Calcutta High Court (Appellete Side)

State Of West Bengal & Ors vs Gopal Chandra Pramanik on 3 November, 2022

                      IN THE HIGH COURT AT CALCUTTA
                         Civil Appellate Jurisdiction
                               Appellate Side



Present:

The Hon'ble Justice Shekhar B. Saraf



                               R.V.W 208 of 2019
              C.A.N. 1 of 2019 (old No. CAN 9619 of 2019)
              C.A.N. 2 of 2019 (old No. CAN 12518 of 2019)
                                      In

                          W.P.A. 30178 of 2014

                                     With

                           C.P.A.N. 892 of 2019




                    STATE OF WEST BENGAL & ORS.

                                   VERSUS

                       GOPAL CHANDRA PRAMANIK




For the Applicant/Petitioner                : Mr. Pantu Deb Roy, Adv.
                                              Mr. Tapas Kumar Mandal, Adv.

For the Respondent/Writ Petitioner         : Mr. Kallol Basu, Adv.

Mr. S. Sarkar, Adv.

Mr. S.S. Halder, Adv.

Last Heard on : September 21, 2022

Judgment on : November 03, 2022

Shekhar B. Saraf, J.:

1. The present review petition by the State of West Bengal (hereinafter

referred to as the "applicant") arises from the order dated March 12,

2019 passed by Justice Protik Prakash Banerjee in W.P. 30178 (W) of

2014.

2. The factual matrix of the present case is laid down below :

a. The respondent in the present review i.e., Gopal Chandra

Pramanik (hereinafter referred to as the "writ petitioner") was

engaged as a contractual employee from February 23, 2006 as a

Group - 'D' staff in the office of the District Magistrate, South 24

Parganas, Alipore Court Chamber, Gopal Nagar Road, Kolkata -

700027. His appointment was in a regular vacancy wherein he was

appointed against Smt. Laxmi Das who retired in the month of

August, 2002. All formalities including sponsoring of name by

Employment Exchange, written test and interview, police and

medical verification were duly followed and observed as is done in

the case of regular appointments.

b. The Finance Department, Government of West Bengal published a

Memorandum being No. 8305-F dated September 25, 2005 stating

that the state government has been following the policy wherein

the employees who were initially recruited on contract basis

following the norms, rules and methods as applicable to the

relevant posts, may, if still continuing in contract service, be

brought under regular establishment subject to the principles as

contained in the memorandum against regular vacancies in which

they have been initially appointed with the approval of

Appointments Committee of the Cabinet ('ACC'). The consultation

with the Finance Department was made necessary in such cases.

c. In this connection, pursuant to an office order dated July 18, 2008

by the Deputy Secretary, Panchayat and Rural Development

Department, Government of West Bengal the concerned

department was asked to furnish the names of eligible

contractually appointed employees. The Project Director, DRD Cell

informed by enclosing a chart in a prescribed proforma being

Memo No. XIX/84-07/843 PZP/DRDC dated July 25, 2008

wherein the name of the writ petitioner is stated. Thereafter,

several efforts were made by writ petitioner in order to get his

appointment regularised and correspondences were exchanged

between the parties.

d. The writ petitioner then moved a writ application under Article 226

of the Constitution of India being W.P. No 118(W) of 2012 and on

August 19, 2013, the Court directed the concerned authorities to

consider his case regarding regularization afresh and to pass a

reasoned order setting aside all the grievances/pleas raised by the

state.

e. On February 28, 2014 the aforesaid order was taken up for

consideration by the Principal Secretary, Panchayat and Rural

Development Department, Government of West Bengal and the

claim of writ petitioner was rejected on the grounds that there was

no existence of District Rural Development Agency ('DRDA')

separately as all the DRDAs were merged with the respective Zilla

Parishad with effect from April 1, 2000 vide memo no. 1138/PN

dated March 22, 2000. Therefore, any candidate engaged in

District Rural Development Cell ('DRDC') after April 1, 2000 is

treated as a contractual worker of the concerned Zilla Parishad.

f. Aggrieved from the above mentioned order, the writ petitioner then

moved an application under Article 226 of the Constitution of India

before this Court being. W.P. No 30178(W) of 2014 praying for

being given appointment permanently as stated in the guidance of

DRDC Administration and as per guidance in memorandums

being Nos. 8305-F dated September 27, 2005 and 642-F dated

January 24, 2006.

g. The said writ petition was heard by the Court on March 12th,

2019. Despite repeated directions, no affidavit - in - opposition

was filed by the applicant herein. After hearing the learned

advocate on behalf of the respondent herein, the writ petition was

disposed of ex parte allowing the prayer of the writ petitioner for

appointment on permanent basis with effect from the date of

affirmation of the writ petition being November 12, 2014. The

salary, however, was to be paid prospectively with effect from the

date of the respondent's joining. The order clarified that the

fixation of salary was to be on the basis of the appointment with

effect from November 12, 2014 but no arrears were to be paid.

h. Being aggrieved from the said order dated March 12th, 2019 the

present review petition being R.V.W 2018 of 2019 was filed by the

applicant.

i. A contempt of court application being CPAN No. 892 of 2019 has

also been filed by the writ petitioner against Dr. P. Ulaganathan,

District Magistrate, South 24 Parganas and Swati Bandyopadhay

Additional District Magistrate, South 24 Parganas for 'wilfully,

deliberately and contumaciously' violating the order dated March

12th, 2019 mentioned in the aforementioned writ petition.

3. Mr. Pantu Deb Roy, counsel appearing on behalf of the applicant has

made the following arguments:

a. The counsel argues that the Court failed to consider the circular of

West Bengal Panchayat and Rural Development Department being

Ref No. 2801(19)RD(DRDC)/IE-4/2001 dated May 2, 2003. As per

Clause - B of the said circular, the category of Group-C and D

posts (except Chowkidar / Night Guard) are filled up only on

contract basis after following the respective requirement rules of

DRDC/ MRDA/ CRDA & others. The counsel also argues that that

the Court also failed to consider the requirement process of the

writ petitioner vide the said circular and that the applicant had,

only after following the said circular, initiated selection process for

filling up the vacant post.

b. The counsel contends that the Court failed to appreciate the

memorandum vide No. 8305-F dated September 26, 2006 wherein

the State Government has been following the policy of filling up

non-PSC/non-promotional posts on contract basis generally for

one year initially with the approval of the ACC for each individual

case. The counsel further contends that the Court failed to

consider/appreciate the memorandums vide No. 9008-F(P)

Kolkata, No. 1107 dated September 16, 2011, No. 1107-F(P)

Howrah dated February 25, 2016 issued by the Finance

Department, Audit Branch, Government of West Bengal. He states

that the contractual appointment of such employees is being

renewed from time to time.

c. The counsel argues that the Court failed to appreciate the fact that

the writ petitioner had been selected in Group- D post wherein the

said selection process and appointment letter was issued by the

Executive Officer, South 24 Parganas Zilla Parishad on contractual

basis for a period of one year only. He continues to argue that the

Court failed to appreciate that agreement dated February 23, 2016

between the DRDC, South 24 Parganas Zilla Parishad and the

petitioner wherein there is no question of absorbing the petitioner

permanently in the said post.

d. The counsel states that the Court disposed of the writ petition

without giving him any chance to file the affidavit-in-opposition

and construct and bring forth the detailed facts of the case.

e. Lastly, the counsel states that prior to receiving the said impugned

order of this Court, the Election Commission of India issued a

notification for 2019 General Elections. That all the officers

including the applicant was engaged in the said election process

and had also taken steps in pursuance of the said order dated

March 12, 2019. The counsel argues that mainly due to the above

reason, the filing of the review petition was delayed for 136 days

and subsequently, the matter was heard by this Court wherein the

applicant was granted leave for filling application under Section 5

of Limitation Act.

4. Mr. Kalol Basu, counsel appearing on behalf of the respondent/ writ

petitioner has made the following arguments:

a. The counsel states that the order dated March 12th, 2019 of this

Court has not been given effect to till date by the applicants.

b. He argues that the writ petition was moved after serving notices on

all the respondents and that the applicant herein neither prepared

for filing the appeal or review against the order dated March 12,

2019 with any urgency, and the applicant did not take any steps

immediately even after receiving the copy of the order which has

been stated to have been received by him on April 18, 2019.

c. The counsel states that in the contention of the applicant

regarding the delay in filing the present review petition, they have

not disclosed any of the details of the officers who had been

engaged in the election process, or for how many days they had

been engaged for the said purpose; and without any explanation

for the number of days that these officers had been engaged for

election duty, and exactly how many days had been purportedly

lost in the process. Therefore, the counsel says the bald statement

of applicants has no sanctity in the eye of law and cannot be taken

into consideration.

d. The counsel contends that no explanation has been given as to

why the concerned District Magistrate, South 24 Parganas took

more than a month to forward the matter to the Additional District

Magistrate and South 24 Parganas Zilla Parishad for taking the

necessary action pertaining to filling of an appeal / review against

the said order. The delay of more than one month in merely

forward the matter, speaks of the lack of bona fide merit or efforts

on the part of the applicants.

e. The counsel argues that the Memorandum of Review and the stay

application has been prepared on September 6, 2019. However,

the same have been filed only on September 9, 2019 that is even

after a period of more than three days after affirmation. The

counsel then argues that the review application was however

served on the writ petitioner much later only on November 22,

2019 when the contempt was taken up for hearing. The counsel

states that the present review application is without any

explanation for the delay and the application should be dismissed

on this ground alone for misleading this Court.

f. The counsel strongly denies the fact that the applicants were

diligent and careful in respect of the present matter wherein the

delay was not beyond control of the applicants. He argues that no

explanation has been disclosed in the review by the applicants as

to any misguidance by the procedure adopted by Court and/or

such grounds, despite having been granted the liberty by the

Court.

g. Lastly, the counsel contends that the application in its present

form and narration is not maintainable, and the applicants have

disregarded the Court's directives of pleading the reasons for delay

in arraying the writ petitioner as a respondent.

Observations & Analysis

5. I have heard the counsel appearing for the respective parties and

perused the materials on record.

6. In the interest of justice, I would straight away proceed to decide this

review application on merits without going into the question of

condonation of delay in filing of the same. That being the case, it would

be apt to discuss the jurisdiction of this Court to review its own

judgment.

7. 'Too err is human' is one of the oldest proverbs that has existed in the

English language. And judges, too are human. For this very reason and

to prevent miscarriage of justice by correcting grave errors committed

by it, being a court of record under Article 215 of the Indian

Constitution, power of review is inherent in the High Court. However,

such power is not limitless for else it would defeat the very purpose for

which it exists. The Court must excise extreme caution and diligence

while exercising its review powers for it is only in very limited category

of cases that such power can be used.

8. A perusal of Order 47 Rule 1 of the Civil Procedure Code, 1908 shows

that review of a judgment or an order could be sought on the following

grounds:

(a) From the discovery of new and important matters or evidence

which after the exercise of due diligence was not within the

knowledge of the applicant;

(b) Such important matter or evidence could not be produced by the

applicant at the time when the decree was passed or order made;

and

record or any other sufficient reason.

[See Haridas Das -v- Usha Rani Banik (Smt) and Ors. reported in

(2006) 4 SCC 78, para15]

9. At this juncture, this Court feels necessary to refer to the case of Sow

Chandra Kante and Anr. -v- Sheikh Habib reported in (1975) 1 SCC

674 wherein the apex court, while emphasizing on the ground for

review, has observed that in the guise of review re-hearing of the matter

is not permissible. The court held :

"A review of a judgment is a serious step and reluctant resort to it is

proper only where a glaring omission or patent mistake or like grave

error has crept in earlier by judicial fallibility. ... The present stage is

not a virgin ground but review of an earlier order which has the

normal feature of finality."

10. The Supreme Court in the case of Aribam Tuleshwar Sharma -v-

Aribam Pishak Sharma reported in (1979) 4 SCC 389 held that

review proceedings are not by way of an appeal and have to be strictly

confined to the scope and ambit of Order 47 Rule 1 of the Civil

Procedure Code, 1908. The review jurisdiction cannot simply be

exercised on the grounds that the decision was erroneous based on

merits as that would be for a court of appeal to adjudicate. A power of

review is not to be confused with appellate power which may enable an

appellate court to correct all manners of errors committed by the

subordinate court.

11. In Parsion Devi and Ors. -v- Sumitri Devi and Ors. reported in

(1997) 8 SCC 715, the apex court held that in exercise of the

jurisdiction under Order 47 Rule 1 of the Civil Procedure Code, 1908, it

is not permissible for an erroneous decision to be "reheard and

corrected". There is clear distinction between an erroneous decision

and an error apparent on the face of the record. While the first can be

corrected by the higher forum, the latter only can be corrected by

exercise of review jurisdiction as a review petition has a limited

purpose.

12. Further, the Supreme Court in the recent case of S. Madhusudan

Reddy -v- Narayana Reddy reported in 2022 SCC OnLine SC 1034

reaffirmed the grounds on which a review petition would be

maintainable under the provisions of the Civil Procedure Code, 1908.

The relevant paragraphs have been extracted below:-

"18. A glance at the aforesaid provisions makes it clear that a review application would be maintainable on (i) discovery of new and important matters or evidence which, after exercise of due diligence, were not within the knowledge of the applicant or could not be produced by him when the decree was passed or the order made; (ii) on account of some mistake or error apparent on the face of the record; or (iii) for any other sufficient reason.

*

20. In Parsion Devi v. Sumitri Devi, stating that an error that is not self-evident and the one thathas to be detected by the process of reasoning, cannot be described as an error apparent on the face of the record for the Court to exercise the powers of review, this Court held as under:

7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P. this Court opined:

11. What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an 'error apparent on the face of the record'. The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order

itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an 'error apparent on the face of the record', for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.

8. Again, in Meera Bhanja v. Nirmala Kumari Choudhury while quoting with approval a passage from Aribam Tuleshwar Sharma v. Aribam Pishak Sharma this Court once again held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.

9. Under Order 47 Rule 1 CPC 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 CPC. In exercise of this jurisdiction under Order 47 rule 1 CPC 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'."

[emphasis added]

13. Given the limited scope of review as elucidated in the principles above, I

am of the opinion that the contentions raised by the applicants in this

review application do not satisfy any of the aforementioned principles

regarding review by the Court of its own judgment.

14. In the present case, the State has argued that the Court passed the

impugned order dated March 12, 2019 ex parte and without hearing

the applicants in the first place. However, it becomes apparently clear

from perusing the said order that sufficient opportunity was given to

the applicants to file their opposition, construct the arguments and

present their case, but they chose not to do so and in the interest of

justice, the Court adjudicated the matter ex-parte. A review petition

cannot be a used as a forum for presenting arguments which were

never made in the writ petition.

15. The law on review is very clear wherein a party that files a review is

required to show that there is discovery of new and important matter or

evidence that was in spite of exercise of due diligence not within the

knowledge or could not be produced due to cogent reasons by the party

seeking a review. In this particular case, it is evident that there was

failure on the part of applicants herein to produce their arguments and

relevant documents at the time of hearing of the matter. Secondly, this

review petition does not concern an error which is self-evident and the

review sought clearly entails re-examination of facts and further

process of reasoning which is not within the scope of a review petition.

16. I am of the opinion that an appeal cannot hide under the cloak of

review and a Court while reviewing its judgment needs to keep in mind

the principles which have been elucidated above. A review petition is

not a ground for the applicant to put forth new arguments but rather

the Court while exercising its review jurisdiction acts as a third umpire

and it can only look into whether or not there has been an apparent

error on the face of record. If this Court has to go look for that error by

way of digging into the evidence, then that error would not be an error

apparent on the fact of record. A review petition cannot be converted

into an opportunity for the applicants to present those arguments

which they very well had the chance to do at the time when the original

writ petition was taken up for hearing.

17. In the present context, one may recall the exquisite words of Justice

Krishna Iyer in P.N. Eswara Iyer -v- The Registrar, Supreme Court

of India reported in 1980 (2) SCR 889 wherein he laments and states

".......... unchecked review has never been the rule. It must be supported by proper grounds. Otherwise, every disappointed litigant may avenge his defeat by a routine review adventure and thus obstruct the disposal of the 'virgin' dockets waiting in the long queue for preliminary screening or careful final hearing........."

Justice Iyer went on to further state as follows:

"Even otherwise, frivolous motions for review would ignite the 'gambling' element in litigation with the finality of judgments even

by the highest court, being left in suspense. If, every vanquished party has a fling at 'review' lucky dip and if, perchance, notice were issued in some cases to the opponent the latter-and, of course, the former, -would be put to great expense and anxiety. The very solemnity of finality, so crucial to judicial justice, would be frustrated if such a game were to become popular."

18. I am convinced that there exist no grounds which would compel this

Court to exercise its review jurisdiction and interfere with the said

order dated March 12, 2019.The present case does not fall within the

limited boundary of review that has been laid down and therefore this

Court is not inclined to exercise its review jurisdiction.

19. Accordingly, for the reasons discussed above, this review petition is

dismissed and the interlocutory applications being CAN No. 1 of 2019

and CAN No. 2 of 2019 are disposed of.

20. As for the contempt application being CPAN No. 892 of 2019, for lack of

determination, I am sending it out of my list with liberty to the parties

for mentioning before the appropriate co-ordinate bench.

21. There shall be no order as to costs.