Rustam Singh & Others vs State Of Uttarakhand & Others

Raghvendra Singh Chauhan, CJ

Both these special appeals challenge the order dated 09.09.2020, passed by the learned Single Judge in Writ Petition (S/S) Nos. 3345 of 2018 and 349 of 2018, whereby the learned Single Judge has dismissed the writ petitions, inter alia, on the ground that the petitioners could not establish the fact that they have worked for three seasons for the Forest Department. Therefore, they do not fall within the definition of word "Seasonal Worker". Hence, they are not entitled to be appointed as Forest Guards (Van Aarakshi). Both these appeals further challenge the order dated 29.10.2020, passed by the learned Single Judge in Review Petitions (MCC Nos.537 of 2020 and 535 of 2020), whereby the learned Single Judge has dismissed the Review Petitions ostensibly on the ground that there is no error apparent on the face of the record. Since both these appeals emanate from the same set of impugned judgment and orders, these are being decided by a common judgment.

Mr. Aditya Singh, the learned counsel for the appellant, submits that initially there was a fact finding inquiry carried out by the respondents. However, subsequently, there was a final report, dated 23.07.2019. The said final report was not available with the appellant at the time when the initial order dated 09.09.2020 was passed by the learned Single Judge. However, the said final report dated 23.07.2019 was filed along with the Review Petitions.

According to the final report dated 23.07.2019, the respondent-Department had concluded that the documents belonging to the petitioner, and other similarly situated persons, need to be re-examined. If the documents were found to be genuine, and if it is established through the documents that the petitioner, and other similarly situated persons, were, indeed, seasonal workers, then the appointment letters should be issued to them.

According to Mr. Aditya Singh, the learned counsel, the learned Single Judge did not notice the fact that the final report, dated 23.07.2019, had been placed before the Court along with the Review Petition. Instead, the learned Single Judge has concentrated merely on the fact that "there is no error apparent on the face of the record".

Mr. Aditya Singh, the learned counsel had further relied upon Order XLVII Rule 1 of the Code of Civil Procedure (for short "the C.P.C."), whereby the power of review has been bestowed upon a Court. According to him, in case a new fact is discovered, and is brought on record, the Court would be justified in reviewing its earlier order. Despite the fact that new document, namely the final report dated 23.07.2019, had been produced along with the Review Petition, the said document has not been considered by the learned Single Judge. Therefore, the review order dated 29.10.2020 deserves to be set-aside by this Court; the matter should be remanded back to the learned Single Judge.

Mr. Pradeep Joshi, the learned Additional Chief Standing Counsel appearing for the State, has frankly conceded, and in the view of this Court rightly so, that the final report dated 23.07.2019 was not placed before the learned Single Judge when the initial order, dismissing the writ petitions, was passed. The said final report was not even available with the appellant on the said date. It was available subsequent to passing of the impugned order dated 09.09.2020. He further conceded that it was subsequently placed before the Review Court.

Heard the learned counsel for the parties, and perused the impugned orders.

Order XLVII Rule 1 of the C.P.C. is as under:-

"Rule 1 Order XLVII

"1. Application for review of judgment- (1) Any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed, but from 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 applies for the review.

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".

A bare perusal of the said provision clearly reveals that there are different grounds for reviewing the order, namely, (a) if there is a discovery of new and important matters or evidence which, after the exercise of due diligence, and which was not within the knowledge of the applicant; (b) if such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of the record or any other sufficient reason.

Therefore, the learned Single Judge is not justified in observing that "since there is no error apparent on the face of the record, the Review Petition deserves to be dismissed". Since a new document, namely the final report dated 23.07.2019, was brought on record, which was not available with the appellant despite due diligence, the learned Single Judge was required to consider the said document, and if necessary, to review the order dated 09.09.2020. However, this exercise has not been carried out by the learned Single Judge.

For the reasons stated above, this Court set-asides the order dated 29.10.2020, passed by the learned Single Judge in Review Application (MCC No.537 of 2020), and remands the case back to the learned Single Judge with a direction to consider the final report dated 23.07.2019, and to pass the necessary order in accordance with law.

The Special Appeals are disposed of.