Telangana High Court

Reshma vs Smt. Christina Z.Chongthu on 17 October, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

       HON'BLE MRS JUSTICE SUREPALLI NANDA

                 Review I.A. No.1 of 2024
                            in
                  W.P. No.39083 of 2018

                            AND

                   C.C.No.876 of 2024
                            in
                  W.P. No.39083 of 2018


COMMON ORDER:

Heard learned Government Pleader for Services-

II, learned Government Pleader for Medical and Health,

appearing on behalf of the review petitioners and

Sri Somavarapu Satyanarayana, learned counsel

appearing on behalf of the respondent/writ petitioner.

2. The present review has been filed seeking prayer

as under :

"...to review the order made in W.P.No.39083 of 2018 dated 21.10.2022 pending disposal of the review petition and pass such other order or orders......"

3. The Government Pleader for Services-II,

appearing on behalf of the review petitioners mainly

puts-forth the following submissions:

SN, J 2 Review I.A.1_2024 & CC_876 of 2024 in WP_39083_2018

i) The Order dated 21.10.2022 in W.P. No. 29083

of 2018 is erroneous and unsustainable in law apart from

being contrary to the scheme of Compassionate Appointment

and as such the Judgment and Order dated 21.10.2022 is

liable to be set aside.

ii) The mother of the Writ Petitioner died on 11.09.2005

while in service. At that time, the petitioner's age was 8

years. As per G.O.Ms.No.165, General Administration (Ser. A)

Department, Dated 20.03.1989, and the Circular Memo

No.60681/Ser.A/2003-1, dated 12.08.2003, the dependents

of deceased can be considered for compassionate

appointment, if the dependents attain the age of majority of

18 years within 2 years of demise of the Government

employee. In the instant case, the Writ Petitioner has

completed 8 years of age only as on the date of demise of her

mother. Since the Writ Petitioner had not attained majority,

within 2 years from the date of demise of her mother, the

petitioner's case cannot be considered in the light of

conditions stipulated in G.O. and Circular Memo stated supra.

In the view of the said G.O. and Circular, the Writ Petitioner is

not entitled for compassionate appointment and that the Writ SN, J 3 Review I.A.1_2024 & CC_876 of 2024 in WP_39083_2018

Petition deserves to be dismissed. Thus there is an

error apparent on the face of the judgment and order

rendered in W.P.No.39083/2018 and the same requires to be

set aside by this Hon'ble High Court.

iii) The Hon'ble Supreme Court held in various cases that

an appointment made many years after the death of the

employee or without due consideration of the financial

resources available to her/his dependents and the financial

deprivation caused to the dependents as a result of his/her

death, simply because the claimant happened to be one of the

dependents of the deceased employee would be directly in

conflict with Articles 14 & 16 of the Constitution and hence,

quite bad and illegal. It is well settled law that claim for

compassionate appointment is not to be considered as a

regular mode of appointment and it is intended to address the

penurious situation in the immediate aftermath of the death

of the bread earner of the family. The Writ Petitioner

represented to consider her case for compassionate

appointment in the year 2015, and her request was rejected

since it was contrary to the conditions prescribed by the

Government in its G.O.Ms.No.165, General Administration SN, J 4 Review I.A.1_2024 & CC_876 of 2024 in WP_39083_2018

(Ser.A) Department, dated 20.03.1989. Further, her case

was examined by the Government and the decision was

conveyed to her very recently vide Memo No.11253/G/2023-3

dated 06.05.2024. In view of these facts, and the Writ

Petitioner's request is contrary to the Scheme of

compassionate appointment, the Order dated 21.10.2022 of

the Hon'ble High Court deserves to be set aside.

The learned Government Pleader relied upon the

following Judgments of the Apex Court in support of his

case and contended that the present Review has to be

allowed as prayed for:

(a) Sanjay Kumar Vs. State of Bihar & Others dated

28.08.2000,

(b) Jagdish Prasad Vs. The State of Bihar & another

dated 13.11.1995,

(c) Aditya Yuvraj Gond Vs. The State of Bihar

and another, dated 22.02.2024.

4. The other pleas put forth by the review petitioners

are in fact dealt by this Court in its detailed, reasoned

judgment dated 21.10.2022 passed in W.P.No.39083 of

2018 with conclusion at Paragraph Nos.7 and 8.

SN, J 5 Review I.A.1_2024 & CC_876 of 2024 in WP_39083_2018

"7. This Court opines that in view of the clear admission in the counter affidavit filed by respondent No.2 that the office has addressed a letter to the Government to issue the suitable orders/instructions regarding the age of (10) years shortfall and the result is awaited, this Court is of the firm view that there is no rationale or justification in providing differential treatment to the petitioner and others.

8. Taking into consideration the aforesaid circumstances, and also the law laid down by the Apex Court in the judgment reported in 2021 (6) ALD 285(SC) Modified Voluntary Retirement Scheme of 2002 of Azam Jahi Mill Workers Association Vs National Textile Corporation Ltd and others, this writ petition is allowed as prayed for by setting aside the impugned order, vide proceedings Rc.No.2840/E5/2015, dated 30.01.2016 passed by the 2nd respondent/The District Medical and Health Officer, Nalgonda District, Telangana. The respondents are directed to give exemption to the petitioner as given in the other cases of similarly situated persons and further the respondents are directed to consider the case of the petitioner for appointment on compassionate grounds, in the place of the petitioner's mother, to any suitable SN, J 6 Review I.A.1_2024 & CC_876 of 2024 in WP_39083_2018

post, within a period of four (04) weeks from the date of receipt of copy of this order and pass appropriate orders duly communicating the decision to the petitioner. However, there shall be no order as to costs."

5. The learned counsel appearing on behalf of the Writ

Petitioner submits that there is no error apparent on

the face of the record that warrants interference by

reviewing the orders of this Court dated 21.10.2022

passed in W.P.No. 39083 of 2018 and hence, the

Review needs to be dismissed in limini.

DISCUSSION AND CONCLUSION:

6. Order 47 Rule 1 of Civil Procedure Court 1908

which governs the grounds on which a judgment or an

order can be reviewed is extracted hereunder :

a) From the discovery of new and important matters or evidence 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 knowledge of the SN, J

7 Review I.A.1_2024 & CC_876 of 2024 in WP_39083_2018

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

This Court is of the firm opinion that none of the

above referred grounds exist in the present case that

warrant interference by this Court at the present stage

in the present Review Petition.

7. In the judgment of Apex Court in Lily Thomas vs.

Union of India, dated 05.04.2000 reported in 2000 (6)

SCC 224 in particular at para No. 56, it is observed as

under :

"56 - It follows, therefore, that the 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. The review cannot be treated like an appeal in disguise.

The submissions and the pleas put-forth by the

learned counsel appearing on behalf of the Review SN, J

8 Review I.A.1_2024 & CC_876 of 2024 in WP_39083_2018

Petitioners do not include a misconception of fact or

law by this Court.

8. The Apex Court in the Judgment reported in 1980

(2) SCC 167, dated 21.12.1979 in Northern India

Caterers (India) Ltd. Vs. Lt.Governor of Delhi observed

at para No. 8 as under :

Para 8 : It is well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final and departure from the principle is justified only when circumstances of a substantial and compelling character make it necessary to do so.

In the present case none of the grounds urged by

the Review Petitioners indicate any error apparent on

the face of the record or any circumstances of a

substantial and compelling character that warrants

interference by this Court to exercise the power of

review with regard to the order dated 21.10.2022

passed in W.P. No.39083 of 2018.

SN, J

9 Review I.A.1_2024 & CC_876 of 2024 in WP_39083_2018

9. The boundary within which the power of review

under Order 47 Rule 1 of CPC 1908 has to be exercised

has been demarcated by the Hon'ble Supreme Court in

its recent judgment in Murali Sundaram vs. Jothibai

Kannan, dated 24.02.2023 reported in (2023) SCC

OnLine SC 185 and at para No. 5.1 of the said judgment

it is observed as under:

"5.1. While considering the aforesaid issue two decisions of this Court on order 47 Rule 1 read with Section 114 Code of Civil Procedure. 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 Code of Civil Procedure, 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 SN, J

10 Review I.A.1_2024 & CC_876 of 2024 in WP_39083_2018

review powers and principles relating to exercise of review jurisdiction Under Order 47 Rule 1 Code of Civil Procedure, 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 Code of Civil Procedure.

(ii) Power of review may be exercised when some mistake or error apparent on the face 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.

SN, J 11 Review I.A.1_2024 & CC_876 of 2024 in WP_39083_2018

10. In the Apex Court Judgment dated

18.08.2022 reported in 2022 Live Law (SC) 685 in

"S.Madhusudhan Reddy v. V.Narayana Reddy and

others", in particular, at paragraph No. 26, it is

observed as under:

"26. As can be seen from the above exposition of law, it has been consistently held by this Court in several judicial pronouncements that the Court's jurisdiction of review, is not the same as that of an appeal. A judgment can be open to review if there is a mistake or an error apparent on the face of the record, but an error that has to be detected by a process of reasoning, cannot be described as an error apparent on the face of the record for the Court to exercise its powers of review under Order XLVII Rule 1 CPC. In the guise of exercising powers of review, the Court can correct a mistake but not substitute the view taken earlier merely because there is a possibility of taking two views in a matter. A judgment may also be open to review when any new or important matter of evidence has emerged after passing of the judgment, subject to the condition that such evidence was not within the knowledge of the party seeking review or could not be produced by it when the order was made despite undertaking an exercise of due diligence. There is a clear distinction between an erroneous decision as against an error apparent on the face of the record. An erroneous decision can be corrected by the Superior Court; however an error apparent on the face of the record can only be corrected by exercising review jurisdiction. Yet another circumstance referred to in Order XLVII Rule 1 for reviewing a judgment has been described as "for any other sufficient reason". The said phrase has been explained to mean "a reason sufficient on grounds, at least analogous to those specified in the rule".

SN, J 12 Review I.A.1_2024 & CC_876 of 2024 in WP_39083_2018

11. It would be opt to discuss the jurisdiction of this

Court to review its own judgment. After examining a

catena of Supreme Court Judgments (1) Sasi D through

LRS v Aravindakshan Nair and Others reported in

(2017) 4 SCC, dated 03.03.2017, para Nos. 6 to 9; (2)

Haridas Das v Smt. Usha Rani Banik and Others

reported in (2006) 4 SCC 78, dated 21.03.2006 paras

15 to 18; (3) Parsion Devi v Sumitri Devi reported in

1997 (8) SCC 715, dated 14.10.1997, para Nos. 7 to 10;

(4) Aribam Tuleshwar Sharma v Aribam Pishak Sharma

reported in (1979) 4 SCC 389, dated 25.01.1979 para

No. 3 the principles that emerge from a perusal of the

land-mark Supreme Court Judgments on the issue of

review, are enlisted below:

A) The power to review is inherent in the High Court and the High Court can review its own order/judgment passed in a writ petition.

B) This power of review is a limited power and would be governed by the principles of Section 151 read with Order XLVII Rule 1 of the Code of Civil Procedure.

C) Firstly, a Court can review its own judgment when there is discovery of new and important SN, J 13 Review I.A.1_2024 & CC_876 of 2024 in WP_39083_2018

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. Secondly, the court may review its order or judgment on account of some mistake or error apparent on the face of the record. Thirdly, a residuary clause in Rule 1 of Order XLVII provides for a review for any other sufficient reason'. It is to be noted that the Apex Court on several occasions has held that the third condition "for any other sufficient reason" has to be read within the four corners of the first two conditions.

D) An error which is not self-evident and has to be detected by a process of reasoning is not an error apparent on the face of the record.

E) A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise". There is a sharp distinction between an erroneous decision that can be only appealed against and an error apparent on the face of the record that is subject to review.

12. The Apex Court in the Judgment reported in

(2024) 2 Supreme Court Cases 362 in "Sanjay Kumar

Agarwal v. State Tax Officer (1) and another", at

paragraph No.16 observed as under:

SN, J 14 Review I.A.1_2024 & CC_876 of 2024 in WP_39083_2018

"16. The gist of the aforestated decisions is that:

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. 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.