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IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT AURANGABAD BENCH
Sunil P. Deshmukh, Vibha Kankanwadi, JJ.
Water and Land Management Institute – Appellant
Versus
Sudhakar Namdeo Gaikwad – Respondent
Review Application (Civil) No. 146 of 2019, 190 of 2019, 147 of 2019, 192 of 2019, 148 of 2019, 191 of 2019
Decided On : 05-09-2019
Code of Civil Procedure, 1908 - Section 114 - Order XLVII - Societies Registration Act – Employment and Services - challenging the Government Resolution – Jurisdiction - same ratio is reiterated in Vikram Singh alias Vicky Walia & another Vs. State of Punjab & another, (2017) 8 SCC 518, wherein it has been held that "Review cannot be made on those grounds which were already urged during appeal." In this case, the term "an error apparent on the face of the record" has been explained with the help of earlier pronouncement of the Honble Apex Court in Kamlesh Verma Vs. Mayawati, (2013) 8 SCC 320, wherein it was held that "an error which is not self-evident and has to be detected by a process of reasoning is not an error apparent on the face of the record." The ratio laid down in State of West Bengal & others Vs. Kamal Sengupta & another, (2008) 8 SCC 612 can be taken wherein it has been observed thus - At this stage, it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court earlier - Term "mistake or error apparent" by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision - A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions, entertained about it, a clear case of error apparent on the face of the record would be made out – Application dismissed
JUDGMENT :
Vibha Kankanwadi, J.
Present review petitions have been filed under Section 114 read with Order XLVII of the Code of Civil Procedure, 1908 for review of the judgment and order passed by this Court [Coram : R.M. Borde & Smt. Vibha Kankanwadi, JJ.] in Writ Petition No. 5236 of 2014, Writ Petition No. 8149 of 2013 and Writ Petition No. 748 of 2014, dated 20th July 2018. All these Writ Petitions were filed by the employees of Water & Land Management Institute, Aurangabad [For short, "WALMI"], who were aggrieved by the decision of the State Government in refusing to extend pensionary benefits to the retired employees of WALMI, which was communicated on 05-03-2013. They were also seeking directions to the respondents no.01 to 04 in the writ petitions, to grant monthly pension as provided under the Maharashtra Civil Services (Pension) Rules, 1982 and disbursement of the arrears of pension along with 12 % interest thereon.
2. Heard learned Additional Government Pleader Mr. S.B. Yawalkar appearing for the applicants viz. State of Maharashtra & its authorities. Heard learned Advocate Mr. S.V. Dixit appearing for the applicant viz. WALMI. So also, heard learned Advocate Mr. Pradeep Deshmukh appearing for the nonapplicants viz. petitioners in writ petitions.
3. It has been vehemently submitted on behalf of the applicants in all the review applications, that this Court did not consider that the said rules Maharashtra Civil Services (Pension) Rules, 1982 [For short, "MCSP Rules"] were not applicable to the employees of WALMI. That decision which was communicated on 05-03-2013 was based upon policy decision taken by the State Government in the year 1998 itself and at that time, that policy decision was not challenged at all by any of the respondents. There was error on the face of the record in not considering that there was no challenge to the Government Resolution dated 08-11-2005 issued by the State Government, by which policy decision was taken not to extend benefit of MCSP Rules to autonomous bodies like WALMI. The net result in not challenging the Government Resolution dated 08-11-2005 and the policy decision taken in the year 1998 had affected the ultimate decision of the writ petition and they ought to have been dismissed at the threshold itself. It was also considered that WALMI was registered under Societies Registration Act and it was a separate legal entity than the State Government. The employees were then governed under the Employees' Provident Fund Act and they had not adopted MCSP Rules. The other Government Resolutions dated 19-07-2011 and subsequent thereto were not considered. A fact was highlighted that WALMI is receiving grant in aid from the State Government and therefore, in the decision in all the writ petitions, comparison was made with the educational institutions which were imparting education to which MCSP Rules were made applicable. But the fact which was not considered is that though the grant in aid was given by the State Government, still the services of its employees were never considered as public servant or they were never employees of the State Government. WALMI is an autonomous body and therefore, unless rules would have prescribed for providing pension to its employees, there was no scope to make MCSP Rules applicable to them. The various communications between the Government and WALMI were not considered. While pronouncing the judgment, the Court ought to have considered that other autonomous institutions which were receiving grant in aid from the Government and also covered under the contributory provident fund scheme, such as MHADA, Maharashtra State Electricity Board, Tilak Maharashtra Vidyapeeth, Dr. Babasaheb Ambedkar High School, Mahatma Gandhi Memorial Hospital, Health Science University, Remand Home operated by recognized aided non-governmental institutions, Maharashtra Pollution Control Board were also demanding application of the pension scheme. However, as a policy decision, the Govern
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