Hon'ble Court's order dated 30-1-2002 in Writ Petition No. 3498/1993 and of all orders of reversion and termination issued by the respondent 2 pursuant to the order dated 30-1-2002 passed by this Hon'ble Court in Writ Petition No. 3498/1993 specimens of which are annexed hereto as Annexures-G to L.
iv) grant such other relief as this Hon'ble Court may deem the applicants as being entitled to in the facts and circumstances of present application."
The two other petitions being Review Petition Nos. 110 and 126 of 2002 are also filed seeking review of the order for the same reasons and additionally praying for alteration or modification of the order to some extent. These petitions are also decided by this order/judgment as all the prayers are almost identical. Prayers in these two review petitions are also liable to be noted verbatim. They are as under:
10. Review Petition No. 110 of 2002 "A) Review and recall the order dated 30-1-2002 passed in Writ Petition No. 3498/1993 and be further pleased to hear the applicant before disposing the Writ Petition No. 3498/1993.
B) During the pendency of the review application stay the effect and operation of this Hon'ble Court's order dated 30-1-2002 in W.P. No. 3498/1993 and C) Grant such other relief as this Hon'ble Court may deem the applicants as being entitled to in the facts and circumstances of the present application ."
11. Review Petition No. 126 of 2002 "............. This Hon'ble Court be pleased to review the order, dated 30-1-2002, passed in Writ Petition No. 3498 of 1993, by the Hon'ble Division Bench of this Hon'ble Court, consisting of the Hon'ble M/s. Justices V.G. Palshikar and Justice V.M. Kanade, and suitably modify it by deleting the words "and accepted" in sentence No. 2, and further delete the direction given to the Commissioner to the effect that, he shall take appropriate action as per the conclusions mentioned in the report; and further clarify that receipt of the report by this Hon'ble Court in the aforesaid Writ Petition No. 3498 of 1993 does not put any seal on the veracity of truthfulness of the various allegations made in the said report and that any action, which may ensue as a result of the aforesaid report, will be strictly in accordance with law and on merits of the allegations."
12. Shri V.R. Manohar, learned Senior Counsel appearing on behalf of the first two review petitioners made the following submissions:
a) This Court has committed an error apparent on the face of record by accepting the report as submitted by the Municipal Commissioner, Nagpur. According to the learned Counsel the direction of this Court was very specific. The Municipal Commissioner, Nagpur was directed to make report as persona designata and he did not have therefore the power to delegate those functions to any other officer subordinate to him. According to learned Counsel therefore the report was admittedly made by the Additional Municipal Commissioner, Nagpur and Labour Officer and therefore it is not a report made by the Municipal Commissioner, Nagpur and therefore it should not have been accepted. The acceptance of such report which was not in conformity of the orders of this Court made earlier was an error apparent on the face of record requiring this Court to review the order dated 30-1-2002. Reliance was placed by the learned Counsel on some judgments of the Supreme Court of India for the proposition mentioned above.
b) The review petitioners were not party to the original Writ Petition No. 3498 of 1993 and therefore no relief could have been granted to the petitioner and no order adverse to them could have been passed. This is another error apparent on face of record requiring review of the order passed on 30-1-2002.
c) The order dated 30-1-2002 is bad in law as it suffers from error apparent on the face of record in as much as it accepts the report as submitted by the Municipal Commissioner, Nagpur without giving any opportunity to the persons indicated therein to show-cause why report should not be accepted.
d) As a consequence of acceptance of the report the respondents-authority have straightway terminated the services of the review petitioners. This is in gross violation of the principles of natural justice and on that ground also the order is liable to be reviewed.
e) The petition was not one in public interest. It was vindictive action by the petitioner against some Corporators and was not liable to be considered as public interest litigation at all. The consequence of the order is termination of services of more than 100 employees of Nagpur Municipality without they being noticed in any manner or without they being having called upon for which they are being terminated. On this ground it is alleged that the order dated 30-1-2002 is liable to be reviewed.
13. These contentions were stoutly refuted by the learned Counsel appearing on behalf of the respondent Corporation authorities. It was submitted with reference to sections 5(9), 45, 48(3) and 50 of the City of Nagpur Corporation Act, 1948 that Municipal Commissioner means Municipal Commissioner and includes Additional Commissioner etc. It was submitted by him that whether the appointment of the Municipal Commissioner to inquire into the matter was a persona designata or as Municipal Commissioner is liable to be interpreted from the tenor of the order and intention of the Court. According to him even if these is some error it does not vitiate the entire report and it cannot therefore be a ground for review. In relation to other contentions raised by Mr. Manohar referred to above the learned Counsel submitted that all these contentions in substance attack the correctness of the order dated 30-1-2002. None of them flow from any error apparent on the record (sic face) of record. Non-observance and principles of natural justice is not an error apparent on face of record but is an error of law. Non-consideration of certain materials on record which were available at the time when the order was made is also not an error apparent on face of record but it is illegality committed in making an order without reference to the record on the basis of which it ought to have been made. The learned Counsel therefore submitted no case on these grounds call for review as contemplated by established law on the point. The real remedy for the petitioners lies somewhere else. They may have cause of action against the action taken by the municipality in terminating their services. Review of the order dated 30-1-2002 is not the remedy. He therefore prayed that the review petitions be dismissed.
14. Shri Gordey, learned Counsel appearing on behalf of the review-petitioners in Review Petition No. 72 of 2002 apart from adopting the arguments of Mr. Manohar submitted that even if review is not possible or is not undertaken the order is liable to be modified as prayed for by him. We have quoted the prayers above. We are unable to accept this submission for the reason that modification can be undertaken when the order is interim and not when it is final. If the order is wrong in any manner the remedy is special leave petition before the Hon'ble Supreme Court of India. In fact, for each of the grounds of attack on the order dated 30-1-2002 the remedy is seeking special leave. We are not able to accept any of the arguments made by the learned Counsel.
15. It is true that the delegates cannot further delegate. For that, no reference to any case law is necessary. The action of the Municipal Commissioner requiring Additional Municipal Commissioner to make inquiry and submit report is assailed as wrong because Municipal Commissioner was the delegate of this Court and he could not have further delegated his powers. If this is considered to be an error acceptance of the report is also an error which can be corrected only in appeal and not in review by this Court.
16. We consider our order as consequential order made in the light of earlier orders in public interest litigation or on the litigation claimed to be in public interest. It will be seen that the petitioner claiming to be a citizen of India has brought to the notice of this Court certain illegalities, malpractices that took place in the Corporation of Nagpur as a result of which certain improper appointments have been made hence this Court thought it fit to inquire into the matter and therefore made an order on 7-3-2001. A perusal of that order clearly shows the intention of this Court. While making an order on C.A. No. 1162 of 2001 this Court observed as under:
"The petitioner has even gone to specify on record the consideration required to be paid by the appointees for the said posts."
17. Cognizance was therefore taken by this Court of certain positive allegations of corruption made in the matter of recruitment and taking view of this cognizance was obviously in the public interest. This Court then proceeds to observe:
"It is submitted that after this Court vacated the stay in the matter of appointment, about 450 appointments have been made through back door by Councillors of Nagpur Municipal Corporation, and therefore the petitioner seeks directions that an enquiry should be made into the matter of these appointments."
18. It was in the light of these observations and prima facie findings of this Court that this Court proceeded to observe:
"We therefore direct the Municipal Commissioner to examine these appointments."
And further directions were issued to the Municipal Commissioner. Looking to the entire scenario and the circumstances in which the petition was filed and in which it was entertained it is obvious that it was entertained in public interest only. It was therefore in public interest that an enquiry was ordered by this Court by an order dated 7-3-2001 and directions were issued to the Municipal Commissioner. This Court, in our opinion, did not direct the Municipal Commissioner to examine these appointments etc. as persona designata. It directed the Municipal Commissioner to inquire into the allegations made by the petitioner and in the manner of appointments generally made. It was observed that Municipal Commissioner is prima facie satisfied and he identified such appointments and took appropriate steps. When a direction is issued to take appropriate steps to a statutory authority the direction of necessity includes that statutory authority acting according to law under which it is created and for taking appropriate action it was possible for the Commissioner to take help of his subordinate Commissioners. We would like to refer to the affidavit of the present Municipal Commissioner Dr. T. Chandrashekhar relevant para whereof reads as under:
"1. That in pursuance to the orders passed by the Hon'ble Court on 7-3-2001, the recruitment matter got inquired into by Additional Municipal Commissioner and Labour Officer of NMC and I examined the record pertaining to the appointments made in the Municipal Corporation in pursuance to the advertisement dated 1-9-1973, and the Resolution No. 77 dated 21-3-1997. I crave leave to place detailed enquiry report along with this affidavit and marked as Document No. 1. All the appointments made in pursuance to the advertisement, dated 1-9-1993 were inquired into with able assistance of Mr. M.M. Adtani, Additional Municipal Commissioner and Mr. A.T. Madiwale, Labour Officer, NMC."
19. Mr. M.M. Adtani was Additional Municipal Commissioner and according to the provisions of the Act he is included in the definition of Municipal Commissioner. The Municipal Commissioner has himself examined the record pertaining to the appointments and he has approved the same. We are therefore, of the opinion that the order passed by us on 7-3-2001 has been duly complied with by the Municipal Commissioner. It was not necessary for him to do inquiry personally and getting it done through the Additional Municipal Commissioner was not wrong. What we ordered was an inquiry into the correctness or otherwise of the appointments, enquiry into the allegations of corruption as made by the petitioner. That inquiry was conducted by Municipal Commissioner through his Additional Municipal Commissioner and that is why we accepted and that is what we ordered and it is in these circumstances that we accepted report and passed an order on 30-1-2002. We have consciously accepted the report as it was according to the order dated 7-3-2001. It was made by the Municipal Commissioner after due inquiry and diligent scrutiny of record and thereafter we have directed the Municipal Commissioner to take appropriate action in accordance with acceptance of the report. If any errors are committed in execution of that order or any errors are committed in implementation of report it shall always be and can only be part of fresh cause of action and cannot be ground for review of an order made earlier on appreciation of facts and law on the point.
20. We firmly are of the opinion that what we have done is a conscious act of judicial adjudication and is not erroneous assumption of jurisdiction with disregard to the record or the law on the point. We had ordered the Municipal Commissioner to enquire and Municipal Commissioner had inquired and therefore we accepted the report. If acceptance of report is an error it may be corrected only by way of appeal. It is not an error apparent on the face of record which for alone review is possible.
21. We make it clear however that rejection of the review applications by us does not in any manner take away the rights which the review petitioners may have as substantive cause of action so far, against the action taken for implementation of the report is concerned. In our opinion, there is no substance in any of the review petitions and the same are therefore liable to be dismissed and they are accordingly dismissed.