Dr. Arun Kumar vs The State Of Jharkhand Through The ...
2022 Latest Caselaw 4210 Jhar

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               IN THE HIGH COURT OF JHARKHAND AT RANCHI

                         Civil Review No. 60 of 2017

             Dr. Arun Kumar, Son of Dr. Ramchandra Prasad Sinha, Resident of
             Prema Apartment in front of Sri Krishna Enclave, North Office Para,
             P.O. & P.S. Doranda, District Ranchi       ...     ...      Petitioner
                                    Versus
          1. The State of Jharkhand through the Chief Secretary, Government of
             Jharkhand, Project Bhawan, P.O. & P.S. -Dhurwa, District-Ranchi
          2. The Secretary, Science and Technology Department, Nepal House,
             P.O. & P.S. Doranda, District-Ranchi.
          3. The Under Secretary, Science and Technology Department, Nepal
             House, P.O. & P.S. Doranda, District-Ranchi.
          4. The Jharkhand Public Service Commission through its Chairman,
             P.O. & P.S. Lalpur, District Ranchi
          5. The Development Commissioner cum Chairman, High Level Enquiry
             Committee, State of Jharkhand, Nepal House, P.O. & P.S. Doranda,
             District Ranchi                      ...       ...       Opp. Parties
                                    ---

CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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                For the Petitioner         : Mr. A. K. Das, Advocate
                For the Opp. Parties       : Ms. Omiya Anusha, Advocate
                                    ---
10/17.10.2022
          1.     Learned counsel for the parties are present.

2. This review application has been filed for the following reliefs: -

"That the present application is for review of part of the order and judgment dated 06.09.2016 passed by Hon'ble Mr. Justice Pramath Patnaik in W.P. (S) No. 4702 of 2013 whereby and where under this Hon'ble High Court has been pleased to allow the writ application filed by Petitioner with the following observation and direction: - Quote (IV) On the cumulative effect of the aforesaid reasons stated hereinabove the impugned order of removal dated 23.10.2013 vide Annexure- 30 and notification dated 25.10.2013 (Annexure-28) are quashed and set aside and the respondents are directed to reinstate the petitioner in services on the post of Director, Science and Technology and the petitioner shall be entitled to continuity of services from the date of termination/removal till its reinstatement and the said period shall be counted towards pensionary benefits except arrears of salary of the said period.

With the aforesaid direction, the writ petition stands allowed.

Unquote"

Arguments of the petitioner

3. Learned counsel for the petitioner submits that the petitioner, in the writ petition being W.P. (S) No. 4702 of 2013, had challenged the show cause notice dated 11th July, 2013 and also prayed for quashing the enquiry report of the High Level Enquiry Committee dated 23.03.2013 and had prayed for allowing the petitioner to continue on the post of Director, Department of Science and Technology. During the pendency of the writ petition, the petitioner was removed vide order dated 23.10.2013 and consequently, the petitioner amended the writ petition and the order of removal was also challenged by filing interlocutory application which was allowed vide order dated 31.01.2014. The learned counsel submits that the writ petition being W.P.(S) No. 4702/2013 was ultimately allowed vide order dated 06.09.2016, wherein the order of removal dated 23.10.2013 (Annexure-30 in the writ petition) was set- aside. The learned counsel submits that while setting-aside the order of removal dated 23.10.2013 and consequent notification dated 25.10.2013, the respondents were directed to reinstate the petitioner in service on the post of Director, Science and Technology and it was observed that the petitioner shall be entitled to continuity of service from the date of termination/removal till its reinstatement and the intervening period shall be counted towards pensionary benefits except arrears of salary of the said period.

4. The learned counsel submits that the petitioner is governed by the Jharkhand Service Code and as per Rule 97 of the Jharkhand Service Code, when a government servant is fully exonerated, he is entitled to entire salary. The learned counsel submits that the learned writ court, who allowed the writ petition, has not considered the Rule 97 of Jharkhand Service Code and the order under review denying the arrears of salary for the period from date of termination till date of reinstatement is a non-speaking order, as no reason has been assigned for denying the arrears of salary.

5. However, during the course of argument, learned counsel for the petitioner has placed the writ records and it is not in dispute that no consequential relief regarding arrear of salary etc. was prayed for by the writ petitioner in the writ petition nor any plea was made by the petitioner in the writ petition regarding the fact that the petitioner was not gainfully employed elsewhere.

6. At this, learned counsel for the petitioner has submitted that in the review petition he has made a statement that the petitioner was not gainfully employed elsewhere during the said intervening period.

Arguments of the opposite parties

7. Learned counsel for the opposite parties, on the other hand, while opposing the prayer has submitted that no grounds for review is made out. There is no error apparent on the face of records and this Court had exercised the power in the interest of equity and justice and has held that the petitioner deserved to be reinstated in service. The learned counsel submits that the power in the writ petition has been exercised under Article 226 of the Constitution of India and the consequences of reinstatement has also been directed by the learned writ court. She submits that the present petition does not fall within the scope of review application. She also submits that even during the course of hearing, as is apparent from the writ order, no argument was advanced claiming any arrears of salary. She has relied upon a judgment passed by this Court in Civil Review No. 45/2020 dated 05.02.2021 to submit that there is no merit in this review petition and therefore it is fit to be dismissed. Findings of this Court

8. The grievance of the petitioner is that although the order of removal of the petitioner dated 23.10.2013 was set-aside by this Court vide judgement dated 06.09.2016 passed in W.P.(S) No. 4702 of 2013, the petitioner has been denied arrears of salary by the order under review though as per Rule 97 of Jharkhand Service Code the petitioner is entitled to the entire salary for the period he remained out of employment. This Court has refused to grant arrear of salary, and has only held the petitioner to be entitled to continuity of service from the date of termination till his reinstatement which would be counted towards pensionary benefits. In order to get entire salary for the intervening period, the petitioner has filed the present petition seeking review of order passed in W.P.(S) No. 4702 of 2013.

9. Upon perusal of the writ petition, this Court finds that neither any consequential relief regarding arrear of salary etc. was prayed for by the petitioner nor the petitioner has made any averment in the writ petition as to whether the petitioner was gainfully employed elsewhere during the intervening period. In spite of the fact that no specific prayer was made regarding arrears of salary and no foundational pleading regarding

employment in the intervening period was made in the writ record, relief was granted to the petitioner in connection with continuity of service except arrears of salary for the intervening period while passing direction reinstating the petitioner. This Court also finds that the petitioner has been reinstated in service in interest of equity and justice by the order under review.

10. The learned counsel for the petitioner has not been able to point out any ground calling for review of the order passed by the writ court.

11. The scope of review of order passed in the writ jurisdiction is governed by the principles enshrined in Order XLVII Rule 1 of the Code of Civil Procedure. It is well settled that review proceedings are not by way of appeal and have to be strictly confined to the scope and ambit of Order XLVII Rule 1 of CPC. Perusal of Order XLVII Rule 1 shows that review of a judgement or an order could be sought: (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 (c) on account of some mistake or error apparent on the face of the record or any other sufficient reason. The ground for review on account of any other sufficient reason is not open ended and the same is analogous to the other specified grounds. The power of review is not analogous to the appellate power. An error which is not apparent and has to be detected by a process of long drawn arguments and reasoning, cannot justify the court to exercise its power of review under Order XLVII Rule 1 CPC.

12. No new fact has been acquired by the review petitioner after the decision given in the judgement under review. The statement made in the review petition that the petitioner was not gainfully employed elsewhere cannot be said to be a new fact acquired by the review petitioner after the decision given in the judgement under review. Moreover, the consequential relief regarding continuity of service has been granted to the petitioner under discretionary and extraordinary jurisdiction of the writ court.

13. Considering the aforesaid facts and circumstances and the grounds which have been taken by the petitioner for review in the present case, none of them fall under any of the grounds mentioned

under Order XLVII Rule 1 of the Code of Civil Procedure calling for review of the judgment passed by the writ court. This Court finds that neither any error apparent on record has been pointed out by the petitioner nor there is any plea that any fact came to the knowledge of the petitioner after the judgment passed by this Court or any fact which was recorded in the judgment under review has been erroneously recorded.

14. Under the aforesaid facts and circumstances, this Court does not find sufficient ground to review the judgement and order dated 06.09.2016 passed by this Court in W.P.(S) No. 4702 of 2013 and accordingly, the present review petition is hereby dismissed.

15. Pending interlocutory application, if any, is closed.

(Anubha Rawat Choudhary, J.) Mukul/Pankaj