Jharkhand High Court
Janardan Mohan Choudhary vs Central Institute Of Mining Fuel ... on 1 August, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Civil Review No.48 of 2023
----
Janardan Mohan Choudhary, aged about 65 Years, S/o
Sri Anant Lal Choudhary, Resident of Dhawan Nagar,
Kanke Road, P.S.-Gonda, P.O.-Gandhinagar, Ranchi-
834009 (Jharkhand) ... ... Petitioner/Petitioner
Versus
1. Central Institute of Mining Fuel Research (CIMFR),
through its Director, Digwadih Campus, P.O.-FRI, P.S.-
Jorapokhar, District-Dhanbad (Jharkhand)-828108
2. The Director, Central Institute of Mining Fuel
Research (CIMFR), through its Director, Digwadih Campus,
P.O.-FRI, P.S.-Jorapokhar, District-Dhanbad (Jharkhand)-
828108
3. Council of Scientific and Industrial Research through
its Joint Secretary, Anusandhan Bhawan, Rafi Marg, PO-
Parliament House, PS-Parliament Street, New Delhi-110001
... ... Respondents/Opposite Parties
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
------
For the Petitioner : Mr. Manish Kumar, Advocate
Ms. Pratibha Mahto, Advocate
For the Respondents : Mr. Abhay Prakash, Advocate
--------
C.A.V. on 11.07.2025 Pronounced on 01.08.2025
Per Sujit Narayan Prasad, J.
Prayer
1. The instant review petition is under Article 226 of the
Constitution of India, seeking review/recall of the order dated
01.05.2023 passed in W.P.(S) No.5280 of 2018.
Facts
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4. The brief facts of the case, as per the pleading made in the
writ petition which also carried in the instant review petition,
needs to be referred which reads as under:-
5. It is the case of the review petitioner/writ petitioner that
the Central Fuel Research Institute, a unit of the Council of
Scientific and Industrial Research, Dhanbad vide Advertisement
No. 1/87 issued advertisement calling upon candidates for
various posts including 1 post of Security Officer. It was stated
in the said advertisement that the pay scale for the post of
Security Officer would be Rs. 700-40-900-EB-40-1100-50-
1300.
6. The review petitioner was duly selected for the said post of
security officer and on perusal of the memo no.8/3110/88-E.I.
dated 10th May, 1988, it appears that under reference of Office
O.M No. 2- 23/86-PL(vii) dated 02/07th March, 1988, he was
appointed on the post of Security Officer and has joined on 9 th
May, 1988 on an initial salary of Rs. 2200-75-2800-E8-100-
4000.
7. In the year 1999, a scheme was floated by the government
called the Assured Career Progression Scheme (ACP). The said
scheme was brought to obviate the financial destitution being
faced by an employee on account of stagnation in a particular
post. Under the said scheme, an employee stagnating on a
particular post would be eligible for first and second financial
upgradation on completion of 12 years and 24 years of service
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respectively from the date of appointment. Vide memo no. 1-
1/99-P.L. dated 21st January, 2009, the Administrative Officer
of the CIMFR had issued office memorandum on the
recommendation of Departmental Promotion Committee which
met on 24th September, 2008 and consequent upon approval
thereof by the Competent Authority conveyed vide CSIR letter
no. 4-45(4) 2008-E11 dated 5 th January, 2009, the Director,
Central Institute of Mining & Fuel Research has been pleased to
approve the up-gradation of the petitioner as Sr. Security
Officer from the scale pay of 8000-275-13500 (pre-revised) to
the scale of Rs.10000-325-15200 (pre-revised) w.e.f. 9th May,
1999 i.e. from the date of completion of 11 years of continuous
service in the scale of Rs.8000-275-13500 (pre revised).
8. The ACP scheme was substituted with another scheme
called the "Modified Assured Career Progression" Scheme
(MACP) w.e.f. 1st September, 2008. Under the said scheme,
financial upgradation in case of stagnation at a pay scale/post
was to be given at an interval of 10, 20 and 30 years. The CSIR
had framed specific policy for isolated category of employees
vide CSIR Order no. 6 bearing file no. 33(89) E-II dated 12th
November, 1981 which was known as "Recommendation of
Sidhu Committee for Career Development of staff belonging to
isolated cadre in CSIR". As per the recommendation of the said
committee, it was stated that an employee working on an
isolated post will be eligible for promotion after completion of 11
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years of service. The petitioner filed a representation before the
Director, CIMFR dated 23rd August, 2011 praying for
promotion/financial upgradation as per the Sidhu Committee
report. In this context, it is stated that it was categorically
stated by the petitioner that despite working for the
respondents, the petitioner has been stagnating on a post for
more than 12 years, and, therefore prayed for upgradation as
per the Sidhu committee recommendation.
9. Pursuant to the representation filed by the petitioner
before the respondent authorities, the Controller of
Administration issued an office memorandum being memo no.
1(2)2006/ DPC/ Isolated/ RU/ 706 dated 3rd October, 2011,
wherein it was stated that the request of the petitioner for the
financial upgradation could not be entertained because as per
the CSIR rules, there was no provision of financial upgradation
of security officer beyond the grade pay of Rs.6600/- PB-3
under the 11 year promotional scheme for isolated category and
the MACP scheme has not been made applicable to the isolated
category of employees. The writ-petitioner again filed a
representation on 22nd June, 2012 before the respondent
authorities, whereby the writ-petitioner stated that he was
appointed on the post of Security Officer on 09.05.1988 and
has been working for the respondents since the date of
appointment to the satisfaction of the respondent authorities.
The review petitioner even pointed out in the aforesaid
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representation that the petitioner was being adversely affected
by the decision of the respondents as the other incumbents
working as security for the respondent concern were being
eligible to be considered for the new scheme i.e. MACP and the
case of the writ-petitioner was being unjustifiably being
discriminated.
10. The review petitioner being aggrieved with the rejection of
the application for consideration for the financial upgradation,
preferred an appeal before the appellate forum being the Joint
Secretary, CSIR, New Delhi. That it was categorically stated by
the petitioner that the petitioner was recruited by way of direct
recruitment against a vacant sanctioned post, on 9th May,
1988 and after completion of 11 years of service, he was
upgraded to the post of Senior Security Officer on the pay scale
of Rs.10000-325-15200 (Pre-revised) w.e.f. 9th May, 1999
which was subsequently revised to pay band of 15600-39000
(PB-3) with a grade pay of Rs. 6600.
11. In pursuance of the appeal filed by the petitioner, the
Controller of Administration, forwarded his consideration to the
said appeal to the Joint Secretary, memo no.1(2)/ 2006 /DPC/
Isolated /RU/ 70 dated 21/28.01.2014 whereby it was
informed that as there is no provision for giving upgradation
above Rs. 6600/-(PB-3) and in light of the fact that the MACP
benefits have not been extended upon the isolated post holders
of the respondent institute, the application of the petitioner
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cannot be given effect to. The Modified Assured Career
Progression Scheme (MACP) was implemented w.e.f. 01.09.2008
notified vide O.M. No. 35034/3/2008-Esst. (D) dated 19th May,
2009. On 21st March, 2014, vide memo no. 1(2) /2006 /DPC/
Isolated/ RU/1106, it was informed by the Controller of
Administration that the appeal filed by the petitioner has been
dismissed, for the same reason, as was rejected by the director,
CSIR. i.e., there is no provision for consideration of the case of
the petitioner for the next financial upgradation.
12. The review petitioner, being aggrieved with the order
passed in the appeal filed by the petitioner before the Appellate
Authority, preferred an original application before the Central
Administrative Tribunal, Circuit Bench at Ranchi, which was
registered as O.A. No. 051/00078/2015, was also dismissed on
9th August, 2018. Being aggrieved with the same, writ petition
being W.P.(S) No.5280 of 2018 has been filed but the same was
dismissed, which is the subject matter of the instant review
petition.
Argument advanced on behalf of the Review Petitioner
13. Mr. Manish Kumar, learned counsel for the review
petitioner has assailed the impugned order by taking the
following grounds:-
(i) The ground for review of the judgment passed by this
Court in the writ petition has been taken by making
reference of the condition stipulated at running page
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187 of the writ petition (annexure-18 to the writ
petition), wherein, a condition has been assigned that
if an employee has got pay scale which is saturated
one, then also, the promotion/upgradation can be
granted.
(ii) The case of the review petitioner, therefore, is that
the aforesaid policy decision has not been taken into
consideration, while, it has been considered with
respect to other co-employee by granting upgradation
in pay scale above than the pay scale of Rs. 10000-
15200 and issue of parity on the aforesaid account
has also been raised.
(iii) Therefore, the present review petition has been filed
for review of the order passed by this Court by
upholding the order passed by the learned Tribunal.
Argument advanced on behalf of the respondent-CIMFR
14. Per-contra, Mr. Abhay Prakash learned counsel for the
respondent-CIMFR has submitted that the said policy decision
is not applicable in strict sense to all, rather, the said policy
has been taken depending upon the needs of the employee
concerned, which would be evident from the very word that 'the
employee may be granted promotion in a case of pay scale of
one or the other employee if such employee has got saturated
pay scale in the single cadre post.
15. It has been contended that since the case of the review
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petitioner is of isolated post having no hierarchal promotional
scope and hence, no benefit of upgradation is to be given to the
higher pay scale.
16. So far as the pay scale as provided under MACP Scheme is
concerned, the same has not been adopted by the respondent
and in absence thereof, no right will be said to be accrued in
favour of the review petitioner.
17. The ground has also been taken that the employee which
has been considered and granted upgradation is concerned,
that is prior to issuance of office order dated 30.01.2003. While,
the petitioner is claiming the benefit of upgradation after
issuance of the said office order dated 30.01.2003, hence, the
case of the present review petitioner is different to that of the
cases of the employees who have been granted upgradation in
pay scale.
18. Learned counsel for the respondent, based upon the
aforesaid grounds, therefore, has submitted that, it is not a fit
case for exercising the power of review, since, whatever order
has been passed by the learned Tribunal having been upheld by
this Court suffers from no error, which would be evident from
the face of the order passed by this Court.
Analysis
19. We have heard the learned counsel for the parties and
gone through the rival submissions made on behalf of the
parties, pleadings and the order sought to be reviewed.
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20. This Court, before coming to the power/scope to exercise
the scope of review seeking review of the said order, needs to
refer the underlined principle on which the power of review, is
to be exercised.
21. The Hon'ble Apex Court in the case Moran Mar Basselios
Catholicos and Anr. vs. Most Rev. Mar Poulose Athanasius
and Ors., [AIR 1954 SC 526], particularly, at paragraph-32
has observed as under:
"32. Before going into the merits of the case it is as well to
bear in mind the scope of the application for review which has
given rise to the present appeal. It is needless to emphasis
that the scope of an application for review is much more
restricted than that of an appeal. Under the provisions in the
Travancore Code of Civil Procedure which is similar in terms
to Order XL VII, Rule I of our Code of Civil Procedure, 1908,
the Court of review has only a limited jurisdiction
circumscribed by the definitive limits fixed by the language
used therein. It may allow a review on three specified,
grounds, namely (i) discovery of new and important matter or
evidence which, after the exercise of due diligence, was not
within the applicant's knowledge or could not be produced by
him at the time when the decree was passed, (ii) mistake or
error apparent on the face of the record and (iii) for any other
sufficient reason."
22. Likewise, in the case of Col. Avatar Singh Sekhon Vrs.
Union of India, (1980) Supp. SCC 562, the Hon'ble Apex
Court observed that a review of an earlier order cannot be done
unless the Court is satisfied that the material error which is
manifest on the face of the order, would result in miscarriage of
justice or undermine its soundness. The observations made are
as under:
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"12. A review is not a routine procedure. Here we resolved to
hear Shri Kapil at length to remove any feeling that the party
has been hurt without being heard. But we cannot review our
earlier order unless satisfied that material error, manifest on the
face of the order, undermines its soundness or results in
miscarriage of justice. In Sow Chandra Kante v. Sheikh Habib
1975 1 SCC 674 this Court observed: '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."
23. Further, the Hon'ble Apex Court in the case of Kamlesh
Verma vs. Mayawati, reported in (2013) 8 SCC 320 has
observed that review proceedings have to be strictly confined to
the scope and ambit of Order XLVII Rule 1, CPC. As long as the
point sought to be raised in the review application has already
been dealt with and answered, parties are not entitled to
challenge the impugned judgment only because an alternative
view is possible. The principles for exercising review jurisdiction
were succinctly summarized as under:
"20. Thus, in view of the above, the following grounds of review
are maintainable as stipulated by the statute:
20.1. When the review will be maintainable:
(i) Discovery of new and important matter or evidence which,
after the exercise of due diligence, was not within knowledge of
the petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason. The words "any other sufficient
reason" has been interpreted in Chajju Ram v. Neki, and
approved by this Court in Moran Mar Basselios Catholicos v.
Most Rev. Mar Poulose Athanasiusto mean "a reason sufficient
on grounds at least analogous to those specified in the rule".
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The same principles have been reiterated in Union of India v.
Sandur Manganese & Iron Ores Ltd.,.
20.2. When the review will not be maintainable:--
(i) A repetition of old and overruled argument is not enough to
reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original
hearing of the case.
(iv) Review is not maintainable unless the material error,
manifest on the face of the order, undermines its soundness or
results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an
erroneous decision is re-heard and corrected but lies only for
patent error.
(vi) The mere possibility of two views on the subject cannot be a
ground for review.
(vii) The error apparent on the face of the record should not be
an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within the
domain of the appellate court, it cannot be permitted to be
advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at
the time of arguing the main matter had been negatived."
24. It is evident from the aforesaid judgments that the power
of review is to be exercised if there is any error occurred on the
face of the order or the factual aspect could not have been
brought to the notice of this Court in spite of the due diligence
having been taken in the matter of making available the factual
aspect of the relevant documents.
25. The position of law is well settled, as would appear from
the reference of the judgment made hereinabove that the review
of the judgment can only be made if the new fact has come
which could not have been brought to the notice of the Court in
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spite of the due diligence, as has been held by the Hon'ble Apex
Court in Moran Mar Basselios Catholicos and Anr. v. Most
Rev. Mar Poulose (supra).
26. It is evident from the aforesaid judgment that the power of
review can be exercised only the two folds ground, i.e., (i) if
there is any error apparent on the face of the order; or (ii) the
fact which could not have been brought to the notice of the
court in spite of the due diligence having been taken by the
concerned party.
27. Further, law is well settled that a review petition, has a
limited purpose and cannot be allowed to be "an appeal in
disguise", as has been settled by the Hon'ble Apex Court in the
case of Parsion Devi v. Sumitri Devi, (1997) 8 SCC 715, for
ready reference, the relevant paragraph of the aforesaid
judgment is quoted as under:
"Under Order 47 Rule 1CPC 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 1CPC. In
exercise of the jurisdiction under Order 47 Rule 1CPCit 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."
28. Similarly, in S. Murali Sundaram Versus Jothibai
Kannan and Others 2023 SCC OnLine SC 185 the Hon'ble
Apex Court observed as under:
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"15. While considering the aforesaid issue two decisions of this
Court on Order 47 Rule 1 read with Section 114 CPC are
required to be referred to? In the case of Perry Kansagra (supra)
this Court has observed that while exercising the review
jurisdiction in an application under Order 47 Rule 1 read with
Section 114 CPC, the Review Court does not sit in appeal over
its own order. It is observed that a rehearing of the matter is
impermissible in law. It is further observed that review is not
appeal in disguise. It is observed that power of review can be
exercised for correction of a mistake but not to substitute a view.
Such powers can be exercised within the limits of the statute
dealing with the exercise of power. It is further observed that it is
wholly unjustified and exhibits a tendency to rewrite a judgment
by which the controversy has been finally decided. After
considering catena of decisions on exercise of review powers
and principles relating to exercise of review jurisdiction under
Order 47 Rule 1 CPC this Court had summed upon as under:
"(i) Review proceedings are not by way of appeal and have to be
strictly confined to the scope and ambit of Order 47 Rule 1.
(ii) Power of review may be exercised when some mistake or
error apparent on the fact of record is found. But error on the
face of record must be such an error which must strike one on
mere looking at the record and would not require any long-drawn
process of reasoning on the points where there may conceivably
by two opinions. (iii) Power of review may not be exercised on
the ground that the decision was erroneous on merits. (iv) Power
of review can also be exercised for any sufficient reason which is
wide enough to include a misconception of fact or law by a court
or even an advocate. (v) An application for review may be
necessitated by way of invoking the doctrine actus curiae
neminem gravabit."
29. Review can also be sought when the order discloses some
error apparent on the face of record or on grounds analogous
thereto. These are all grounds which find mention in various
judicial pronouncements right from the earliest time as well as
in the Rules of Order 47 of the Civil Procedure Code as
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permissible grounds of review.
30. The term "mistake or error apparent" by its very
connotation signifies an error which is evident per se from the
record of the case and does not require detailed examination,
scrutiny and elucidation either of the facts or the legal position.
If an error is not self-evident and detection thereof requires long
debate and process of reasoning, it cannot be treated as an error
apparent on the face of the record for the purpose of Order 47
Rule 1 CPC.
31. 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.
32. In the very recent judgment in the case of Sanjay Kumar
Agarwal Vrs. State Tax Officer (1) & Anr., 2023 SCC OnLine
SC 1406, the Hon'ble Apex Court while interpreting the
provision of Order 47 Rule 1 of the C.P.C. the proposition has
been laid down to entertain the review, as has been held at
paragraph 16.1 to 16.7, which reads as under:-
"16.1. A judgment is open to review inter alia if there is a mistake
or an error apparent on the face of the record.
16.2. 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.
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16.3. 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 e justifying the court to exercise
its power of review.
16.4. In exercise of the jurisdiction under Order 47 Rule 1 CPC, it
is not permissible for an erroneous decision to be "reheard and
corrected".
16.5. A review petition has a limited purpose and cannot be
allowed to be "an appeal in disguise".
16.6. Under the guise of review, the petitioner cannot be
permitted to reagitate and reargue the questions which have
already been addressed and decided.
16.7. 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.--"
33. Thus, on the basis of aforesaid discussion it is evident that
while power of review may be inherent in the High Court to
review its own order passed in a writ petition, the same has to be
exercised on well-recognized and established grounds on which
judicial orders are reviewed. For example, the power may be
exercised on the discovery of some new and important matter or
evidence which was not within the knowledge of the parties
seeking review despite due exercise of diligence when the order
was made.
34. The term "mistake or error apparent" by its very
connotation signifies an error which is evident per se from the
record of the case and does not require detailed examination,
scrutiny and elucidation either of the facts or the legal position.
If an error is not self-evident and detection thereof requires long
debate and process of reasoning, it cannot be treated as an error
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apparent on the face of the record for the purpose of invoking
the jurisdiction of review. Further 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.
35. It is evident from the law laid down by the Hon'ble Apex
Court that the parameters have been fixed in the recent
judgment in the case of Sanjay Kumar Agarwal Vrs. State
Tax Officer (1) & Anr. (supra), and in sum and substance, the
power of review can only be exercised if there is error apparent
on the face of order or the fact could not have been produced in
spite of due diligence.
36. Adverting to the factual aspect of the present case by
taking into consideration the ground, as has been agitated on
behalf of the petitioner, we are now proceeding to examine as to
whether, the same can be said to be a ground to exercise the
power of review.
37. The law is well settled that so far as financial upgradation
is concerned or the implementation of the revision in pay scale
is concerned, it is exclusive domain of the employer and there
can be limited interreference only by way of command by the
High Court under Article 226 of the Constitution of India if the
administrative decisions pertaining to pay fixation and pay
parity when they find such a decision to be unreasonable,
reference in this regard may be made to the judgment rendered
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by the Hon'ble Apex Court in the case of Haryana State
Minor Irrigation Tubewells Corporation and others Vs. G.S.
Uppal and Others, (2008) 7 SCC 375, for ready reference the
relevant paragraph is being quoted as under:
"21. There is no dispute nor can there be any
to the principle as settled in the above-cited
decisions of this Court that fixation of pay
and determination of parity in duties is the
function of the Executive and the scope of
judicial review of administrative decision in
this regard is very limited. However, it is also
equally well-settled that the courts should interfere
with the administrative decisions pertaining to pay
fixation and pay parity when they find such a
decision to be unreasonable, unjust and prejudicial
to a section of employees and taken in ignorance of
material and relevant factors."
38. Further, it is settled position of law that any revision of pay
structure or revision in other terms and conditions, of Central
Government personnel cannot and do not automatically apply
to the any establishment even under the control of the State,
reference in this regard may be made to the judgment rendered
by the Hon'ble Apex Court in the case of Vice Chairman, Delhi
Development Authority vs. Narender Kumar and Others
reported in (2022) 11 SCC 641, for ready reference the
relevant paragraph is being quoted as under:
"30. The other reason why the High Court went
wrong, in holding what it did, is that DDA is an
autonomous - a statutory - organization. No doubt,
it largely follows the Central Government's policies,
in respect of pay and allowances, and other
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benefits for its employees. However, any revision of
pay structure or revision in other terms and
conditions, of Central Government personnel cannot
and do not automatically apply to the DDA; it has
to consider the new or fresh scheme formulated by
the Central Government, and adopt it, if necessary,
after appropriate adaptation, to suit its needs.
Therefore, the Central Government's MACP Scheme
did not apply to it automatically. The DDA decided
to apply it, through an office order dated 6-10-
2009. The High Court has overlooked this aspect,
and apparently assumed that the MACP Scheme
applied automatically, upon its adoption by the
Central Government, to the DDA."
39. This Court, is now proceeding to examine the grounds
agitated on behalf of the review petitioner, the first ground is by
taking aid of the policy decision dated 30.01.2003.
40. We thought it proper to refer the policy decision as
available at running page 187 of writ petition (Annexure-18 to
the writ petition), for ready reference, the relevant part of the
policy decision is being referred as under:-
"Group -B-Posts
Name of the Post Scale Qualifications Age
Law Officer Rs.6500-10500 LLB with 8 years experience in 35 years
Rs.8000-13500 handling legal matters.
Rs.10000-15200
Security Officer Rs.6500-10,500 Ex-servicemen JCO (Subedar 35 years
Rs.8000-13500 or higher rank OR equivalent
Rs.10000-15200 rank in other Paramilitary forces with
10 years experience in security.
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"Relaxation in age limit for Ex-servicemen/SC/ST/OBC
candidates, as prescribed by the GOI from time to time will
continue to be operative.
As per the existing provisions incumbents in the pre-
revised scale of Rs. 1500-2000 may be considered for next
higher grade of Rs. 2000-2250 (pre-revised) after they
have been held up for one year at the maximum of the
grade. In view of revision of pay scales, the G.B. has
approved promotion of incumbents belonging to isolated
category of posts. In the pay scale of Rs. 12000-16500
(pre-revised Rs. 1500-2000) on completion of 8 years of
service, or after having been held up for one year at the
maximum of the grade whichever is earlier on merit based
on the recommendations of the DPC, which shall invite the
candidates for personal discussions and with the approval
of Member (Finance). However, for other categories of staff
the existing system of 11 years residency period will
continue."
41. It is evident from the aforesaid policy decision that the
post of Security Officer being the isolated post and the aforesaid
fact has been admitted by the learned counsel for the review
petitioner.
42. The Policy decision, so taken as quoted and referred
hereinabove, is with respect to the general decision depending
upon the need of the State to consider to give pay scale higher
than the pay scale attached to the post but that depends upon
the discretion of the State which would be evident from the very
content of the said policy decision.
43. This Court, therefore, is of the view that when any
decision is to be taken by the State which exactly the case
herein, since, the word starts that 'the respondent may grant
higher pay scale, the word "may" is of paramount bearing which
does not specify as a mandatory command upon the
establishment to enforce by way of a right said to be created in
favour of the employee, rather, if the entire words of said policy
2025:JHHC:21443-DB
decision will be taken into consideration, the same is obligatory
in nature.
44. The law is well settled that the right will be said to be
accrued if there is any specific provision either of promotion in
the rule of promotion saying the same to be the service
condition and if the said promotion is not being granted, even
though, the same is available in the Rules of promotion, then
only, it can be said that the consideration being not given to the
promotion to the higher post in denial of the accrued right as
per the Rules of promotion. But that is not the case herein,
rather, the respondent has been conferred with the power to
utilize its discretion depending upon its need and the financial
viability.
45. The second question has been agitated on the principle of
parity, which according to the review petitioner, has not been
followed in his case, while, the benefit has been given in favour
of another employee namely S.K. Khanna.
46. It needs to refer herein that these points had not been
taken before the learned Tribunal or before this Court rather for
the first time these points have been taken.
47. We being conscious of the fact that new facts cannot be
allowed to be raised for the purpose of review of the order,
unless due diligence is to be shown. But no reason has been
assigned showing the due diligence as to why these facts have
not been brought to the notice either before the Tribunal, the
2025:JHHC:21443-DB
original court. But even then, in the ends of justice, we thought
it proper to consider the same. Accordingly, the same is being
considered.
48. It is evident from the affidavit wherein the clarification has
been given by the respondent when it was pointed out on behalf
of the review petitioner regarding the issue of parity by
explaining the reason that the said person, was granted higher
pay scale which is prior to coming into policy decision dated
30.01.2003 as available at running page 187 to the writ petition
(Annexure-18 to the writ petition).
49. The law is well settled that the principle of parity is to be
made applicable without any discrimination amongst similarly
situated but the principle of parity is to be assessed on the
basis of applicable facts and circumstances.
50. Herein, what has been stated as a reason that the one
person namely S.K. Khanna has been granted benefit of
upgradation which is prior to the issuance of policy decision
dated 30.01.2003.
51. Admittedly, the review petitioner is claiming the benefit of
upgradation in pay scale is after issuance of policy decision
dated 30.01.2003, hence, the principle of parity is not being
applicable.
52. The ground as has been agitated on behalf of the review
petitioner, therefore, is having no foundation, hence, the same
is rejected.
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53. This Court, on consideration of the ground for review, as
has been agitated by the learned counsel for the review
petitioner, is of the view that all the grounds have been
considered by this Court exhaustively and nothing has been
brought on record to attract the principle of error apparent on
the face of record or anything could have been brought to the
notice of the Court in spite of due diligence.
54. This Court, therefore, is of the view that the fact of the
present case so far as exercising the power of review is
concerned, is not coming under the law laid down by way of
formulating the parameters as in the case of Sanjay Kumar
Agarwal Vrs. State Tax Officer (1) & Anr. (supra), hence, it
is not a case where the power of review is to be exercised.
55. In the result, the instant review petition fails and is,
dismissed.
56. Pending interlocutory application(s), if any, also stands
disposed of.
(Sujit Narayan Prasad, J.)
I agree
(Rajesh Kumar, J.)
(Rajesh Kumar, J.)
A.F.R.
Rohit/
