High Court
Legal Reasoning
902-ca-6903-2025.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCIVIL APPLICATION NO.6903 OF 2025IN REVIEW APPLICATION (STAMP) NO.16999 OF 2025WITHREVIEW APPLICATION (STAMP) NO.16999 OF 2025IN WRIT PETITION NO.5268 OF 2019Nilkanth s/o Panditrao AghorAge: 58 years, Occu.: Retired asRegistrar (District Court Osmanabad),R/o. Dharashiv (Osmanabad)... ApplicantVersus1.State of MaharashtraDepartment of Law and JudiciaryMantralaya, Mumbai.2.Accountant GeneralThrough its Account Officer Pay Verification Unit Department,Aurangabad.3.The Principal District Judge,Osmanabad (In Administrative Capacity)District Court, Osmanabad,Tq. And Dist. Osmanabad.4.Accounts DepartmentDistrict Court, OsmanabadTq. And Dist. Osmanabad.5.The Principal SecretaryLaw and Judiciary DepartmentMantralaya, Mumbai.6.Accountant General Nagpur,Accounts Department, Nagpur. .. Respondents[1]
Legal Reasoning
902-ca-6903-2025.odt…Mr. Gaurav L. Deshpande, Advocate for the applicant.Mr. G. A. Kulkarni, AGP for Respondent Nos.1 to 5/State.… CORAM : SMT. VIBHA KANKANWADI & PRAFULLA S. KHUBALKAR, JJ. DATE : 09 JULY 2025ORDER :-.Civil Application No.6903 of 2025 has been filed for condonation ofdelay of 7 days in filing review application. 2.Learned AGP waives notice for respondent Nos.1 to 5/State. It isin respect of delay of 7 days only and, therefore, we find that there is nonecessity to issue notice to respondent No.6.3.For the reasons stated in the application, the delay standscondoned.4.Civil Application No.6903 of 2025 stands allowed and disposed of.5.Review application be registered.6.We have heard learned Advocate appearing for the applicant andlearned AGP for respondent Nos.1 to 5/State. No necessity to issuenotice to respondent No.6.[2] 902-ca-6903-2025.odt7.The applicant seeks review of the judgment passed by this Courton 06.05.2025 in Writ petition No.5268 of 2019. In the said writ petition,by invoking the constitutional powers of this Court under Article 226 ofthe Constitution of India, the petitioner had raised objection in respect ofdirection of recovery of overpayment from pensionary benefits of thepetitioner by order dated 10.01.2019 and also taken exception to theobjection dated 29.10.2018 raised by respondent No.2 about petitioner’spay fixation and the order dated 28/29.12.2018 of refixation of pay of thepetitioner. Learned Advocate appearing for the petitioner submits thatthe pay fixation of the petitioner was correct. The petitioner had joinedthe services on 02.11.1984 as English Section Writer at Civil Court,Junior Division, Paranda, District Osmanabad and by various promotionshe was promoted to the post of Registrar on 15.09.2018. He retired fromthe said post by superannuation on 30.09.2018. During the process ofverification of his service book, Accountant General had raised anobjection on 29.10.2018 regarding the pay fixation of the petitioner. Itwas then inferred that there is overpayment to the petitioner to the extentof Rs.5,41,658/-. The said recovery was ordered from his pensionarybenefits. The learned Advocate for the petitioner while arguing in themain petition had relied on the decision in State of Punjab and othersvs. Rafiq Masih (White Washer) and others, (2015) 4 SCC 334.Learned Advocate for respondent Nos.3 and 4 had then relied on the[3] 902-ca-6903-2025.odtdecision in High Court of Punjab and Haryana and others vs. JagdevSingh, (2016) 14 SCC 267 and dismissed the petition. However,according to learned Advocate for the applicant, when this Court hadtaken note of the undertaking, which was taken from the applicant,according to him, it had failed to consider the proviso to Rule 134A of theMaharashtra Civil Services (Pension) Rules, 1982 i.e. giving areasonable opportunity to the pensioner to show cause as to why theamount due should not be recovered from him. The second submissionis that in similar circumstances, similarly situated employees from theCourt at Aurangabad, Jalna, this Court in Writ Petition No.598 of 2019decided on 20.03.2024 had relied on Rafiq Masih (Supra) and the writpetition was partly allowed. He also submits that he has filed writtennotes of arguments which were not considered by this Court. In thewritten notes of arguments, the applicant had clarified as to how his payfixation was correct and the recovery was unjustified. On these grounds,he seek review. He had also taken the other grounds that in respect ofpresent applicant also he had given the undertaking, but in similarlysituated persons when the undertakings were given, the view has beentaken that the recovery cannot be so ordered from a retired employee.There was discrimination against him and, therefore, the applicant oughtto have been given similar treatment, as has been given to the otheremployees. [4] 902-ca-6903-2025.odt8.Learned AGP objects to the review and submits that every pointwas considered by this Court, which was raised in the original petition.The additional points and citations cannot be considered in a review. 9.Before proceeding to consider the submissions, we would like toconsider the legal position and the scope of review in Vinay Sharma &another Vs. State (NCT of Delhi) & others [(2018) 8 SCC 186],wherein it has been observed that "Power of review cannot be confusedwith appellate power which enables a superior court to correct allerrors committed by a subordinate court. A repetition of old andoverruled argument is not enough to reopen concluded adjudications."Further, in Haryana State Industrial Development CorporationLimited Vs. Mawasi & others [(2012) 7 SCC 200], it has been held that"Roving inquiry or de novo hearing in guise of review is impermissible."Reliance was placed in this case on the decision in ThungabhadraIndustries Ltd. Vs. Govt. of A.P.[AIR 1964 SC 1372] (Three JudgesBench), wherein it has been observed thus :-"11.... A review is by no means an appealin disguise whereby an erroneous decision isreheard and corrected, but lies only for patent error.We do not consider that this furnishes a suitableoccasion for dealing with this differenceexhaustively or in any great detail, but it wouldsuffice for us to say that where without any[5] 902-ca-6903-2025.odtelaborate argument one could point to the errorand say here is a substantial point of law whichstares one in the face, and there could reasonablybe no two opinions, entertained about it, aclear case of error apparent on the face of therecord would be made out."Further note was taken in respect of the decision in Parsion DeviVs. Sumitri Devi [(1997) 8 SCC 715], wherein it has been observedthus :-"9. ... An error which is not self- evident and has to be detectedby a process of reasoning, can hardly be said to be an errorapparent on the face of the record justifying the court toexercise its power of review under Order 47 Rule 1 CPC. ...A review petition, it must be remembered, has limited purposeand cannot be allowed to be 'an appeal in disguise'."We may restrict ourselves only to point out that there areconsistent decisions of the Hon’ble Apex Court that the review Courtcannot sit as an Appellate Court. However, lastly, we may rely on thedecision in Lily Thomas vs. Union of India and others, AIR 2000SUPREME COURT 1650, wherein it has been observed that :-“The dictionary meaning of the word “review” is “the act oflooking, offer something again with a view to correction orimprovement. It cannot be denied that the review is thecreation of a statute. The power of review can beexercised for correction of a mistake and not to substitutea view. Such powers can be exercised within the limits of[6] 902-ca-6903-2025.odtthe statute dealing with the exercise of power. The reviewcannot be treated as an appeal in disguise. The merepossibility of two views on the subject is not a ground forreview. Once a review petition is dismissed no furtherpetition of review can be entertained. The rule of law offollowing the practice of the binding nature of the largerbenches and not taking different views by the Benches ofcoordinated jurisdiction of equal strength has to befollowed and practiced. However, the Supreme Court inexercise of its powers under Art. 136 or Art. 32 of theConstitution and upon satisfaction that the earlierjudgments have resulted in deprivation of fundamentalrights of a citizen or rights created under any other statute,can take a different view notwithstanding the earlierjudgment.”10.Under such circumstance, when the entire facts were before thisCourt including the written notes of arguments, then on the facts, theapplicant is precluded from canvassing, that this Court had erred, in thereview before this Court. Now, as regards the decisions those wereconsidered by this Court i.e. Rafiq Masih (Supra) and Jagdev Singh(Supra) are concerned, the learned Advocate for the applicant is armedwith another judgment, which clarifies the difference between the two,however, he had not relied on the same, when the matter was heard.Now, he says that it is a position of law, but when he had relied on RafiqMasih (Supra) and the other party had relied on the decision in JagdevSingh (Supra), he ought to have then placed the said decision also[7] 902-ca-6903-2025.odtbefore this Court. Now, he cannot say that since it is a position of law,he should be allowed to argue on the said point. Another point that isinvolved in the same itself is that whether it relates to the undertakingsthose were given. The applicant admits that he had given theundertakings and how those undertakings were to be interpreted was inquestion and it would be a question of fact and, therefore, on this pointalso, it would have been a mixed question of fact and law, as to whichdecision would then be applicable and on this count also, he cannot nowraise the said point by way of review. The other points which have beenraised are mostly on factual aspects, which he cannot now raise. We donot find this to be a fit case for review, as there is no error apparent onthe face of the record.11.The review application stands dismissed.[ PRAFULLA S. KHUBALKAR ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGEscm[8]