Suresh Kumar and Others vs State of Himachal Pradesh and Others

Rajiv Sharma, J.—Since common questions of law and facts are involved in all the petitions, same were taken up together for hearing and are being disposed of by a common judgment. However, to maintain clarity, facts of Review Petition No. 4047 of 2013 seeking review of Judgment rendered in CWP No. 10464/2011 decided on 13.12.2012, have been taken into consideration.

Petitioners were appointed as Class IV Sweepers on part time basis in the Ayurveda Department. They approached this Court seeking conferment of daily wage status and thereafter regularisation by way of CWP No. 5913/2011. CWP No. 5913/2011 was decided on 27.7.2011. The operative portion of the judgment reads as under:

"3. Learned Dy. Advocate General, points out that some of the petitioners have been granted daily waged status, without taking note of the statutory provision regarding regularization, subject to availability of vacancy. In case the vacancies were available from the date of conferment of daily waged status, necessarily the judgment as extracted above, should apply to the case of such petitioners. Therefore, it is made clear t at the claim of the petitioners for regularization in class-IV posts should be addressed and considered subject to the availability of vacancies and subject to seniority, pay fixation, increments etc. Needful orders in that regard shall be passed within a period of four months from the date of production of the copy of this judgment alongwith a copy of the Writ Petition(s) by the petitioners. In the process, in case any of the petitioner is found entitled for retrospective regularization, it is made clear that such petitioner shall be entitled to only notional benefits for the period from that date till today and the actual monetary benefits and for all other purposes they shall be treated as regular with effect from the date when the vacancy was available."

In sequel to Judgment rendered by this Court on 27.7.2011, petitioners were conferred daily wage status on 6.6.2012 and thereafter their services were regularised on 3.10.2012.

Respondents No. 4 to 19 filed a CWP No. 10464/2011 seeking conferment of daily wage status and regularisation. Similarly situate persons also instituted CWP No. 2079/2012. CWP No. 10464/2012 was decided on 13.12.2012 and CWP No. 2079/2012 was decided on 3.7.2013. The operative portion of Judgment dated 13.12.2012 rendered in CWP No. 10464/2012 reads as under:

"3. There will be a direction to the respondents/competent authority to consider the case of the petitioners for regularization alongwith others, who have joined the service alongwith them and regularized in service in case they are similarly situated. In case the only objection is that they do not possess the educational qualification, the same shall be ignored. The needful shall be done within a period of two months from the date of production of a certified copy of this judgment alongwith copies of the judgments, referred to above, by the petitioners before the respondents/competent authority. The pending application(s), if any, also stands disposed of."

Operative portion of Judgment rendered in CWP No. 2079/2009 on 20.10.2012, reads as under:

"3. Therefore, there will be a direction to first respondent to look into the matter in light of the observations made above and take appropriate action within a period of four months from the date of production of a copy of this judgment along with a copy of the writ petition by the petitioner."

In sequel to directions of this Court in CWP No. 10464/2012, respondents No. 1 to 3 issued office orders dated 2.4.2013 and dated 4.5.2013, whereby petitioners were reverted. Petitioners and similarly situate persons filed CWP No. 2968 of 2013 and 4012 of 2013 against their reversion orders dated 2.4.2013 and 4.5.2013, respectively. These petitions were dismissed by this Court on 6.8.2013 by directing the petitioners to file review petitions. It is in these circumstances that the present petitions have been filed.

Learned advocates appearing on behalf of the petitioners have vehemently argued that the petitioners were not heard before issuance of office orders dated 2.4.2013 and 4.5.2013. They also argued that the respondents have not arrayed them as party in CWP''s No. 10464/2012 and 2079/2012 and others filed in this Court.

Mr. Shrawan Dogra, learned Advocate General on behalf of the State has vehemently argued that the petitioners were reverted on the basis of Judgment rendered by this Court in CWP No. 10464/2012.

Learned Advocates appearing on behalf of the private respondents argued that when the petitioners filed CWP No. 5913/2011, they were not added as party and, thus, they are estopped from taking the plea of violation of principles of natural justice. Respondent-State has framed Rules under Article 309 of the Constitution of India known as HP Department of Indian System of Medicine and Homeopathy Class IV Karamchari (Non-Gazetted) Recruitment and Promotion (First Amendment) Rules, 1998 as amended from time to time. These Rules were amended and notified on 31.12.1998. Number of posts in the Cadre is 830. Post is a non-selection post. Minimum educational qualification required for direct recruitment is Middle class from a recognized Board or School Education/Institution. There is no minimum educational qualification prescribed for promotees. According to Rule-11, 50% of the posts are to be filled up by appointment from amongst the wholly paid daily waged workers of the department who possess at least 10 years service having 240 days in each calendar year failing which by appointment from amongst the departmental working part-time workers who also possess at least 10 years service having 240 days in each calendar years as such and fulfill the qualification as per Col. 6 of Recruitment and Promotion Rules.

Private respondents who are senior to the petitioners in the seniority list maintained by the Department. However, the petitioners approached this Court by filing CWP No. 5913/2011, which was disposed of with a direction to the competent authority to look into their grievances and verify the facts and take an appropriate action in light of the Rules. Writ petition was disposed of on 27.7.2011 in view of judgment dated 21.12.2010 rendered in CWP No. 7896/2010 and connected cases. Petitioners were conferred daily wage status on 6.6.2012 followed by regularisation on 3.10.2012. Private respondents, who were senior to the petitioners were overlooked by the respondent-State, which led to filing of CWP No. 10464/2011 titled as Inder Pal and others versus State of Himachal Pradesh and others. It was decided on 13.12.2012. In sequel to Judgment rendered by this Court in CWP No. 10464/2012 on 13.12.2012, State government conveyed approval on 25.4.2013 and revised approval/decision of the Government that all daily wagers/part timers who have completed 10 years of service as on 31.8.2010 irrespective of whether they fulfill the educational qualification as prescribed by the Recruitment and Promotion Rules would be regularised. There were only 157 vacancies available, at the time of reversion order dated 2.4.2013 and 4.5.2013. It is in these circumstances, petitioners were reverted. It would be apposite to state that this stage that CWP No. 2079/2009 was decided on 20.12.2010. State Government preferred SLP, which was dismissed by the Hon''ble Apex Court on 3.7.2013, vide annexure R-13. Thus, the Judgment rendered by this Court in CWP No. 2079/2009 issuing direction to the respondents to consider the case of private respondents and other similarly situate persons, was upheld and has attained finality.

We have gone through the Recruitment and Promotion Rules as noticed above. Promotions are to be made on the basis of seniority. No educational qualification has been prescribed under the Recruitment and Promotion Rules for making appointment by way of promotions. State has taken a conscious decision to make regularisation of services of employees who have completed 10 years service on 31.8.2010. Petitioners ought to have arrayed private respondents when they have filed CWP No. 5913/2011. We have gone through the cause title. Private respondents have not been arrayed as party. Since petitioners themselves have not added private respondents as party, they are estopped from taking the plea that there is violation of principles of natural justice since they were not added as party in CWP No. 10464/2012. Petitioners, at the time of filing CWP No. 5913/2011 knew that the post was a non-selection post and promotions were to be made strictly on the basis of seniority. Petitioners can not be permitted to take advantage of their own wrongs. State Government in view of judgment passed by this Court, has rightly resolved the issue by making promotions strictly as per Rules and length of service by prescribing cut-off date as 31.8.2010.

Their Lordships of the Hon''ble Supreme Court in Parsion Devi and Others Vs. Sumitri Devi and Others, (1998) 1 CTC 25 : (1997) 8 JT 480 : (1997) 6 SCALE 432 : (1997) 8 SCC 715 : (1997) 4 SCR 470 Supp : (1997) 2 UJ 820 , have held that an error which is not self evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47, Rule 1 CPC. Their Lordships have held as under:

"9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has limited purpose and cannot be allowed to be "an appeal in disguise."

Considered in the light of this settled position we fine that Sharma, J. clearly over-stepped the jurisdiction vested in the court under Order 47 Rule 1 CPC. The observation of Sharma, J. that "accordingly", the order in question is reviewed and it is held that the decree in question is reviewed and it is held that the decree in question was of composite nature wherein both mandatory and prohibitory injunction were provided" and as such the case was covered by Article the scope of Order 47 Rule 1 CPC. There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the later only can be corrected by exercise of the review jurisdiction. While passing the impugned order, Sharma, J. found the order in Civil Revision dated 25.4.1989 as an erroneous decision, though without saying so in so many words. Indeed, while passing the impugned order Sharma, J. did record that there was a mistake or an error apparent on the face of the record which not of such a nature, "Which had to be detected by a long drawn process of reasons" and proceeded to set at naught the order of Gupta, J. However, mechanical use of statutorily sanctified phrases cannot detract from the real import of the order passed in exercise of the review jurisdiction. Recourse to review petition in the facts and circumstances of the case was not permissible. The aggrieved judgment debtors could have approached the higher forum through appropriate proceedings, to assail the order of Gupta, J. and get it set aside but it was not open to them to seek a "review of the order of petition. In this view of the matter, we are of the opinion that the impugned order of Sharma, J. cannot be sustained and accordingly accept this appeal and set aside the impugned order dated 6.3.1997."

Their Lordships of the Hon''ble Supreme Court in Commissioner of Cental Excise, Belapur, Mumbai Vs. RDC Concrete (India) P. Ltd., (2011) 187 ECR 1 : (2011) 9 JT 114 : (2011) 8 SCALE 314 : (2011) 32 STT 426 , have held that an erroneous view of law or debatable point cannot be decided while rectifying mistake. Their Lordships have held as under:

"21. This Court has decided in several cases that a mistake apparent on record must be an obvious and patent mistake and the mistake should not be such which can be established by a long drawn process of reasoning. In the case of T.S. Balram v. M/s. Volkart Brothers (supra), this Court has already decided that power to rectify a mistake should be exercised when the mistake is a patent one and should be quite obvious. As stated hereinabove, the mistake cannot be such which can be ascertained by a long drawn process of reasoning. Similarly, this Court has decided in The Income Tax Officer, Alwaye Vs. The Asok Textiles Ltd., Alwaye, AIR 1961 SC 699 : (1961) 41 ITR 732 : (1961) 3 SCR 236 that while rectifying a mistake, an erroneous view of law or a debatable point cannot be decided. Moreover, incorrect application of law can also not be corrected."

Their Lordships of the Hon''ble Supreme Court in Aligarh Muslim University and Others Vs. Mansoor Ali Khan, AIR 2000 SC 2783 : (2001) 91 FLR 28 : (2000) 9 JT 502 : (2000) 6 SCALE 125 : (2000) 7 SCC 529 : (2000) SCC(L&S) 965 : (2000) 2 SCR 684 Supp : (2000) AIRSCW 2976 : (2000) 6 Supreme 1 , have held that non-compliance with principles of natural justice unless causes prejudice does not automatically entitle one to relief under Article 226. Their Lordships have further explained the doctrine of useless formality. Their Lordships have held as under:

"21. As pointed recently in M.C. Mehta Vs. Union of India (UOI) and Others, AIR 1999 SC 2583 : (1999) 5 JT 114 : (1999) 4 SCALE 267 : (1999) 6 SCC 237 : (1999) 3 SCR 1173 : (1999) 2 UJ 1254 : (1999) AIRSCW 2754 : (1999) 6 Supreme 265 , there can be certain situations in which an order passed in violation of natural justice need not be set aside under Article 226 of the Constitution of India. For example where no prejudice is caused to the person concerned, interference under Article 226 is not necessary. Similarly, if the quashing of the order which is in breach of natural justice is likely to result in revival of another order which is in itself illegal as in Godde Venkateswara Rao Vs. Government of Andhra Pradesh and Others, AIR 1966 SC 828 : (1966) 2 SCR 172 , it is not necessary to quash the order merely because of violation of principles of natural justice.

In M.C. Mehta it was pointed out that at one time, it was held in Ridge v. Baldwin (1964 AC 40 ) that breach of principles of natural justice was in itself treated as prejudice and that no other ''defacto'' prejudice needed to be proved. But, since then the rigour of the rule has been relaxed not only in England but also in our country. In S.L. Kapoor Vs. Jagmohan and Others, AIR 1981 SC 136 : (1980) 4 SCC 379 : (1981) 1 SCR 746 , Chinnappa Reddy, J. followed Ridge v. Baldwin and set aside the order of supersession of the New Delhi Metropolitan Committee rejecting the argument that there was no prejudice though notice was not given. The proceedings were quashed on the ground of violation of principles of natural justice. But even in that case certain exceptions were laid down to which we shall presently refer.

The principle that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In K.L. Tripathi Vs. State Bank of India and Others, AIR 1984 SC 273 : (1984) 48 FLR 38 : (1983) LabIC 1680 : (1984) 1 LLJ 2 : (1983) 2 SCALE 587 : (1984) 1 SCC 43 : (1984) 1 SCR 184 : (1983) 2 SLJ 623 , Sabyasachi Mukherji, J. (as he then was) also laid down the principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed: quoting Wade Administrative Law, (5th Ed. PP. 472-475) as follows: (para

"....it is not possible to lay down rigid rules as to when principles of natural justice are to apply, nor as their scope and extent....There must have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter to be dealt with and so forth".

Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Bank of Patiala and others Vs. S.K. Sharma, (1996) 3 AD 349 : AIR 1996 SC 1669 : (1996) 3 JT 722 : (1996) 2 LLJ 296 : (1996) 3 SCALE 202 : (1996) 3 SCC 364 : (1996) 3 SCR 972 : (1996) 2 UJ 338 . In that case, the principle of ''prejudice'' has been further elaborated. The same principle has been reiterated again in Rajendra Singh Vs. State of Madhya Pradesh and others, (1996) 6 AD 185 : AIR 1996 SC 2736 : (1996) 7 JT 216 : (1996) 5 SCALE 793 : (1996) 5 SCC 460 : (1996) 4 SCR 393 Supp .

The ''useless formality'' theory, it must be noted, is an exception. Apart from the class of cases of "admitted or indisputable facts leading only to one conclusion" referred to above,- there has been considerable debate of the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M.C. Mehta referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J. and Straughton L.J. etc. in various cases and also views expressed by leading writers like Profs. Garner, Craig, De. Smith, Wade, D.H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the Court will be prejudging the issue. Some others have said, that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via-media rules. We do not think it necessary, in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case."

Their Lordships of the Hon''ble Supreme Court in Municipal Committee, Hoshiarpur Vs. Punjab State Electricity Board and Others, (2010) 11 JT 615 : (2010) 11 SCALE 69 : (2010) 13 SCC 216 , have held that principles of natural justice can not be put in a straightjacket formula. There may be circumstances where only one conclusion is possible and insistence of natural justice may be a futile exercise. Their Lordships have held as under:

The principles of natural justice cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. Thus, they cannot be put in a strait-jacket formula.

"13.....Natural justice is not an unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential procedural propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of."

The two rules of natural justice, namely, nemo judex in causa sua, and audi alteram partem now have a definite meaning and connotation in law and their contents and implications are well understood and firmly established; they are nonetheless non-statutory. The court has to determine whether the observance of the principles of natural justice was necessary for a just decision in the facts of the particular case. (Vide: The Chairman, Board of Mining Examination and Chief Inspector of Mines and Another Vs. Ramjee, AIR 1977 SC 965 : (1977) 34 FLR 381 : (1977) 2 SCC 256 : (1977) 2 SCR 904 : (1977) 9 UJ 184 ; Union of India and Another Vs. Tulsiram Patel and Others, AIR 1985 SC 1416 : (1985) 3 CompLJ 45 : (1985) 51 FLR 362 : (1985) 2 LLJ 206 : (1985) 2 SCALE 133 : (1985) 3 SCC 398 : (1985) 2 SCR 131 Supp : (1985) 2 SLJ 145 ; and Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., AIR 1994 SC 1074 : (1993) 6 JT 1 : (1994) 1 LLJ 162 : (1993) 3 SCALE 952 : (1993) 4 SCC 727 : (1993) 2 SCR 576 Supp : (1993) 3 SLJ 193 .

There may be cases where on admitted and undisputed facts, only one conclusion is possible. In such an eventuality, the application of the principles of natural justice would be a futile exercise and an empty formality. (Vide: State of Uttar Pradesh Vs. Om Prakash Gupta, AIR 1970 SC 679 : (1970) LabIC 568 : (1969) 3 SCC 775 ; S.L. Kapoor v. Jagmohan and Ors., AIR 1981 SC 136; and U.P. Junior Doctors'' Action Committee Vs. Dr B. Sheetal Nandwani and Others, AIR 1991 SC 909 : (1990) 3 JT 690 : (1990) 4 SCC 633 : (1990) 1 SCR 130 Supp .

However, there may be cases where the non-observance of natural justice is itself prejudice to a person and proof of prejudice is not required at all. In A.R. Antulay Vs. R.S. Nayak and Another, AIR 1988 SC 1531 : (1988) CriLJ 1661 : (1988) 2 Crimes 753 : (1988) 2 JT 325 : (1988) 2 SCC 602 : (1988) 1 SCR 1 Supp , this Court held as under:

"....No prejudice need be proved for enforcing the fundamental rights. Violation of a fundamental right itself renders the impugned action void. So also the violation of the principles of natural justice renders the act a nullity."

Similarly, in S.L. Kapoor (supra), this Court held:

"The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced."

In view of the above, in case there is a non-compliance of a statutory requirement of law or the principles of natural justice have been violated under some circumstances, non-compliance of the aforesaid may itself be prejudicial to a party and in such an eventuality, it is not required that a party has to satisfy the court that his cause has been prejudiced for non-compliance of the statutory requirement or principles of natural justice."

The present petitions do not come within the ambit of Order 47 Rule 1 CPC. Accordingly, there is no merit in the petitions and the same are dismissed.

Pending applications, if any, are disposed of.