w AF^ HIGH COURT OF CHHATTISGARH: BILASPUR M.C.C.No. 280 of 2006 's"' Applicants Non-applicants : Versus State of Chhattisgarh and others Bed Ram Verma and others € Post for order on ^'-5-2008 Sd/- Satish K. Agnihotri Judge ^-&-zuu» --.^ HIGH COURT OF CHHATTISGARH: BILASPUR M.C.C^No.^80 of 2006 APPLICANTS: RESPONDENTS 1) State of Chhattisgarh, through Secretary, Public Works Department, Mantralaya, D.K.S. Bhawan, Raipur (CG). 2) Secretary, Finance Department, Mantralaya, D.K.S. Bhawan, Raipur (CG). 3) Joint Director, Treasury and Account, Directorate, Raipur (CG). ^ NON-APPLICANTS/ PETITIONERS •^^ Versus 1) Bed Ram Verma, S/o. Late Bholanath Verma, R/o. Shikshak Colony, Bajrang Ward, P.0. Neora Tilda, District Raipur 2) Brij Bhushanlal Verma, S/o. Late Laxman Singh Verma, R/o. Dindayal Upadhyay Ward No.7, Tilda, District Raipur (CG). 3) Rajkumar Sen, S/o. Shri Sunderlal Sen, R/o. Shikshak Colony, Tilda, District Raipur (CG). 4) Kanhaiyalal Verma, S/o. Late kashiram Verma, R/o. Ward No.6, H.No.338 Beside Dr. Paikra Clinic, Kharora Road, Tilda, Raipur (CG). 5) Girijlal Rajak, S/o. Late Mutrulal Rajak, R/o. Shankar Ward, Bhatapara, District Raipur (CG). 6) Kuleshwar Prasad Sahu, S/o. Late Kalaram Sahu, R/o. MiG 1/5, Patpar Housing Board Colony, Bhatapara, District Raipur (CG). 7) Ramdas Manikpuri, S/o. Shri Thukeldas Manikpuri, R/o. Hathnipara, Bhatapara, Tarerga Naka No.1, Near CSEB Office, Bhatapara, District Raipur (CG). 8) Krishna Murari Agrawal, S/o. late Paramsukh Agarwal, Shankar Ward, Bhatapara (Behind Main Hindu School), District Raipur (CG). ^ -.7 '.1- 9) Kamlesh Kumar Tiwari, S./o. Late Kubernath Tiwari, R/o. Station Ward, Near Mata Dewala Mandir, Bhatapara, District Raipur (CG). 10) Ashok Kumar Soni, S/o. Late Jhannala Soni, R/o. APO Simga (Near Police Station), Distt. Raipur (CG). 11) Rampyara Patel, S/o. Late Parasram Patel, R/o. Indira Colony, Baloda Bazar, District Raipur (CG). 12) Bharatlal Tiwari, S/o. Late Deena Prasad Tiwari, R/o. Ward No.4, Kamal Colony, Baloda Bazar, District Raipur (CG). 13) P.V. Ranga Prasad Rao, S/o. P,.K. Rao, Palaka, Venkata, R/o. Kamal Colony Ward No.4, Baloda Bazar, District Raipur (CG). 14) Mahavir Prasad Patel, S/o. Shri Fuduram Patel, R/o. APO Amera, District Raipur (CG). 15) Ramkumar Soni, S/o. Late Bhagat Ram Soni, R/o. Sanjay Colony, Ward 5, Baloda Bazar, District Raipur (CG). 16) Surendra Kumar Sahu, S/o. Late Tijau Ram Sahu, R/o. Nayapara, Ward No.5, Azad Chowk, Baloda Bazar, District Raipur (CG). 17) Bhaarat Das Manikpuri, S/o. Manohar Das, R/o. Sanjay Colony, Ward No.5, Baloda Bazar, District Raipur (CG). 18) Tilak Ram, S/o. Shri Bhaiya Ram, R/o. Behind Govt. Girls College, ITI baloda Bazar, District Raipur (CG). 19) Dorilal Verma, S/o. Late Laxman Singh Verma, R/o. APO Saragaon, District Raipur (CG). (Application for review ofthe order dated 23-9-2005 passed in W.P.No.248 of 2005.) SB: Hon'ble Mr. Satish K. Agnihotri, J. Present: Shri Kishore Bhaduri, Additional Advocate General and Shri V.V.S. Murthy, Deputy Advocate General for the applicants/State. Shri Ashok Das Vaishnav with Shri Sameer Sahu, counsel for the non-applicants. 'i^ I^^I:@?^i%^:?3%IiI?: .^ii^ ^^ ^- ^' ORDER (Passed on 5 day of May,2008) This review petition is filed by the applicants, seeking review of the order dated 23-9-2005 passed by this Court in Writ Petition No. 248 of 2005 (Bed Ram Verma and others Vs. State of Chhattisgarh and others). 2) The brief facts, in nutshell, are that the non-applicants (hereinafter referred to as "the writ petitioners") filed a petition, being Writ Petition No.248 of 2005, praying that writ of mandamus and direction be issued to the respondents (hereinafter referred to as "review petitioners") to grant benefits of revised pay scale to the writ petitioners and furiiher to pay arrears of difference of pay. Notice was issued to the respondents on 2-3-2005. The review petitioners, despite several opportunities granted, failed to file reply and on the last date of hearing, learned counsel appearing for the review petitioners conceded that the writ petitioners were entitled to the revised pay scale as per order/letter dated 16-3-2001. Accordingly, the orderwas passed on 23-9-2005 (Annexure A/1), whereby the review petitioners were directed to make payment of salary to the writ petitioners on the basis of revised pay scale as per order dated 16-3-2001 expeditiously within a period of six weeks from the date of the receipt of the order. The order dated 23-9-2005 passed by this Court was not complied with by the review petitioners, within the stipulated time. 3) Being aggrieved, the writ petitioners filed a contempt petition, being Contempt Petition No. 68/2006 on 31-3-2006 and notices thereofwere issued to the respondents/contemnors on 4-4-2006, returnable on 25-4-2006. The respondents/contemnors did nothing within a stipulated period of six weeks as directed by this Court in the order dated 23-9-2005 passed in Writ Petition No. s' i.%- • 248 of 2005. After receipt of contempt notice, the review petitioners filed a review petition on 19-4-2006 with an application for condonation of delay in filing the review petition. The reasons assigned in the application for condonation of delay were that the Executive Engineer, P.W.D, Division, Raipur, wrote a letter to the Divisional Joint Director, Treasury, Account and Pension for grant of revised pay scale and thereafter, Joint Director, Treasury Account and Pension, informed the Government that the writ petitioners were not entitled as per letter/order dated 16-3-2001. The Executive Engineer P.W.D, Division, Raipur, passed an orderdated 9-1-2006 canceling the order dated 16-3-2001 and as such delay was bona fide. Notice on application for condonation of delay was issued to the non-applicants/writ petitioners. Pursuant to the notice, non-applicants/writ petitioners filed their reply stating that the review petition was filed to avoid contempt as the contempt petition was filed on 31-3-2006 and notice on the contempt petition was issued on 4- 4-2006. An application for amendment of review petition was filed by the applicants/review petitioners, which was allowed on 2-11-2006 and amended application was accordingly filed. The writ petitioners prayed that the review application be dismissed on the ground of unreasonable, unexplained and intentional delay for more than seven months It is true that some order was passed, which amounted to over-reaching of the order dated 23-9-2005 passed by this Court, but the same can be examined in the Contempt Petition No.68/2006 pending consideration. 4) With regard to the concept of condonation of delay, the Hon'ble Supreme Court in the matter of Special Land Acquisition Officer, Bangalore Vs. B.M. Krishnamurthy1, observed as under: "..........Having regard to the entirety of the circumstances, the High Court thought that the State should not be penalized for the lapses of (1985) 1 SCC 469 some of its officers and that in the particular circumstances there were sufficient grounds justifying the condonation of delay in filing the appeals." 5) Further, applying the said ratio arid .crystallizing the power of a writ court in condoning delay, the Hon'ble Supreme Court in the matter of G. Ramegowda, Mjaor and others Vs Special Land Acquisition Officer, Bangalore, obsen/ed as under: fc.1,. ^••t "16. The law of limitation is, no doubt, the same for a private citizen as for government authorities. Government like any other litigant must take responsibility for the acts or omissions of its officers. But a somewhat different complexion is imparted to the matter where government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it." "......... It would, perhaps, be unfair and unrealistic to put government and private parties on the same footing in all respects in'such matter........." € 6) In the interest ofjustice, where the Government officers are custodians of the public money and the public money cannot be wasted on account of 1 delinquency on the part of the officers, who have failed to file return to the original petition, thereafter, the review petition after a long delay was filed. Looking into over all the aspects of the matter, particularly wasting of public money, it is just and proper to decide the issue on merit. Thus, delay in filing the review application is condoned. 7) Shri Kishore Bhaduri, learned Additional Advocate General appearing for the applicants/review petitioners would submit that the writ petitioners have not submitted all the information/documents before this Court, 1988 (2) SCC 142 v^ r' particularly the fact that the letter dated 16-3-2001 (Annexure P/1) written by the Executive Engineer, P.W.D., Division No.2, Raipur to the Sub Divisional Officer, PWD, Sub-Division No.2 mentioned about the proposed revision which was to be examined by the Joint Director, Treasury, Account and Pension, Raipur and appropriate entry in the service book be made after examination by the Joint Director, Treasury, Account and Pension. The Subsequent letter dated 23-4-2001 was a tetter of the Executive Officer, PWD. Division No.2 to the Sub-Divisional Officer for collecting the service book and sending the same to the Joint Director, Treasury, Account and Pension, Raipur. Thereafter, Executive Engineer, submitted service books of 13 Time Keepers (Sthal Sahayaks) i.e., writ petitioners to the Joint Director, Treasury, Account and Pension, Raipur, vide letter dated 25-3-2001 (Document No.3) The Joint Director, Treasury, Account and Pension , Raipur, returned back all the service books with remark on the letter that there was no direction issued from the State Government. Thus, all the service books were returned back to the Executive Engineer. On 30-4-2001 again service books of some ofthe Time Keepers (Sthall Sahayaks) were sent, which were also returned back. The General Administration Department, vide letter dated 4-4-2005 (Document 6) addressed to the Principle Secretary, Water Resources Department an Secretary, Public Works DepartmenVPublic Health Engineering Department informed that the applications for revision of pay scale of Time Keepers have been rejected by the Government. The writ petitioners have deliberately failed to produce such documents which were necessary to establish asto whether the writ petitioners were granted a particular pay scale as per letter dated 16-3-2001, which was a mere recommendation and the Government had rejected the recommendation made by the Executive Engineer. The State counsel was at fault in not producing all the relevant documents and ^- conceding to the effect that the writ petitioners might be granted the benefits as per letter dated 16-3-2001 . 8) After order dated 23-9-2005 sought to be reviewed was passed by this Court, the Executive Engineer, PWD, Baloda Bazar, cancelled the earlier order dated 16-3-2001, on 9-1-2006 (Annexure A/3) without realizing the fact that once the order has been approved by the High Court, he has no authority to cancel the same without seeking amendment of the order dated 23-9-2005 passed by this Court. The Divisional Joint Director, Treasury, Account and Pension, Raipur, further sent a letter dated 6-1-2006 (Annexure A/2) to the Executive Engineer about the pay scale of the Time Keepers - writ petitioners. 9) Learned counsel, would further contend that this is a public money and on account of delinquency on the part of the Advocates as well as officers, public money, of which the officers are custodian, may not be wasted without proper sanction or justification. Learned counsel would next contend that the pay scale of Rs. 169-300 referred to in the petition as Pandey's case with effect from 1-1-1974 was actually a recommendation for regular employees of technical education department and the same was never considered by the State Government for work charged contingent employees of any department. For revision of pay scale, the competent authority is the Government, not the Executive Engineer, who had taken decision exceeding his jurisdiction. Pursuant to Pandey and Chaudhary Pay Commission recommendations, no revision has been made in respect of salary of the work charged contingent employees. The writ petitioners are admittedly work charged contingent employees working as Time Keepers (Sthall Sahayaks). Lastly, it was contended by learned Additional Advocate General that this review may be entertained on the ground of discovery of new facts which could not be V .r"':"^ s •%.ts^y ^- brought before this Court by the writ petitioners and for sufficient reasons as permissible under the provisions of Order 47, Rule 1 of the Code of Civil Procedure. 10) Shri Ashok Das Vaishnav, learned counsel appearing for the writ petitioners, per contra, would submit that the review petitioners have committed deliberate dis-obedience of the authority of law by passing order subsequently and setting aside the order of the Court at naught. It was next contended that at the time of hearing of the main petition, the review petitioners did not file any return or did not oppose the prayer of the writ petitioners. Thus, at this stage, this Court may not permit re-hearing of the case as held in several decisions passed by the Supreme Court as well as by this Court. Learned counsel would further submit that the recommendation of the Executive Engineer was in accordance with pay revision and that ought to have been sanctioned by the State Government. Learned counsel relied on a letter dated nil (Annexure NA 1} where the Executive Engineer, PWD, Raipur, had requested the Secretary, Government of Chhattisgarh, PWD, Raipur, for grant of revision pay scale to the work charged contingent Time Keepers. Learned counsel has further relied on the order dated 20-6-1999 (Annexure NA 3), whereby the Executive Engineer, PWD, Bilaspur, Division No.1, has granted pay scale of Rs.2605/- to the gangmen with effect from 1-1- 1999 and submits that the grant of pay scale as per order dated 16-3-2001 is just, properand valid. 11) I have heard rival contentions of learned counsel appearing for the parties, perused the pleadings and documents appended thereto. 12) It is a case where all the necessary documents were neither produced by the writ petitioners nor by the review petitioners. The review petitioners ^' (<..-' have chosen not to file return and the learned counsel conceded to all the submissions made by the counsel for writ petitioners at the time of hearing. It is true that in normal circumstances, no benefit should be given to the review petitioners, who have not acted in time and have not filed return or opposed the submissions at the time of hearing of the original writ petition. For that, learned Addl. Advocate General submits that the Government has already taken action against the delinquent employees and for the fault of the employees, public money may not be allowed to be disbursed without any justification or proper sanction of the State Government. It is well settled that reviewjurisdiction is available where all the relevant materials for adjudication was not placed at the time of hearing. The errors can be corrected on account of discovery of new documents and for sufficient reasons to prevent miscarriage ofjustice. 13) In the matter of Rajender Singh Vs- Lt Governor, Andaman & Nicobar Islands and others the Supreme Court observed as under: "Law is well-settled that the power of judicial review of its own order by the High Court inheres in every Court of plenary jurisdiction to prevent mis-carriage ofjustice." 14) In the matter of Board of Control for Cricket, India Vs. Netaji Cricket Club4 the Supreme Court observed as under: "It is also not correct to contend that the Court while exercising its review jurisdiction in any situation whatsoever cannot take into consideration a subsequent event." 15) In the matter of Food Corporation of India and another Vs. SEIL Ltd., an others5 the Supreme Court observed as under: 'AIR2006SC75 "AIR 2005 SC 592 / 10 ^1' ^\ i- "25. We do not, thus, find any substance in the contention of Mr. Sharan that while exercising its review jurisdiction, no interest on the principal sum could have been directed to be granted by the High Court. A writ court exercises its power of review under Article 226 of the Constitution of India itself. While exercising the said jurisdiction, it not only acts as a court of law but also as a court of equity. A clear error or omission on the part of the court to consider a justifiable claim on its part would be subject to review ; amongst others on the principle of actus curiae neminem gravabit (an act of the court shall prejudice none). We appreciate the manner in which the learned Judge accepted his mistake and granted relief to the respondents." 16) The case of Government of T.N. and others Vs. M. Ananchu Asari and others , cited by learned counsel for the writ petitioners, the Supreme Court observed that re-hearing of the arguments on merit is not permissible in review petition and failure to furnish the necessary materials cannot be a ground to review the judgment, whichmay not be applicable to the facts ofthe present case as the writ petitioners' themselves have not produced all the materials, which were relevant for adjudication of the controversy involved in the writ petition. The ground for review of judgment is very much available in the facts of the case. If the matter is not reviewed, the same may tantamount to mis-carriage ofjustice which this Court is under an obligation to prevent the same. Thus, the review petition is allowed. 17) Having examined the correspondences between the Executive Engineer and Joint Director, Treasury, Account and Pension and final letter issued by the State Government, it is well established that the pay scale recommended by the Executive Engineer in his letter dated 16-3-2001 was not sanctioned pay scale, but it was a mere recommendation, when the (2008) 3 SCC 440 ' (2005) 2 SCC 332 ifi V 11 :^^^ m'». sen/ice books were sent to the Joint Director for necessary entry in the service books, the same was returned back with remark that the Government has not sanctioned the said pay scale which was recommended by the Executive Engineer. Subsequently also, the General Administration Department (Finance Cell) in its letter dated 4-4-2005 (Document 6) addressed to the Water Resources Department and Public Works Depari:menVPublic Health Engineering Department informed that the State Government has neither accepted the recommendation nor granted revised pay sale for work charged contingent employees/Time Keepers i.e., writ petitioners. 18) The Divisional Joint Director, Treasury, Account and Pension in his letter dated 6-1-2006 (Annexure A/2) addressed to the Executive Engineer, PWD, Baloda Bazar, District Raipur, reads as under: "^r. cbi44id^ ^rrf^pfm cTt^ f^Frf^T ^T'RPT ^cft^T ciivjiK f^rar-^pT^ f^WT:-^T^T ^161^<^ ^ ^FT f^rf^T/^^RTPT ^T^T ^ll-l4l^ ^^T ^iqiel^ ^ ^ll^ll^l^ (^qrqT.H^./OS ^.'T. ?TT?FT f^^ ^^YR ^rf ^ gr^T 13) ^f^tf-sm^T sTTir.^./esio/^T.in./t^if^ 29.12.2005 —00— ^PTRFfn ^T <bl^l[d^ ^ $TPT.^./772/'<H:.'^:.^T./^.1^T./05 f^TT^ 23.12.2005 ^ ^^T ^' ^^ t f^ ^tl-l4l^l '^J^f ^iqidq Rdltt^ ST^T ^TR^T 3TT^?T f^-Tf^ 23.09.2005 ^Tcf ^lgl^tfr ^ Rc||f^^ ^d-1J41-1 4500-125-7000/-~^t f^ ^TT^ ^ f^pf^T ^ ^rR^CT ^' ^RT f^TT ^TKIT t ^ ^TRFT £fKT 'WPT-^FPT 1T? vTpft 311^11^1^ "^TcT ^gl^l4)T ^ PlMI^I^ ^0-1*11-1 f^TT ^TRT 11 ^. ^a-i+ii'i 1 XTP^ ^d-l^ll-l 2 xjt^rft ^d-l^ll-l 3 ^: 87 ^d-t^I-1 4 ^TT: 90 ^a-1411-l 5 ^: 98 ^a-141l-1. JT'HT^fteT f^Tf^? 01-01-74 01.04.82 01.01.86 01.01.86 01.01.96 ^ ^a-i4ii-i 90-3-12^-4-140-5-170 445-10-575-15-635 775-12-955-14-1025-15-1100- 20-1200 825-15-900-20-1220 2750-70-3800-75-4400 .^•".'^^ '">; ^^^ 12 ^R RlRsld ^d-l^l-l ^ ^TcTRTT c|J^l|^ ^" 3?^ ^d-l^l-l ^.TT. ?TRR £TRT f^ ^TT^ ^ 3TT^?T TT^t 11 ^R1^:- ^^T I ^€t ^f'Wft^ ^^T ^ld4?, ^t^T-^^T T^f ^'?R ^wy (^.7T-)" Raju 19) In view of the foregoing and for the reasons mentioned hereinabove, no mandamus or direction may be issued to the State Government to fix a particular pay scale and make payment of the salary to the writ petitioners. Thus, the writ petition is dismissed. No order asto costs. Sd/- Satish K. Agnihotri Judge