Allahabad High Court
Ram Shanker Verma (Inre 1209 S/B ... vs State Of U.P. Thru. Prin. Secy., ... on 26 September, 2013
Bench: Abdul Mateen, Devi Prasad Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
High Court of Judicature at Allahabad
Lucknow Bench Lucknow
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[RESERVED]
Reserved On:- 11.09.2013 [ A.F.R. ]
Circulated On:- 25.09.2013
Delivered On:- 26.09.2013
Court No. - 25
Case :- REVIEW PETITION No. - 424 of 2013
Petitioner :- Ram Shanker Verma (Inre 1209 S/B 2013)
Respondent :- State Of U.P. Thru. Prin. Secy., Medical Education & 4 Ors.
Counsel for Petitioner :- R.N. Sharma
Hon'ble Abdul Mateen,J.
Hon'ble Devi Prasad Singh,J.
[Per Justice Devi Prasad Singh]
1. This is an application under Chapter-V Rule 12 of the Rules of Court for review of judgment and order dated 30.5.2013 on the ground that there is error apparent at the face of record since this Court could not consider the factual position with regard to right of contractual appointment in terms of Government order dated 7.6.2010.
2. While arguing on behalf of the applicant, Sri A.K. Tiwari, learned Senior Counsel assisted by Sri R.N. Sharma, submits that S.K. Bhatia was appointed on contract basis on 30.12.2010 while the applicant petitioner was working as Professor and Head of Department in the Medical College, Meerut. It is submitted that more than two persons were working on the post of Professor in different departments of Medical Colleges, hence it belies the stand of the State Government that only one contract appointment can be made against category-B post or against sanctioned post under the category.
3. It is submitted that once Dr. S.K. Bhatia could have been appointed on contract basis in pursuance of the Government order there is no occasion to treat the petitioner differently than him.
4. It is argued that the finding recorded in para 31 of the judgment that appointment can be done against sanctioned vacancies of different posts falling in 4 categories relating to regular vacancies, is erroneous and factually incorrect in view of the amended Service Rules of 2005. It is submitted that since no regular appointment could be done on the post of Professor by promotion or direct recruitment, until under personal promotion scheme the promotions are done like in the case of the petitioner. The petitioner's appointment does not suffer from any impropriety or illegality. Hence finding recorded therein, suffers from apparent error at the face of record.
5. The Government order dated 30.7.2010 categorises the contractual appointment into 4 categories i.e., Professor, Associate Professor, Assistant Professor and Lecturer. Clause 5 of the Government order dated 30.7.2008 reveals that the appointment on contractual basis, shall be done against sanctioned post. The Government order dated 30.7.2008 speaks for sanctioned post, relevant portion is reproduced as under:-
"(v) ... विधिवत स्वीकृत पदों की संख्या के अन्तर्गत ही रखी जायेगी। संविदा पर नियुक्त चिकित्सा शिक्षकों के लिए अलग से कोई अतिरिक्त पद सृजित नहीं किया जायेगा।"
Meaning thereby, the appointment of retired doctors in pursuance of the Government order shall be done only against sanctioned post. Rule 15 of Service Rules provides that personal promotion shall be done within the own post of incumbent to the post of Professor. Hon'ble Supreme court interpreted the word, "personal promotion" as a benefit which comes to an end after retirement of incumbent. Different judgments of Hon'ble Supreme Court have been referred in the impugned judgment and order dated 30.5.2013.
6. Appendix B of Service Rules under Column 1 and 2, refers to the post of Professor, Associate Professor, Assistant Professor and Lecturer. Even if for the sake of argument of learned Senior Counsel it is accepted that under the amended Rules, there is no post of regular Professor which may be filled up by promotion, it shall not make out a ground to substitute the personal promotion done under Rule 15 with regular promotion on a sanctioned post. Hardship or inconvenience or stagnation in service does not create a ground to treat personal promotion equivalent to regular promotion or regular post of Professor.
7. The purpose of personal promotion and the right flowing from it has been dealt with in the judgment. The anomaly created by the amended Rules if any, requires to be considered by Legislatures and not by this court. Since the Government order (supra) does not confer right to the appointment by personal promotion, it may not be made applicable to a post which has not been duly sanctioned in accordance with Service Rules.
8. Attention has not been invited to any provision in the Rule which may indicate that personal promotion shall be at par with regular promotion. Rather clause (g) of Rule 3 provides that member of service means a person substantively appointed under Rules to a post in the cadre of service whereas, clause (k) of Rule 3 defines personal promotion as a time bound promotion of substantively appointed person in the cadre who fulfils required qualifying service, prescribed qualification and experience. Virtually, personal promotion is the upgradation of some post which an incumbent is holding during the course of employment after completion of qualifying service and subject to fulfilment of prescribed qualification and experience and it comes to an end after retirement of incumbent as discussed in the judgment.
9. Any other attempt of Court except an attempt to correct an apparent error or an attempt not based on any ground mentioned in Order 47 Rule 1 and 2 CPC, would amount to an abuse of power to review its judgment, vide, (1999) 9 SCC 596 Ajit Kumar Rath. Vs. State of Orissa.
10. Power of review conferred on the Court may be exercised when error is apparent at the face of record under Order 47 Rule 1 and 2 of CPC. It is the statutory power conferred on Court. It is neither inherent power nor a power to reappreciate the evident, vide (2000) 6 SCC 224: Lily Thomas Vs. Union of India.
11. It must be borne in mind that review is perfectly distinguished from an appeal i.e., quite clear from statutory provision (Order 47 Rule 1 of CPC) that the primary intention of granting a review is the reconsideration of the same subject by the same Judge as contra-distinguished to an appeal which is a hearing before another Tribunal, vide (2005) 2 SCC 334 Ishwar Singh. Vs. State of Rajasthan..
12. In sum and substance, review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error where without any elaborate argument one could point to the error and say here is a substantial point of law which states one in the face, and there could reasonably be no two opinion entertained about it, a clear case of error apparent on the face of the record would be made out vide, (2006) 4 SCC 78 Haridas Das. Vs. Usha Rani Banik.
13. In (2008) 9 SCC 612: State of West Bengal and others. Vs. Kamal Sen Gupta, their lordships of Hon'ble Supreme Court held that error apparent at the face of record means mistake which prima facie is visible and does not require any detail examination.
14. In (1995) 1 SCC 170: Meera Bhanja (Smt.). Vs. Nirmala Kumari Chaudhary (Smt.) followed by (1997) 8 SCC 715: Parsion Devi Vs Sumitri Deviu, their lordships of Hon'ble Supreme Court held that power of review does not mean to exercise de novo hearing except the error apparent at the face of record in view of Order 47 Rule 1 of CPC.
15. In JT 2012 (12) SC 565:Akhilesh Yadav Vs. Vishwanath Chaturvedi and others, their lordships of Hon'ble Supreme Court held that an erroneous decision in itself does not warrant a review of each decision in absence of error apparent at the face of record.
16. In a case reported in 2012 (30) LCD 1594: Haryana State Industrial Development Corporation Ltd. Vs. Mawasi and others Etc., while interpreting Order 47 Rule 1 of CPC, reinstating the ground of review, their lordships of Hon'ble Supreme Court held that in guise of seeking review, the petitioner cannot ask for de novo hearing of an appeal.
17. Subject to aforesaid proposition of law, we do not find any ground which may be treated as error apparent at the face of record. The impugned judgment is a reasoned one specifically indicating therein that persons enjoying higher post under personal promotional scheme, may not be treated as persons regularly promoted on higher post and the Government order creates rights on contractual appointment only against regular sanctioned post of the 4 categories and not otherwise.
18. In view of the above, the application lacks merit hence rejected in limine.
[Justice Devi Prasad Singh] [Justice Abdul Mateen]
Order Date :- 26.09.2013
Rajneesh DR-PS)
