Uttarakhand High Court

SPA/362/2020 on 9 September, 2021

            IN THE HIGH COURT OF UTTARAKHAND
                               AT NAINITAL
       THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN

                                       AND

                  THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA

                SPECIAL APPEAL NO.359 OF 2020

                        09TH SEPTEMBER, 2021

BETWEEN:

Rustam Singh                                                 .....Appellant.
And

State of Uttarakhand & others                                ....Respondents.

WITH SPECIAL APPEAL NO.362 OF 2020 BETWEEN:

Nitish Kumar                                                 .....Appellant.
And

State of Uttarakhand & others                                ....Respondents.

Counsel for the Appellant               :      Mr. Aditya Singh.

Counsel for the respondents             :      Mr.    Pradeep      Joshi,   learned
                                               Additional Chief Standing Counsel
                                               for the State.

The Court made the following:

COMMON JUDGMENT:(per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)

Both these special appeals challenge the order

dated 09.09.2020, passed by the learned Single Judge in Writ

Petition (S/S) Nos. 3345 of 2018 and 349 of 2018, whereby

the learned Single Judge has dismissed the writ petitions,

inter alia, on the ground that the petitioners could not

establish the fact that they have worked for three seasons for

the Forest Department. Therefore, they do not fall within the

definition of word "Seasonal Worker". Hence, they are not

entitled to be appointed as Forest Guards (Van Aarakshi).

Both these appeals further challenge the order dated

29.10.2020, passed by the learned Single Judge in Review

Petitions (MCC Nos.537 of 2020 and 535 of 2020), whereby

the learned Single Judge has dismissed the Review Petitions

ostensibly on the ground that there is no error apparent on

the face of the record. Since both these appeals emanate

from the same set of impugned judgment and orders, these

are being decided by a common judgment.

2. Mr. Aditya Singh, the learned counsel for the

appellant, submits that initially there was a fact finding

inquiry carried out by the respondents. However,

subsequently, there was a final report, dated 23.07.2019. The

said final report was not available with the appellant at the

time when the initial order dated 09.09.2020 was passed by

the learned Single Judge. However, the said final report dated

23.07.2019 was filed along with the Review Petitions.

3. According to the final report dated 23.07.2019, the

respondent-Department had concluded that the documents

belonging to the petitioner, and other similarly situated

persons, need to be re-examined. If the documents were

found to be genuine, and if it is established through the

documents that the petitioner, and other similarly situated

persons, were, indeed, seasonal workers, then the

appointment letters should be issued to them.

4. According to Mr. Aditya Singh, the learned counsel,

the learned Single Judge did not notice the fact that the final

report, dated 23.07.2019, had been placed before the Court

along with the Review Petition. Instead, the learned Single

Judge has concentrated merely on the fact that "there is no

error apparent on the face of the record".

5. Mr. Aditya Singh, the learned counsel had further

relied upon Order XLVII Rule 1 of the Code of Civil Procedure

(for short "the C.P.C."), whereby the power of review has

been bestowed upon a Court. According to him, in case a new

fact is discovered, and is brought on record, the Court would

be justified in reviewing its earlier order. Despite the fact that

new document, namely the final report dated 23.07.2019,

had been produced along with the Review Petition, the said

document has not been considered by the learned Single

Judge. Therefore, the review order dated 29.10.2020

deserves to be set-aside by this Court; the matter should be

remanded back to the learned Single Judge.

6. Mr. Pradeep Joshi, the learned Additional Chief

Standing Counsel appearing for the State, has frankly

conceded, and in the view of this Court rightly so, that the

final report dated 23.07.2019 was not placed before the

learned Single Judge when the initial order, dismissing the

writ petitions, was passed. The said final report was not even

available with the appellant on the said date. It was available

subsequent to passing of the impugned order dated

09.09.2020. He further conceded that it was subsequently

placed before the Review Court.

7. Heard the learned counsel for the parties, and

perused the impugned orders.

8. Order XLVII Rule 1 of the C.P.C. is as under:-

"Rule 1 Order XLVII

"1. Application for review of judgment- (1) Any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed, but from no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes,

and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.

Explanation.-The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment".

9. A bare perusal of the said provision clearly reveals

that there are different grounds for reviewing the order,

namely, (a) if there is a discovery of new and important

matters or evidence which, after the exercise of due

diligence, and which was not within the knowledge of the

applicant; (b) if 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.

10. Therefore, the learned Single Judge is not justified

in observing that "since there is no error apparent on the face