Sitaram vs State of Jharkhand

Aparesh Kumar Singh, J.)

One of the writ petitioners in the batch of writ petitions led by W.P. (S) No. 4110 of 2013 (Bholanath Hansda @ Bhola Hansda Vs. The State of

Jharkhand & Ors.) decided by this Court vide Judgment dated 16th June, 2017 is the Review Petitioner herein. The reference made to the Full Bench

in the aforesaid batch of the writ petitions were answered in the following terms:

“46.We accordingly hold and answer the reference in the following terms: -

None of the employees / petitioners are entitled to count their past services under the Adult Education / Non-formal Education / Mass Education

scheme for the purpose of their pensionary benefits. This principle would apply to all the 3 broad categories of petitioners enumerated in the opening

paragraph of the writ petition i.e. (i) those employees / petitioners who after being declared surplus have either retired or died before they were

absorbed pursuant to the notification dated 30.5.2007;(ii) the second category of petitioners who after being declared surplus w.e.f 16.5.2001 were

absorbed in government service vide notification dated 30.5.2007 and have retired thereafter and (iii) the petitioners who are / were still working as on

the date of filing of the writ petitions under the government of Jharkhand after being absorbed vide notification dated 30.5.2007. We uphold the

conditions enumerated at clause 11 and 12 of the absorption notification dated 30.5.2007 where under appointment of such persons were treated as

fresh appointment and their past services would not be counted for the purpose of seniority or initial pay fixation.

However, we are of the considered opinion that the aforesaiddecision would apply to all such persons / petitioners/ employees whose cases have

not become final pursuant to the dismissal of the S.L.P.s by the Hon'ble Supreme Court earlier such as S.L.P (Civil) No. 1377 of 2011, S.L.P. (CC.

No 3780 of 2011), S.L.P (CC 19981 of 2011). The petitioners herein cannot claim application of Article 14 of the Constitution of India or equity or

seek consideration on grounds of hardship also in such circumstances. In this regard, we derive strength from the opinion of the Hon'ble Supreme

Court in the case of Union of India and others Vrs. Rakesh Kumar & others reported in 2001(4) SCC 309. We are inclined to quote the relevant

passage hereunder: -

“21. Learned counsel for the respondents submitted that on the basis of the GO, a number of persons are granted pensionary benefits even though

they have not completed 20 years of service, and, therefore, at this stage, the Court should not interfere and see that the pensionary benefits granted

to the respondents are not disturbed and are released as early as possible. In our view, for grant of pension the members of BSF are governed by the

CCS (Pension) Rules. The CCS (Pension) Rules nowhere provide that a person who has resigned before completing 20 years of service as provided

in Rule 48-A is entitled to pensionary benefits. Rule 19 of the BSF Rules also does not make any provision for grant of pensionary benefits. It only

provides that if a member of the Force who resigns and to whom permission in writing is granted to resign then the authority granting such permission

may reduce the pensionary benefits if he is eligible to get the pension. Therefore, by erroneous interpretation of the Rules if pensionary benefits are

granted to someone it would not mean that the said mistake should be perpetuated by direction of the Court. It would be unjustifiable to submit that by

appropriate writ, the Court should direct something which is contrary to the statutory rules. In such cases, there is no question of application of Article

14 of the Constitution. No person can claim any right on the basis of decision which is dehors the statutory rules nor can there be any estoppel.

Further, in such cases there cannot be any consideration on the ground of hardship. If the Rules are not providing for grant of pensionary benefits it is

for the authority to decide and frame appropriate rules but the Court cannot direct payment of pension on the ground of so-called hardship likely to be

caused to a person who has resigned without completing qualifying service for getting pensionary benefits. As a normal rule, pensionary benefits are

granted to a government servant who is required to retire on his attaining the age of compulsory retirement except in those cases where there are

special provisionsâ€​.

The question referred before this larger Bench is answered accordingly. However, as has been noted earlier, cases of individual petitioners in

WPS Nos. 2458/2008, 3660/2009, 4702/2009 and 4963/13 who claim to have been appointed in government service prior to start of Adult Education

Project in the year 1978 have to be dealt with by the appropriate Bench on the basis of their individual facts. Rest of the writ petitions are disposed of

in the light of the aforesaid decision.â€​

The review petitioner has endeavored to make out a case that the impugned Judgment suffers from errors apparent on the face of record as it has

failed to consider the letters of his appointment at Annexure-1 dated, 08th September, 1976, whereunder he was appointed on the post of Lascar in the

NCC, Directorate. It has also failed to take into account the fact that the petitioner had joined the Adult Education Department after being relieved

from the post of Lascar in the NCC, Directorate. Reference is also made to Office Order No. 749 dated 25.06.1979 i.e. the appointment letter of

the petitioner which refers to him Additional Employee under the NCC at the time of his joining in the Adult Education Department.

Learned Senior Counsel representing the petitioner submits that these documents were evidence of his service under the State Government prior to his

employment under the Adult Education Department. As such, his case also falls in the category of the four writ petitioners mentioned at Para 48 of

the impugned Judgment, who claim to have been appointed in government service prior to start of Adult Education Project in the year 1978. Their

cases have to be dealt with by the appropriate Bench on the basis of their individual facts. In case these facts are properly considered, this petitioner

would also be entitled to the pensionary benefits.

Learned Government Advocate has squarely opposed the prayer. He submits that the contention raised by the review petitioner does not warrant

review of the impugned Judgment. This Court after due consideration of the documents on record in the case of the present petitioner and others

came to a considered findings. As such, the instant plea does not fit within the scope of Order 47 Rule 1 of the Civil Procedure Code, the principles of

which apply to the proceedings under Article 226 of the Constitution of India. Review jurisdiction may be exercised on the discovery of new and

important matter or evidence which after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be

produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found;

it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would

be the province of a Court of appeal. Reliance is placed on the case of Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma & Ors., reported in

(1979) 4 SCC 389.

Learned counsel has also pointed out to the Judgments rendered by the learned Single Judge earlier in case of the present petitioner, which are

Annexure-10, dated 14th February, 2002 in W.P.(S) No. 1182 of 2002 and Annexure-18 dated, 12th November, 2008 in W.P.(S) No. 834 of 2005. He

submits that these judgments were rendered in the case of the same petitioners who was seeking payment of salary during the period the employees

of the Adult Education Department were retrenched from 15th May, 2001. The learned Single Judge upon consideration of the pleadings of the parties

categorically held that the petitioner was initially appointed on 25th June, 1979 as a peon under the Adult Education Department, Government of Bihar.

These findings of the learned Court have become final which the petitioner cannot over come at this stage. Review is therefore, not maintainable in

such circumstances.

We have considered the submissions of the learned counsel for the parties and taken note of the grounds urged. True it is that the letter dated, 6th

October, 1976 issued by the NCC Directorate, Bihar and the Office Order dated 25th June, 1979 appointing the petitioner on the post of peon were on

record in the writ petitions but at the same time the judgment rendered by the learned Single Judge in W.P.(S) No. 1182 of 2002, dated 14th February,

2002 (Annexure-10) and W.P.(S) No. 834 of 2005, dated 12th November, 2008 (Annexure-18) were also on record. The Judgment rendered by the

learned Single Judge in W.P.(S) No. 834 of 2005 categorically records that the petitioner was initially appointed on 25th June, 1979 as a peon under

the Adult Education Department, Government of Bihar. Though learned Senior counsel representing the petitioner has laboured to impress that the

document of 8th Sept. 1976 relating to his appointment in NCC, Directorate, Bihar and his appointment under the Adult Education Department by

Letter dated 25th June, 1979 were also on record on those writ petitions but it is beyond cavil that the pleadings of the parties merged into the

Judgment and become final, if not interfered by higher Courts in Appeal or on review by the same Court. Findings recorded by a Court of law in the

present case, a Court of record (which have attained finality) cannot be tinkered with unless the order itself is interfered by the Appellate Court or in

review. Issues of facts and law attained finality on such adjudication. As such, the findings recorded by this Court in the case of the writ petitioner that

he had been initially appointed on 25th June, 1979 by the Director, Adult Education Department, Bihar on the post of peon do not suffer from any such

errors which can be said to be apparent from the face on record. These findings were based on due consideration of the materials on record and in

the light of issues of fact or law settled by the Writ Court in case of the petitioner himself.

In the aforesaid facts and circumstances, we are of the considered view that the impugned Judgment does not suffer from any such errors apparent

on the face of record, which merits review. The findings rendered by the Writ Court in W.P.(S)No.834 of 2005 in the case of the petitioner cannot

be interfered at this stage. Accordingly, we find no merit in this review petition. Hence, it is dismissed.