Jitendra And Others vs Komal Kewat And Others

Respondent No.1/writ petitioner has filed Writ Petition No.7968/2009 before this Court challenging the appointment of the private respondents of the

writ petition. The said writ petition was disposed of vide order dated 25/01/2018 by issuing certain directions. One of the such direction is that the

official respondents are directed to scrutinize the appointment of 516 persons already made in light of the M.P.R.&R. Policy and Coal India Policy,

2012. The review petition has been filed on the ground that the applicants have not been impleaded as parties in the said writ petition and their

appointments were made under Coal India Policy, 2008, therefore, they are apprehending that while scrutinizing the cases for appointments, their

services may likely to be terminated and in such circumstances, the applicants have filed this review petition for recalling of the order dated

25/01/2018.

The facts, in the present case, are that the land ad-measuring 1729.59 acres situated in Village Aamadant, Nimha and Kuhka was acquired by the

State Authorities at the request of Central Government for the purposes of Mining Rights to be exercised by SECL during the year 2004-05 under the

provisions of Land Acquisition Act, 1894. The acquisition was challenged before this Court in W.P. No.13561/2005 (PIL) filed by one Naresh Singh

and others in other writ petitions. The writ petitions were disposed of by order dated 12/11/2008 passed by the Division Bench of this Court. While

disposing of the said writ petitions, the Division Bench had observed that the provisions be made to ensure that the tribal residing in scheduled areas

are not exploited and their rights over the land are protected. For the said purpose, the Court has directed the SECL and the State Government to

provide the rehabilitation facilities to eligible persons in accordance with the policy of September, 1991 of the State Government.

The order dated 12/11/2008 passed by the Division Bench of this Court was challenged by the SECL before the Supreme Court. The Supreme

Court vide order dated 16/02/2009 stayed the order passed by the Division Bench of this Court subject to compliance of rehabilitation as directed by

the Division Bench of this Court. The order dated 16/02/2009 was modified by the Supreme Court vide order dated 25/03/2010 directing the

respondents to comply the Rehabilitation Policy of 1991 as amended by the State Government vide orders dated 31/12/1995, 23/03/1996 and

31/09/1998. The Coal India has also issued R&R Policy in May, 2008. At the rate of one employment for two acres, 864 appointments were to be

made. Later on the appointments were to be made on 899 posts. As per the M.P.R.&R. Policy and as per the directions issued by this Court and the

Supreme Court, the employment was to be offered in accordance with the MPR&R Policy, 1991 and subsequent amendments. The proposal for

employment of 730 persons was sent and out of these 730, 303 appointments were approved. After approval, the official respondents started giving

appointments to the applicants in violation of MPR&R Policy, therefore, respondent No.1 filed Writ Petition No.6649/2009 before this Court. On the

undertaking of the respondents that the appointments shall be made in accordance with the Policy of 1991 and in case still the vacancies are left, then

the Coal India Policy, 2008 will be followed, the writ petition was disposed of by order dated 17/07/2009. On the next very next day, the appointments

in respect of 108 persons were issued again in violation of MPR&R Policy, therefore, Writ Petition No.7968/2009 was filed before this Court.

During pendency of the writ petition, civil appeal was filed before the Apex Court which was finally decided on 12/08/2014 recording the statement

made on behalf of the respondents that they will make appointment in accordance with MPR&R Policy as well as Coal India Policy, 2012. In light of

aforesaid statement made by learned counsel for Coal India Limited, the appeal preferred by the Company was disposed of vide order dated

12/08/2014 by issuing certain directions. Before the Supreme Court, the respondent-company has given undertaking to make appointment as per the

MPR&R Police, 1991 as amended in 1995, 1996 and 1998 and Coal India Policy, 2012, therefore the writ petition was disposed of in light of the

directions issued by the Apex Court.

Learned senior counsel for the applicants submits that the impugned order has been passed with the consent of both the parties, however, while

disposing of the said writ petition, the interest of employees who are appointed under the Policy of 2008 was not at all considered. He further submits

that before the Supreme Court, the Company was directed to file affidavit regarding the procedure adopted for making the appointment. In the said

affidavit the respondent-Company has stated that under the Policy of 2008 near about 516 appointments were made. The respondents have admitted

that they will consider the Coal India Policy, 2008 while making appointments and, therefore, he submits that while disposing of this writ petition, this

aspect of the matter has not been considered by this Court. He further submits that earlier Writ Appeal No.1237/2011 in which the Division Bench

has set aside, the order passed by the Single Bench and remanded the matter to the Single Bench of this Court for deciding the writ petition on its own

merits in accordance with law. In light of the aforesaid, learned senior counsel submits that the impugned order has been passed by the consent of

both the parties and there is no decision on merits of the case. He further argues that due to non-impleadment of the applicants in the writ petition,

their interest is likely to be affected because the applicants are appointed under the Coal India Policy, 2008 and this Court while disposing of the writ

petition has directed the respondents to scrutinize the appointments of 516 persons who are appointed in light of the MPR&R Policy and Coal India

Policy, 2012 and the and modalities framed by SECL. Learned senior counsel submits that as there is no reference of Policy of 2008, therefore, the

respondents will terminate the services of the applicants, thus, they have filed this review petition for recalling of order dated 25/01/2018.

On the other hand, learned senior counsel appearing on behalf of respondent-company supports the order passed by this Court in writ petition and

submits that the order passed by this Court is innocuous order and is not likely to affect the interest of the applicants because this Court while

disposing of this writ petition has directed to scrutinize the appointments of 516 persons and as per the MPR&R Policy and Coal India Policy, 2012

and modalities framed by SECL. This Court has further directed that those appointments which are found in accordance with the above policies will

be allowed to continue and the appointments found to have been made in violation of the Policy are required to be cancelled after affording them the

opportunity of hearing. In light of aforesaid directions issued by this Court, learned senior counsel submits that the interest of the applicants is

sufficiently protected by this Court. So far as non-consideration of Policy, 2008 is concerned, learned senior counsel submits that in pursuance of the

directions issued by the Apex Court, the respondents have submitted an affidavit before the Apex Court and in the said affidavit, the respondents have

stated that the appointments have also been made in pursuance of the Policy of 2008 and their cased will also be considered for the purpose of

appointments. She further submits that while disposing of the writ petition by the by the Apex Court, the Apex Court has directed to follow the Policy

of MPR&R and Coal India Policy of 2012. There is no such direction issued by the Supreme Court for consideration of Policy of 2008 also. Thus, if

the order passed by this Court is reviewed, it will amount to reviewing the order passed by the Apex Court, therefore, the applicants instead of filing

review petition before this Court should have approached to Supreme Court for clarifying the order dated 12/08/2014, thus, the present review petition

is not maintainable.

Learned counsel for respondent No.1/writ petitioner submits that there is no error in the order apparent on the face of the record. The directions

issued by this Court while disposing of the writ petition are in accordance with the directions issued by the Apex Court, therefore, the if the order is

reviewed by this Court, then it will run contrary to the directions issued by the Apex Court. He further submits that the scope of review is very limited

while disposing of the review petition. This Court cannot sit in appeal over the order passed in writ petition. So far as impleadment of the applicants in

the writ petition is concerned, respondent No.1 writ petitioner had impleaded some of the persons in the writ petition. The applicants have also

knowledge about pendency of the said writ petition, therefore, they should have approached to this Court by filing an intervention application which

they did not done. As respondent No.1/writ petitioner has joined some of the persons as respondents in the said writ petition, therefore, it cannot be

said that respondent No.1/petitioner has not impleaded all the affected persons as parties in the writ petition.

Heard learned counsel for the parties and perused the record.

In the present case, respondent No.1 has filed Writ Petition No.7968/2009 before this Court praying for direction for qushment of appointment

orders issued in favour of 108 persons which have been made in violation of Rehabilitation Policy of 1991. The State Government has framed policy

for giving appointments to the oustees for the project of Coal India Limited at Village Aamadant, Nimha and Kuhka. For the said project, the State

Government sought to acquire certain land under the provisions of Land Acquisition Act, 1894. The said acquisition was challenged before this Court

in Writ Petition No.13561/2005 (PIL) filed by Naresh Singh and others in the other writ petitions. The said writ petitions were disposed of vide order

dated 12/11/2008. While disposing of these writ petitions, the division Bench of this Court had directed the State Government and SECL to provide

rehabilitation to the eligible persons in accordance with the Policy of September, 1991 of the State Government. The said order was challenged before

the Apex Court in SLP No.2915/2009. The Apex Court vide order dated 16/02/2009 had stayed the order passed by the Division Bench subject to

compliance of the rehabilitation as directed from time to time. The order dated 16/02/2009 was modified by the Supreme Court vide order dated

25/03/2010 directing the respondents to comply with the Rehabilitation Policy of 1991 as amended by the State Government vide orders dated

31/12/1995, 23/03/1996 and 31/09/1998.

In light of the directions issued by the Apex Court, initially proposal for employment of 730 persons were made, however, employments were

made in respect of 303 persons. Respondent No.1 and others have filed their writ petitions before this Court stating that the appointments which are

made by the respondent-company is not in accordance with the MPR&R Policy. Learned counsel for the Company therein has given undertaking that

the appointments shall be made in accordance with the Policy of 1991 and in case still vacancies are left, then Coal India Policy, 2008 will be followed.

The said writ petition was disposed of vide order dated 17/07/2009. On the very next day, the company has made appointments in respect of 108

persons, therefore, the present writ petition was filed.

During pendency of the writ petition civil appeal filed before the Apex Court was finally decided and vide order dated 12/08/2014 recording the

statement on behalf of respondents to the effect that they will make appointments following MPR&R Policy and also Coal India Policy, 2012.

Although the Company has submitted an affidavit before the Supreme Court referring the Policy of 2008 also, however, while passing the final order,

the Supreme Court had directed to scrutinize the appointments in light of the MPR&R Policy, 1991 as amended in 1995 and Coal India Policy, 2012,

therefore, in light of these directions, this Court has also directed to scrutinize the appointments of 516 persons in accordance with the Policy of

Mp.R&R and Coal India Policy, 2012. Thus, the order passed by this Court in the writ petition is in accordance with the directions issued by the

Supreme Court. If the order is modified, then it will run contrary to the directions issued by the Supreme Court which cannot be done in the review

petition. The contention of learned senior counsel for the applicants is that the applicants are appointed under the Policy of 2008, therefore, as there is

no reference of the said Policy in the impugned order, their interest is likely to be affected. This contention of learned senior counsel for the applicants

has sufficiently protected by this Court while disposing of the writ petition. In Clause-(ii) of para-11 of the said judgment, this Court has directed that if

any appointment found to have been made in violation of the Policy are required to be cancelled after affording them opportunity of hearing, thus, their

interest is sufficiently protected. There is settled law that the scope of interference in the review petition is limited and this Court cannot sit as an

appellate authority over the order passed in writ petition. The applicants have remedy to file application for clarification/modification of the order dated

12/08/2014 before the Apex Court.

While considering the scope of review, the Apex Court in the case of Dr. Subramanian Swamy Vs. State of Tamil Nadu and others, reported in

(2014) 5 SCC 75 in para-52 has held as under :

“52. The issue can be examined from another angle. The Explanation to Order 47 Rule 1 of the Code of Civil Procedure, 1908 (hereinafter

referred to as “CPCâ€) provides that if the decision on a question of law on which the judgment of the court is based, is reversed or modified by

the subsequent decision of a superior court in any other case, it shall not be a ground for the review of such judgment. Thus, even an erroneous

decision cannot be a ground for the court to undertake review, as the first and foremost requirement of entertaining a review petition is that the order,

review of which is sought, suffers from any error apparent on the face of the order and in absence of any such error, finality attached to the judgment/

order cannot be disturbed. (Vide Rajendra Kumar V. Rambhai)â€​

Thus, as per the aforesaid judgment of the Apex Court, even an erroneous decision cannot be a ground for the Court to take review.

The Division Bench of this Court in the case of Satya Pal Anand Vs. Bal Niketan Nyas, Bhopal and others, reported in 2015(3) MPLJ 83 in para-

8 has held as under :

“8. It is well settled in law that in the guise of review, rehearing is not permissible. In order to seek review it has to be demonstrated that order

suffers from error apparent on the face of record. The court while deciding the application for review cannot sit in appeal over the judgment or decree

passed by it. [See : S. Bagirathi Ammal Vs. Palani Roman Catholic Mission, (2009) 10 SCC 464, State of W.B. and others Vs. Kamal Sengupta and

another, (2008) 8 SCC 612 and Kamlesh Verma Vs. Mayawati, (2013) 8 SCC 320] Even otherwise, the impugned order neither suffers from any

error apparent on the face of record nor any jurisdictional infirmity warranting interference of this Court in review jurisdiction. From perusal of the

application, we find no ground for recall of the order dated 6/4/2015 passed in Writ Petition No.4638/2015, is made out.

Thus, in guise of review, rehearing of the appeal is not permissible as per the judgments passed by the Apex Court. Thus, there is no error

apparent on the face of the record in passing the impugned order which cause for interference.

Ex-consequentie, the review petition has no force and the same is hereby dismissed with no order as to cost.