Central Administrative Tribunal - Delhi
Manoj Kumar Tyagi vs Union Of India Through on 10 May, 2011
Central Administrative Tribunal Principal Bench, New Delhi R.A.No.131/2011 in O.A.No.737/2010 This the 10th day of May 2011 Honble Shri M.L. Chauhan, Member (J) Honble Shri Shailendra Pandey, Member (A) Manoj Kumar Tyagi, S/o Shri Ishwar Prakash Tyagi, R/o H. No.231, V & PO Burari, Delhi-110084. ..Applicant Versus Union of India through: 1. The Central Vigilance Commissioner, Government of India, Satarkata Bhawan, INA, New Delhi-23. 2. The Deputy Secretary (Admn.), Central Vigilance Commission, Government of India, Satarkata Bhawan, INA, New Delhi-23. 3. The Under Secretary (Admn.), Central Vigilance Commission, Government of India, Satarkata Bhawan, INA, New Delhi-23. ..Respondents O R D E R (in circulation)
Shri M.L. Chauhan:
This Review Application has been filed by the applicant for reviewing the order dated 28.3.2011 in OA-737/2010 whereby the OA filed by the applicant was dismissed.
2. The review is sought on the ground that the point of discrimination raised in paragraph 4 (x) of the OA and also in para 1 of the rejoinder in preliminary objection has not been dealt with and further that two persons, namely, Kumari Ritu and Kumari Sheetal, who were otherwise entirely and absolutely similarly placed with the applicant, have now been appointed on the posts of Stenographer Grade D and Lower Division Clerk but the applicant has been shown the door without there being any logical explanation for the same.
3. The applicant has further raised a ground that the aforesaid two employees whose services were terminated preferred OA-841/2005 before this Tribunal and this Tribunal vide the order dated 20.12.2005 issued a direction to re-appoint them on ad hoc basis to the post of LDC with a direction to replace their services only with the regularly appointed SSC candidate (Annexure A-2). Thus, according to the review applicant, the decision rendered by the coordinate Bench is binding.
4. We have given due consideration to the contentions made by the review applicant. We are of the view that the review application is without any basis and deserves out right rejection. The Tribunal while delivering the judgment in paragraph 8 has given a categorical finding, which is to the following effect:-
8.. Ultimately, the services of the applicant were terminated with a regular appointee, as recommended by the SSC was offered appointment and joined the post of LDC being the junior-most. Thus, in view of what has been stated above, we see no infirmity in the action of the respondents, whereby the services of the applicant were terminated on ad hoc basis
5. Thus, in view of this categorical finding, when the services of the applicant were dispensed with in order to make room to the regular appointee, the contention raised by the review applicant based upon the judgment of this Tribunal and also on the ground that Kumari Ritu and Kumari Sheetal were similarly placed cannot be accepted. That apart the coordinate Bench of this Tribunal rendered the judgment in OA-841/2005 on 20.12.2005 whereas the Apex Court in the case of Secretary, State of Karnataka & others v. Umadevi & others, (2006) 4 SCC 1 has categorically held that regularization is not a mode of appointment and no appointment should be made contrary to statutory provisions governing regularization or the rules framed in that behalf under the statute as per Article 309 of the Constitution of India. The Apex Court in the said case has categorically held that the Court should desist from issuing orders preventing regular selection or recruitment at the instance of such a person and from issuing directions for continuance of those who have not secured regular appointment as per the procedure established. It has further been held that passing of the orders for continuance tends to defeat the very constitutional scheme of public employment. What was considered to be permissible at a given point of time keeping in view the decisions of the Apex Court which had then been operating in the field, does no longer hold good after the decision rendered by the Constitution Bench of the Apex Court in the case of Umadevi. Thus, the applicant cannot take any assistance from the judgment rendered by this Tribunal prior to the declaration of law in the said case and further this Tribunal has dismissed the OA relying upon the decision of the Apex Court in Nagar Mahapalika, Kanpur v. Vibha Shukla & others, (2010) 1 SCC (L&S) 698 and quoting paragraphs 20 and 21 of the said judgment in paragraph 8 of the order and in paragraph 9, it has categorically been held that the applicant is not entitled to any relief based on the aforesaid judgment of the Apex Court. At this stage, it will be useful to quote the relevant portion, which thus reads:
8. Further the matter is squarely covered by the decision of the Apex Court in the case of Nagar Mahapalika, Kanpur v. Vibha Shukla and others, (2010) 1 SCC (L&S) 698, whereby the Apex Court held that where a person is appointed on a fixed term, extension given to such a candidate has to be treated as a fresh appointment and also that regularization is not a mode of appointment. At this stage, it will be useful to quota paras 20 and 21 of the judgment, which thus read:
20. Furthermore, it is trite that regularization is not a mode of appointment. It has been so held by a Constitution Bench of this court in Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors. 2006 (4) SCC 1]. The principle enunciated by the Constitution Bench of this Court in Umadevi (supra) has inter alia been applied by this Court in Post Master General, Kolkata & Ors. v. Tutu Das (Dutta) [2007 (6) SCALE 453] stating as under :
"12. What was considered to be permissible at a given point of time keeping in view the decisions of this Court which had then been operating in the field, does no longer hold good. Indisputably the situation has completely changed in view of a large number of decisions rendered by this Court in last 15 years or so. It was felt that no appointment should be made contrary to the statutory provisions governing recruitment or the rules framed in that behalf under a statute or the proviso appended to Article 309 of the Constitution of India.
13. Equality clause contained in Article 14 and 16 of the Constitution of India must be given primacy. No policy decision can be taken in terms of Article 77 or Article 162 of the Constitution of India which would run contrary to the constitutional or statutory schemes."
21. Submission of the learned counsel that persons similarly situated are still continuing in service is not of any moment. This aspect of the matter has also been dealt with by this Court in Post Master General, Kolkata (supra) stating:
"17. Submission of Mr. Roy is that the respondent has been discriminated against inasmuch as although the services of Niva Ghosh were regularised, she had not been, may now be noticed.
18. There are two distinctive features in the present case, which are:-
(i) Equality is a positive concept. Therefore, it cannot be invoked where any illegality has been committed or where no legal right is established.
(ii) According to the appellant the respondent having completed 240 days, does not fulfil the requisite criteria. A disputed question of fact has been raised. The High Court did not come to a positive finding that she had worked for more than 240 days in a year. 19. Even otherwise this Court is bound by the Constitution Bench decision. Attention of the High Court unfortunately was not drawn to a large number of recent decisions which had been rendered by this Court."
9. Thus, in view of what has been stated above, we are of the considered view that applicant is not entitled to any relief and his services cannot be regularized de hors the Rules, as the mode prescribed for recruitment to the post of LDC as per the recruitment rules is by facing regular selection through SSC
6. As can be seen from the portion as quoted above, more particularly, paragraph 21 of the order of the Apex Court in Nagar Mahapalikas case (supra) wherein paragraphs 17 & 18 of the judgment rendered in Post Master General, Kolkata & others v. Tutu Das (Dutta), 2007 (6) SCALE 453 have been reproduced and this judgment has been made basis for rejecting the claim of the applicant, the finding on the point of discrimination as also similarly situated persons have now been engaged stands answered and no further finding was required to be noticed.
7. It may be noticed here that the services of the applicant were terminated vide letter dated 22.12.2003 whereas the OA was filed on 25.11.2009. In any case we are of the view that the applicant has not made out any case for reviewing our judgment. What the applicant wants by way of this review application is to rehear the case on merit on the same grounds, which stand fully covered by the judgment rendered by the Constitution Bench of the Apex Court in the case of Umadevi (supra) and also in the light of the findings recorded by the Apex Court in paragraphs 20 & 21 of the decision in Nagar Mahapalika (supra), relevant portion of which has been reproduced above.
8. At this stage, we also want to make reference to another decision of the Apex Court in the case of South-Eastern Coalfields Limited v. Prem Kumar Sharma & others, (2009) 1 SCC (L&S) 852 whereby in paragraph 9 the Apex Court has made the following observations:
9. The concept of equality as envisaged under Article 14 of the Constitution of India, 1950 (in short the 'Constitution') is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits.
9. The scope of review is very limited. Further, the 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 Order 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 a different view could have been taken by the court/tribunal on a point of fact or law. While exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision. If the matter is considered in the aforesaid legal proposition, we are of the view that the applicant has not made out any case for reviewing the judgment dated 28.3.2011. In case the applicant is aggrieved by the finding so recorded by this Tribunal, it was open for him to challenge the judgment passed by this Tribunal and certainly the applicant has not made out any case for reviewing the judgment in terms of the provisions contained in Section 22 (3) (f) of Administrative Tribunals Act, 1985 read with Order 47 Rule 1 CPC.
10. Accordingly, the review application is dismissed by circulation.
( Shailendra Pandey ) ( M. L. Chauhan ) Member (A) Member (J) /sunil/