Uttarakhand High Court
Ganesh Datt vs State Of Uttarakhand And Others on 3 July, 2023
HIGH COURT OF UTTARAKHAND AT
NAINITAL
Review Application MCC No.16461 of 2022
In
Writ Petition (S/S) No.2714 of 2019
Ganesh Datt ....Petitioner
Versus
State of Uttarakhand and Others ....Respondents
Present:-
Mr. Ganesh Kandpal, Advocate for the petitioner.
Mr. Narayan Dutt, Brief Holder for the State.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
By means of the instant petition, the petitioner
had sought the following reliefs:-
"(i) a writ, order or direction in the nature of
certiorari to call the record the case and
quash the order dated 24-07-2019
(contained as annexure no.9 to the writ
petition).
(ii) a writ, order or direction in the nature of
certiorari to call the record the case and
quash the order dated 6-11-2015 so far it
provides that the class IV employee post
will be fill up through outsource
(contained as annexure no. 3 to the writ
petition).
(iii) a writ, order or direction in the nature of
mandamus directing the respondent to
absorb/regularized to the petitioner on
the post of peon (class IV) post in the Lal
Bahadur Shastri Government Degree
College Halduchaur District-Nainital from
the date of provincialization of the
institution along with all consequential
benefit including salary, seniority.
(iv) a writ, order or direction in the nature of
mandamus, which this Hon'ble court may
deem fit and proper on the basis of the
facts and circumstances of the case.
(v) Award the cost of the petition to the
petitioner."
2. Heard learned counsel for the parties and
perused the record.
3. This petition was decided by order dated
07.01.2021. On that date, on behalf of the petitioner, it was
submitted that controversy involved in this writ petition is
squarely covered by the judgment dated 03.11.2020 passed
by this Court in WPSS No.951 of 2020, Susheel Kumar &
another vs. State of Uttarakhand & others ("the first
petition"). In view of it, the instant petition was also allowed in
terms of judgment and order dated 03.11.2020, passed in the
first petition.
4. Now, State has filed a review application. The
main ground taken by the respondent-State is that as per
recommendation of the 6th Pay Commission, Group IV post
has been declared as dying cadre. Therefore, regularization on
those posts cannot be done. In fact, the respondent-State has
stated in the review application that the Government Order
dated 24.03.2011 has declared Ground IV post as dying
cadre.
5. Another ground for review is enumerated in
ground D as follows:-
"D) Because, what process was going on to absorb
the class IV employees by the State in the
department, the said information was not within
the knowledge of the State Counsel at the time
of finalizing the writ petition and the Hon'ble
Court passed the order on the basis of
Government Order dated 23.12.2016, but after
finalizing the process of adjusting the class IV
employees the State Government passed another
subsequent Government Order dated 28.1.2021
and by this subsequent Government Order the
arrangement of Government Order dated
26.03.2015 was revived and the Government
Order dated 23.12.2016 was rejected by the
State Government. Hence, it cannot be said a
summersault decision taken by the State to
defeat the purpose of the writ petition, but it is
only a pending process, which was going on to
absorb the class 4th employee in the
department."
6. Learned counsel for the State would submit that
the impugned order is liable to be reviewed because the
petitioner cannot be regularised in Group IV post as it has
already been declared by Government Order dated
24.03.2011 as dying cadre. It is argued that the petitioner has
taken a plea that in the year 2016, some similarly situated
persons were regularised to service, but those appointments
have been cancelled further by the Government Order dated
28.01.2021. He would refer to ground D of the review
application on that aspect.
7. Learned State Counsel would also submit that
the petitioner is working through an outsourcing agency.
Therefore, it makes a ground for review.
8. On the other hand, learned counsel for the
petitioner would submit that the State has not disclosed even
a single ground for reviewing the order. It is submitted that,
in fact, based on admission made by learned State Counsel,
the order has been passed in the case of which review has
been sought.
9. It is a review application. Review is not an
appeal. The contours of review are much defined.
10. In order to review an order, it has to be shown
that there is a mistake or error apparent on the face of record.
In the instant case, the basis of review is that the Group IV
post had already been declared as dying cadre pursuant to
the recommendation of the 6th Pay Commission by the
Government Order dated 24.03.2011. As stated, the instant
petition has been decided in terms of the judgment passed in
the first petition, on 03.11.2020. In the case of Susheel
Kumar (supra), in fact, similar plea was taken by the State. It
was then argued on behalf of the State that the petitioner
could not be absorbed as Group IV posts have been declared
dying cadre by the Government Order dated 24.03.2011. In
the first petition, in Para No.14, the Court had posed a
question, which is as follows:-
"14) The moot question which arises for
consideration of this Court is - whether a new
employer, more particularly, the State
Government, can change the service condition of
the petitioners, whose services were regularized
prior to the provincialization of the Institution,
and reduce their position worse than they were
holding prior to taking over the institution under
government grant-in-aid?"
11. And, it has been replied in Para No.16 bottom as
follows:-
"The petitioners, being fully eligible to be
absorbed / regularized on class IV posts, cannot
be discriminated with the similarly situated
persons working in Rath Degree College,
Paithani, whose services were already
regularized by the State Government."
12. The instant petition has been decided based on
the judgment passed in the first petition. In the first petition,
the issue of Group IV cadre having been declared as dying
cadre by virtue of Government Order dated 24.03.2011 had
been raised, argued, discussed and decided. It is not an error.
It is not the case that this Government Order dated
24.03.2011 was not before the Court. It was the main ground
of contention by the respondent-State in the first petition, and
it has been adjudicated. Now, under the garb of review, it is
apparent that what the respondent-State wants is to re-
agitate the same matter, which has been in issue in the first
petition, which has been deliberated and finally decided. This
may not be a ground for review. Therefore, the review
application deserves to be rejected.
13. The review application is rejected.
(Ravindra Maithani, J.)
03.07.2023
Ravi Bisht
