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GAUHATI HIGH COURT
H.K.Sema, P.K.Ghosh, JJ.
Haobam Sunil Singh -Appellant
Versus
State of Manipur and Ors. -Respondent
Civil Rule No. 62 of 1994
Decided On : 09-03-1995
REVIEW - LIMITATION - DELAY IN FILING REVIEW PETITION - LACHES OR NEGLIGENCE - THIRD PARTY - LOCUS STANDI TO FILE REVIEW APPLICATION - POWER OF REVIEW - DISCOVERY OF NEW AND IMPORTANT MATTER OR EVIDENCE - MISTAKE OR ERROR APPARENT ON THE FACE OF THE RECORD - MISCARRIAGE OF JUSTICE - GRAVE AND PALPABLE ERRONEOUS COMMITTED BY THE COURT - SENIORITY OF AD-HOC APPOINTEE - REGULARISATION WITH RETROSPECTIVE EFFECT - GUIDELINE AND INSTRUCTION LAID DOWN BY THE COURT - QUASHING OF IMPUGNED ORDER.
Fact of the Case:
The review applicant, who was not a party to the writ proceeding, filed a review application challenging the judgment of the High Court which allowed the writ petitioner (respondent No.3), an ad-hoc appointee, to count the benefit of the entire period of service for pay, increment, seniority, pension, and other pensionary benefits while directing retrospective regularization.
Finding of the Court:
The High Court held that the review application was not barred by limitation as the review applicant was diligently prosecuting his case in a wrong forum and there was no laches or negligence on his part. The court also held that the review applicant had locus standi to file the review application even though he was not a party to the writ proceeding. The court further held that the power of review could be exercised to prevent miscarriage of justice or to correct grave and palpable erroneous committed by the court.
Issues: 1. Whether the review application was barred by limitation? 2. Whether the review applicant, being a third party, had the right to file a review application? 3. Whether the power of review could be exercised in the present case?
Ratio Decidendi: 1. The court held that the review application was not barred by limitation as the review applicant was diligently prosecuting his case in a wrong forum and there was no laches or negligence on his part. 2. The court held that the review applicant had locus standi to file the review application even though he was not a party to the writ proceeding. 3. The court held that the power of review could be exercised in the present case to prevent miscarriage of justice or to correct grave and palpable erroneous committed by the court.
Final Decision: The High Court reviewed its judgment and order dated 20.8.90 to the extent that the seniority of the writ petitioner (respondent No.3 herein) vis a vis the review applicant shall be determined in accordance with the guideline and instruction laid down from time to time in this regard. The court also quashed the impugned order dated 19.11.94.
Subject: Power of review under Article 226 of the Constitution of India, including limitation, locus standi of third parties, and grounds such as discovery of new evidence, error apparent on the face of the record, miscarriage of justice, or grave palpable errors. (!) (!) [14000160190003] (!) (!)
Facts: The review applicant, a senior ad-hoc appointee not party to the original writ proceedings (Civil Rule No. 1054/1989, decided 20.08.1990), challenged the High Court's judgment directing retrospective regularization of respondent No. 3 (another ad-hoc appointee) with benefits including pay, increment, seniority, and pensionary benefits. This allegedly allowed respondent No. 3 to supersede the review applicant in seniority. (!) [14000160190002][14000160190016] (!) [14000160190003][14000160190004]
Issues: 1. Whether the review application was barred by limitation (filed 13.12.1994 against 20.08.1990 order). (!) [14000160190005] (!) 2. Whether a third party (non-party to writ) has locus standi to file review. (!) [14000160190007] 3. Whether review power could be exercised (e.g., no new evidence or apparent error claimed).[14000160190003][14000160190009]
Court's Findings and Ratio: - Limitation: Not barred; review applicant diligently pursued remedies in wrong forums (Civil Rule Nos. 158/1992 and 1250/1994, disposed 29.11.1994 with liberty to approach appropriate bench). No laches or negligence; Article 137 (3-year residuary limit) inapplicable due to circumstances.[14000160190005][14000160190006] (!) (!) (!) - Locus Standi: Third party aggrieved by judgment has right to seek review, even if not original party.[14000160190007][14000160190008] (!) - Power of Review: Exercisable to prevent miscarriage of justice or correct grave palpable errors, beyond mere new evidence or apparent errors. Original order erred in granting ad-hoc appointee (respondent No. 3) seniority from ad-hoc date retrospectively, contrary to principles that ad-hoc/stopgap service does not count for seniority unless regularized per rules. No grievance on regularization itself, only seniority vis-à-vis review applicant.[14000160190009][14000160190010] (!) [14000160190011][14000160190012][14000160190013] (!) (!) [14000160190014]
Final Decision: Review allowed; judgment dated 20.08.1990 reviewed/modified to direct seniority of respondent No. 3 vis-à-vis review applicant per relevant guidelines/instructions. Impugned order dated 19.11.1994 quashed. No costs.[14000160190014][14000160190015] (!)
This civil review arises out of Civil Rule No. 1054 of 1989 disposed of by a Division Bench of this Court on 20.8.1990. The Hon'ble Judges constituting the Bench are not now available in this Court and so the matter has been placed before this Bench for disposal.
2. We have heard Mr. Koteshwar Singh, learned counsel for the review applicant, Mr. A. Nilamani Singh, learned counsel for respondent No.3 and Mr. HS Poonam, counsel for the respondent No. 1.
3. By the aforesaid judgment, following the principles laid down by the Apex Court in Direct Recruitment of Class II Engineering Association vs. State of Maharashtra, (1990) 2 SCC 715 has allowed the writ petitioner (ad-hoc) to count the benefit of entire period of service for pay, increment, seniority, pension and other pensionary benefit, while directing retrospective regularisation. The operative portion of judgment runs as under :
"In the result, we allow the writ petition with the direction that the petitioner shall be given the benefit of regularisation from the date of his ad-hoc appointment provided it was continuous. In addition, we direct that if the ad-hoc appointment was made prior to attaining the qualifying service the regularisation shall be from the date of attaining the qualifying service.
Mr. Pramod Singh, learned Govt. Advocate has an apprehension that, if no post was available regularisation may create problem. We see no force in the above submission, inasmuch as, by giving retrospective effect to the order of regularisation, the petitioner shall be entitled to the benefit for pay i.e. increment, seniority, pension and other pensionary benefit, (emphasis supplied).
4. The review applicant was not made a party in the proceeding in Civil Rule No. 1054 of 1989. While admitting the review application on 14.12.94, this Court formulates two points for decision. They are :
"(1) Delay in filing the review petition.
(2) Whether the petitioner being third party has the right to file a review application in view of the judgment passed by the Supreme Court in the case of Ramchandra Ganpat Shinde & another, vs. State of Maharashtra and others reported in (1993) 3 SCJ 452."
5. The grievance of the review applicant in this review petition is that, the review application is senior to the writ petitioner made as respondent No.3 in this review application. However, while giving retrospective regularisation, the seniority has also been extended to the writ petitioner (respondent No.3) and thereby allowing the respondent No.3 to supersede the review applicant by his junior, in seniority.
6. We now advert to the point No.1, delay in filing the review petition. It is contended by Mr. A. Nilamani Singh that the present review application is barred by limitation inasmuch as the Civil Rule was disposed of on 20.8.90 and the review application was filed on 13.12.94. In this connection, it is contended by Mr. Nilamani Singh that, no period has been prescribed under the Limitation Act with regard to the writ jurisdiction. In such cases, Article 137 of the Limitation Act which is a residuary power is applicable which prescribes three years as period of limitation. In this connection. Mr. Nilamani Singh has referred to the decision of the Apex Court rendered in Kerala State Electricity Board, Trivandrum vs. TP Kunhaliumma, AIR 1977 SC 282, in which the Apex Court had held that:
"Any other application under Article 137 would be petition or any application under any Act. The Apex Court further held that:
"Article 137 stands in isolation from all other Article in Part 1 of the third division. Article 137 includes petitions within the word application."
These petitions and applications can be under any special Act."
Therefore, according to Mr. Nilamani Singh that the present review application is not maintainable being barred by Article 137 of the Limitation Act. According to him, the review application was filed after the expiry of three years.
7. We are unable to accept the submission made
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