Municipal Corporation, Nepa ... vs The State Of Madhya Pradesh
2022 Latest Caselaw 5345 MP

                                                                       1
                                                IN THE HIGH COURT OF MADHYA PRADESH
                                                             AT JABALPUR
                                                                  BEFORE
                                           HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                                                              ON THE 12th OF APRIL, 2022

                                                       REVIEW PETITION No. 287 of 2022

                                           Between:-
                                           MUNICIPAL CORPORATION,  NEPA NAGAR
                                           THROUGH CHIEF MUNICIPAL OFFICER NEPA
                                           NAGAR (MADHYA PRADESH)

                                                                                                     .....PETITIONER
                                           (BY SHRI ASHISH SHROTI, LEARNED COUNSEL FOR THE
                                           PETITIONER)

                                           AND

                                  1.       THE STATE OF MADHYA PRADESH THROUGH
                                           PRINCIPAL SECRETARY URBAN ADMIN. DEPTT.
                                           VALLABH BHAWAN, BHOPAL (MADHYA PRADESH)

                                  2.       COMMISSIONER DEPARTMENT OF URBAN
                                           A D M I N I S T R A T I O N VALLABH BHAWAN
                                           MANTRALAYA BHOPAL (MADHYA PRADESH)

                                  3.       DY. DIRECTOR DEPARTMENT OF URBAN
                                           ADM INISTRATION JAWRA COMPOUND, MYH
                                           TEMPLE STAND, BALIKA BHAVAN, INDORE
                                           (MADHYA PRADESH)

                                  4.       DEEPAK KASOLIA S/O RAMESH KASOLIA , AGED
                                           ABOUT 37 YEARS, OCCUPATION: NILL H. NO. A-
                                           1/902, NEPA NAGAR, DISTRICT- BURHANPUR
                                           (MADHYA PRADESH)

                                                                                                   .....RESPONDENTS
                                           (BY SHRI SUDEEP CHATERJEE, LEARNED GOVERNMENT
                                           ADVOCATE FOR THE RESPONDENTS/STATE)
                                           (BY SHRI ATUL NEMA, LEARNED COUNSEL FOR THE
                                           RESPONDENT NO.4)

                                        T h is petition coming on for admission this day, the court passed the
                                  following:
                                                                        ORDER

Heard finally with the consent of both the parties. This review petition under Order 47 Rule 1 of the Code of Civil Procedure, 1908 has been filed seeking review of the order dated 28.01.2022 passed in W.P.No.5268/2017 whereby the petition was allowed. Signature Not Verified SAN Brief facts leading to filing this case are that the respondent No.4 Deepak Digitally signed by VINAY KUMAR BURMAN Date: 2022.04.13 17:25:53 IST Kasolia had filed a writ petition claiming regularization/regular pay scale of pay on

the post of Safai Karmchari on the ground that pursuant to the advertisement issued by the Municipal Council (hereinafter referred as "the Council") he had applied for the post of Safai Karmchari and had been selected by the District Selection Committee constituted for the purpose and appointed on the post; the

appointment was made on contract basis. Thereafter, the President-in-Council (hereinafter referred as "the PIC") had passed a resolution in the year 2013 to the affect that regular pay scale may be given to the respondent No.4. The writ petition was finally decided on 28.01.2022 and the same was allowed in the following terms:-

"12. In view of the foregoing discussion, it is clear that the State Govt. has no power to cancel the resolution dated 22.3.2013 of the President-in-Council vide order dated 12.2.2019 (annexure R/5). Accordingly, the order dated 12.2.2019 is hereby set aside. The respondent no.4 is directed to regularise/grant regular pay-scale to the petitioner in accordance with the resolution passed by the President-in- council dated 22.2.2013, annexure P/14, as well as resolution dated 7.6.2018 with effect from 22.2.2013, and grant all consequential benefits flowing out of regularisation as expeditiously as possible preferably within a period of three months from the date of receipt of certified copy of the order.

13. Petition stands allowed to the extent indicated hereinabove. No order as to cost.

14. It is made clear that this order shall be applicable in respect of petitioner no.1 Shri Deepak Kalosia only."

Learned counsel for the petitioner submitted that direction given by this Court to "regularise" and grant regular pay scale w.e.f. 22.02.2013 is an error apparent on the face of the record, therefore, modification is required in the order. Signature Not Verified SAN

In fact, the regularization is to be done prospectively. There is no provision that the Digitally signed by VINAY KUMAR BURMAN

regularization could be granted from the back date. On these grounds, prays for Date: 2022.04.13 17:25:53 IST

modification of the impugned order.

Learned counsel for the petitioner relied on the judgment of the Apex Court in the case of Registrar General of India and another vs. Thippa Setty and others (1998) 8 SCC 690 to contend that regularization should ordinarily be prospective so that seniority of those who are already in regular service is not affected.

Per contra, learned counsel for the respondent No.4 opposed the prayer and submitted that it is not in dispute that the respondent No.4 was appointed as Safai

Karmchari on contractual basis w.e.f. 25.01.2003 against clear vacant post and in pursuance to the advertisement dated 25.11.2002. Thereafter, the appointment was extended from time to time with prior approval of the PIC. The PIC had passed resolution in 2013 for grant of regular pay scale/regularization. Thereafter, in the year 2018 as well the resolution was passed by the PIC but the petitioner was not extending the benefit of the same. The petitioner though after taking decision were sitting tide over the matter and as such there no fault on the part of the respondent No.4. It was the duty of the petitioner to extend the benefit to the respondent No.4 immediately after 2013 but the same was never extended for the reasons best known to them. On these grounds, prays for rejection of the review petition as there is no apparent error on the face of the record.

Heard the learned counsel for both the parties. This court is of the considered opinion that none of the grounds available for successfully seeking review as recognized by order 47 Rule 1 of the C.P.C. are made out in the present case. Even the judgment in the case of Registrar General of India (supra) does not come to rescue of the petitioner inasmuch as it does not say that the regularization is always to be made prospectively but in ordinary course the same shall be prospective. In the instant case, the respondent No.4 was appointed against the regular vacant post. The PIC had considered all these aspect before passing the resolution in the year 2013 and 2018. Since the petitioner were sitting tide over the matter and not taking any decision, respondent No.4 cannot be Signature Not Verified SAN made scape goat for not implementing the order. Digitally signed by VINAY KUMAR BURMAN The Apex Court in the case of S. Bairathi Amaal Vs. Plni Roman (2009) Date: 2022.04.13 17:25:53 IST

10 SCC 464 has held that in order to seek review, it has to be demonstrated that the order suffers from an error contemplated under Order 47 Rule 1 CPC which is apparent on the face of record and not an error which is to be fished out and searched. A decision or order cannot be reviewed merely because it is erroneous. In another case, the Apex Court in case of State of West Bengal Vs. Kamal Sengupta (2008) 8 SCC 612 has held that, "a party cannot be permitted to argue de novo in the garb of review."

In view of above, the review petition fails and is accordingly, dismissed.

(S. A. DHARMADHIKARI) JUDGE vinay*

Signature Not Verified SAN

Digitally signed by VINAY KUMAR BURMAN Date: 2022.04.13 17:25:53 IST