Central Administrative Tribunal - Delhi
Suresh Kumar Kathpalia vs M/O Personnel,Public Grievances And ... on 19 December, 2024
1
R.A. No. 122/2023
In
O.A. No. 3182/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
R.A. No. 122/2023
in
O.A. No. 3182/2016
Reserved on: 09.12.2024
Pronounced on: 19.12.2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Suresh Kumar Kathpalia,
Aged about 68 years (Senior Citizen),
Retired Principal Private Secretary,
From Ministry of Finance,
S/o Late Shri P.C. Kathpalia,
Resident of H. No. 2251/6-D/1-A,
Guru Nanak Nagar,
Shadi Kham Pur, New Ranjit Nagar,
New Delhi - 110008.
...Review Applicant
(By Advocate : Mr. Suresh Sharma)
VERSUS
1. Ministry of personnel, Public Grievances and Pensions
through, Secretary, Department of Personnel and Training,
North Block, New Delhi - 110001.
2. Secretary,
Union Public Service Commission,
Dholpur House, Shahjahan Road,
New Delhi - 110069.
.... Respondents
(By Advocate: Mr. G. S. Virk)
2
R.A. No. 122/2023
In
O.A. No. 3182/2016
ORDER
Hon'ble Mr. Manish Garg, Member (J) :
This Review Application has been filed by the original applicant seeking review of the order dated 28.02.2023 passed by this Tribunal in OA No. 3182/2016.
2. The order dated 28.02.2023 passed by this Tribunal in OA No. 3182/2016, reads as under:
"By way of filing this OA, the applicant is seeking the following main reliefs:
"(i) To declare the action of the respondents in not promoting the applicant to Senior Principal Private Secretary (Sr. PPS) in the Pay Band 3 (PB-3 Rs. 15600-39100 + Grade Pay Rs. 7600), before his superannuation on 31.10.2015, even after inclusion of his name in the Panel of Senior Principal Private Secretary (Sr. PPS) at S. No. 85 for the Select List Year 2015 for 89 vacancies approved by the UPSC as illegal, arbitrary and discriminatory.
(ii) To declare the action of promoting similarly placed empanelled officers in the Select List for 2015 as Senior Principal Private Secretary (Sr. PPS) in the Pay Band (PB-3 Rs. 15600-39100 + Grade Pay Rs. 7600) ignoring their inter se seniority and ignoring the similar treatment to the applicant as an act of hostile discrimination, violative of Article 14 and 16 of the Constitution of India.
(iii) To direct the respondents to promote the applicant as Senior Principal Private Secretary (Sr. PPS) in the Pay Band 3 (PB-3 Rs. 15600-
39100 + Grade Pay Rs. 7600), before his superannuation on 31.10.2015, with all consequential benefits 3 R.A. No. 122/2023 In O.A. No. 3182/2016 including arrears of pay and seniority for next promotion."
2. The brief facts of the case as stated by the applicant in the OA are that he was initially appointed as Stenographer Grade D in the Ministry of Defence on 29.10.1977 and earned subsequent promotions to the post of Personal Assistant and Private Secretary in the year 1984 and 1994. It is his submission that he became eligible for promotion to the post of Senior Principal Private Secretary (Sr. PPS) for the Select List of 2015 as per the provisions of Central Secretariat Stenographers' Service (Senior Principal Private Secretary) Rules, 2000 read with the relevant instructions of the Department of Personnel and Training (DoP&T) on the subject. The respondent No. 1 - DoP&T submitted proposal to Union Public Service Commission (UPSC) for preparation of panel of Sr. PPS on 30.06.2015. Subsequently on 09.07.2015, DoP&T sent recalculated 89 vacancies to UPSC for Select List-2015. The DPC recommended a panel of 89 officials for promotion to the grade of Sr. PPS for the Select List 2015 and the name of applicant appeared at Serial No. 85 out of 89 officials recommended. 13 other candidates were also recommended in the Extended Panel, to be operated in case officers in the panel were not available for promotion during the vacancy year due to Retirement/VRS/Deputation etc.
3. DPC was held on 27th and 28th of July, 2015 and on 29th July, 2015 minutes received from UPSC were examined by DoP&T and approval was obtained for promoting three empanelled officials who were due to retire on 31.07.2015. The officials at Serial No. 43, 61 and 70 were promoted on 30.07.2015 followed by another 5 officials in September, 2015. The applicant submitted his representation on 21.09.2015 to DoP&T for promoting him in similar manner. A reminder was also submitted on 07.10.2015. However, the applicant retired on superannuation on 31.10.2015 and his representations were still pending. Ultimately, in June, 2016 his representation was decided as "without any merit".
4. Notices were issued to the respondents who put their appearance through Sh. G.S. Virk, learned counsel. Reply has been filed. Rejoinder thereto is also on record.
5. In their counter reply, the respondents have averred as under:
"The applicant was a regular PPS of CSSS cadre of the Department of Expenditure. UPSC had conducted the Departmental Promotion Committee meeting held on 27th & 28th July, 2015 for preparation of panel of Sr. 4 R.A. No. 122/2023 In O.A. No. 3182/2016 PPS of CSSS for SLY-2015. After finalizing the panel, UPSC had returned the panel of 89 PPSs to DOP&T on 28th July, 2015 for promoting them as Sr. PPS for the SLY- 2015 against the 89 vacancies as forwarded by DOP&T. As per the rules, the vacancies are calculated on yearly basis with effect from 02th July, 2015 to 30th June, 2016. The applicant appeared at S.No. 85 for the Select List Year 2015 for 89 vacancies approved by UPSC on 28th July, 2015. At the time of issuance of promotion order, there were 70 vacancies as on 01.07.2015 in the Sr. PPS grade for Select List Year 2015. Since collection of information like obtaining information from the officers concerned etc. takes time in connection with finalizing of promotion of eligible officers against these 70 vacancies, these Department had issued the promotion order of 3 officers namely Shri J.S. Ahluwalia, Shri Dharam Vir Singh and Shri Mahender K. Gaur, PPSs on 30th July, 2015 who were within the zone of aforesaid 70 vacancies and retiring on 31st July, 2015. After re-calculating the vacancies as on 02.08.2015, 72 officers were promoted as Sr. PPS for SLY-2015 vide this Department's O.M. No. 2/2/2015-CS.II(A) dated 7 August, 2015 in the aforesaid promotion order 75 officers upto Shri H.S. Vohra were considered in the panel of 89 officers. Thereafter, order in the grade of Sr. PPS had been issued on monthly basis, depending on the vacancies arising during each month during the Select List Year. Before issuing the promotion order against the vacancies during the month of August, 2015, NITI Aayog had surrendered 2 posts of Sr. PPS. As such, the total sanctioned strength in the grade of Sr. PPS/PSO was reduced and came down from 140 to 138.
Since 139 Sr. PPSS/PSOs were working in CSSS uptill the month of August, 2015, 4 officers were promoted against the 5 vacancies arisen during the month of August, 2015. Accordingly, 4 officers namely Ms. Shaira A. Khan, Ms. Leela Raghvan, Ms. Geeta Dhawan and Ms. Manju Bala Saxena from Sl.No. 76 to 79 were promoted vide this Department's O.Ms. No. 2/2/2015-CS.II(A) dated 15th September, 2015. Due to retirement of 1 officer on 30th September, 2015, Shri Anuj Kumar Tripathi (S.No. 80) has been promoted vide this Department's O.Ms. No 2/2/2015- 5 R.A. No. 122/2023 In O.A. No. 3182/2016 CS.II(A) dated 30th September, 2015. Keeping in view the 2 vacancies arisen due to retirement of 2 officer on 31st October, 2015, 2 officers namely Shri P.S. Bhandari and Ms. Lalitha Ramachandran from Sl.No. 81 to 82 were promoted vide this Department's O.M. No. 2/2/2015-CS.II(A) dated 2nd November, 2015. Only 82 officers from the panel of 89 officers were promoted upto 2nd November 2015. The applicant Shri S.K. Kathpalia was placed at Sl. No. 85, hence, he could not be promoted to the post of Sr. PPS as he had retired on 31st October, 2015."
6. The respondents submit that they have taken action in accordance with rules and instructions on the subject and there has been no discrimination as none of the officers whose name figured below the applicant's name in the panel was promoted prior to his retirement. Inclusion in the panel or panel (part) shall not confer any right to appointment to the grade, which is made only upon availability of regular vacancy. The applicant was not promoted for want of vacancy.
7. Heard the learned counsel for the parties, perused the record and appreciated the legal position.
8. The short question raised in the present OA is whether the applicant is eligible to be considered for the post of Senior PPS or not ?
9. It is submitted by the respondents that under the Rules, vacancies are calculated on yearly basis w.e.f. 02.07.2015 onwards. The name of the applicant appeared at Serial No. 85 for the Select List Year 2015 for 89 vacancies approved by UPSC on 28.07.2015. Promotion order of three officers were issued, who were within the zone of 70 vacancies and retiring on 31.07.2015. After recalculating the vacancies, 72 officers were promoted and up to Serial No. 75 were considered in the panel of 89 officers. Thereafter, order in the grade of Sr. PPS was being issued on monthly basis, depending on the vacancies arising during each month during the Select List Year. Before issuance of promotion order, two vacancies of Sr. PPS in the month of August, 2015 were surrendered by NITI Aayog. Thus, the total strength reduced from 140 to 138. Since 139 Sr. PPSs/PSOs were working in CSSS uptil the month of August, 2015, 4 officers were promoted against the 5 vacancies that arose during the month of August, 2015. Accordingly, 4 officers namely Ms. Shaira A. Khan, Ms. Leela Raghvan, Ms. Geeta Dhawan and Ms. Manju Bala Saxena from Sl. No. 76 to 79 were promoted on 15.09.2015. Due to retirement of one officer on 30.09.2015, one Sh. Anuj Kumar Tripathi was promoted on 30.09.2015. Similarly, due to retirement of two officers on 31.10.2015, two officers namely Sh. P.S. Bhandari and Ms. Lalitha Ramachandran at Sl. No. 81 6 R.A. No. 122/2023 In O.A. No. 3182/2016 and 82 were promoted. Only 82 officers from the panel of 89 officers were promoted upto 02.11.2015. Since the applicant was placed at Sl. No. 85, he could not be promoted to the post of Sr. PPS as he had retired on 31.10.2015.
10. Rejoinder thereto has also been filed by the applicant. The applicant relying upon an Office Memorandum of the DoP&T stated that the applicant could be considered even after retirement when he was under the zone of consideration. To this, learned counsel for the respondents submits that the DoP&T OM states that if juniors were considered for the promotion to the next higher level, then only retired officials could be considered whereas in the present case, no single person junior to the applicant has been promoted. All who were promoted, were senior to the applicant. Thus, there is no cause of action in favour of the applicant to approach this Tribunal.
11. Reliance has also been placed by the applicant on a judgment of the Hon'ble Apex Court in the case of Mano Manu & Anr. Vs. Union of India & Ors., Civil Appeal No. 6707/2013 (arising out of Special Leave Petition (Civil) No. 26967/2011) where it is stated that names can be recommended for available vacancies. Paras 17 and 19 of the said judgment read as under:
"17. This Court in Sandeep Singh vs. State of Haryana & Anr. (2002) 10 SCC 549 commended that the vacancies available should be filled up unless there is any statutory embargo for the same. In Virender S. Hooda & Ors. Vs. State of Haryana & Anr.
AIR 1999 SC 1701, 12 posts for direct recruitment were available when the advertisement for recruitment was made which was held in the year 1991. Some of the selected candidates did not join in this batch almost similar to the present case, the Court held that the appellant's case ought to have been considered when some of the candidates for reasons of the non-appointment of some of the candidates and they ought to have been appointed if they come within the range of selection.
XXX XXX XXX
19. We are, therefore, of the opinion in the facts of the present case, the decision of UPSC in forwarding three names against requisition of DoP&T for six vacancies was inappropriate. We, accordingly, allow the present appeal; set aside the order of the High Court as well as Tribunal and issue Mandamus to the UPSC to forward the names of next three candidates to 7 R.A. No. 122/2023 In O.A. No. 3182/2016 the DoP&T for appointment to the post of Section Officer's Grade. They shall get the seniority from the date when Rajesh Kumar Yadav was appointed to the said post. Their pay shall notionally be fixed, without any arrears of the pay and other allowances."
12. Learned counsel for the applicant adraws our attention to the rejoinder to submit that two posts were surrendered by the NITI Aayog which would be effective from the dates of retirement of two Sr. PPSs i.e. 29.02.2016 and 31.05.2016. The relevant portion of the same is reproduced below:
Date Event Result
20.1.2016 Niti Ayog replied all the 4 Sr. PPSs Accordingly two
Reply of Nitiwere in position and 2 posts vacancies still
Ayog to surrendered would be effective from available as on
DOPT the dates of retirement of 2 SrPPSs 31.10.2015.
viz. 29.2.2016 and 31.5.2016 -
hence then only 2 posts will result
in surrender of 2 posts.
19.4.2016 No. of SrPPS working on co-teminus 2 vacancies
(RTI reply basis to other
by DOPT) Departments/Ministries.
DOPT OM dt. 15.5.2007 long term
deputation should be taken into
account
19.4.2016 No. of vacancies of SrPPS encadered 2 vacancies as
(RTI reply into CSSS on the strength of CIC on on 31.10.2015.
by DOPT) 1.1.2015 but could not be
considered since annulment of their
RRs could not be done for six
months till 26.6.2015.
13. However, learned counsel for the respondents categorically stated that they have filled up vacancies as and when they were available due to retirement. They took action in accordance with rules and instructions on the subject and there was no discrimination against the applicant. The representation made by him was also without any merit.
14. In view of the narration above, this Tribunal is of the view that the applicant has not been able to make out a case that he should have been considered even after retirement. We do not find any merit in the OA and the same is liable to be dismissed. Hence, dismissed. No costs."
3. In the present RA the following grounds have been urged by the review applicant:
"(i) That while accepting the uncorroborated assertion of the Respondents as ' gospel all the details available in 8 R.A. No. 122/2023 In O.A. No. 3182/2016 the written pleadings in the said O.A. which rebutted the unsubstantiated claim of the Respondents regarding non-availability of requisite vacancies as well as ignoring of the ratio decidendi of the judgment of the Hon'ble Supreme Court in CIVIL APPEAL NO.6707/2013 (Arising out of Special Leave Petition (Civil) No.26967/2011, have been ignored.
(ii) Not a single reason had been cited by the Respondents in proof of there having been any application of mind in reducing the meticulously calculated 89 vacancies available as on 01.07.2015, what to talk of any valid reason for doing so as mandated by Hon'ble Supreme Court. Though the ratio decidendi of the Special Leave Petition (Civil) No.26967/2011) titled Manoj Manu Vs. Union of India and Others has been mentioned in the impugned order but no attempt has been made to find out even cursorily whether any valid and cogent reasons have been advanced by the respondents for reducing the number of posts. Mere statement by the Counsel for the respondents during arguments, that there were no vacancies available, has been treated as holy gospel, while discarding the vacancy table submitted by the applicant (Annexure A- of the O.A.), based on the information provided by the Respondents under Right to Information Act, 2005 vide their letters dated 19.04.2016(Annexure A- 05 Ο.Α.), 30.05.2016( Annexure A-06 of the O.A), 24.05.2016 (Annexure A-07 of the O.A) and dated 22.03.2016 (Annexure R-01 of the Rejoinder to the Counter-reply).
(iii) How out of 89+13=102 vacancies for the Select List year 2015, as on a particular date viz. 1st July of the year viz. 2015, 20 percent of originally calculated vacancies i.e. more than 22 vacancies have been reduced and that too without even a whisper about any valid ground for such reduction, which were so meticulously calculated that even on the date of the DPC one vacancy was reduced by DoPT vide letter dated 9th July, 2015 (Annexure A-03 of the O.A.)
(iv) Ignoring the glaring violation of rule of law as well as right to equality in the matter of public employment as enshrined in the Articles 14 and 16 of the Constitution of India in the matter of appointment to the post of Senior PPS vis a vis 3 empaneled Officials who were due to retire on 31.07.2015, and for whom, in perhaps the only case of its kind in the Central Secretariat, all the actions from receipt of Panel from UPSC, its percolating to the Section concerned, its examination in the concerned Section, passing of the proposal through all the four levels of Under Secretary, Deputy Secretary, Joint Secretary, Secretary(P) and then the approval by the 9 R.A. No. 122/2023 In O.A. No. 3182/2016 Hon'ble Minister, were all been accomplished on the same day viz. viz. 29.07.2015, whereas such alarming speed was missing while considering the representations dated 21.09.2015 and 07.10.2015 for similar treatment, which were not acted upon for more than 8 months till the petitioner superannuated and thereafter filed an RTI application to get the relevant records on 30.05.2016.
(v) Number of existing vacancies as on 31.10.2016 duly confirmed by Respondent No.1 only as per their reply to RTI application given vide their letter dated 19.04.2016, have been ignored while arriving at a finding that there were no vacancies against which the applicant could have been promoted. A copy of the RTI reply dated 19.04.2016 is annexed as Annexure A-05 of the O.A.
(vi) That the Hon'ble Tribunal has ignored the Table at Pages 4 to 6 of the Rejoinder to the Counter-reply to the O.A., showing vacancies as available at the crucial time for the promotion of the applicant have been totally ignored, which included the vacancy arisen because of the Voluntary Retirement sought by the Official at S. No.84 of the Select List Panel, bringing the applicant up from S. No.89 to No. 84, which stood covered by the 2 clear cut vacancies arisen because of not joining of the 21 officers on the Panel, against which the Respondents ought to have promoted the applicant, even on the date of his superannuation, as they did in respect of other similarly placed persons, who were due to retire on 31st July, 2015, by issuing the impugned orders dated"
4. Opposing the RA, learned counsel for the respondents submitted that the name of applicant has been referred in SL No.84 in the panel of Senior Principal Private Secretary which should have been SL no. 85. In Counter Affidavit in OA No. 3182/2016, it was already submitted that before issuing the promotion order against the vacancies during the month of August, 2015, NITI Aayog had surrendered 2 posts of Sr. PPS. As such, the total sanctioned strength in the grade of Sr.PPS/PSO was reduced from 140 to 138. 10 R.A. No. 122/2023
In O.A. No. 3182/2016 4.1. Learned counsel further submitted that in the final proposal sent to UPSC, the Department had reported 89 vacancies for the Select List Year 2015 commencing from 1st July, 2015 to 30th June, 2016. 70 vacancies were already available on 1st July, 2015. Subsequently, throughout the Select List Year, 19 vacancies (R-V) occurred. On 01.08.2015, 72 vacancies were available, therefore, on 07.8.2015, up to SL. No. 75 officers were promoted (As in July, 3 officers who were promoted in July, 2015 also superannuated on 31.7.2015). On 01.9.2015, though 5 vacancies were created, to adjust the 2 surrendered posts from overall strength from 140 to 138, 4 posts were filled up as already there were 139 officers were serving Accordingly, on 15.9.2015, promotion order in respect of 4 officers were issued and thereby up to serial no. of 79 officers of the panel were promoted. On 01.10.2015, only 01 vacancy arose due to superannuation of one officer in September, 2015. Therefore, upto SI No. 80 of the panel were promoted vide this Department Order dated 30.9.2015, while Shri Suresh Kumar Kathpalia figured at SI.No. 85.
4.2. Learned counsel argued that as far as VRS is concerned, it is to submit that Ms. S. Sumathy took VRS 11 R.A. No. 122/2023 In O.A. No. 3182/2016 w.e.f 05.07.2015, whereas the Department has requested UPSC to finalize the panel for SLY 2015 vide letter dated 30th June 2015. Therefore, even considering her VRS, Shri Suresh Kumar Kathpalia's position would have moved only to Sl. No.84, and he would still not have been promoted as only officers up to SL No. 80 could be promoted against the existing vacancies.
4.3. Learned counsel further argued that the applicant has shown 2 vacancies due to non-joining of two PPS out of 72 promoted on 07.8.2015. These 2 officers were serving on coterminous basis. Sh. Kush Lal Sharma was on deputation to Addl. PS to Minister of State for Textiles (I/C) and Sh. Yogesh Sharma on Deputation to President's Secretariat. They were given proforma promotion. Therefore, at any time they could have been repatriated to their parent cadre as in the instant case it was not a clear- cut vacancy for more than one year arising due to deputation.
4.4. Adding to his arguments, learned counsel submitted that while perusing the SLP (C) No. 26967/2011 titled Manoj Manu Vs. Union of India and others, it is learnt that the applicant therein was Assistant of Central 12 R.A. No. 122/2023 In O.A. No. 3182/2016 Secretariat Service (CSS) who appeared for Limited Departmental Competitive Examination 2005 and he was aggrieved with the decision of UPSC for not recommending names against the available 3 vacancies, even when requisition was made by DoP&T. The stand of the UPSC in Hon'ble High Court was that supplementary list would not be issued except in two categories. namely, "repeat" candidates (who participate in two LDCE and are successful in the first examination and results have not declared when the second Departmental Competitive Examination was held) or "common" candidates (who get selected in more than one category in LDCE). Hon'ble High Court has accepted the submission of UPSC considering the certain implication. However, Hon'ble Supreme Court set aside the Order of High Court as well as Tribunal. Hon'ble Supreme Court has observed "15... It is not a case where the Government decided not to fill up further vacancies. On the contrary DoP&T sent requisition to the UPSC to send six names so that the remaining vacancies are filled up. This shows that in so far as Government is concerned, it wanted to fill up all the notified vacancies...". Further, placing reliance on several judgement and clause 4(c) of the Office Memorandum dated 14.7 1967, Hon'ble 13 R.A. No. 122/2023 In O.A. No. 3182/2016 SC issued Mandamus to the UPSC to forward the names of the next three candidates to the DoP&T for appointment to the post of Section Officer's Grade. Therefore, drawing parity to the case, viz. Manoj Mannu Vs. Union of India and Others, will not be appropriate in this case, as vacancies were filled up as and when same had arisen.
5. Heard learned counsel for the parties and perused the pleadings available on record.
6. ANALYSIS :
6.1. The present RA arises for consideration in backdrop of the liberty granted by the Hon'ble High Court of Delhi in WP No.(C) 9170/2023 vide order dated 12.7.2023. We have examined the order/judgment dated 28.02.2023 under review which has been passed by the then Hon'ble Member (J). The grounds on which the Review Application has been preferred are spelt out above in detail. The primary ground for preferring the RA is that while passing the order dated 28.02.2023, though reference is made to decision rendered in Manoj Manu and anr. Vs UOI 2013 (12) SCC 171, the same has not been applied in right perspective to the facts of the present case, more particularly, when nine more vacancies would have accrued in the year 2015.14 R.A. No. 122/2023
In O.A. No. 3182/2016 6.2 We notice that a detailed counter affidavit has been filed wherein it has been averred on behalf of the respondents that while perusing the SLP (C) No. 26967/2011 titled Manoj Manu Vs. Union of India and others, it is learnt that the applicant therein was Assistant of Central Secretariat Service (CSS) who appeared for Limited Departmental Competitive Examination 2005 and he was aggrieved with the decision of UPSC for not recommending names against the available 3 vacancies, even when requisition was made by DoP&T. The stand of the UPSC in Hon'ble High Court was that supplementary list would not be issued except in two categories. namely, "repeat" candidates (who participate in two LDCE and are successful in the first examination and results have not declared when the second Departmental Competitive Examination was held) or "common" candidates (who get selected in more than one category in LDCE). Hon'ble High Court has accepted the submission of UPSC considering the certain implication. However, Hon'ble Supreme Court set aside the Order of High Court as well as Tribunal. Hon'ble Supreme Court has observed "15... It is not a case where the Government decided not to fill up further vacancies. On the contrary DoP&T sent requisition to the 15 R.A. No. 122/2023 In O.A. No. 3182/2016 UPSC to send six names so that the remaining vacancies are filled up. This shows that in so far as Government is concerned, it wanted to fill up all the notified vacancies...". Further, placing reliance on several judgement and clause 4(c) of the Office Memorandum dated 14.7 1967, Hon'ble SC issued Mandamus to the UPSC to forward the names of the next three candidates to the DoP&T for appointment to the post of Section Officer's Grade. Therefore, drawing parity to the case, viz. Manoj Mannu Vs. Union of India and Others, will not be appropriate in this case, as vacancies were filled up as and when same had arisen. 6.3 The Hon'ble Apex Court in Civil Appeal No(S). Of 2024
-(Arising out of SLP (Civil) No(s). of 2024(Diary No. 43488 of 2023) -Government Of West Bengal & Ors. Versus Dr. Amal Satpathi & Ors decided on 27.11.2024, has held as under :-
"21. While we recognize respondent No.1's right to be considered for promotion, which is a fundamental right under Articles 14 and 16(1) of the Constitution of India, he does not hold an absolute right to the promotion itself. The legal precedents discussed above establish that promotion only becomes effective upon the assumption of duties on the promotional post and not on the date of occurrence of the vacancy or the date of recommendation. Considering that respondent No. 1 superannuated before his promotion was effectuated, he is not entitled to retrospective financial benefits associated to the promotional post of Chief Scientific Officer, as he did not serve in that capacity."16 R.A. No. 122/2023
In O.A. No. 3182/2016 6.4 In Manoj Manu and anr. Vs UOI 2013 (12) SCC 171 it was held that merely because the name of a candidate finds place in the select list, it would not give the candidate an indefeasible right to get an appointment as well. 6.5 There is nothing on record to establish that the junior to the applicant has been accorded the promotion, post his retirement against vacancy available in the year 2015 with retrospective effect.
6.6 In Civil Appeal Nos. 517-518 OF 2017 Union Of India & Anr Versus Manpreet Singh Poonam Etc. decided on 08.03.2022 , the Apex Court held :-
"There is no dispute that Respondent in Civil Appeal No.518 of 2017 was given promotion after the successful consideration by the DPC. On such clearance the appellant has rightly fixed the promotion with the year of actual vacancy, as per rules. Thus, the Respondent neither on facts nor on law can claim retrospective promotion, and that too from the year 2009 being the year in which he was placed in the select list against a notional vacancy, especially when the then existing vacancy accrued only in the year 2011, when the JAG-I officers were actually inducted into IAS, against which he was promoted. As such, the promotion cannot be granted retrospectively and extended to give benefit and seniority from the date of notional vacancy, causing violence to Rule 4 and 7 of the 2003 Rules.
A mere existence of vacancy per se will not create a right in favour of an employee for retrospective promotion when the vacancies in the promotional post is specifically prescribed under the rules, which also mandate the clearance through a selection process. It is also to be borne in mind that when we deal with a case of promotion, there can never be a parity between two separate sets of rules. In other words, a right to promotion and subsequent benefits and seniority would arise only with respect to the rules governing the said promotion, and not a different set of 17 R.A. No. 122/2023 In O.A. No. 3182/2016 rules which might apply to a promoted post facilitating further promotion which is governed by a different set of rules. In the present case, the authority acting within the rules has rightly granted promotion after clearance of DPC on 17.04.2012 with effect from 01.07.2011, when the actual vacancies arose, which in any case is a benefit granted to the Respondent in Civil Appeal No.518 of 2017. In our view, this exercise of power by the authority of granting retrospective promotion with effect from the date on which actual vacancies arose is based on objective considerations and a valid classification."
6.7 In the case of Ajit Kumar Rath vs. State of Orissa and others, 1999 (9) SCC 596, the Supreme Court has observed as under:-
"The provisions extracted above indicate that the power of review available to the Tribunal is the same as has been given to a court under Section 114 read with Order 47 CPC. The power is not absolute and is hedged in by the restrictions indicated in Order 47. The power can be exercised on the application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it. It may be pointed out that the expression "any other sufficient reason" used in Order 47 Rule 1 means a reason sufficiently analogous to those specified in the rule.
Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out in Order 47, would amount to an abuse of the liberty given to the Tribunal under the Act to review its judgment."18 R.A. No. 122/2023
In O.A. No. 3182/2016 [Emphasis added] 6.8 In a recent decision, the Apex Court in Review Petition (Civil) No. 1620 OF 2023 in Civil Appeal No. 1661 OF 2020 titled as Sanjay Kumar Agarwal versus State Tax Officer & Anr. dealt with the power to review the judgments observed as under :-
"9. In the words of Krishna Iyer J., (as His Lordship then was) "a plea of review, unless the first judicial view is manifestly distorted, is like asking for the Moon. A forensic defeat cannot be avenged by an invitation to have a second look, hopeful of discovery of flaws and reversal of result......... A review in the Counsel's mentation cannot repair the verdict once given. So, the law laid down must rest in peace."2
10. It is also well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so.
11. In Parsion Devi and Others vs. Sumitri Devi and Others4, this Court made very pivotal observations: -
"9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be (1980) 2 SCC 167, M/s. Northern India Caterers (India) Ltd. vs. Lt. Governor of Delhi 3 AIR 1965 SC 845, Sajjan Singh and Ors. vs. State of Rajasthan and Ors. 4 (1997) 8 SCC 715 said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise."19 R.A. No. 122/2023
In O.A. No. 3182/2016
12. Again, in Shanti Conductors Private Limited vs. Assam State Electricity Board and Others5, a three Judge Bench of this Court following Parsion Devi and Others vs. Sumitri Devi and Others (supra) dismissed the review petitions holding that the scope of review is limited and under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided.
13. Recently, in Shri Ram Sahu (Dead) Through Legal Representatives and Others vs. Vinod Kumar Rawat and Others6, this Court restated the law with regard to the scope of review under Section 114 read with Order XLVII of CPC.
14. In R.P. (C) Nos. 1273-1274 of 2021 in Civil Appeal Nos. 8345- 8346 of 2018 (Arun Dev Upadhyaya vs. Integrated Sales Service Limited & Another), this Court reiterated the law and held that: -
"15. From the above, it is evident that a power to review cannot be exercised as an appellate power and has to be strictly confined to the scope and ambit of Order XLVII Rule 1 CPC. An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions."
15. It is very pertinent to note that recently the Constitution Bench in Beghar Foundation vs. Justice K.S. Puttaswamy (Retired) and Others (2021) 3 SCC 1 , held that even the change in law or subsequent decision/ judgment of co-ordinate Bench or larger Bench by itself cannot be regarded as a ground for review.
16. The gist of the afore-stated decisions is that: -
(i) A judgment is open to review inter alia if there is a mistake or an error apparent on the face of the record.
(ii) A judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so.
(iii) 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 record justifying the court to exercise its power of review.20 R.A. No. 122/2023
In O.A. No. 3182/2016
(iv) In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be "reheard and corrected."
(v) A Review Petition has a limited purpose and cannot beallowed to be "an appeal in disguise."
(vi) Under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided.
(vii) An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.
(viii) Even the change in law or subsequent decision/ judgment of a co-ordinate or larger Bench by itself cannot be regarded as a ground for review.
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24. Apart from the well-settled legal position that a co-ordinate Bench cannot comment upon the judgment rendered by another co-ordinate Bench of equal strength and that subsequent decision or a judgment of a co-ordinate Bench or larger Bench by itself cannot be regarded as a ground for review, the submissions made by the learned Counsels for the Review Petitioners that the court in the impugned decision had failed to consider the waterfall mechanism as contained in Section 53 and failed to consider other provisions of IBC, are factually incorrect. As evident from the bare reading of the impugned judgment, the Court had considered not only the Waterfall mechanism under Section 53 of IBC but also the other provisions of the IBC for deciding the priority for the purpose of distributing the proceeds from the sale as liquidation assets."
7. CONCLUSION :
7.1. Keeping in view the afore-stated legal position as well as the facts of the case, it is observed that the review applicant has not been able to point out any error apparent on the face of record. Rather, the review applicant is trying 21 R.A. No. 122/2023 In O.A. No. 3182/2016 to re-argue the whole case, which is not permissible in view of the aforesaid observation of the Hon'ble Supreme Court.
As such this RA is devoid of merit and the same is accordingly dismissed.
7.2. All pending applications, if any, shall stand disposed of. No costs.
(Dr. Anand S. Khati) (Manish Garg)
Member (A) Member (J)
/as/