Dr. Ashok Kumar Kosariya vs State of Chhattisgarh and Another

Hon''ble Shri Satish K. Agnihotri, J.

(Application for review of the order dated 8-8-2012 passed in WP (S) No. 2954 of 2012)

(By circulation in Chamber)

The matter is taken up for consideration in the chamber under provisions of sub-rule (2) of Rule 90 under Chapter VI of the High Court of Chhattisgarh Rules, 2007. The review petitioner (for short "the petitioner") seeks review of the order dated 8-8-2012 passed in WP (S) No. 2954 of 2012 on the ground that in para 9.6 of the writ petition it is stated the person working in the scheduled areas cannot be relieved without there being any replacement, which is indispensable under the policy. The petitioner has not averred either in the pleadings or in the arguments that the petitioner has already served in the scheduled areas and under the guidelines dated 20-10- 2005 he should not be transferred to the Scheduled areas.

This Court while dictating the order in the open Court on 8-8-2012 has dealt with all the points, which were raised in the pleadings and argued by the counsel for the parties. The contention of the learned counsel for the petitioner that on the same day in other matter, relief was granted is not relevant to the facts of the present case, as the same depends on facts, pleadings and submissions of the learned counsel. Even otherwise, the grounds raised in writ petition were adverted in the order, which is sought to be reviewed. Paras 3, 4 & 5 of the order dated 8-8-2012 read as under:

With regard to clauses 2.4 & 2.6, learned counsel appearing for the State submits that the said clauses deal with only in respect of not relieving the employee unless some incumbent (reliever) joining the same place and on that account the transfer order cannot be held as vitiated. However, the petitioner may not be relieved, till the reliever comes and joins his place.

Clause 2.4 of the transfer policy dated 7-6-2012 is in the nature of direction to the administrative officer to ensure that no post is kept vacant in the place where the employee has been working in the scheduled area and he has been transferred to non- scheduled areas. Thus, it is for the State to ensure that the vacancy caused by the transfer is to be filled up immediately. So far as clause 2.6 is concerned, it does not provide for prohibition on transfer. This is only to ensure that transferee employee should not be relieved till reliever or new incumbent joins the place.

In view of that the transfer order cannot be held as bad and vitiated. It is directed that following the clauses 2.4 & 2.6, the State must ensure that the vacant post should not remain vacant in the scheduled areas.

This is unfortunate that the counsel changes his stand, which is contrary to the record, may be on the basis of instruction by the review petitioner. Thus, the same is not accepted and is rejected.

On consideration of the above-stated grounds, which are in the nature of taking liberty to re-argue the writ petition are unsustainable in the eyes of law.

There is no other ground pointed out by the petitioner showing any manifest error on the record and has not further brought into the notice, any new facts, which could not be produced earlier despite diligent efforts made by the petitioner. It is well settled principles of law that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 of the Code of Civil Procedure. Even in exercise of review jurisdiction by the High Court under Article 226 of the Constitution, the petitioner has not produced any ground for review.

It appears that the petitioner by presentation of this review petition seeks an opportunity to argue the entire case afresh on merits under the garb of the review petition, which is not permissible and tenable in law.

It is well settled principle of law that under the garb of review petition, the petitioner should not be permitted to argue the entire case afresh, which would amount to convert the review petition into an appeal and the same is not sustainable in law. (See : Meera Bhanjan v. Smt. Nirmal Kumar Cohwdhary1, Lily Thomas etc. v. Union of India and others2, Ajit Kumar Rath v. State of Orissa and others3, Government of T.N. & Others v. M. Ananchu Asari and others4, and Kerla State Electricity Board v. Hitech Electrothermicsm & Hydropower Ltd. and others5). In view of foregoing, the review petition, sans substratum, is dismissed with the above clarification.