The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RVWPET No. 198 of 2024 (An Application under section 114 read with Order XLVII Rule-1 of CPC) --------------- Governing Body of Ispat College, Rourkela ...… Petitioner -Versus- State of Odisha & Ors .... Opposite Parties Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner : Mr. S.K.Das, Advocate
Legal Reasoning
For Opp. Party : Mr. S.S.Routray, Additional Standing Counsel Mr. K.P.Mishra, Learned Senior counsel with Mr. A. Mishra appearing for Private Opp. Party No.3 _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 19.03.2025 SASHIKANTA MISHRA, J. The petitioner in the present application seeks review of the judgment passed by this Court on 19.07.2024 in W.P.(C). No. 19898 of 2011. Page 1 of 9 2. Shorn of unnecessary details, the facts leading to filing of the review petition are that the present Opposite Party No.3 had filed the above-mentioned writ petition with the following prayer: “Under the aforesaid facts and circumstances of the case, it is therefore, prayed that this Hon’ble Court may graciously be pleased to:- (i) quash the impugned order of termination, dated 11.04.2011 under Annexure-12 and thereby direct the opp. Party No. 3 to issue appointment order in conformity of this Hon ’ble Court ’s direction passed in W.P. (C) No. 11663/2008 read with the order of dismissal of the Review petition; and (ii) further be pleased to impose heavy cost on the Opp. Party No.3 for harassment and mental agony inflicted to the present petit loner. (iii) pass such other order(s) or issue direction(s) as may be deemed fit and proper in the bonafide interest of justice; And for which act of kindness, the petitioner as in duty bound, shall ever pray.” The review petitioner being the college management appeared through counsel but did not file any counter affidavit. After considering the facts and the contentions raised, this Court allowed the writ application, inter alia, holding as follows: “12. For the foregoing reasons therefore, this Court holds that the action of the College Management in terminating the services of the petitioner by treating him as a part-time lecturer cannot be sustained in the eye of law. 13. Resultantly, the writ application is allowed, the impugned order under Annexure-12 is hereby quashed. The Opposite Party No.3 is directed to issue order of appointment in favour of the petitioner on regular basis without any further delay and in any case not later than two months from the date of production of certified copy of this order by the petitioner.” 3. The present application has been filed seeking review of the judgment mainly on the ground that the fact that the writ petitioner had never challenged his initial orders of appointment as part time lecturer, the direction to reinstate Page 2 of 9 him by treating him as permanent lecturer is a glaring mistake and apparent error. Notice of the review application being issued the State as well as private Opposite Party have entered appearance. 4. Heard Mr. S.K.Das, learned counsel for the review petitioner, Mr. S.S.Routray, learned Additional Standing counsel for the State and Mr. K.P.Mishra, learned Senior counsel with Mr. A.Mishra for the private Opposite Party No.3. 5. Mr. Das would argue that undisputedly, the writ petitioner was appointed as part time lecturer in Physics on 12.01.1994 and subsequently on 31.08.1995, which he never questioned. The order of disengagement passed against him on 10.02.1996 was in terms of his part time engagement. Therefore, the direction issued by the Director, Higher Education vide order dated 19.06.2006 for reinstatement of
Decision
the writ petitioner would mean his reinstatement as part time lecturer and not as regular teacher. The order of disengagement passed on 21.04.2011 (wrongly mentioned as 11.01.2011) was challenged by the petitioner in the aforementioned writ application which was in terms of the Page 3 of 9 appointment order dated 11.03.2011. Said order was never challenged. According to Mr. Das therefore, the writ petitioner could not have been granted any relief. These aspects have not been considered by this Court while deciding the writ application despite being matters of record for which the judgment sought to be reviewed has to be treated as the product of error apparent on the face of the record. 6. Mr. S.S.Routray, learned State counsel would argue that this Court in its judgment referred to the direction of the Director whereby the writ petitioner was directed to be re- instated in service. This Court was not inclined to accept that the nature of engagement of the petitioner was part time. Therefore, direction to issue regular appointment order was passed. 7. Mr. K.P.Mishra, learned Senior counsel would argue that the filing of review application is nothing but a ruse adopted by the Governing Body to not implement the judgment of this Court. Moreover, the judgment is in line with the previous judgments passed by this Court in earlier writ applications as well as the review applications filed by the Governing Body Page 4 of 9 before this Court. According to Mr. Mishra, the matter had already been settled and this Court merely reiterated the same in the judgment sought to be reviewed. 8. Before examining the merits of the rival contentions it would be apposite to keep in perspective the position of law relating to review. The principle enshrined in Order-XLVII, Rule-1 of CPC can be applied to writ applications also which implies that review can be sought for on grounds set out in the said provision, which is quoted hereinbelow. for review of “1. Application judgment.—(1) Any person considering himself aggrieved— (a) by a decree or order from which an appeal is allowed, but from which 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 applied for the review. 1 [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.” So, the essential ingredients required to be satisfied for exercise of the power of review under the provision are: (i) discovery of new an important matter or evidence. Page 5 of 9 (ii) mistake or error apparent on the face of the record. (iii) any other sufficient reason. 9. Learned counsel for the review petitioner has not been able to demonstrate as to how any one or more of the above ingredients is satisfied. It has been argued that the fact that the writ petitioner never challenged his initial appointment as part time lecturer was not considered by this Court which is an error apparent on the face of the record. 10. Firstly, such a plea which could have been raised at the time of hearing of the writ application was never taken. The review petitioner was represented by counsel who argued that the petitioner was appointed as part time lecturer to meet the exigencies of the situation and justified the termination of his services on the ground that there was no further need. This Court was fully conscious of the fact that the petitioner’s initial appointment was portrayed as part time in nature but referring to the Odisha Education Act, held that it is not permissible in law to do so. Secondly, the Director after taking note of all relevant facts had directed the management to reinstate the petitioner in his post, an order which was concurred by this Court in the earlier writ Page 6 of 9 application. This Court also took note of the conduct of the Governing Body in apparent violation of the repeated orders passed by this Court and therefore, held that its action could not be justified. The plea being raised now not having been raised at the time of hearing of the writ application, cannot be a ground to review the judgment. What the review petitioner essentially wants is to consider the plea now being raised. This, in the considered view of this Court can never be a ground for review. In the case of Aribam Tuleshwar Sharma Vrs. Ariban Pishak Sharma1, the Supreme Court held as follows: "It is true as observed by this Court in Shivdeo Singh v. State of Punjab (AIR 1963 SC 1908) there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter of evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made, it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court." 11.Even assuming for the sake of argument that the judgment rendered by this Court was erroneous the same 1 AIR 1979 SC 1047 Page 7 of 9 also will not permit exercise of the power of review. In the case of Haridas Das Vrs. Usha Rani Barik and Ors.2 the Supreme Court held as follows: "In order to appreciate the scope of a review, Section 114 of the CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the Court since it merely states that it "may make such order thereon as it thinks fit." The parameters are prescribed in Order XLVII of the CPC and for the purposes of this lis, permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason." The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict. This is amply evident from the explanation in Rule 1 of the Order XLVII which states that 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. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the Court should exercise the power to review its order with the greatest circumspection.” Thus, what may possibly be raised in appeal cannot be entertained in the form of review. 12. Mr. Das has relied upon a judgment of the Supreme Court in the case Pragati Mahila Samaj and Another Vrs. Arun S/o Laxman Zurmure and Others3. After perusing the judgment, this Court finds the same to have been rendered on entirely different facts and without touching the merits of the case. Here this Court is primarily concerned with the