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Ramswaroop Vs. the State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Review Petition No. 28 of 1972
Judge
Reported in1973(6)WLN881
AppellantRamswaroop
RespondentThe State of Rajasthan and ors.
DispositionApplication dismissed
Cases ReferredIn Jaliram v. Gopiram
Excerpt:
.....been ignored from consideration. it may, therefore be a good ground for an appeal but not for a review. a review cannot be 'converted into an appeal in disguise so that an erroneous decision be reheard and corrected.;it cannot be said that the error is so manifest or patent that it admits of no doubt or dispute so as to be sufficient to meet the requirements of order 47, rule 1 cpc. under the circumstances, i am of opinion that the the conditions laid down in order 47, rule 1 cpc are not satisfied and this application for review deserves to be dismissed. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant..........is placed before me for disposal.2. i sitting singly have jurisdiction to pass order on this review application in view of the express wordings of order 47, rule 5 c.p.c and the decision of this court in maji mohan kanwar and ors. v. the state of rajasthan and anr. . order 47, rule 5 c.p.c runs as follows:where the judge or judges, or any one of the judges, who passed the decree or made the order, a review of which is applied for, continues or continue attached to the court at the time when the application for a review, is presented, and is not or are not precluded by absence of other cause for a period of six months next after the application from considering the decree or order to which the application refers, such judge or judges or any of them shall hear the application, and no.....
Judgment:

S.N. Modi, J.

1. This is an application for review by Ram Swaroop of an order dated 21-1-70 passed by a Bench consisting of Hon'ble Jaget Narayan, Chief Justice and myself As Hon'ble Jagat Narayan latter on retired and ceased to be attached to this Court, the application for review is placed before me for disposal.

2. I sitting singly have jurisdiction to pass order on this review application in view of the express wordings of Order 47, Rule 5 C.P.C and the decision of this Court in Maji Mohan Kanwar and Ors. v. The State of Rajasthan and Anr. . Order 47, Rule 5 C.P.C runs as follows:

Where the Judge or Judges, or any one of the Judges, who passed the decree or made the order, a review of which is applied for, continues or continue attached to the Court at the time when the application for a review, is presented, and is not or are not precluded by absence of other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application, and no other Judge or Judge of the Court shall hear the same.

In Maji Mohan Kanwar's case (supra), it was held:

Thus if the decree or order sought to be reviewed, is passed by a Division Bench consisting of two Judges and if both of them continue to be attached to the Court, then the application for review must be heard by both of them. If only one of the two Judges continues to be attached to the Court and the other one has retired, or is no longer attached to that Court for any other reason, then the application should be heard by the single Judge who continues to he attached to the Court.

I being one of the members of the Bench which passed the order under review and continue attached to this Court, the application for review can be disposed of by me,

3. The facts leading to this application are: The petitioner Ramswaroop was appointed as a lower division clerk in the Insurance Department of the erstwhile State of Jaipur on 1-7-47 and was confirmed with effect from 1-7-1918. After the formation of Rajasthan, his services were transferred to the State of Rajasthan where he continued to serve as lower division clerk till 2-11-1953. He was then promoted as an upper division clerk and confirmed with effect from 3-11-53. Thereafter he worked as Section Incharge but later on the posts of Section Incharge were abolished. He was therefore reverted to his substantive post of upper division clerk along with respondents Nos. 4 to 8 who were also working as Section Incharge. The Deputy Director of Insurance vide order dated 30-11-56 issued in pursuance of the directions contained in the letter of the Finance Department, Government of Rajasthan, dated 27-11-56, appointed 16 persons including the petitioner and respondents Nos 4 to 8 as supervisor with effect from the dues noted against each. In this order, the petitioner's name is shown at serial number 11 and the date of his appointment as 3-11-56. In the same order, he names of respondents Nos. 4 to 8 have been shown at serial numbers 5, 7, 8 and 10 and the date of their appointment as 1-11-56. Thereafter by an order dated 29-11-57, 14 persons out of 16 appointees including the petitioner and respondents Nos 4 to 8 were confirmed as Supervisors. The Deputy Director of Insurance who signed this order mentioned therein that inter se seniority of the 14 appointees will be decided later on. Then, under Rules 2 and 27(1) of the Rajasthan Subordinate Offices Ministerial Staff Rules 1957, he worked out a provisional seniority list of the supervisors working in the Department on 14-7-62. In this list, the petitioner was shown at serial number 9 whereas the respondents Nos. 4 to 8 were shown senior to him. The petitioner filed representation against this provisional list and claimed seniority over the respondents Nos. 4 to 8 but it was rejected. A final seniority list of the permanent supervisor was then published on 13-7-64 wherein the name of the petitioner was shown at serial No. 9 and those of respondents Nos. 4 to 8 at serial numbers 3, 4, 5, 6 7 & 8 respectively. Dissatisfied with this final seniority list, the petitioner filed an appeal to the Deputy Director of Insurance which was dismissed. The petitioner then approached the State Government and ultimately this Court by a writ petition under Article 226 of the Constitution, praying inter alia that the final seniority list (Ex. 15) be quashed and the respondents Nos. 1 to 3 viz. the State of Rajasthan, Director of Insurance and the Deputy Director of Insurance be directed to re-determine the seniority of the petitioner and the respondents Nos 4 to 8 according to rules. My learned brother Tyagi J. who heard the writ petition dismissed the same by his judgment dated 12-11-69 holding that the Finance Department, Government of Rajasthan for the appointment of Supervisors had prescribed that (1) the incumbent must be graduate with 3 years service as upper division clerk or (2) if the incumbent is non-graduate, then he must be atleast a matriculate and must have three years service as upper division clerk on the day of his appointment and must have completed a total service of 7 years excluding class IV service. The petitioner qualified himself for the post of Supervisor only on 3-11-56 for he was substantively appointed as upper division clerk with effect from 3-11-53. It was further held that since the respondents Nos. 4 to 8 were substantively appointed as upper division clerks on 1-11-53, they became eligble to be appointed as Supervisors on 1-11-56, that is, two days earlier than the petitioner. The learned Judge further observed that it was due to this reason that the Deputy Director in his order 30 11-56 appointing the petitioner and the respondents Nos. 4 to 8 as Supervisors put the appointment date against the name of the petitioner to be 3-11-56 and against the names of the respondents Nos. 4 to 8 as 1-11-56. The learned Judge further held that the appointment order dated 30-11-56 (Ex. 4) was not challenged by the petitioner to be erroneus at the time when it was issued and it would not be in the interest of justice to permit the petitioner to challenge this appointment order on the basis that he had officiated as upper division clerk in the Department before he was confirmed as upper division clerk on 3-11-53 and had qualified himself for the appointment as supervisor even before 1-11-56. The learned Judge then considered whether the final seniority list (Ex 15) published by the Department was in accordance with the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957. In this connection, the learned Judge examined Rule 27, the relevant portion of which runs as:

Rule 27 Seniority--Seniority in each class of posts shall be determined by the date of the cider of substantive appointment to the class of post concerned: Provided:

(i) that the seniority inter se of persons appointed to a particular category of posts before the commencement of these Rules, or in accordance with the proviso to Rule 2, shall be determined, modified or altered by the appointing authority on an ad hoc basis subject to the directions of Government, if any.

(ii) xx xx xx xx xx xx(iii) that the seniority inter se of persons appointed by promotion to a particular class of posts on the same date shall be the same as in the next below grade except in cases of continued officiation of higher posts whan it shall be in accordance with the length of such continued officiation provided that such officiation was not ad hoc or fortuitous.

The learned Judge held that the case was governed by proviso (i) and not by proviso (iii) of Rule 27, for the inter se seniority of the persons appointed as supervisors was to be determined subject to the directions embodied in the letter of the Finance Department, Government of Rajasthan, dated 27-11-56.

4. Aggrieved by the dismissal of his writ petition, the petitioner filed special appeal under Section 18 of the Rajasthan High Court Ordinance. The appeal was rejected summauly on 21-1-70 by Hon'ble Jagat Narayan, C.J. and myself as already stated above.

5. The petitioner thereafter filed a petition for leave to appeal to the Supreme Court which was dismissed on 27-4-70. The petitioner then moved a petition under Article 136(1) of the Constitution before the Supreme Court nn 20-7-70. The special leave petition was dismissed by their lordships of the Supreme Court in the following words:

Counsel for the petitioner says that the High Court has referred to a rule which was not applicable and desires to move the High Court for review and prays for leave to withdraw the petition for Special Leave. Leave granted to withdraw the Special Leave Petition.

Thereafter on 28-11-70 the petitioner Ram Swaroop has preferred the present review application.

6. It is contended by learned Counsel for the petitioner that the order of this Court under review was vitiated on account of mistake or error apparent on the face of the record inasmuch as amended Rule 27 of the Rajasthan Subrodinate Offices Ministerial Staff Rules, 1957, was taken into consideration and interpreted by the learned single Judge when in fact unamended Rule 27 of the said Rules governed the case as seniority list was drawn up before Rule 27 was amended. It is further contended that the learned single Judge committed error of law in determining the petitioner's seniority qua respondents Nos 4 to 8 by applying proviso (i) and not proviso (iii) of the unamended Rule According to the learned Counsel, the petitioner as well is the respondents Nos 4 to 8 were confirmed as Supervisors on one date viz 29-11-57, and therefore Provisio(iii) clearly applied to the case. The learned Government Advoate on the oppesite side has supported the judgment dated 21-1-70 as also the judgment of the learned single Judge dated 12-12-69.

7. The relevant portion of Rule 27 of the said Rules, as it stood prior to its amendment vide Notification No. F, 1 (26)/Apptts. (A-II)/61 dated 12-11-63 reads:

Rule 27. Seniority--

Seniority in each class of posts shall be determined by the date of the order of substantive appointment to the class of the post concerned:

Provided:

(i) that the seniority inter se of persons appointed to a particular category of posts before the commencement of these Rules, or in accordance with the proviso to Rule 2, shall be determined, modified or altered by the appointing authority on an ad hoc basis subject to the directions of Government, if any.

(ii) xx xx xx xx xx xx(iii) that the seniority inter se of persons appointed by promotion to a particular class of posts on the same date shall be the same 88 in the next below grade.

The amendment dated 12-11-63 made no change in the language of unamended Rule 27 except that the following words were added at the end of proviso (iii),

Except in cases of continued officiation of higher posts which it shah be in accordance with the length of such continued officiation provided that such officiation was not ad hoc or fortuitous.

It is apparent from a bare perusal of the amended and unamended Rule 27 that no material change was made by the amendment in the original unamended Rule 27. Before amendment, proviso (iii) governed inter se seniority of persons appointed by promotion to a particular class of posts on the same date. After amendment too, it governed the same appointees. It therefore, cannot be said that if the learned single Judge had taken into consideration unamended proviso (iii). he would have arrived at a different conclusion. In the circumstances, it is difficult to hold that the judgment of the learned single Judge suffers from an error apparent on the face of the record on account of having taken into consideration amended Rule 27.

8. Learned Counsel's contention that the learned single Judge committed error of law by applying proviso (i) instead of proviso (iii) cannot be accepted as a valid ground for review. The learned single Judge after examining provision (i) and (iii) came to the firm conclusion that proviso (i) and not proviso (iii) governed the case of the petitioner. In Jaliram v. Gopiram 1954 RLW 148, a Division Bench of this Court after review of the case law observed:

A review of the case law clearly leads us to the conclusion that where the mistake or error of law is not merely one in the exposition of law relevant to a case but is a more radical error and amounts to completely ignoring a positive rule of law, and the error is so manifest or patent that it admits of no doubt or dispute, such an error of law is one on the face of the record and is sufficient to satisfy the conditions of Order XLVIII, Rule 1 CPC.

In my opinion, the error in the case before me is not an error of this type. The utmost that can be said is that the decision of the learned single Judge in applying proviso (i) to the faces of the present case is erroneous. It is thus a case of wrong application of a provision of law and not a case where relevant provision of law has been ignored from consideration It may therefore be a good ground for an appeal but not for a review. A review cannot be converted into an appeal in disguise so that an erroneous decision be reheard and corrected. Again an error of law or fact must be such that one could point it out Without any elaborate argument and must not be one relating to which it may be possible to hold more opinions than one. The question as to the applicability of proviso (iii) or proviso (i) to the fact of the present case is debatable and it cannot be said that the error is so menifast or patent that it admits of no doubt or dispute so as to be sufficient to meet the requirements of Order 47, Rule 1 CPC. Under the circumstances. I am of opinion that the conditions laid dawn in Order 47, Rule 1 CPC are not satisfied and this application for review deserves to be dismissed.

9. Before parting with the case, it may be mentioned that the learned Deputy Government Advocate vehemently contended before me that the review application was barred by time as it was admittedly filed beyond the period of limitation prescribed under Article 1.24 of the Limitation Act, 1963. In reply the learned Counsel for the petitioner placed reliance on Section 14 of the Limitation Act, 1963 and argued that the petitioner was entitled to the exclusion of the time during which he has been proceeding with due diligence other proceedings and if whole of this entire period is excluded, the review application would be within time. Since I have come to the conclusion that this application is liable to be dismissed on merits, I do not wish to express any opinion on the question of limitation. In the result, this application fails and it is dismissed with costs.


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