Central Administrative Tribunal - Cuttack
Central Ground Water Board vs S K Dash on 7 December, 2022
1 R.A.No. 260/0011 of 2021
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
R.A.No. 260/0011 of 2021
Reserved on : 02.12.2022 Pronounced on: 07.12.2022
CORAM:
HON'BLE MR. SWARUP KUMAR MISHRA, MEMBER (J)
HON'BLE MR. PRAMOD KUMAR DAS, MEMBER (A)
The Regional Director, Central Ground Water Board,
South Eastern Region, Bhujal Bhawan, Khandagiri,
Bhubaneswar.
.....Review Applicant
For the Applicant : Mr. Satyabrat Mohanty, Counsel
-Versus-
Santanu Kumar Das, aged about 52 years, S/o Late
Swapneswar Dash, At LIV 140, Dumuduma Housing
Board Colony, H-4 Bhubaneswar at present working
as Upper Division Clerk Office of the Regional
Director, Central Ground Water Board, South
Eastern Region, Khandagiri, Bhubaneswar, Pin -
751030.
.....Review Respondent
For the Respondents: Mr. J.M.Patnaik, Counsel
ORDER
Swarup Kumar Mishra, Member (J):
Before dealing with the review application, for the sake of clarity, it is felt necessary to record little bit background of the case, which is that applicant filed OA No. 33/2016 seeking the following relief: 2 R.A.No. 260/0011 of 2021
"Under the circumstances, the applicant prays that the Hon'ble Tribunal may graciously be pleased to quash the decision taken in order dated 14th December, 2015 and communicated in letter dated 21.12.2015 (Annexure A/2); To quash the notification dated 12th October, 2015 (Annexure A/7) and direct the respondents to recalculate the vacancies taking into consideration the two vacancies occurred in the year 2013-14 and hold the selection for both SC/ST and OC candidates simultaneously."
2. Respondents filed counter contesting the case of the applicant and the applicant had also filed rejoinder. After giving full-fledged hearing in the matter, this Tribunal disposed of the O.A. vide order dated 31.01.2019 with the following observations and directions:
"9. From above averments, it would appear that it is necessary for the respondents to adjust three shortfall vacancies from reserved category which have arisen due to preparation of roster for reservation for LDCE quota posts from 1995 till 2015. Hence, all the vacancies of LDCE quota were notified to be from reserved category for the year 2015-16 by converting general category vacancies. There is no rule or instructions as to whether it is appropriate to convert all general vacancies available in one year to reserved category to make up the shortfall. Having allowed such a situation to emerge due to nonmaintenance of reservation roster register for LDCE quota from the year 1995, if it was decided by the respondents to make up the entire shortfall in one year i.e. 2015-16, then to that extent, the prospects of general candidates would be affected. In any case, the shortfall of remaining one reserved vacancy will have to be adjusted in subsequent year as stated in the impugned order dated 14.12.2015.
10. It is also noted that due to adjustment of two employees, who were qualified for promotion under DPC 3 R.A.No. 260/0011 of 2021 quota, among the candidates of LDCE 2009 as per the Court's order, there were two vacancies available from DPC quota and two excess candidates under LDCE quota. Two excess posts under LDCE quota were adjusted against two general vacancies for the year 2013-14 as stated in the impugned order dated 14.12.2015 (Annexure-A/2).
11. We also take note of the fact that the applicant has not furnished any rules or the guidelines of Government in support of his contention that the general category post cannot be converted to reserved category in case of previous shortfall of the candidates belonging to the reserved category. But to 5 allow fair chance to all categories of candidates, it will be appropriate to adjust one shortfall of reserved vacancy out of two vacancies in the year 2015-16 and adjust two shortfall reserved category vacancies in subsequent years in place of one. Learned counsel for the applicant has submitted a written note of argument, broadly reiterating the stand taken in the OA and citing the judgments in a number of cases. But how these cited cases are similar to the facts of the present OA has not been mentioned in the written notes.
12. In view of the above, we quash the impugned order dated 14.12.2015 and remit the matter to the respondents to modify the notification dated 12.10.2015 for Assistants by notifying one general category post out of two posts for 2015-16 and to adjust two carried over shortfall vacancies in reserved category in subsequent years and to simultaneously take steps to notify the vacancies under LDCE quota for the years subsequent to 2015-16, i.e. for 2016-17, 2017-18 and 2018-19 (if not done already), based on the estimated/projected vacancy for the respective years for the post of Assistant, after adjusting the two shortfall reserved category vacancies that would be carried over after adjustment of one shortfall of reserved category post in 2015- 16 as above. The respondents will be at liberty to proceed with the notification dated 12.10.2015 for filling up vacancy for 4 R.A.No. 260/0011 of 2021 2015-16 after suitable modification as mentioned above. The applicant will be at liberty to apply for the post notified if he is eligible as per the terms and conditions of the notification for vacancy for Assistants under LDCE quota. This OA is allowed in part accordingly. There will be no order as to cost."
3. After expiry of more than five and half months from the date of order, on 17.06.2019, respondents department filed an application giving heading recall of order dated 31.01.2019 in OA No. 33/2016 without stating whether it is an MA or RA. The application was also not containing any prayer. However, the applicant filed an MA No. 581/2021 on 15.11.2021 for execution of the order dated 31.01.2019 under Section 27 of the AT Act. On 15.11.2021, the application which was filed by the respondents on 17.06.2019 was corrected as MA, which was numbered as MA 583/2021. While the matter was pending, after expiry of about 34 months from the date of order, the respondents filed the present RA No. 11/2021 seeking review of the order dated 31.01.2019 passed in OA 33/2016, i.e. without supported with an affidavit as required under Sub-rule 5 of Rule 17 of CAT (Procedure) Rules, 1987, or any application seeking condonation of delay, however, opportunity was allowed to the review respondents to file his reply if any to the said RA.
5 R.A.No. 260/0011 of 2021
4. It is not the case of the respondents that there was any error committed by this Tribunal in passing the final order dated 31.01.2019 requiring rectification through RA. Rather, it is seen that respondents have filed this RA seeking review of the order on the following grounds:
"7 That it is further humbly submitted here that on the recommendations of the 6th CPC, the pay scale of Rs. 5000-8000 and 5500-9000 had been merged, upgraded in the pay scale of Rs. 6500-10500/- and placed in one identical revised scale of Rs. 9300-34800 with Grade Pay Rs. 4200/-. The post of Assistant was carrying the pay scale of Rs. 5000-8000 and office Superintendent Rs. 5500-9000. The pay scale of both posts merged upgraded and placed in one Grade pay Rs. 4200/-. Therefore, the proposal for amendment in R/Rules of Assistant and Office Superintendent in merging post of Office Superintendent was sent to the Ministry on 1.7.2009. After exchange of lot of correspondence amongst CGWB, MOWR, DOPT DOLA, UPSC etc. the R/Rules have been amended on dtd. 26.4.2017.
8. That the recruitment Rules for the post of Office Superintendent had been notified vide GSR No- 167 dd. 26.4.2017 (Annexure-7). Thus, the post of Assistant had been merged in the post of Office Superintendent and the post of Assistant no more exists in the Board. On the amendment in the above R/ Rules, the formal order of merging both the post in office Superintendent issued vide Boards letter did. 11.5.2017 (Annexure-8).
9. That during the currency of the OA of Sh. S.K. Dash before this Hon'ble Tribunal, Cuttack, the post of Assistant had already been merged in the post of office Superintendent by amendment in R/Rules of Assistant and Office Superintendent in one Grade of Office Superintendent. The above amended R/Rules and order 6 R.A.No. 260/0011 of 2021 of merging this post is readily available on CGWB's in public domain.
10. That in the above amended R/Rules of Office Superintendent dtd 26.4.2017. the method of recruitment is changed from the R/Rules of Assistant and office Superintendent as mentioned below:
Recruitment Rules GSR No- Recruitment Rules GSR 435 dated 25.07.2001 and No. 167 dated GSR No. 30 dated 26.04.2017 of merged 09.01.2002 of Assistant post of Office Superintendent.
i 90% by promotion by DPC. (i) 80% by promotion ii 10% by promotion on the failing which by basis of LDCE from UDCs in deputation including who have rendered five Short Term Contract;
years regular service in the and
grade (ii) 20% by promotion
on the basis of
Recruitment Rules GSR No.- Departmental
446 dated 01.11.2000 of Competitive Written
Office Superintendent Test Examination
from upper Divsiion
Clerks in the
CentralGround Water
board who have
rendered five years
regular service in the
grade.
100% by promotion by
DPC"
7 R.A.No. 260/0011 of 2021
5. Applicant in the OA and respondents in this RA has filed reply objecting to the very maintainability of this RA on the following grounds:
(a) This RA being filed after expiry of 34 months of the order dated 31.01.2019 without any application for condonation of delay and supported by affidavit is liable to be dismissed in terms of Sub rule (1) of Rule 17 and Sub rule 5 of Rule 17 of CAT (Procedure) Rules, 1987.
(b) In the RA, the respondent department virtually seeking rehearing of the entire matter, which is not permissible in the eyes of law. He has placed reliance on the decisions of K.Ajit Babu Vs. UOI and Ors, (1997) 6 SCC 473, UOI Vs Tarit Ranjan Das, 2004 SCC (L&S) 160, State of West Bengal & Ors. Vs. Kamal Sengupta & Ors., (2008) 8 SCC 612, Inder Chand Jain (Dead) through Lrs, Vs. Motilal (Dead) through LRs., (2009) 14 SCC 663, Meera Banja (Smt.) Vs. Nirmala Kumari Choudhury (Smt.), (1995) SCC 170 and UOI Vs. Tarit Ranjan Dasw,. 2004 SCC (L&S) 160.
6. It has been submitted that recently, the Hon'ble Supreme Court in the case of State of Uttar Pradesh & Anr. Vs. Sabha Narain & Ors., (2022) 8 R.A.No. 260/0011 of 2021 9 SCC 266 while rejecting the prayer to condone such long delay in filing SLP has imposed cost on the department and this being one such case, cost should be imposed on the respondents department for delaying the matter one way or the other to grant the benefits to the applicant in compliance to the order of this Tribunal.
7. Ld. Counsel for both sides have reiterated their stand taken in their respective pleadings in course of hearing. After going through the arguments advanced by the Ld. Counsel for the respondents department and upon perusal of the stand taken in the RA, it is clear as good as in noon day that this RA is not only filed after a long lapse of delay but also in the grab of giving rehearing/considering the entire matter afresh, which is not permissible in the eye of law.
8. As is well known, the provision for review of a judgment/order under Order 47 Rule 1 CPC provides that a party can seek review of a judgment/order on the grounds (a) from the discovery of new and important matters or evidence which after the exercise of the due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on 9 R.A.No. 260/0011 of 2021 account of some mistake or error apparent on the face of the record or any other sufficient reasons.
9. Trite is the position of law that error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. The power of review can be exercised for correction of a mistake but not to substitute a view. The mere possibility of two views on the subject is not a ground for review [Lily Thomas & Ors.vs. Union of India & Ors., (2000) 6 SCC 224].
10. An error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review. A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected, but lies only for patent error [Parsion Devi & Ors. vs. Sumitri Devi & Ors., (1997) 8 SCC 715].
11. A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility........vide Col. Avtar Singh Sekhon vs. Union of India & Ors., 1980 (Supp) SCC 562. 10 R.A.No. 260/0011 of 2021
12. The Hon'ble Apex Court after taking into consideration the aforesaid provision and law, in the case of Aribam Tuleshwar Sharma Vs Aribam Pishak Sharma and Ors., (1979) 4 SCC 389, have held as under:
"It is true as observed by this Court in Shivdev Singh and Ors. v. State of Punjab and Ors. AIR 1963 SC 1909 there is nothing in Article 226 of the Constitution preclude a High Court from exercising the power of review which inherent in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and pulpable errors committed by it. But, there are definitive limits to the exercise of power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court."
13. This Tribunal is reminded by the law laid down by Hon'ble Apex Court in very many cases that a review petition has a limited purpose and cannot be allowed to be "an appeal in disguise" and that review proceedings have to be strictly confined to the ambit and scope of 11 R.A.No. 260/0011 of 2021 Order 47 Rule 1 CPC. It is not the case of the Petitioners/respondent department in this RA that any error committed on the face of record nor is it their case that they have discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing of the judgment. No mistake or error apparent on the face of record is also found in the order requiring a review.
14. It is also profitable to place the observation of the Hon'ble Apex Court in the recent case of State of Uttar Pradesh (supra) insofar as condonation of delay is concerned, which is quoted below:
"The Special Leave Petition has been filed with delay of 502 days with an explanation given in the application for condonation of delay which gives only a saga of moving of file from one place to the other and that too with long interludes.
The aforesaid itself shows the casual manner in which the petitioner Reason: has approached this Court without any cogent or plausible ground for condonation of delay. In fact, other than the lethargy and incompetence of the petitioner, there is nothing which has been put on record.
xxxx xxxx xxxx Looking to the period of delay and the casual manner in which the application has been worded, we consider appropriate to impose costs on the petitioner(s) of Rs.25,000/- for wastage of judicial time which has its own value and the same be deposited with the Supreme Court Advocates on 12 R.A.No. 260/0011 of 2021 Record Welfare Fund within four weeks. The amount be recovered from the officers responsible for the delay in filing the Special Leave Petition and a certificate of recovery of the said amount be also filed in this Court within the same period of time."
15. In view of the facts and law discussed above, viewing the matter from any angle, this Tribunal do not see any justifiable ground/reason to agree with the stand taken by the review respondent in the present RA and entertain this RA. Therefore, it is held that this RA does not have any legs to stand and, thus, the RA stands dismissed leaving the parties to bear their own costs.
(PRAMOD KUMAR DAS) (SWARUP KUMAR MISHRA) MEMBER(A) MEMBER (J) RK/PS