Bombay High Court

Chandrakant Vyankatrao Patil vs The State Of Maharashtra And Others Thr ... on 17 January, 2024

Author: Vibha Kankanwadi

Bench: Vibha Kankanwadi

2024:BHC-AUG:1206-DB


                                                               901-(B)-RA-ST-24230-2023.odt



                        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                                   BENCH AT AURANGABAD

                       REVIEW APPLICATION (CIVIL)(ST) NO.24230 OF 2023
                                             IN
                               WRIT PETITION NO. 1380 OF 2021

                                 CHANDRAKANT VYANKATRAO PATIL
                                               VERSUS
                           THE STATE OF MAHARASHTRA AND OTHERS
                                                 ....
                Mr. Chandrakant Vyankatrao Patil - Party-in-person
                Mr. P. S. Patil, AGP for Respondent - State
                Mr. V. S. Panpatte, Advocate for Respondent No.2
                                                 ....

                                    CORAM : SMT. VIBHA KANKANWADI AND
                                            Y. G. KHOBRAGADE, JJ.

                                      DATE : 17.01.2024
                ORDER (Per: Y. G. Khobragade, J.) :

1. Heard the party-in-person Mr. Chandrakant Patil,

Mr. V. S. Panpatte, the learned Counsel appearing for Non-

applicant No.2 and Mr. P. S. Patil, the learned AGP for the State.

2. By the present application, the applicant prays for

review of the Judgment and Order dated 08.12.2022 passed by

this Court in Writ Petition No.1380 of 2021 (Amit Mohanrao

Kadam Vs. The State of Maharashtra and others). The applicant

submits that, vide Order dated 19.05.2023, the Education Officer (( 2 )) 901-(B)-RA-ST-24230-2023

(Secondary), illegally granted approval in favour of the Non applicant

No.2 herein, Shri Amit Mohanrao Kadam (Petitioner in Writ Petition

No.1380 of 2021) and prayed for recovery of salary, therefore, said

order is illegal and bad in law, however, this court has not considered

said fact while passing order dated 08.12.2022.

3. We have gone through the record. Needless, to say that

the Non-applicant No.2/original Petitioner in Writ Petition No.1380 of

2021 had ventilated his grievance before this Court that, his

appointment as Assistant Teacher was made against the clear and

vacant available post. The Head Master of the school, who stood

retired on 30.06.2014, was from O.B.C. category. As a result of

which, there was a vacant post. The roster was duly verified by the

Commissioner of B. C. Cell and it was made known that, the post

from S.C. category is available. Respondent No.4 Pratibha Niketan

High School, run by Respondent No.3 Education Society in Writ

Petition No.1380 of 2021 had submitted proposal on 16.10.2018 to

the Respondent No.2 Education Officer (Secondary), but no any

action was taken. Therefore, the non-applicant No.2 (Petitioner in

Writ Petition) had approached this Court by filing Writ Petition

No.12470 of 2019, which resulted by issuance of directions against (( 3 )) 901-(B)-RA-ST-24230-2023

the Respondent No.2 Education Officer for consideration and decision

of said proposal by passing appropriate order.

4. It further, reveals that, the Respondent No.2 Education Officer

passed an order dated 20.03.2020 thereby, rejected said proposal and

declined to grant approval for appointment of the present Non-

applicant no. 2. Being aggrieved by said order, the non-applicant

No.2 filed Writ Petition No. 1380 of 2021 before this Court. On

08.12.2022, this Court passed the reasoned order and observed in

para No. 8 as under:-

"8 The facts appeared to be very much clear, though it appears from the seniority lists, those have been produced by the petitioner himself, wherein said Smt. Indu Shivajirao Batanpurkar's appointment has been stated to be 17.02.2014; yet, it appears from the order that has been passed now that her first appointment date has been taken as 01.07.2019 and not as 17.02.2014. If that would have been taken as 17.02.2014, then, the facts would have been somewhat different. But, here, in this case, the appointment of the petitioner was on the basis of an advertisement and it is not in dispute that it was after the retirement of an Assistant Teacher from S.C. category. There is sufficient evidence produced on record to prove that the petitioner belongs to S.C. category and it was clearly mentioned in the advertisement itself that the post is available from that category. No doubt, even Smt. Indu Batanpurkar appear to be from the same category, but, as aforesaid, her date of appointment is taken differently than it is shown in the seniority list. Seniority list thereafter of 2022-23 has also been produced on behalf of petitioner, wherein the (( 4 )) 901-(B)-RA-ST-24230-2023

present petitioner has been shown to be senior to Smt. Indu Batanpurkar. No doubt, his services are yet to be approved. In view of the decision of this Court in Shivkant Venkatrao Losare (supra) it will have to be considered that the position on the date of the appointment of concerned employee is required to be considered/ought to have been considered by the respondent No.2. The Sanch Manyata for the year 2015-16 would be applicable and that data shows that two posts were still vacant at that time. Therefore, when it can be seen from the so many documents that the respondent No.2 ought to have granted approval to the services of the petitioner as his appointment was against a clear vacancy, the petition deserves to be allowed, by setting aside the impugned order passed by the respondent No.2 on 20.03.2020."

5. Since, the applicant prayed for review of Judgment and Order

dated 08.12.2022, therefore, it would be just and proper to consider

scope and object as well as grounds for 'Review'. Indeed, the power of

review provided under Order 47 Rule 1 of C. P. C., is similar to the

Jurisdiction of this Court under Art. 226 of the Constitution of India.

6. In case of Gopabandhu Biswal-Vs-Krishna Chandra Mohanty

and Ors., (1998) 4 SCC 447, the Hon'ble Supreme Court held in Para

Nos. 9 and 10 as under:

"9. In the case of K. Ajit Babu v. Union of Indial to which one of us was a party, this Court examined Section 22(3)(0) of the Administrative Tribunals Act, 1985 and held that an application for review under that section attracts the principles contained in Order 47 (( 5 )) 901-(B)-RA-ST-24230-2023

Rule 1 of the Code of Civil Procedure. Therefore once an SLP is preferred and dismissed, review is not permissible. The same view has been taken by this Court in Raj Kumar Sharma v. Union of India. The Court observed in that case that the Tribunal was in error in entertaining a review petition and allowing it after the special leave petition against its main judgment had been dismissed by this Court and the review petition filed in this Court against the dismissal of the special leave petition had also been dismissed. It was undisputed that the grounds on which the review was sought before the Tribunal was a ground taken in the special leave petition as well as in the review petition filed in this Court. In such a situation, to say the least, it was wholly Inappropriate for the Tribunal to sit in judgment on the merits of this Court's order dismissing the special leave petition giving finality to the Tribunal's main order. In the present case, therefore, on the dismissal of the special leave petition by this Court, the judgment of the Tribunal in TA No. 1 of 1989 became final and binding as between the parties and the Tribunal had no power to review that judgment thereafter.

10. In the present case, however, it is urged that the four applicants who filed the two review petitions before the Tribunal were not parties to the main petition. They were also not parties to the special leave petition filed before this Court which was dismissed. However they are parties aggrieved and hence are entitled to apply for a review of the main judgment of the Tribunal. It is contended by them that the judgment of the Tribunal holding that the two cadres of Deputy Superintendent of Police and Assistant Commandant were a single cadre till 5-11-1980, has affected the chances of promotion of the applicants and, therefore, the applicants, being (( 6 )) 901-(B)-RA-ST-24230-2023

persons aggrieved, are entitled to maintain such review petitions when they had not been parties to the earlier judgment as well as the earlier special leave petition. We will assume for the time being that the applicants are persons aggrieved. Even so, the question is whether they can have a judgment which has attained finality by virtue of an order of this Court, set aside in review. There is no doubt that as between the parties to the main judgment, the judgment is final and binding. The respondents, State of Orissa and Union of India, are, therefore, bound to give effect to the judgment of the Tribunal in TA No. 1 of 1989 in the case of Gopabandhu Biswal. If this is so, can a third party by filing a review petition get that same judgment reviewed and obtain an order that Gopabandhu Biswal is not entitled to the benefits of the directions contained in the main judgment since that judgment is now set aside? In our view this is wholly impermissible. It will lead to reopening a matter which has attained finality by virtue of an order of this Court. The applicants, even if they are persons aggrieved, do not have, in the present case, a right of review under any part of Order 47 Rule 1. Even under Order 47 Rule 1(2), the party not appealing from a decree or order can apply for review only on grounds other than the grounds of appeal which were before the appellate court, and during the pendency of the appeal. In the present case all the grounds which were urged in review were, in fact, urged before the Tribunal at the time when the Tribunal decided the main application and they were also urged by the petitioner in the special leave petition which was filed before this Court. The special leave petition has been dismissed. The same grounds cannot be again urged by way of a review petition by another party who was not a party in the main petition."

(( 7 )) 901-(B)-RA-ST-24230-2023

7. It is submitted that, even a third party to the proceedings, if he

considers himself to be an "aggrieved person", may take recourse to the

remedy of review petition. The quintessence is that, the person should

be aggrieved by the judgment and order passed therein as per ratio laid

down in case of Union of India-vs- Nareshkumar Badrikumar Jagad &

others, (2019) 18 SCC 586.

8. In the case of Parsion Devi and Others vs. Sumitri Devi and

Ors., (1997) 8 SCC 715, the Hon'ble Supreme Court held that, under

Order 47 Rule 1 of C.P.C. a judgment may be open to review inter alia if

there is a mistake or an error apparent on the face of the record. 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 the

record justifying the court to exercise its power of review under Order

47 Rule 1 C.P.C. In exercise of the jurisdiction under Order 47 Rule 1 of

C.P.C. it is not permissible for an erroneous decision to be "reheard and

corrected". A review petition, it must be remembered has a limited

purpose and cannot be allowed to be "an appeal in disguise."

9. It is pertinent to note that, the Constitution Bench of Hon'ble

Supreme Court in case of Beghar Foundation vs. Justice K.S.

Puttaswamy (Retired) and Others, (2021) 3 SCC 1 laid down guide for

review as under:

(( 8 )) 901-(B)-RA-ST-24230-2023

(i) A judgment is open to review inter alia if there is a mistake or an error apparent on the face of the record.

(ii) A judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so.

(iii) 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.

(iv) In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be "reheard and corrected."

(v) A Review Petition has a limited purpose and cannot be allowed to be "an appeal in disguise."

(vi) Under the guise of review, the petitioner cannot be permitted to re agitate and re argue the questions which have already been addressed and decided.

(vii) An error on the face of record must be such an error which,mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.

(viii) Even the change in law or subsequent decision/judgment of a co-ordinate or larger Bench by itself cannot be regarded as a ground for review.

10. From above principles, it emerges that, the Court may accept review petition only if it is filed on sufficient grounds which are:

A. The discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made.

B. On account of some mistake or error apparent on the face of the record and any other sufficient reason in order to prevent abuse of its process and to cure gross miscarriage of justice.