WRIT PETITION 2849/2011 on 13 December 1991

Conclusion

Heard Mr. P.N. Goswami, learned State Counsel and Mr. N. Dhar, learned counsel, representing the proforma respondent, who was the writ petition in WP(C)No.2849/2011.

Referring to the Annexure-D OM dated 24.07.2004, Mr. Goswami, learned State Counsel, submits that same being only prospective, there is error apparent on the face of the record in making the same operational to a loan that was obtained by the deceased husband of the writ petitioner in 2003. He submits that in 2003, the OM dated 13.12.1991 was in operation in partial modification of which the subsequent OM dated 24.07.2004 was issued, which however cannot have any retrospective effect.

Mr. Dhar, learned counsel for the proforma respondent submits that the respondents are not entitled to argue the matter in the garb of seeking review ofthe judgment under review. He has also referred to the judgment of the Apex Court reported in (2006) 4 SCC 78 (Haridas Das -vs- Usha Rani Bank (Smt) and Others), in which it was held that the High Court was not correct in holding that there was error apparent for the purpose of entertaining the review petition that was involved in the said proceeding. The said judgment was sin reference to the provisions of Civil Procedure Code.

Mr. P.N. Goswami, learned State Counsel submits that this Court exercising jurisdiction under Article 215 of the Constitution of India is entitled to correct the error which occurred in passing the impugned order.The order under review was passed in reference to the aforementioned OM dated 24.07.2004, by which it was provided that if the total claim of a family of the deceased Government servant is Rs.2,00,000/-, no adjustment would be made against outstanding Government loan and advance etc payable by the deceased Government servant and such outstanding dues should be written off by the Finance (Audit andFund) Department. The OM was made applicable with immediate effect meaning thereby with effect from the date of issuance of the same i.e. 24.07.2004. Prior to the said OM dated 13.12.1991, about which there is mention in the OM dated 24.07.2004, the limit of writing off/waiver was up to Rs.1,00,000/-. It is on this count, Mr. Goswami, learned counsel for the review petitioner submits that if on the basis of the OM dated 24.07.2004, the terms thereof are made applicable, thenin that case all the cases settled prior to issuance of the OM dated 24.07.2004will have to be reopened irrespective of the earlier OM dated 13.12.1991. He also submits that there will be unreasonable classifications among the same categories of employees.

From the above, the issue that has arisen for consideration is as to whether theOM dated 24.07.2004 can be made applicable in all past cases. As noted above, the deceased husband of the petitioner obtained the loan in 2003 when the earlierOM dated 13.12.1991 was in operation in terms of which in the event of total claim of a family of the deceased Government Servant on account of DCRG, ProvidentFund and Group Insurance together was Rs.1,00,000/- or less, no adjustment would be made against outstanding Government Loans and advanced etc. Both the OM’s i.e. OM dated 13.12.1991 and 24.07.2004 are per-materials in nature except the amount which is Rs.1,00,000/- in the OM dated 13.12.1991 and Rs.2,00,000/- in the OM dated 24.07.2004.

While discussing the factual aspects of the matter in reference to the OM dated 24.07.2004, however, it was not placed before the Court that the OM dated 24.07.2004 was in modification of the OM dated 13.12.1991 and was only prospective. Thus on the strength of the OM dated 24.07.2004, the past cases could not have been reopened, which were Governed by the earlier OM dated 13.12.1991.In view of the above, on a review of the earlier order dated 07.12.2012 by whichthe writ petition being WP(C) No.2849/2011 was disposed of, it is hereby provided that the case of the writ petitioner shall be Governed by the OM dated 13.12.1991.