S./ ^?5£S:uaT~Ft it Ti^^CQ^I^^£l^^k^^EDULE FTftFCOURT FEESACT 1870. BiS&iS, i&gS^: IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH REVIEW PETITION NO?-2- OF 2008 PETITIONERS : 1. RESPONDENTS ...^•'1 ^:^^-^z^ <>^ur...:-f^-@&"': ^•••-^1 6 O State of Chliattisgarh, through its Secretary, Department of Higher Education, D.K.S. Bhawan, Raipur (Chhattisgarh) Commissioner, Higher Education, Govemment of Chhattisgarh, Govemment Science College Campus, Hostel No. 4, Raipur (Chhattisgarh) Versus 2.. Prof. (Dr.) S. C. Shrivastava, aged about 62 years, S/o Shri Ram Pyarelal Shrivastava, Retired Professor (Economics), C.M. Dube, College, Bilaspur (Chhattisgarh) R/o 600/14 Vinoba Nagar, Bilaspur (Chhattisgarh) C. M. Dubey Shiksha Samiti, through Sanjay Dubey, working Chairman (since Bhagwat Dube, Chairman died), R/o SadarBazar, Bilaspur (Chhattisgarh) 3./Goveming Body, C.M. Dubey, College through its Secretary / ^l ' Prmcipal, C.M. Dube College, Bilaspur (Chhattisgarh) Principal, C.M. Dubey College, Link Road, Bilaspur APPLICATION FOR REVIEW OF THE ORDER'CATED 18.0172006 PASSED BY THIS HON'BLE COURT mWRIT PETITION N0. 2318 OF 2002 i} ^- '<? f\l 'k-'t -?r. ty •lf HIGItCOURT QF CHH^mSGARH AT BILASPUR REVIEW PETITION No. 22 of2008 PETITIONER8 State ofChhattisgarh & Another, •'^ r-^t^^' I, '• RESPONDENTS VERSUS Pro£(Dr.)S.C;Shrivastaya&Others. *<- Post forprQncn}ncementof6rdfeonitS>..dayofApril, 2011. ' A. <w Sa^^awuA judge ^^^^t^^S^ ^-^s^ E^<'1 ;-^1 HIGH COURT OFCHHATTISGARH ATBILASPUR REYIEW PETITION No. 22 of 2008 PETITIONERS RESPONDENTS State ofChhattisgarh & Another. VERSUS Prof. (Dr.) S.C.Shrivastava & Others, APPLICATION FOR REVIEW OF THE ORDER DATED 18.01.2006. PASSED DSI W.P. N0.2318 OF 2002 SB:Hon'bleShriSatishK.Asnihotri.J. Present: Shri Sushil Dubey, GovemmentAdvocateforthepetitioners. Shri B.P.Gupta, Adyocate forthe respondentNo. 1. Shri Rajeev SUrivastavawithShri Malay Shrivastava, Advocates for the respondentNo. 2 to 4. .J ,'- tf^ _ CDeliveredon!4.'>..day ofApril, 2011) c' - • .. ' : 1. By this petition, the petitioners seek review of the order dated 18.01.2006 passedby thisCourtinW.P. No. 2318/2002 (Pw/eMoy Dr. S.C.Shrivastava v, State of Chhattisgarh & Others) -whewm this Court directedthe review petitioners (the respondent No. 1 and 2 in the writ petition) {for short 'the State/respondents^ to release thepensionoftherespondentNo. 1 (petitioner therein) onthebasis of the revisgd pay scale and on the basis of certificate dated 23.7.2005, issued and sent by the respondent No. 2 to 4 herein (/o/- short 'the respondentNo. 3 to 5'). 2. The review petition was filed with a delay of 709 days. After hearing all the parties, delay was condoned by order dated 26.04.2010, subject to payment ofa sum ofRs. 10,000/- as costs. ^ :3- ' •i. /^ The facts, in nutshell, as projected by the Sfate/responddtitg-A-e that initially, the respondent No. 1 (writ petitioner) (for short 'the petitioner') had filed a writ petition being W.P. No. 2318/2002, praying, inter alia, the relief of releasing pension to him on the basis ofrevised pay scale. The said petition was heard aad decided by this Court vide order dated 18.01.2006 (Annexure D/l). Since there was no provisionoffilinga Writ Appeal, the State/petitioners filed a Special Leave Petition (Civil) No. 15834/2006 before the Supreme Court and the order dated 18.01.2006, passed by this Court was stayed vide order dated 17.11.2006 (Annexure D/2). In the meantime, provision to filea Writ Appeal came into force. A liberty was prayed before the Hon'ble Supreme Court for filmg a writ appeal, which was allowed. Accordmgly, a writ appeal being W.A. No. 192/2007 was filed, which was subsequently withdrawn with liberty to file a review petition. Thus, this petition. Shri Dubey, leamed Govemment Advocate appearing for the State/respondents would submit that the notification dated 21.09.1992 (AnnexureD/3) could not be brought to the notice of this Court, despite due diligence. The said notification goes contraryto the prayer madeby the petitipner in W.P. No. 2318/002 hecause as per the State policy, the aided private colleges had to fonn self finance scheme on the basis ofequal confribution ofthe employer and employee for payment ofgratuity, pension efc. In the writ petition, the respondent-college did not bring into the notice of this Court regarding the said circular. ^ Shri B.P.0upta, leamed counsel appearing for the petitiond(^0i(Id submit that in the instant case, the principle of estopple would apply which states that if a person has, by his declaration, act or omission, intentionally caused or permitted another person to belive a thing to be true and tb act upon such believe then that person cannot deny the truth of that thing. Thus, the State/reSpondents cannot be permitted to raise any other grounds against their own acts of admission, viz. the, C.P.F. contribution was sent and accepted by the State/respondents. Further, they approved the 5 Pay Commission scale to the private colleges applicable w.e.f. 01.01.1996. The State/respondents have fixed the pension of the petitioner. Shri Gupta would further contend that review carmot he treated as an appeal and no new grounds may be pennitted to be raised for coiisideration which were not available in fhe main petition. Shri Rajeev Shrivastava, leamed counsel appearing with Shri Malay Shrivastava, leamed counsel for the respondent No. 2 to 4 (respondent No. 3 to 5 in the writ petition) would submit that the State/respondents are seeking review of the order dated 18.01.2006, passed by this Court, on the basis of circular dated 21.09.1992, butitappears thatfhe same was not filed either before the writ court or before the appellate court. Thus, the present petition suffers from non-Gompliance of provisioris of Rule 90(1) of the High Court of Chhattisgarh Rules, 2007. ShriShrivastava would next submit that by virtue of this review petition, the State/respondents are seeking a &esh hearing ofthecase on a new iii .'fesfe'.sx g '^fiv^V^?- ^ ;)A&'6i;.^;^ fjs '^..'t-^ .9' ^ r»- ground which is impermissible in law. The order dated 18.0k20ff6 has considered all the points raised and argued in the course of hearing at length and there is no error apparent on the face ofthe v • .'•..' ..'..'• ' .'-.'•. record, thus, fhis review petition is not maintainable. So far as the circular dated 21.09.1992 is concemed, the same was issued as supplementary circularto theorder dafed 30.05.1992 passed by the Higher Education Department. 7. iHeard leamed counsel appearing for the pairties, perused fhe pleadings arid documenfs appended fherefo. 8. The review has been sought on the ground that the order dated 21.09.1992 (Annexure D/3) could not be made available wifh due diligence when the writ petition was heard. However, in view of the said order, the orderdafed 18,01.2006 passed in the writ petition, may be reviewed as the entire liability of grant ofpension is with the non-govemmental college, in the instant case, the respondent No. 3 to 5 ofthe writ petition. 9. Indisputably,thepetitionerretiredfromservicepn attainiiig the ageofsuperannuation&omtheTespondent-College on 31.01.2001 as Professor (Economics). Thereafter, vide communication dated 24.02.2001 (Annexure P/ll to W.P. No. 2318/20D2),the Principal of the respondent-eollege informed the Conunissioner, Higher Education, State of Chhattisgarh, giving the details of the entitlement: of 'the petitioner. The . StateA-espondents by conununicationdated 20.08.2001 (Annexure P/12) observed as under: ' !. • : . : • . : . : 1, .,->'" •^' •'/ . .;"• .'-^ ;/J^?^. -I si^.\' ^^Sff^^ °5S 'sss""! l. 'jSf A' •(20) Iglfcl^ld^' c^ 1cP? 5;1^RT cld-l'HM tf 1.1.96 tT ^T ^q ^T tl 3RT: ^T 'V^ ^ Wr^RT ffTT cld^'41'1 3700-5700 ^ 'PlqfRcT cb'iciicb^; i?i1<tid qi^g ^ imrf&ra' ^cn^r cisir ^ft ^PTR ^ grgw? arRra '^T'T ipTPT-'q^ ift •»v\'-i ^5^ ^?r ^i 'CT'ST srR^T ^FT ffwr-^ra' '??t 'PtErfR(T HT^q'T?[ ^ WaTTTcT^T 11 HTWT 4 'yf?T: »F?q??1^ T?tT 'trfstW gfRfT ^PT CTWT-T^ ^ft wsv 4 •(<31*i4 ?lTn i" 10. Thereafter, the Principal of the respondeHt-College, by letter dated 04.10,2001 (Annexure P/13) on the basis of calculation which was on the last pay drawn i.e. Rs. 3700-5700/, requested to settle the pension dispyte of fhe petitioner expeditiously as the C.P.F. amount deposited by fhe petitioner had already been sent to the Govenunent. The Deputy Director, (Finance), Office of the Commissioner, Higher Education Department, Raipur, sanctioned and sent the final report ofthe pension to the respondent-College on 16.01.2002 (AnnexureP/14) and a copy to the petitioner. Accordingly, a note was sent to the Manager, State Bank oflndia, Bilaspur and pensidn payment order was also passed by the State Govemment. 11. This Court, passed the order in the writ petition on the basis of certificatedated 23.07.2005 prepared by the respondent-College givmg detailed C.P.F. contribution of the petitioner. The order dated 21.09.1992 and a communication dated 30.05.1992 (Annexure D/4) sent by the Officer on Special Duty, Higher Education Department, addressed to the Secretary, M.P. Highei- Education Grants Comrmssipn, Bhopal, were not produced before this Court. Therein, it was observed that if the Commission was —sg,, '^\ •^•fS-^ .i!. '?h.. 'ift?^^ '"2--.»»:•'°°' /•' <rr^^^. .>' C-1, 6 planning to introduce the contributory provident fund for the pmpose of pension scheme, the amount of grant would not be increased. On the basis of the above communication, the State Govemment, by order dated 21.09.1992, decided that the teachers and employees of the aided private colleges will be entitled to the pension, grataity, family pension and commutation af par with the employees of the State Govemment w.e./ 01.04.1987. It was further clarified that to introduce the pension scheme, the State Govemment would not provide any additional grant. The pension scheme would be on the basis of contributory fund, CPF of the employees'and the contribution on the part ofthe employer. 12. The principle of estoppel would not be applicable in the case on hand as the relevant notification/order was not brought into the notice of the Court with due diligence and secondly, there was fixation ofpension but not a clear order from the State/respondents in respect of the payment either by the employer or the State Govemment. Thus, it is not necessary to deal with the several cases cited by thewritpetition insupport ofthis contention. 13. The issue in the review petition is whether on fhe basis ofmemo dated 21.09.1992 (AnnexureD/3) which has been brought to the notice ofthis Court mthe reYiewpetition, the State/respondents or the respondent No. 3 to 5 in the writ petition are liable to pay fhe pension ofthepetitioner on the basis ofrevised pay scale. There is no review sought by eitherparty witU regard to payment ofpension on the basis ofrevised pay scale on the basis of certificate dated 23.7.2005. : ...-a^. "», A-.,.;'5??' ^ .-^" A ^i 14. On perusal of the entire correspondences and in theMi^ft of memo/order dated 21.09.1992, wherein it was stated that it was for the aided resFondent-College to pay the pension. No document has been produced either in the writ petition or thereafter to establish contrary to the memo/order dated 21.09.1992. 15. Furfher, it is clear that it is the responsibility of the respondent- College, to pay fhe pension on the basis of revised pay scale as settled by the State Goyernment in the above stated communication. The respondent No. 3 to 5 may request the State/respondents to refund the C.P.F. and any other amount whatever is permissible in law. However, the petitioner cannot be denied the benefits of pension as ordered in the order dated- 18.01.2006, passed in the writ petition. 16. In view of the foregoing, para 4 ofthe order dated 18.01.2006 -(Annexure D/l) passed in W.P. No. 2318/2002 is modified to the extent that the respondent No. 3 to 5 shall release the pensionof the petitioner at the earliest. Further, para 6 of the aforesaid order stands deleted. 17. The review petition is accordingly allowedto the extent indicated above. i Sd/- SatishK.Agnihotri Judge Aniit &„.