High Court · 2024
Legal Reasoning
1 CA / 1365 / 2024IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADCIVIL APPLICATION NO. 1365 OF 2024 IN REVIEW APPLICATION (ST.) NO. 38004 OF 2023 INWRIT PETITION NO. 5150 OF 2013BHAGWAN SHIKSHAN PRASARAK MANDAL THROUGH ITS SECRETARYVERSUSTHE STATE OF MAHARASHTRA THROUGH ITS SECRETARY AND OTHERS...Advocate for applicant : Mr. Atul M. KaradAGP for the respondent – State : Mr. G.A. KulkarniAdvocate for the respondents no. 8, 10 and 13 : Mr. P.M. NagargojeAdvocate for respondents no. 9, 11, 12 and 14 : Mr. Ganesh Gadhe... CORAM : MANGESH S. PATIL & R. M. JOSHI, JJ.RESERVED ON : 06 FEBRUARY 2024PRONOUNCED ON : 20 FEBRUARY 2024ORDER (MANGESH S. PATIL, J.) :This is a review application taken out by the originalpetitioners from the writ petition, together with the application forcondonation of delay of 2122 days in preferring the review application.2. For the sake of convenience and to avoid confusion, weare referring to the respective parties by their status in the writ petition.3. Since a preliminary objection was raised regardingmaintainability of the review application, we have heard both the sidesextensively on the delay condonation application as also themaintainability of the review application. 2 CA / 1365 / 20244. The sum and substance leading to the filing of this reviewapplication together with the application for condonation of delay canbe summarized as under :(a) The writ petition was filed by the employees from theteaching staff of a private unaided college of Pharmacy - respondentno. 8 being run by the respondent no. 7 - management. They wereclaiming that the benefits of the recommendations of the sixth centralpay commission should be extended to them.(b) By the judgment and order dated 15-01-2018, the writpetition was allowed. The state government, the university and the AllIndia Council of Technical Education (AICTE) Mumbai were directed tosee to it that the respondents no. 7 and 8 extend the benefits ofrecommendations of the sixth pay commission to the petitioners witheffect from 01-01-2006.(c) Simultaneously, some non-teaching staff members of therespondent no. 8 - college preferred a similar writ petition being writpetition no. 11259 of 2017. By the judgment and order dated28-08-2019 even those petitioners were held entitled to derive thebenefit of the recommendations of the sixth pay commission and againthe management and the college were directed to implement it witheffect from 01-01-2006. 3 CA / 1365 / 2024(d) The management challenged the judgment and order inthe present matter by preferring Special Leave to Appeal no. 10537 of2018.(e) By order dated 09-05-2018, after hearing the matter, theSupreme Court expressed its disinclination to grant any relief onmerits, it granted leave to withdraw the Special Leave Petition withliberty to seek a review of the judgment and order passed in the writpetition. Pursuant to such liberty, the management preferred reviewapplication no. 59 of 2020 in writ petition no. 5150 of 2013.(f) Since there was delay in filing the review application, civilapplication no. 1298 of 2020 for condonation of delay was preferred.However, on 06-02-2020, the management sought to withdraw itsimplicitor and was allowed to withdraw the review application no. 59 of2020.(g) A similar judgment and order in the writ petition preferredby the non-teaching staff, writ petition no. 11259 of 2017 dated28-08-2019 was also challenged by the management before theSupreme Court in Civil Appeal no. 6229 of 2023. (Bhagwan ShikshanPrasarak Mandal and another Vs. Vinayak and others). By theorder dated 26-09-2023, the Supreme Court, for the reasons recordedin the order, allowed the appeal partly and in light of decision in the 4 CA / 1365 / 2024matter of Union of India and others Vs. Tarsem Singh; (2008) 8SCC 648 held that employees i.e. the non-teaching staff were entitledto arrears only for a period of three years prior to the date of filing ofthe writ petition that too without any interest thereon, in view of the factthat the writ petitions were filed in the High Court belatedly i.e. afterabout 10 years (h)The management, therefore, has again preferred thepresent review application second time together with the application forcondonation of delay, seeking review of the judgment and order passedin writ petition no. 5150 of 2013 in light of the decision in the matter ofTarsem Singh and Bhagwan Shikshan Prasarak Mandal (supra).5. Learned advocate Mr. Karad would take us through thecheckered history referred to herein-above and would submit that sinceTarsem Singh (supra) already was occupying the field but was notreferred to while deciding writ petition no. 5150 of 2013, in view of thesubsequent order of the Supreme Court in the matter of non-teachingstaff which was passed recently on 26-09-2023, the judgment andorder passed in writ petition no. 5150 of 2013 needs to be modified andfor that purpose review application has been preferred. Even the writpetition no. 5150 of 2013 was filed belatedly and the arrears payable tothe petitioners should have been restricted to three years next beforefiling of the petition.
Legal Reasoning
5 CA / 1365 / 20246. Mr. Karad would submit that in view of the superveningevents, the delay has been caused. It was neither intentional nordeliberate and since the management is merely seeking modification ofthe order in light of ratio in the matter of Tarsem Singh (supra) eventhe delay deserves to be condoned.7. Learned advocate Mr. Gadhe and Mr. Nagargoje for thepetitioners strongly opposed the application for condonation of delayand the review application and raised a preliminary issue regardingmaintainability of the successive review application. They wouldsubmit that it is abuse of the process of law. In view of Order XLVIIRule 1, Explanation of the Code of Civil Procedure, any subsequentdecision of the Supreme Court cannot be a ground for review. Besidesalready earlier review application was preferred but was withdrawnwithout leave of the Court to file a new one on the same cause ofaction and would be barred by Order XXIII Rule 1(4) of the Code ofCivil Procedure.8. Mr. Gadhe would rely upon the decision in the matter ofSarguja Transport Vs. State Transport Appellate Tribunal,Gwalior; AIR 1987 SC 88 and the order of a co-ordinate bench of thiscourt in writ petition no. 1171 of 2019 (Anusaya Sevabhavi Sanstha, 6 CA / 1365 / 2024Kanddhar Vs. State of Maharashtra and others) decided on26-08-2019.9. In response, Mr. Karad would strenuously submit thatOrder XLVII Rule 1 of the Code of Civil Procedure merely barsapplication to review an order made on an application for review. Theearlier review application was simply withdrawn and in view of thesubsequent decision in the matter of the non-teaching staff, now themanagement is merely seeking modification of the order passed in thewrit petition in tune with Tarsem Singh (supra).10. Having heard both the sides and having perused therecord, so far as the facts and events are concerned, there is not muchof a dispute. As far as the decision in Tarsem Singh (supra) isconcerned, indeed, it was not referred to while deciding the writ petitionno. 5150 of 2013. It is also apparent that in the matter of non-teachingstaff, as mentioned hereinabove, the Supreme Court by applying thelaw laid down in Tarsem Singh (supra) modified the judgment andorder of this Court and restricted the arrears payable to the non-teaching staff to three years next before the writ petition and even thedirection to pay the interest was struck down.11. It is necessary to note that though the management hadchallenged the judgment and order before the Supreme Court, after 7 CA / 1365 / 2024hearing, when the Supreme Court was not inclined to grant any relief tothe management, the Special Leave Petition was sought to bewithdrawn with liberty to prefer review application. The order of theSupreme Court does not specifically indicate for what purpose and onwhat grounds the management was granted liberty to prefer a reviewapplication but admittedly the management preferred the reviewapplication no. 59 of 2020.12.It is a matter of record that even in that review application,no reference was made to the decision in the matter of Tarsem Singhalbeit some other grounds were raised. However, conspicuously,ground no. (VII) in the review application no. 59 of 2020 was raisedreferring to a Division Bench order passed by this Court in the matter ofRangnath Vishnu Raskar Vs. State of Maharashtra and others (writpetition no. 8949 of 2016 dated 19-12-2017) and particularly, thefollowing observations from paragraphs 13 to 16 from that order, whichwere also reproduced and read as under:-“13. Considering the fact that the petitioner had madeapplication before the tribunal on 13.10.2015 for the firsttime claiming benefit of 6th Pay Commission we are inclinedto entertain this petition and grant relief to the petitioner forpayment of salary as per the 6th Pay Commission with effectfrom 1.10.2012 viz. three years prior to the application filedbefore the College Tribunal on 13.10.2015, we had grantedsimilar relief in Writ Petition No. 6972 of 2005 dated23.8.2017.14. In the result, we pass the following order. 8 CA / 1365 / 202415. The respondent Nos. 5 and 6 shall pay salary as per 6thPay Commission recommendations to the petitioner from1.10.2012 till the date of his superannuation within a periodof three (3) months from the date of this order.16. Rule is partly made absolute in above terms. No costs.”13. Needless to state that though Tarsem Singh was notspecifically referred to, the afore-mentioned principle was nothing butthe law laid down in Tarsem Singh inasmuch as the arrears of salarypayable to the petitioners therein were restricted to three years nextbefore filing of the application before the College Tribunal.14. We are pointing out this precisely to demonstrate that evenin the earlier review application, the management had raised theground regarding entitlement of petitioners to arrears only for a periodof three years next before the date of petition. If this be so, whenadmittedly, the review application no. 59 of 2020 was withdrawn ratherabandoned within the meaning of Order XXIII Rule 1(4) of the Code ofCivil Procedure, according to us, the management is precluded frompreferring a second review application on the same ground.15. Though the matters in Sarguja Transport (supra) andAnusaya Sevabhavi (supra) were the petitions under Article 226 of theConstitution of India, it was expressly laid down in the matter ofSarguja Transport (supra) that it is a matter of public policy ascontained in Order XXIII Rule 4 of the Code of Civil Procedure thereby
Decision
9 CA / 1365 / 2024debarring a party from filing the writ petition once having withdrawn theearlier writ petition for the same cause and relief, without the leave ofthe Court and was abandonment of the writ petition.16. In the light of above, when the management hadabandoned the review application no. 59 of 2020, when ground ofentitlement of the petitioners to receive the arrears for more than threeyears next before the petition was expressly raised albeit not referringto Tarsem Singh (supra), we have no hesitation in concluding that thesecond review application on the same ground would not bemaintainable.17. Besides, as has been cursorily observed herein-above,even the decision of the Supreme Court in the matter of BhagwanShikshan Prasarak Mandal (supra) being a subsequent decision, byvirtue of Explanation to Rule 1 of Order XLVII of the Code of CivilProcedure, that cannot be taken as a ground to seek review of thejudgment and order passed in writ petition no. 5150 of 2013.18. Further, even the delay of 2122 days is an enormous delayand there are no sufficient and cogent reasons to condone it. The onlyreason being quoted in the application for condonation of delay is thesupervening events which according to the management, entitles it toseek a review. 10 CA / 1365 / 202419. Suffice for the purpose to observe that the application isabsolutely devoid of any cause much less sufficient for condoning thedelay.20. The application for condonation of delay together with theReview Application is dismissed. [ R. M. JOSHI ] [ MANGESH S. PATIL ] JUDGE JUDGEarp/