Pardeep Kumar v. Review

Present : Mr. Kanwar Pahul Singh, Advocate for the review applicant/petitioner. Mr. N.P.S. Hira, DAG, Punjab. Mr. Sanjeev Soni, Advocate and Mr. Tara Dutt, Advocate for respondent No.2. **** NAMIT KUMAR, J. (ORAL)

#1. The review application bearing No.RA-CW-51-2019 has been filed on behalf of review applicant/petitioner No.1 (out of two petitioners) for reviewing the order dated 03.07.2018, whereby the main writ petition i.e. CWP-12204-2018, was dismissed by a Coordinate Bench of this Court by passing the following order :- “xx Learned Counsel for the petitioners has argued that the petitioners were originally engaged on work charge basis on 07.04.1995 and 28.04.1995 respectively in Punjab Water Supply & Sewerage Board (hereinafter referred to as 'Board') and after numerous rounds of litigations, their services were regularized w.e.f. the date when their juniors were promoted. However, by that time, State of Punjab took a policy decision dated 26.08.2002 (P-3), whereby instructions were issued to transfer the disposal plants (where petitioners were working) to Local Bodies. But the petitioners were not permitted to join the RA-CW-51-2019 (O&M) in CWP-12204-2018 -2- respondent-corporation and, therefore, they were constrained to file another writ petition bearing no.26615 of2016, whereby this Court directed the Board to decide the representation. Consequently, vide order dated 22.02.2017 (P-6) the Board placed the services of petitioner at disposal of Municipal Corporation, however, the corporation declined to accept the services of petitioners vide detailed order dated 27.04.2017 (P-7). Thus, the petitioners were again aggrieved as their services stood relieved by the Board and they were also not permitted to join the Corporation. Therefore petitioners filed another writ petition no.12089 of 2017 and vide speaking order dated 26.09.2017 (P-8), Board allowed the petitioners to join duties. However, it is submitted that due to the illegal action of Corporation, the petitioners are left stranded as they are working in the Board and have not been absorbed by the Corporation despite numerous representations as well as instructions issued by the State Government. In support of his contention, he has relied upon the decision dated 10.08.2006 passed by the Division Bench of this Court, which is attached as Annexure P-11. Hence prayer has been made for allowing the instant writ petition and direct the respondents to permit them to join in respondent- Corporation. I have heard learned Counsel for the petitioner at length and have also perused the paper book with his able assistance. However, I am of the view that the present petition deserves to be dismissed. A perusal of the impugned order (P-7) passed by the Commissioner, Municipal Corporation, would show that in the year 2008, the Municipal Corporation had taken over a sewerage disposal plant (where petitioners were working) which was earlier maintained by respondent-Board. At the time of taking over the disposal plant, a conscious decision was taken not to take the services of the operators who were working at the said disposal plant. Further, as per circular dated 26.08.2002, it was specifically stated that at the time of taking over of operational maintenance of any work by Urban Local Bodies from Board, only competent, technical, necessary staff will be transferred to the Local Bodies. The said decisions have been accepted by the Board as well as the other employees working in the said disposal plant and, therefore, have never been put to challenge. Meaning thereby, the petitioners have no vested right to have been absorbed by the respondent-Corporation and it is the discretion of the Corporation as to whether they want the services of the petitioners or not. It was for the first time, vide circular dated 17.06.2009 that State of Punjab RA-CW-51-2019 (O&M) in CWP-12204-2018 -3- directed its entities that in future any disposal plant etc., which are taken over, all the employees of the said plant would also be absorbed by the said entity. Since the said circular came into existence much after the date when the plant in question is absorbed, therefore, it is not applicable to the petitioners at all. Consequently, the recommendations/orders passed by the competent officer of Board, asking the respondent-Corporation to absorb the services of petitioners in Corporation, is without any authority and, therefore, was rightly not acted upon by Corporation. The judgment relied upon by the counsel for the petitioners Annexure P-11 dated 10.08.2006 cannot be made applicable to the present case, as the Government of Punjab had, on its own resolved to take all the employees of Board in Corporation. Thus, it was a consensual order rather than an order on merits. In view of the above, finding no merit, present petition is hereby dismissed.”

#2. Learned counsel for the review applicant/petitioner No.1 submits that at the time of arguing the main case, some facts have not been brought to the notice of the Court by the earlier learned counsel for the petitioners, which resulted into dismissal of the main case.

#3. On receipt of advance copy of the review application, learned State counsel and counsel for respondent No.2 have put in appearance and submitted that the facts which have been pleaded in the review application were not part of the pleadings in the main writ petition. They further submit that the review application has not been filed by the same counsel who represented the review applicant/petitioner No.1 in the main writ petition.

#4. I have heard learned counsel for the parties and perused the record.

#5. Admittedly, the main writ petition was filed on behalf of two petitioners, including the present review applicant and the facts pleaded in the instant review application were not part of the pleadings in the main writ petition and, therefore, no error apparent on the face of the record is RA-CW-51-2019 (O&M) in CWP-12204-2018 -4- made out. While examining the scope of review in its judgment passed in Sanjay Kumar Aggarwal Vs State Tax Officer & another and connected matters : (2024) 2 SCC 362, the Hon'ble Supreme Court has held as under:- “xx

#16. The gist of the afore-stated decisions is that: - A judgment is open to review inter alia if there is a (i) mistake or an error apparent on the face of the record. (ii) A judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. (iii) An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of record justifying the court to exercise its power of review. (iv) In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be “reheard and corrected.” (v) A Review Petition has a limited purpose and cannot be allowed to be “an appeal in disguise.” (vi) Under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided. (vii) An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions. the change law or subsequent (viii) Even decision/judgment of a co-ordinate or larger Bench by itself cannot be regarded as a ground for review. xx”

#6. To the same effect are the judgments passed by the Hon'ble Supreme Court in Tamilnadu Terminated Full Time Temporary LIC Employees Association Vs. S.K. Roy, The Chairman, Life Insurance Corporation of India and another : 2016 (4) SCT 288 and The State of West Bengal and others Vs. Kamal Sengupta and another : 2008 (8) RA-CW-51-2019 (O&M) in CWP-12204-2018 -5- SCC 612.

#7. By filing the present review application review applicant/ petitioner No.1 is wanting to re-argue and re-agitate the matter, which cannot be permitted in law. The order sought to be reviewed was passed after the assertions made by learned counsel for the petitioner and hence no ground is made out to entertain the present review application.

#8. Even otherwise, instant review application has been filed through a new counsel, who has filed his power of attorney along with the application, who was neither an arguing counsel nor was present at the time of passing of the order dated 03.07.2018 in the Court. The Hon'ble Supreme Court has repeatedly deprecated the conduct of the parties of changing their counsel and filing review petitions. In T.N. Electricity Board & Anr. v. N. Raju Reddiar & another, (1997) 9 SCC 736 it has been held as under: - It is a sad spectacle that new practice unbecoming "1. of worthy and conducive to the profession is cropping up. Mr. Mariaputham, Advocate-on-Record had filed vakalatnama for the petitioner-respondent when the special leave petition was filed. After the matter was disposed of, Mr. V. Balachandran, Advocate had filed a petition for review. That was also dismissed by this Court on April 24, 1996. Yet another advocate, Mr. S.U.K. Sagar, has now been engaged to file the present application styled as "application for clarification", on the specious plea that the order is not clear and unambiguous. When an appeal/special leave petition is dismissed, except in rare cases where error of law or fact is apparent on the record, no review can be filed; that too by the advocate on record who neither appeared nor was party in the main case. It is salutary to note that Court spends valuable time in deciding a case. Review petition is not, and should not be, an attempt for hearing the matter again on merits. Unfortunately, it has become, in recent time, a practice to file such review petitions as a routine; that too, with change of counsel, without obtaining consent of the advocate on record at earlier stage. This is not conductive RA-CW-51-2019 (O&M) in CWP-12204-2018 -6- to healthy practice of the Bar which has the responsibility to maintain the salutary practice of profession. In Review Petition No.2670/96 in CA No.1867/92, A Bench of three Judges to which one of us, K. Ramaswamy, J., was a member, has held as under: "The record of the appeal indicates that Shri. Sudarsh Menon was the Advocate-on-Record when the appeal heard and decided on merits. The Review Petition has been filed by Shri. Prabir Chowdhury who was neither an arguing counsel when the appeal was heard nor was he present at the time of arguments. It is unknown on what basis he has written the grounds in the Review Petition as if it is a rehearing of an appeal against our order. He did not confine to the scope of review. It would be not in the interest of the profession to permit such practice. That part, he has not obtained "No Objection Certificate" from the Advocate-on-Record in the appeal, in spite of the fact that Registry had informed him of the requirement for doing so. Filing of the "No Objection Certificate" would be the basis for him to come on record. Otherwise, the Advocate- on- Record is answerable to the Court. The failure to obtain the "No Objection Certificate" from the erstwhile counsel has disentitled him to file the Review Petition. Even otherwise, the Review Petition has no merits. It is an attempt to re-argue the matter on merits. On these grounds, we dismiss the Review Petition." Once the petition for review is dismissed, no 2. application for clarification should be filed, much less with the change of the advocate-on-record. This practice of changing the advocates and filing repeated petitions should be deprecated with heavy hand for purity of administration of law and salutary and healthy practice."

#9. In view of the above, no ground to review the order dated

03.07.2018 is made out. Consequently, the instant review application is dismissed.

#10. Pending applications, if any, stand disposed of.

09.07.2026 Vinay (NAMIT KUMAR) JUDGE Whether speaking/reasoned Whether reportable : : Yes/No Yes/No