Central Administrative Tribunal - Ernakulam
Jatinder Kumar (Mes No. 315467) vs Union Of India on 22 September, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH Original Application No. 625 of 2009 Tuesday, this the 22nd day of September, 2009. CORAM: HON'BLE Dr. K.B.S. RAJAN, JUDICIAL MEMBER HON'BLE MR. K GEORGE JOSEPH, ADMINISTRATIVE MEMBER 1. Jatinder Kumar (MES No. 315467) S/o. Shri Satish Kumar, Aged about 41 years, O/o. GE (I), NW, North, Katari Bagh, Kochi, Kerala. 2. G.S. Tomar (MES No. 315615), S/o. Shri J.S. Tomar, Aged about 42 years, O/o. GE(P) No. 1, Naval Academy Project, Ezhimala, Kerala ... Applicants. (By Advocates Mr. A.K. Behara & Mr. P.K. Madhusoodhanan) v e r s u s 1. Union of India, through The Secretary, Government of India, Ministry of Defence, South Block, New Delhi : 110 001 2. The Engineer-in-Chief (MES), Army Headquarter, Kashmir House, New Delhi. 3. MES No. 425242, Vijender Kumar, Working in the Office of E-in-C's Branch, Delhi. 4. MES No. 314802, Sanjeev Vashisht, Working in the Office of Garrison Engineer, Dapper (Punjab) 5. MES No. 315124, Shriom Arya, Working in the Office of Garrison Engineer, Bikaner, Rajasthan 6. MES No. 315340, Raj Kumar, C/o. Garrison Engineer (North), Ambala, Haryana 7. MES No. 314904, Mr. Tek Chand Goel, C/o. Garrison Engineer (South), Ambala, Haryana ... Respondents. (By Advocate Mr. Sunil Jose, ACGSC) The Original Application having been heard on 14.09.09, this Tribunal on 22.09.09 delivered the following : O R D E R
HON'BLE DR. K B S RAJAN, JUDICIAL MEMBER The applicants have challenged a judicial order i.e. order dated 6th July, 2006, of the Chandigarh Bench of the Central Administrative Tribunal in OA No. 644-PB/2005 (Annexure A-1) whereby the holding of D.P.C for promotion from the post of Superintendent Gr. II to Gr.I for the years 1995-96 upto April 2001 was 'desired' by the said Chandigarh Bench of the C.A.T. The very first legal issue that would arise is whether such a challenge of a judicial order of one Bench of the CAT before another Bench is at all maintainable.
2. Though the question of maintainability is to be addressed, a vignette of the facts of the case would be appropriate at the very outset. The same is as hereinafter narrated.
3. The two graduate applicants in this OA commenced their services in the Military Engineering Services (MES) as Superintendent Gr. II in early nineties. The ladder of hierarchy at that time was Superintendent Gr. I, Assistant Engineer etc., In the wake of Annexure A-7 order dated 31st March, 1995, of the Bangalore Bench of the CAT in OA Nos. 1337/94 and 1364-75/94 , the post of Superintendent Gr. I was rendered non-functional, with the result that the distinction between Gr. I and II was obliterated and Superintendent Gr. II with 5 years service were, independent of availability of vacancies in Gr. I and without any need to satisfy the conditions for promotion to that grade, afforded the pay scale attached to Superintendent Gr.I. Parity with the counterparts of CPWD was also ordered. SLP filed by the Respondents against the same stood dismissed vide order dated 08-04-1996 at Annexure A-9. Consequently, necessary administrative orders on the lines of the order of the Bangalore Bench had been issued, vide Annexure A-10 order dated 25th April 1996. Redesignation as Junior Engineers, of the post of Superintendent, effective from 09-07-1999 comparable with that of CPWD had also been made, vide Annexure A-12, which later on had also been afforded statutory sanction vide Annexure A-13 notification. Panel for Asst. Engineers for the years 2001-02 to 2004-05 in accordance with the above notification had been prepared, vide Annexure A-14 series. Promotion for the year 2004-05 vide panel dated 20th January 2005 was based on seniority list prepared in July 2004, vide Annexure A-20.
4. The applicants in this OA and three more, whose names did not figure in the 2004-05 panel of 20th January 2005 (Annexure A-14 series) moved the Principal Bench of the C.A.T. seeking review DPC for the said year and consideration of their names in the Review DPC. It had been partly allowed, vide order dated 10th March 2006 in OA 1124/2005 at Annexure A-15. The said order was based on a decision by the Chandigarh Bench of the Tribunal in OA No. 339-HR/2004 (Chand Singh vs UOI and others) vide Annexure A-16 order dated 03-02-2005, (which was upheld by the High Court of Punjab and Haryana vide recent Judgment in SWP 172/2005 dated 02.03.09.) While so, the official respondents had vide Annexure A-24 order dated 28-02-2006, proposed to hold a proforma DPC for promotion from erstwhile Superintendent Gr. II to Gr. 1 for the years 1995-96 to 97-98 and one affected individual filed OA No. 752/06 before the Principal Bench, challenging the said order. However, as the said order dated 28th February 2006 was cancelled, the said OA was rendered infructuous, vide Annexure A-33 order dated 1st July 2007.
5. So far so good. However, vide Annexure A-27, OA No. 644/2005 was filed before the Chandigarh Bench by certain Junior Engineers against a seniority list of 2005, on the ground that the private respondents therein had been given undue seniority above them. (The applicants herein are not parties in this OA). While disposing of this OA, granting liberty to the applicants to file representation before the authorities, who shall consider the same and finalize the seniority list, the Chandigarh Bench vide Order dated 6th July 2006 at Annexure A-1 recorded the following:
"We recognize that the applicants and similarly placed other persons have a valid grievance that from 1995-96 onwards no person from the category of Supdt. Gr.II has been either considered or promoted to Gr. I. This has resulted in double loss to them as they have been denied their promotion to Gr. I and they cannot be considered as Gr. I till notification of rules at Annexure A-1. Even though such a case is not before us, but we put on record that it will be desirable that the respondents consider holding of DPCs in accordance with the rules and the law for considering persons who were Supdts. Gr. II and grant them promotions with retrospective dates from the date such a promotion would have become due to them considering their seniority and availability of vacancies of Gr. I from time to time, upto April 2001. That would also help them in refixation of their seniority after their placement in Gr. I."
6. Review filed by the official respondents against the same came to be dismissed vide Annexure A-29. Department consciously decided (after consulting the Legal Adviser) to file writ petition, vide Annexure A-30 and filed too, along with an application for stay of the impugned order, vide Annexure A 34.
7. While so, some of the individuals who are diploma holders, not parties in the OA 1124/05 filed by the applicants herein, before the Principal Bench, filed OA No. 2105/2007, impleading the applicants herein (as well as in OA No. 1124/2005) as party respondents, challenging the promotion granted to these party respondents and certain others. This OA came to be dismissed, vide Order dated 26th May 2008 at Annexure A-2, against which Civil Writ Petition No. 4462/2008 was filed before the High Court of Delhi. At the time of hearing, the official respondents who had hitherto resisted the case, had 'taken a somersault' and supported the case of the petitioners before the High Court. However, the High Court went by the stand taken by the official respondents before the Tribunal and ultimately dismissed the writ petition vide Judgment dated 3rd July 2009, at Annexure A-40.
8. In so far as the writ petition pending before the High Court of Chandigarh, the writ petitioners (official respondents before the Tribunal) proposed to administratively issue promotion panels for the post of Grade I from the year 1995-99 purportedly admitting anomalous situation that had occurred on account of non-promotion of Superintendent Gr. II to Gr. I during the period 1995-2001, causing discrimination vis-a-vis direct recruits. On the aforesaid proposal having been placed before the High Court, the writ petition was dismissed with a modification that the drill of holding DPC would be for the period from 1995-99 instead of upto 2001. Annexure A-38 order dated 5th September, 2009 refers. It is pertinent to mention that the fact that the writ petition filed by the diploma holders before the High Court of Delhi was taken judicial note of in the afore said judgment of the High Court of Punjab & Haryana.
9. The applicants herein, surprised over sudden change in the stand taken by the official respondents, obtained through RTI certain details, which revealed that the written submission placed before the High Court was not prepared in consultation with the L.A. (Annexure A-37 series refers).
10. The applicants apprehend that the order of the Chandigarh Bench of the Tribunal (Annexure A-1) if implemented, would result in their reversion. They have, therefore, filed this OA before this Bench (as the applicants are serving within the territory of Kerala), on various grounds as contained in para 5 of the OA and have sought the following reliefs:
(i) Declare that the impugned portion of the judgement/order of Chandigarh Bench in OA No. 644-PB of 2005 and connected O.As is not a good law and is to be ignored.
(ii) Declare that the view expressed by the Principal Bench in O.A. No. 2105/2007 and connected O.As to the effect that it is unworkable to hold any DPC retrospectively from the year 1995-96 onwards for promotion to erstwhile Superintendent Grade-I is the correct view and is liable to be implemented and binding on the official respondents as well as All India MES Civilian Engineers Association;
(iii) Quash and set aside the change of stand by instruction of the official respondents filed before the Hon'ble Punjab and Haryana High Court;
(iv) Declare that the applicants have been lawfully promoted as Assistant Engineers (Civil) in pursuance to the direction of the Court and hence are not liable to be affected by any other decision where they were not parties.
(v) Direct the respondents to give the applicants all consequential benefits.
11. While the above sequence of events has been presented with perspicacity by Shri A.L. Behra, learned arguing counsel for the applicant, learned counsel for the respondents, Shri Sunil Jose, with terse sufficiency, straightaway raised the issue of maintainability of the OA as the challenge is not against an administrative order but a judicial order of a coordinate Bench. He has submitted that this Bench cannot sit on appeal over order of another coordinate Bench of the Tribunal.
12. Thus it becomes absolutely essential to address as to the maintainability of the OA as the challenge is against the judicial order of another Bench of the Tribunal.
13 Counsel for the applicant has, on the issue of maintainability argued that as the applicants were not party before the Chandigarh Bench of the Tribunal in the OA No. 644/2005 and serving in the Kerala State, they could challenge the order of the Tribunal at this Bench. Such a challenge of a judicial order could be made before the Tribunal and in this regard reliance had been placed on the decision by the Apex Court in the case of K. Ajit Babu vs Union of India, (1997) 6 SCC 473, and Gopabandhu Biswal v. Krishna Chandra Mohanty, (1998) 4 SCC 447. Counsel for the applicant has made available a copy of order dated 24.04.2007 in Writ Petition (C) No. 14040-48 of 2006 wherein Hon'ble High Court of Delhi has observed as under:
" Keeping in view the principle enunciated in K. Ajit Babu vs. Union of India & Ors., 1997 (6) SCC 473, in our view, the petitioners should approach the Tribunal with an application under Section 19 or review as advised, for redressal of their grievances. The present petition is permitted to be withdrawn and is dismissed as withdrawn. Petitioners are given liberty to approach the Tribunal within two weeks and for a period of two weeks, interim protection granted in this writ petition shall continue."
14. Before going into the authorities relied upon by the counsel for the applicant, a look at Section 19 of the Administrative Tribunals Act is apt at this juncture. The said section reads as under:
"19. Applications to Tribunals: (1) Subject to the other provisions of this Act, a person aggrieved by any order pertaining to any matter within the jurisdiction of a Tribunal may make an application to the Tribunal for the redressal of his grievances.
EXPLANATION.-For the purpose of this sub-section, "order"
means an order made
(a) by the Government or a local or other authority within the territory of India or under the control of the Government of India or by any Corporation or Society owned or controlled by the Government; or
(b) by an officer, committee or other body or agency of the Government or a local or other authority or Corporation of Society referred to in Clause (a).
(2) ........
(3) .......
(4) ........
20. Applications not to be admitted unless other remedies exhausted:
(1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances.
" (2) For the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances,-
(a) if a final order has been made by the government or otherauthority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with thegrievance; or
(b) where no final order has been made by the government orother authority or officer or other person competent to passsuch order with regard to the appeal preferred or representation made by such person, if a period of six monthsfrom the date on which such appeal was preferred or representation was made has expired.
(3) For the purposes of sub-sections (1) and (2), any remedy availableto an applicant by way of submission of a memorial to the President or the Governor of a State or to any other functionary shall not bedeemed to be one of the remedies which are available unless the applicant had elected to submit such memorial."
15. The definition of the term "order" is not inclusive and does not cover a judicial order. Again, exhaustion of available remedies is one of the conditions as specified in Section 20 of the Act. It is trite law that a judicial order has remedy of appeal.
16. Now a few decisions of the Apex Court over challenge to a judicial order may be referred to. While considering the scope of challenging a judicial order by a person who was not party before the Court, a nine Judges Bench of the Apex Court in the case of Naresh Shridhar Mirajkar v. State of Maharashtra,(1966) 3 SCR 744 held as under:
"58. .... We have already seen that the impugned order was passed by the learned Judge after hearing the parties and it was passed presumably because he was satisfied that the ends of justice required that Mr Goda should be given protection by prohibiting the publication of his evidence in the newspapers during the course of the trial. This matter was directly related to the trial of the suit; and in exercise of his inherent power, the learned Judge made the order in the interests of justice. The order in one sense is inter-partes, because it was passed after hearing arguments on both the sides. In another sense, it is not inter-partes inasmuch as it prohibits strangers like the petitioners from publishing Mr Goda's evidence in the newspapers. In fact, an order of this kind would always be passed after hearing parties before the Court and would in every case affect the right of strangers like the petitioners who, as Journalists, are interested in publishing court proceedings in newspapers. Can it be said that there is such a difference between normal orders passed inter-partes in judicial proceedings, and the present order that it should be open to the strangers who are affected by the order to move this Court under Article 32. The order, no doubt, binds the strangers; but, nevertheless, it is a judicial order and a person aggrieved by it, though a stranger, can move this Court by appeal under Article 136 of the Constitution. Principles of res judicata have been applied by this Court in dealing with petitions filed before this Court under Article 32 in Daryao v. State of U.P. We apprehend that somewhat similar considerations would apply to the present proceedings. If a judicial order like the one with which we are concerned in the present proceedings made by the High Court binds strangers, the strangers may challenge the order by taking appropriate proceedings in appeal under Article 136. It would, however, not be open to them to invoke the jurisdiction of this Court under Article 32 and contend that a writ of certiorari should be issued in respect of it. The impugned order is passed in exercise of the inherent jurisdiction of the Court and its validity is not open to be challenged by writ proceedings."
17. In Surya Dev Rai v. Ram Chander Rai,(2003) 6 SCC 675, the Apex Court has held as under:
"18. Naresh Shridhar Mirajkar case was cited before the Constitution Bench in Rupa Ashok Hurra case and considered. It has been clearly held: (i) that it is a well-settled principle that the technicalities associated with the prerogative writs in English law have no role to play under our constitutional scheme; (ii) that a writ of certiorari to call for records and examine the same for passing appropriate orders, is issued by a superior court to an inferior court which certifies its records for examination; and (iii) that a High Court cannot issue a writ to another High Court, nor can one Bench of a High Court issue a writ to a different Bench of the High Court; much less can the writ jurisdiction of a High Court be invoked to seek issuance of a writ of certiorari to the Supreme Court. The High Courts are not constituted as inferior courts in our constitutional scheme.
19. Thus, there is no manner of doubt that the orders and proceedings of a judicial court subordinate to the High Court are amenable to writ jurisdiction of the High Court under Article 226 of the Constitution.
18. In the case of L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 the Apex Court specifically stated, "All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Courts. We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted."(Emphasis supplied).
19. Challenge against a judicial order passed by one Bench before another Bench cannot be before the court of first instance. Appeal against a judicial order is certainly legal as held by the Apex Court in the above cases.
20. Now a look at the decisions relied upon by the counsel for the applicant.
21. In K. Ajit Babu vs Union of India (supra), the facts are that the establishment of the Chief Controller of Imports and Exports has four separate zones, and employees of each zone have combined seniority list. The seniority lists are maintained cadrewise. Some of the officers promoted and transferred to new offices were reluctant to join in the new place of posting and as such, since the year 1978 a policy was adopted and officers who gave their options to go out to new place of posting on promotion were given promotions in preference to the claims of their seniors. In 1983, one P.S. John and others filed a case before the Gujarat High Court (which was later transferred to C.A.T as TA No. 263/86) alleging that no option was asked from them. The Tribunal by its judgment dated 14-8-1987 held that the orders conferring regular promotions on such promotees cannot be upheld insofar as it affects the seniority of those who have not given their options. Respondents prepared and circulated four draft seniority lists inviting objections, if any. Subsequently, a number of review petitions were filed for reviewing the judgment given by the Tribunal in TA No. 263 of 1986, but the said applications were rejected. After the review petitions were rejected, the present appellants (Ajit Babu and others) filed an application under Section 19 of the Act before the Central Administrative Tribunal, Gujarat, at Ahmedabad. Relying upon a Full Bench decision of the Tribunal, in John Lucas v. Addl. Chief Mechanical Engineer, S.C. Rly. the Tribunal held that the persons who were not a party to a decision but are affected by the decision of the Tribunal are not entitled to file an application under Section 19 of the Act, but can only file a review petition seeking review of the decision adversely affecting them. Consequently the appellants' application was rejected summarily. The appellants challenged the aforesaid order before the Apex Court.
The Apex Court has held as under:
"The appellant has challenged the impugned seniority list prepared on the basis of the decision rendered by the Central Administrative Tribunal, Ahmedabad in Transfer Application No. 263of 1986 dated 14-8-1987, by means of an application under Section 19of the Act wherein there was no prayer for setting aside the judgmentdated 14-8-1987 of the Administrative Tribunal. It is true that the judgment given by the Central Administrative Tribunal, Ahmedabad inTA No. 263 of 1986 would have come in the way of the appellant.Often in service matters the judgments rendered either by the Tribunalor by the Court also affect other persons, who are not parties to thecases. It may help one class of employees and at the same timeadversely affect another class of employees. In such circumstancesthe judgments of the courts or the tribunals may not be strictlyjudgments in personam affecting only the parties to the cases, theywould be judgments in rem. In such a situation, the question arises: What remedy is available to such affected persons who are not partiesto a case, yet the decision in such a case adversely affects their rightsin the matter of their seniority. In the present case, the view taken bythe Tribunal is that the only remedy available to the affected persons isto file a review of the judgment which affects them and not to file afresh application under Section 19 of the Act. Section 22(3)(f) of theAct empowers the Tribunal to review its decisions. Rule 17 of theCentral Administrative Tribunal (Procedure) Rules (hereinafter referred to as "the Rules") provides that no application for review shall be entertained unless it is filed within 30 days from the date of receipt ofthe copy of the order sought to be reviewed. Ordinarily, right of reviewis available only to those who are party to a case. However, even if wegive wider meaning to the expression "a person feeling aggrieved"
occurring in Section 22 of the Act whether such person aggrieved canseek review by opening the whole case has to be decided by theTribunal. (emphasis supplied) The right of review is not a right of appeal where all questions decidedare open to challenge. The right of review is possible only on limitedgrounds, mentioned in Order 47 of the Code of Civil Procedure.
Although strictly speaking Order 47 of the Code of Civil Procedure maynot be applicable to the tribunals but the principles contained thereinsurely have to be extended. Otherwise there being no limitation on thepower of review it would be an appeal and there would be no certaintyof finality of a decision. Besides that, the right of review is available ifsuch an application is filed within the period of limitation. The decision given by the Tribunal, unless reviewed or appealed against,attains finality. If such a power to review is permitted, no decision isfinal, as the decision would be subject to review at any time at theinstance of the party feeling adversely affected by the said decision. Aparty in whose favour a decision has been given cannot monitor thecase for all times to come. Public policy demands that there should bean end to law suits and if the view of the Tribunal is accepted theproceedings in a case will never come to an end. We, therefore, findthat a right of review is available to the aggrieved persons on restrictedground mentioned in Order 47 of the Code of Civil Procedure if filedwithin the period of limitation.
5. The Tribunal rejected the application of the appellant merely on theground that the appellant was seeking setting aside of the judgmentrendered by the Central Administrative Tribunal, Ahmedabad in the case of P.S. John (supra) in TA No. 263 of 1986. It is here that theTribunal apparently fell in error. No doubt the decision of the Tribunalin the case P.S. John was against the appellant but the applicationfiled by the appellant under Section 19 of the Act has to be dealt within accordance with law.
6. Consistency, certainty and uniformity in the field of judicial decisions are considered to be the benefits arising out of the "Doctrine of Precedent". The precedent sets a pattern upon which a future conductmay be based. One of the basic principles of administration of justiceis, that the cases should be decided alike. Thus the doctrine of precedent is applicable to the Central Administrative Tribunal also.Whenever an application under Section 19 of the Act is filed and thequestion involved in the said application stands concluded by someearlier decision of the Tribunal, the Tribunal necessarily has to takeinto account the judgment rendered in the earlier case, as a precedentand decide the application accordingly. The Tribunal may either agreewith the view taken in the earlier judgment or it may dissent. If itdissents, then the matter can be referred to a larger Bench/Full Benchand place the matter before the Chairman for constituting a largerBench so that there may be no conflict upon the two Benches. Thelarger Bench, then, has to consider the correctness of the earlier decision in disposing of the later application. The larger Bench canoverrule the view taken in the earlier judgment and declare the law,which would be binding on all the benches (see John Lucas.) In thepresent case, what we find is that the Tribunal rejected the applicationof the appellants thinking that the appellants are seeking setting asideof the decision of the Tribunal in Transfer Application No. 263 of 1986.
This view taken by the Tribunal was not correct. The application of theappellant was required to be decided in accordance with law.
(underlining supplied)
7. For the aforesaid reasons, the order of the Administrative Tribunal dated 14-8-1987 passed in OA No. 47 of 1990 is set aside and thecase is sent back to the Tribunal for decision on merits preferablywithin three months from the date of receipt of the copy of thejudgment. The appeal is allowed. There shall be no order as to costs.
22. In Gopabandhu Biswal v. Krishna Chandra Mohanty, (1998) 4 SCC 447 , the facts of the case are that Gopabandhu Biswal, was in military service prior to November 1972. After his release from military service, he was appointed as Assistant Commandant in the Orissa Military Police and was confirmed as Assistant Commandant with effect from 15-11-1975. He was not considered for promotion to the Indian Police Service (IPS) cadre because according to the respondents, only Deputy Superintendents of Police in the Orissa Police Force were eligible for promotion to the IPS cadre. He filed a writ petition in the Orissa High Court in 1982 praying for a writ of mandamus to consider him for promotion to the IPS cadre. The Central Administrative Tribunal, Cuttack Bench, to which his petition was transferred held that the post of Deputy Superintendent of Police and Assistant Commandant of the Orissa Military Police constituted a single cadre prior to 5-11-1980. His application was, therefore, allowed by the Central Administrative Tribunal by its judgment and order dated 24-12-1991. The Tribunal gave a direction that his case should be considered for promotion with effect from 1-1-1977 in respect of each year beginning therefrom till January 1980. The State of Orissa and two other respondents filed SLP (C) challenging the decision of the Tribunal which was dismissed by the Apex Court. One and a half years after the Tribunals decision one Shri Krishna Chandra Mohanty and Rajkishore Dash, who were in the Orissa State Police Service filed an application before the Central Administrative Tribunal at Cuttack which was subsequently converted into a review petition and numbered as RA No. 16 of 1993. These two respondents contended that the decision of the Tribunal that the cadres of Deputy Superintendents of Police and Assistant Commandants in the State Military Police constituted a single cadre in the Orissa Police Service till 4-11-1980 was incorrect. A similar Review Application No. 18 of 1993 was filed by two more, who were direct recruits to the cadre of Indian Police Service. At around the same time, three OAs were filed by three applicants who were, at the material time, Assistant Commandants in the Orissa Military Police praying for granting them the benefit of the decision of the Tribunal in TA No. 1 of 1989 for the purpose of promotion to the Indian Police Service.
23. These review petitions as well as applications were considered together by the Central Administrative Tribunal, Cuttack. The Tribunal by its impugned judgment dated 24-6-1994, reviewed its earlier judgment dated 2412-1991 in TA No. 1 of 1989 and held that the two cadres of Deputy Superintendent of Police and Assistant Commandant of Orissa Military Police are separate cadres from inception and that Assistant Commandants are not eligible for promotion to the Indian Police Service. The Tribunal has thereupon dismissed the application of the appellant, Gopabandhu Biswal, in TA No. 1 of 1989. It has also dismissed the three pending applications bearing. Appeals were filed from the impugned judgment of the Tribunal in the two review petitions as well as the three OAs.
The Apex Court has held as under:
"An appeal lies to this Court from a decision of the Administrative Tribunal. If an appeal is preferred, the power to review cannot be exercised. In the present case, a special leave petition to file an appeal was preferred from the judgment of the Tribunal in TA No. 1 of 1989 to this Court, and the special leave petition was rejected. As a result the order of the Tribunal in TA No. 1 of 1989 became final and binding. The rejection of a petition for leave to appeal under Article 136 of the Constitution, in effect, amounts to declining to entertain an appeal, thus making the judgment and order appealed against final and binding. Once a special leave petition is filed and rejected, the party cannot go back to the Tribunal to apply for review. In the case of State of Maharashtra v. Prabhakar Bhikaji Ingle this Court held that when a special leave petition from the order of the Tribunal was dismissed by a non-speaking order, the main orderwas confirmed by the Supreme Court. (emphasis supplied).
The Apex Court further held :
9. In the case of K. Ajit Babu v. Union of India to which one of us was a party, this Court examined Section 22(3)(f) of the Administrative Tribunals Act, 1985 and held that an application for review under that section attracts the principles contained in Order 47 Rule 1 of the Code of Civil Procedure. Therefore once an SLP is preferred and dismissed, review is not permissible. The same view has been taken by this Court in Raj Kumar Sharma v. Union of India.
The Court observed in that case that the Tribunal was in error in entertaining a review petition and allowing it after the special leave petition against its main judgment had been dismissed by this Court and the review petition filed in this Court against the dismissal of the special leave petition had also been dismissed. It was undisputed that the grounds on which the review was sought before the Tribunal was a ground taken in the special leave petition as well as in the review petition filed in this Court. In such a situation, to say the least, it was wholly inappropriate for the Tribunal to sit in judgment on the merits of this Court's order dismissing the special leave petition giving finality to the Tribunal's main order. In the present case, therefore, on the dismissal of the special leave petition by this Court, the judgment of the Tribunal in TA No. 1 of 1989 became final and binding as between the parties and the Tribunal had no power to review that judgment thereafter.
10. In the present case, however, it is urged that the four applicants who filed the two review petitions before the Tribunal were not parties to the main petition. They were also not parties to the special leave petition filed before this Court which was dismissed. However they are parties aggrieved and hence are entitled to apply for a review of the main judgment of the Tribunal. It is contended by them that the judgment of the Tribunal holding that the two cadres of Deputy Superintendent of Police and Assistant Commandant were a single cadre till 5-11-1980, has affected the chances of promotion of the applicants and, therefore, the applicants, being persons aggrieved, are entitled to maintain such review petitions when they had not been parties to the earlier judgment as well as the earlier special leave petition. We will assume for the time being that the applicants are persons aggrieved. Even so, the question is whether they can have a judgment which has attained finality by virtue of an order of this Court, set aside in review. There is no doubt that as between the parties to the main judgment, the judgment is final and binding. The respondents, State of Orissa and Union of India, are, therefore, bound to give effect to the judgment of the Tribunal in TA No. 1 of 1989 in the case of Gopabandhu Biswal. If this is so, can a third party by filing a review petition get that same judgment reviewed and obtain an order that Gopabandhu Biswal is not entitled to the benefits of the directions contained in the main judgment since that judgment is now set aside? In our view this is wholly impermissible. It will lead to reopening a matter which has attained finality by virtue of an order of this Court. The applicants, even if they are persons aggrieved, do not have, in the present case, a right of review under any part of Order 47 Rule 1. Even under Order 47 Rule 1(2), the party not appealing from a decree or order can apply for review only on grounds other than the grounds of appeal which were before the appellate court, and during the pendency of the appeal. In the present case all the grounds which were urged in review were, in fact, urged before the Tribunal at the time when the Tribunal decided the main application and they were also urged by the petitioner in the special leave petition which was filed before this Court. The special leave petition has been dismissed.
The same grounds cannot be again urged by way of a review petition by another party who was not a party in the main petition.
11. According to the applicants certain documents though produced before the Tribunal were not noticed by the Tribunal in deciding the main matter. Even so, once a judgment of a Tribunal has attained finality, it cannot be reopened after the special leave petition against that judgmenthas been dismissed. The only remedy for a person who wants tochallenge that judgment is to file a separate application beforethe Tribunal in his own case and persuade the Tribunal either torefer the question to a larger Bench or, if the Tribunal prefers tofollow its earlier decision, to file an appeal from the Tribunal'sjudgment and have the Tribunal's judgment set aside in appeal.
A review is not an available remedy. (emphasis supplied)
24. The Apex Court further held that in so far as the term "party aggrieved" to intervene either at the hearing before the Tribunal, or in appeal or for filing a review application is concerned, a person not directly affected cannot be so considered.
The Apex Court further held:
"If the Tribunal decides to follow its earlier judgment the respondents in these applications can file petitions for leave to appeal if they so desire; and any other person aggrieved may also, with the leave of the court, apply for special leave to file an appeal. In the event of the Tribunal coming to a conclusion that its earlier judgment requires reconsideration, the Tribunal can refer the question to a larger Bench. In either case the persons aggrieved can apply and intervene to put forward their point of view."
25. In the case of Rama Rao v. M.G. Maheshwara Rao,(2007) 14 SCC 54, in an application filed by some stenographers, the assistants or anyone that would be affected from that branch by an adjudication, were not impleaded in the proceeding. The Administrative Tribunal allowed the applications and quashed the Rules in part. Essentially, what the Administrative Tribunal did was to alter the qualifications provided for promotions in the cadre of stenographers by doing away with the higher qualifications prescribed. The striking down of the Rules was done by a Bench presided over by the Vice-Chairman of the Administrative Tribunal. Thereafter the Vice-Chairman proceeded to promote the stenographers on the basis of the qualifications prescribed by him on the judicial side. The assistants felt aggrieved by the promotions thus given. They, therefore, moved Applications Nos. 3585-92 of 1995 and other connected applications before the Administrative Tribunal challenging the decision of the Administrative Tribunal dated 6-7-1994 as also the promotions given to the respondents in those applications, the promoted stenographers. The Administrative Tribunal dismissed the applications. It was challenged by the assistants before the High Court in the writ petitions and The High Court, allowed the writ petitions in part holding that the Administrative Tribunal had no jurisdiction to alter the qualifications for promotions as it had done and since promotions were made on the basis of this unauthorised interference with the Rules prescribing qualifications for promotions, the promotions were bad. This was taken up before the Apex Court and the Apex Court has held as under:
The High Court referred to the decision in K. Ajit Babu v. Union of India to find that the proper procedure to be adopted by persons situated like the assistants in this case and who were not made parties to a prior decision which had effect on their career, was to move an application under Section 19 of the Act. In that decision, this Court noticed that even though the judgment of an Administrative Tribunal may only be a judgment in personam, occasionally, it could also operate as a judgment in rem and those affected by it had the right to approach the Tribunal again with an application under Section 19 of the Act when they are affected asa consequence of the earlier decision and are entitled to seek reconsideration of the view taken in the earlier decision. The High Court, following it, held that the assistants had the locus standi to move the application under Section 19 of the Act before the Tribunal and seek reconsideration of the earlier decision passed by it without notice to them and to show that the said order required reconsideration or that it was not a legal or a proper one. We see no reason not to accept the reasoning adopted by the High Court. After all, the assistants who were not impleaded in the earlier proceeding must have an avenue to ventilate their grievances. This Court has indicated that that avenue is an approach to the Tribunal and that was in a case in which the very same Act was involved. This Court had also pointed out what the Administrative Tribunal could do in such a situation. If this were not the position, the assistants would be able to say that since they were not parties to the earlier proceedings, they were not bound by it and they are entitled to ignore the decision therein and that the said decision cannot affect them since it would be a decision that is void in law for non-compliance with the rules of natural justice. There is, therefore, no grace in the submissions that the assistants could not have approached the Administrative Tribunal with their grievance and the Tribunal could not have considered their grievance or gone back on its earlier decision. We are in agreement with the approach made by the High Court and the conclusion arrived at by it and hence have no hesitation in overruling this contention. The argument that the jurisdiction of the High Court came to be recognised only later, cannot change the situation, since when the High Court entertained the writ petition it had the jurisdiction to do so and it had jurisdiction also to consider what was the effect of the earlier order or the proceeding before it and whether the earlier order was legal and justified in the context of the decision of this Court in Ajit Babu case. (emphasis supplied).
26. A perusal of the above decisions would go to show that in Ajit Babu, challenge was made to the seniority list prepared on the basis of a judgment and it is not the very judgment itself that has been assailed. In Gopabandhu Biswal, the ratio is that once a judgement has attained finality, then review at the court of first instance cannot lie. Again, the Apex Court has defined the term "party aggrieved" and held that it must be directly affected. In the case of Rama Rao, the Apex Court stated that it is only when a person is affected by a consequence of the judgment, could move the matter before the Tribunal. In the instant case, no order has been passed by the respondents in the wake of the order of the Tribunal impugned herein. Though the applicants apprehend that the immediate result of implementation of the order of the Tribunal would be reversion of the applicants, the same has not been explained or substantiated. It may be a distant astrology and not an imminent futurology! Unless there is a clear case that the applicants are affected by a consequential order passed in the wake of the impugned order, it cannot be said that the applicants fall within the meaning of the term "party aggrieved". The withdrawal of WPs 14040-48 of 2006 before Hon'ble High Court of Delhi and permission granted by the High Court to file application under Section 19 would only mean that when such an application is filed, the same shall be considered in accordance with law. The decision of the Tribunal in this regard is to be waited and watched.
27. To sum up, when a third party is affected by an order of the Tribunal, to move the Tribunal, there should be a consequential order in which event, the Tribunal would either follow the previous order or if differs, refer the matter to a larger Bench. In case, without waiting for such a consequential order, the third party wants to challenge the judicial order of the Tribunal, challenge before the High Court can be made by way of a writ petition. A review as per the provisions of Rule 17 of the CAT (Procedure) Rules, read with O. 47, Rule 1 of CPC would also be permissible, provided the order to be reviewed has not attained finality.
28. In view of the above, the OA impugning a judicial order of the coordinate Bench has to be rejected due to non-maintainability. We accordingly order so. We make it clear that though the facts have been narrated elaborately, we have not expressed any view on the merit of the matter.
29. No costs.
(Dated, the 22nd September, 2009) K. GEORGE JOSEPH Dr. K B S RAJAN ADMINISTRATIVE MEMBER JUDICIAL MEMBER cvr.