Full Text
HIGH COURT OF DELHI
Date of Decision: 22nd May, 2023
PRADEEP KUMAR SINGH ..... Petitioner
Through: Mr. Rajiv Ranjan Dwivedi, Mr. Ved and Mr. Vishal, Advocates.
Through: Mr. Ripu Daman Bhardwaj, Central Government Standing Counsel for
R-1.
Mr. Kunal Sharma and Mr. Shubhendu Bhattacharya, Advocates for R-2 with
Mr. Bhim Singh, Law Officer.
JUDGMENT
1. This review petition has been filed by the Petitioner seeking review of the judgment passed by this Court on 04.05.2021. After the writ petition was dismissed, Petitioner approached the Division Bench challenging the judgment in appeal being LPA No. 330/2021, wherein a submission was made by the Petitioner that there is a crucial document in his favour which would evidence that his appointment with Central Electronics Ltd./Respondent No. 2 (hereinafter referred to as the ‘CEL’) was ‘promotion’ and he could not be placed on probation at the time of appointment. As the order dated 28.07.2022 passed by the Division Bench indicates, Petitioner had conceded that the document was not filed along with the writ petition and was not a part of the writ record. He therefore withdrew the appeal with liberty to file a review petition and the Division Bench directed that the time lost in appeal will not come in the way of computing limitation for filing the review petition. Be it noted that Petitioner has not filed any application for condonation of delay, perhaps on an erroneous understanding of the order of the Division Bench that the Court had condoned the delay. Be that as it may, since the Petitioner had approached the Division Bench, the delay in filing the review petition is condoned as there was no objection on this count by the Respondents.
2. Before proceeding to examine the contentions raised by the Petitioner in support of his plea that the judgment needs to be reviewed, it would be pertinent to delineate the scope and ambit of interference by a Court at the time of deciding the review petition and for this I may first refer to the judgment of the Supreme Court in
Supp (4) SCC 595, where the Supreme Court held that review literally and even judicially means re-consideration/re-examination and primarily the philosophy inherent in a review is the universal acceptance of human fallibility, yet in the realm of law, Courts have leaned strongly in favour of finality of decisions which are legally and properly delivered. Supreme Court also noted that exceptions, both statutorily and judicially, have been carved out to correct accidental mistakes or miscarriage of justice. In Lily Thomas and Others v. Union of India and Others, (2000) 6 SCC 224, the Supreme Court while affirming that power of review can be exercised for correction of mistakes, penned a word of caution that it cannot be used as a tool to substitute a view and review proceedings cannot be decided as an appeal in disguise. The Supreme Court also ruled that mere possibility of two views on the subject is not a ground for review and analysed the provisions of Order XLVII Rule 1 CPC, which provides that any person aggrieved by a judgment/order/decree from which no appeal is allowed or where appeal is allowed but has not been preferred, can be filed by any person aggrieved and who from the discovery of new and important matter or evidence which, after exercise of due diligence was not within his knowledge or could not be produced by him at the time when judgment/decree/order was passed 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 or order made against him, may apply for a review of the judgement to the Court which passed the decree or made the order. The expression ‘any other sufficient reason’ was interpreted to mean a reason sufficient on grounds mentioned or at least analogous to those specified under Order XLVII Rule 1 CPC, as held in Chhajju Ram v. Neki and Others, AIR 1922 PC 112.
3. In T.C. Basappa v. T. Nagappa and Another, (1955) 1 SCR 250, the Supreme Court held that ‘an error apparent on the face of the proceedings’ is an error which is based on clear ignorance or disregard of the provisions of law i.e. an error which is a patent error and not a mere wrong decision. This position was further reiterated and reaffirmed in Hari Vishnu Kamath v. Syed Ahmad Ishaque and Others, (1955) 1 SCR 1104, where the Supreme Court held that to seek review there should be something more than a mere error, it must be one which is manifest on the face of the record and no error could be an error apparent on the face of the record, if it is not self-evident and requires examination or argument to establish it.
4. It would be relevant to allude to the judgment of the Supreme Court in M/s Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi, (1980) 2 SCC 167, where the Supreme Court considered the powers of review under Order XLVII Rule 1 CPC and the relevant passage is as follows:- “8. It is well-settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that 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: Sajjan Singh v. State of Rajasthan [AIR 1965 SC 845: (1965) 1 SCR 933, 948: (1965) 1 SCJ 377]. For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the Court will review its judgment: G.L. Gupta v. D.N. Mehta [(1971) 3 SCC 189: 1971 SCC (Cri) 279: (1971) 3 SCR 748, 750]. The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice: O.N. Mohindroo v. Distt. Judge, Delhi [(1971) 3 SCC 5: (1971) 2 SCR 11, 27]. Power to review its judgments has been conferred on the Supreme Court by Article 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Article 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in Order 47 Rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an error apparent on the face of the record (Order 40 Rule 1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except “where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility”: Sow Chandra Kante v. Sheikh Habib [(1975) 1 SCC 674: 1975 SCC (Tax) 200: (1975) 3 SCR 933].”
5. On the aspect of scope of review, relevant would it be to refer to a recent judgment of the Supreme Court in S. Madhusudhan Reddy v.
V. Narayana Reddy and Others, 2022 SCC OnLine SC 1034, where the Supreme Court referred to another judgment of the Supreme Court in Kamlesh Verma v. Mayawati and Others, 2013 SCC OnLine SC 714, where the Supreme Court has succinctly culled out the principles for exercise of review jurisdiction, while discussing the confines and scope of Order XLVII Rule 1 CPC and I quote:-
xxx xxx xxx
26. In State of West Bengal v. Kamal Sengupta, this Court emphasized the requirement of the review petitioner who approaches a Court on the ground of discovery of a new matter or evidence, to demonstrate that the same was not within his knowledge and held thus:
”
6. From a conspectus of the aforesaid judgments and the principles culled out by the Supreme Court which guide the Courts in deciding a review petition, it is luminously clear that a review petition is not an appeal in disguise and the Court in a review petition cannot be called upon to re-hear the matter and pass a fresh decision on merits. If two views on the issues under consideration are possible and the Court has taken one view, it cannot be urged in a review petition that another view was possible. While it is true that if there is an error apparent on the face of record or there are mistakes which require correction, Courts should not hesitate in correcting the same in the interest of justice, however, what is impermissible is a re-hearing on merits since judicial precedents have always leaned towards attaching finality to judgments delivered by Courts. It needs no reiteration that a review Court is neither an Appellate Court nor a Court hearing the matter as an original proceeding.
7. Since this review petition is predicated on documents i.e. Pay Fixation Certificate (PFC)/Last Pay Certificate (‘LPC’), which according to the Petitioner are crucial for adjudication on the aspect of nature of his appointment and demonstrate that he was promoted to CEL and could not be filed with the writ petition, it would be necessary to understand the scope of permitting a party to introduce a new document at the stage of a review petition. The guiding light for determining whether a new document can be permitted for arguments comes from the judgment of the Supreme Court in State of West Bengal and Others v. Kamal Sen Gupta and Another, 2008 SCC OnLine SC 993, referred to in S. Madhusudan Reddy (supra). In the said case, the Supreme Court emphasised that where a review is sought on the ground of discovery of new matter or evidence, it is essential for the Court to examine if: (a) such matter or evidence is relevant and is of such a character that if the same had been produced it might have altered the judgment; and (b) such additional matter or evidence was not within the knowledge of the Review Petitioner and even after exercise of due diligence, could not be produced before the Court earlier. Therefore, as held by the Supreme Court, mere discovery of new or important matter or evidence is not a sufficient ground for review ex debito justitiae and its admissibility will have to be tested on the aforesaid parameters.
8. The grounds raised in the present petition will require to be tested on the anvil of the principles laid down by the Supreme Court, confining the scope and ambit of a review Court. From a reading of the order of the Division Bench, it is evident that Petitioner had sought liberty to file a review petition on the ground that a crucial document could not be filed during the pendency of the writ petition, which would demonstrate that his appointment was promotion, contrary to the finding of the Court in the judgement under review. The document now filed with the review petition is a PFC dated 17/18.12.2018. The grounds enumerated in the review petition are:(a) DoPT OM dated 02.07.2018 provides that persons who are inducted into a new service through promotion shall also be placed on probation but there shall be no probation on promotion from one grade to another but within the same group of posts, except when promotion involves a change in group of post in the same service and since Petitioner was promoted from the Group ‘A’ to Group ‘A’, probation clause was inapplicable; (b) PFC/LPC received from Coal India Limited (hereinafter referred to as the ‘CIL’) w.e.f. 18.10.2017 would demonstrate that Petitioner’s case of appointment with CEL was ‘promotion’ and not ‘Direct Recruitment’ as he was granted one increment of 3% over and above the protected pay and this is granted only under FR 22(1)(a)(1), which deals with promotion; (c) Court only relied on first page of the Advertisement which provides that CEL was looking for experienced and result oriented persons to fill up the positions on Direct Recruitment and para 8 of the General Instructions which provided that selected candidates in E-6 and above will be on probation for one year while candidates below E-6 will be on probation for two years and also took note of para 2(a) of the Offer of Appointment which stipulated that Petitioner will be on probation for one year or until such time thereafter when confirmation is intimated in writing and overlooked and ignored paras 9 and 13 of the General Instructions of the Advertisement, wherein different eligibility criteria have been fixed for candidates working in PSU/ Government and those in private organisations; (d) Court also overlooked that based on the difference in the eligibility criteria of candidates coming from two different streams, DPE, which is the controlling body of all PSUs, vide O.M. dated 14.12.2012 defined the Terms and Conditions of Appointment including pay fixation of Executives of CPSEs under paras 3, 4, 5, 7 and 9 and a perusal of these paragraphs would show that the appointment of candidates working in CPSEs and joining another CPSE would be treated as promotion; (e) Court has overlooked that candidates already working in CPSEs/PSUs/Central Government/State Government have to apply through proper channel and submit a ‘No Objection Certificate’ at the time of interview with another CPSE and on selection, the candidate would have to submit a technical resignation with the erstwhile employer and the pay with the new employer is fixed after granting pay protection and these are factors or features which are pointers to the fact that Petitioner was appointed as a promoted employee and not on Direct Recruitment; and (f) once Petitioner’s appointment was not on Direct Recruitment basis, he could not have been placed on probation and therefore, the question of his probation being terminated for unsatisfactory service did not arise. For all these reasons, it is prayed by the Petitioner that the judgment dated 04.05.2021 be reviewed.
9. Having examined the pleadings and documents in the present petition and after hearing the arguments, this Court is of the view that by the present review petition, Petitioner is seeking to re-argue the entire writ petition as original proceeding. The foundation of the review petition is the PFC/LPC and the case of the Petitioner as set up in the review petition is that had this document been brought to the notice of the Court, the judgment would have been otherwise. Applying the principles culled out above by the Supreme Court in the context of new material or document or evidence sought to be produced by a party in a review petition, Petitioner would have to show that the PFC/LPC was not in his possession when the writ petition or the rejoinder was filed or that even after exercise of due diligence, the same could not be produced before the Court at any time during the pendency of the writ petition. In my considered view, the review petition fails in this test as there is no averment in the review petition on this aspect, save and except, a vague averment that despite due care and diligence, the document could not be pointed out to the Court. Surely the Petitioner cannot claim that he was ignorant of his own pay fixation certificates, when the writ was filed or any time during its pendency.
10. Be that as it may, even on the strength of his PFC, Petitioner will have to meet the threshold of showing and establishing that had this document been filed with the writ petition and brought to the notice of the Court, the judgment would have been otherwise. Before embarking on the journey to test this parameter, a brief backdrop to what the Petitioner claimed in the writ petition is necessary. The case of the Petitioner as captured in the judgment was that he was appointed on permanent absorption basis with CEL in accordance with DPE O.M. dated 14.12.2012 as a serving employee of CIL, after applying through proper channel with ‘No Objection Certificate’ from erstwhile employer and on submitting technical resignation. It was averred and argued that his appointment was not on Direct Recruitment basis and therefore he could not be treated as a probationer. As an alternate argument, it was urged that the advertisement provided one year of probation and thus the stipulation in the Offer of Appointment permitting extension of probation and requiring confirmation in writing shall not bind the Petitioner. The third and the only other argument was that the performance of the Petitioner was excellent and the claim of CEL that Petitioner was a non-performer was actuated by malafide and termination on the ground of unsatisfactory performance during probation was wholly illegal.
11. When the writ petition was decided all the aforesaid issues were examined and adjudicated, which is evident from paragraphs 27 onwards of the judgment. Court has held that Petitioner was bound by Clause 2(a) of the offer letter, which provided for extension of probation and necessity of confirmation of probation in writing, since the offer letter was accepted by the Petitioner with open eyes with all its terms and conditions, without any protest or demur and none of its terms were ever challenged until after the order of termination was passed. Petitioner had questioned his very status as a probationer and in the alternative the process of assessment of his performance and called upon the Court to hold that he was entitled to automatic confirmation at the end of one year probation period. These issues have been dealt with referring to several judgements on probation and no error apparent has been pointed out on this aspect.
12. The primordial ground on which the Petitioner today seeks a review is the PFC, which according to the Petitioner demonstrates that while fixing his pay he was granted one extra increment of 3% over and above the protection of pay, which can only be granted on promotion and not on appointment as a direct recruit. By this argument Petitioner seeks to challenge his probation, which he claims is alien to the concept of promotion. The additional factors which, according to the Petitioner, give strength to this argument are his application for appointment with CEL through proper channel, technical resignation with CIL and pay protection by CEL while fixing his initial pay.
13. In my considered opinion, Petitioner is attempting to re-argue the writ petition, which is not the scope of a review petition. All issues pertaining to the legal effect of technical resignation, pay protection and application through proper channel in respect of an existing employee of one CPSE applying with another CPSE, have been dealt with. Petitioner cannot question the judgement in a review only because in his perception a different view is possible. Basic fallacy in the argument of the Petitioner was and is that he wants this Court to hold that he was appointed on promotion, while it is clear from the advertisement itself that the only mode of recruitment advertised was direct recruitment and nothing can be imported into an advertisement. Emphasis by the Petitioner on the difference in the eligibility conditions stipulated in the advertisement between candidates from private sectors and those from CPSEs/PSUs/Central Government/State Government, in my view, is wholly inapt and irrelevant. These stipulations pertain to eligibility conditions for applying and have no relevance to the mode of recruitment or nature of appointment, which is strictly governed by the Recruitment Rules and advertisement. In so far as applying through proper channel, pay protection, technical resignation or grant of extra increment are concerned, these are beneficial provisions in service law so that past service of an existing employee is not wiped out and the pay drawn in the erstwhile employment is not reduced, as already discussed in the judgement. Much emphasis was laid on grant of extra 3% increment to contend and demonstrate that Petitioner was promoted to CEL. This contention is wholly devoid of substance. No doubt 3% increment is granted for fixation of pay in the higher pay scale on promotion but it is equally applicable in cases of direct recruitment. Many organisations grant advance increments on initial appointment and this cannot be stated to be peculiar to ‘promotion’ cases. In light of this, the PFC/LPC now filed by the Petitioner cannot take his case any further warranting review of the judgement, in the absence of an error apparent on the face of it.
14. For all the aforesaid reasons, there is no merit in the review petition and this Court cannot be called upon to re-hear the writ petition as original writ proceedings. Review petition stands dismissed with no orders as to costs.