Central Administrative Tribunal - Delhi
P. Ravi Kumar S/O E. Partha Sarathy vs National Technical Research ... on 2 December, 2013
Central Administrative Tribunal
Principal Bench: New Delhi
RA No.108/2012 in OA No. 1169/2011
RA No.113/2012 in OA No. 3808/2011
Reserved on: 16.07.2013
Pronounced on: 02.12.2013
Honble Mr. Justice Syed Rafat Alam, Chairman
Honble Dr. B. K. Sinha, Member (A)
I. RA No. 108/2012 in OA No.1169/2011
1. P. Ravi Kumar s/o E. Partha Sarathy,
Working as T.O. B in NTRO,
At CRSA, Mayur Vihar-I,
Delhi-110091.
2. V.K. Kansal s/o Shri H.C. Kansal,
Working as T.O. B in NTRO,
At DAC, AED, NTRO,New Delhi.
3. HNS Babu s/o Shri S. Narayana Murthy,
Working as T.O. B in NTRO,
At ES, CRSA, NTRO,New Delhi.
4. P.K. Rai s/o Shri K.N. Rai,
Working as T.O. B in NTRO,
At AED DAC, New Delhi.
5. A.K. Singh s/o Shri Parashuram Singh,
Working as T.O.B in NTRO,
At IDG,New Delhi.
6. Prasanth G. s/o Gopalan Nair,
Working as T.O. B in NTRO,
At DAC, AED,New Delhi.
7. Alok Pratap Singh s/o Indra Bhan Singh,
Working as T.O. B in NTRO,
At DAC Mayur Vihar, Delhi.
8. V.K. Rattan s/o Shri R.C. Rattan,
Working as T.O. B in NTRO,
At DAC, Mayur Vihar, Delhi.
9. N. Ramesh s/o Natarajan,
Working as T.O. B in NTRO,
At DAC Mayur Vihar, Delhi.
10. R.K. Jain s/o L. Sh. Kesho Bhai Jain,
Working as T.O. B in NTRO,
DAC, Mayur Vihar, Delhi.
11. O.P. Juyal s/o Late C.L. Juyal,
Working as T.O. B in NTRO,
DAC, AED, Mayur Vihar,
Delhi.
12. T.U. Mendhe s/o Shri U.P. Mendhe,
Working as T.O. B in NTRO,
At DAC, Mayur Vihar, Delhi.
13. S. Mahesh s/o S.N. Sampath Kumar,
Working as T.O. B in NTRO,
At DAC, Mayur Vihar, Delhi.
14. D. Mohanty s/o Sarbeswar Mohanty,
Working as T.O. B in NTRO,
AED, NTRO.
15. E. Thevara Mani s/o P.S. Eraimalai Adigal,
Working as T.O.B in NTRO,
At ES, CRSA, NTRO, New Delhi.
16. Sukhdarshan Kumar s/o Sh. Mahendra Singh,
Working as T.O.B in NTRO,
At ES, CRSA, NTRO, New Delhi.
17. Naresh Singh s/o Sovram Singh,
Working as T.O. B in NTRO,
At AED, DAC NTRO,Delhi.
18. N. Jeyachandran s/o B.S. Narasimhan,
Working as T.O. B in NTRO,
At CMMS Unit.
19. V. Arul s/o M.V. Pathi,
Working as T.O. B in NTRO,
At DAC, AEO, NTRO.
20. Anil Kumar s/o Late Shri Mahesh Prasad,
Working as T.O. B in NTRO,
At ES, CRSA, NTRO,
21. R.N. Satyavani D/o Late M.R.K. Murthy,
Working as T.O. B in NTRO,
At FRU, Udaipur.
22. T.K. Remesh s/o Late B. Thankappanachary,
Working as T.O. B in NTRO,
At FRU, Udaipur.
23. A.K. Pandey s/o Shri S.C. Pandey,
Working as T.O. B in NTRO,
At Numaligarh Assam.
24. B. Behera s/o B.D. Behera,
Working as T.O. B in NTRO,
At Numaligarh, Assam.
25. M. Rajan s/o T. Parameshwaran,
Working as T.O. B in NTRO,
At Numaligarh Assam.
26. B.B. Nautiyal s/o Late M.R. Nautiyal,
Working as T.O. B in NTRO,
At FRU Anandpur.
27. B. Raghunandan s/o B.N. Bhagavan,
Working as T.O. B in NTRO,
At FRU, Anandpur, Shimla.
28. P.K. Banerjee s/o Shri A.N. Banerjee,
Working as T.O. B in NTRO,
At NTRO Doomdooma.
29. M.S. Sikarwar s/o Shri G.S. Sikarwar,
Working as T.O. B in NTRO,
At NTRO Doom Dooma.
30. K.P.S. Duhoon s/o Shri Sansar Singh,
Working as T.O. B in NTRO,
At Doomdooma.
31. D.N. Pandey s/o Shri M.D. Pandey,
Working as T.O. B in NTRO,
At Bhuj, Gujarat.
32. P. Hema Kumar s/o Shri C.R. Papanna,
Working as T.O. Bin NTRO,
At Bhuj, Gujarat.
33. V.V. Shan Bhag s/o Shri V.M. Shanbhag,
Working as T.O. Bin NTRO,
At Bhuj, Gujarat.
34. S. Venkatesh s/o P. Shivappa,
Working as T.O. Bin NTRO,
At FRU Udaipur.
35. R.K. Singh s/o Shri Munna Lal,
Working as T.O. Bin NTRO,
At NTRO, FRU, Udaipur.
36. Basavaraj Ingale s/o Shanker Ingale,
Working as T.O. Bin NTRO,
At FRU, Udaipur.l
37. R.S. Narasimhamurthy s/o R.L. Satyanarayana,
Working as T.O. Bin NTRO,
At FRU, Udaipur.
38. A. Ram Prasad s/o A.R. Viswanath,
Working as T.O. Bin NTRO,
At FRU, Udaipur (Rajasthan).
39. T. Jagannathan s/o Sri J. Thiruvikaraman,
Working as T.O. Bin NTRO,
At FRU, Udaipur.
40. C.M. Ramesh s/o Shri Muni Venkatappa,
Working as T.O. Bin NTRO,
At Bhuj, Gujrat.
41. L.M. Joshi s/o Lt. M.G. Joshi,
Working as T.O. Bin NTRO,
At Bhuj, Gujrat. Review Applicants
Versus
1. National Technical Research Organisation,
Through its Chairman,
Old JNU Campus,
Block-3, New Delhi.
2. The Senior Advisor,
NTRO, Old JNU Campus,
Block-3,New Delhi.
3. The Controller of Administrator (COA),
NTRO, Old JNU Campus,
Block-3,New Delhi.
4. The Director (Establishment-II),
Old JNU Campus, NTRO,
Block-3, New Delhi. Respondents
RA No.113/2012 in OA No. 3808/2011
1. R.V. Pillai s/o N. Velu Pillai,
Working as T.O. at CRSA,
Mayur Vihar, Delhi.
2. Chandrakanta,
W/o Sh. Devender Kumar,
Working as T.O. at CRSA,
Mayur Vihar, Delhi.
3. Naresh Anand s/o Shri Mulk Raj,
C.M.M.S Chanakya Bhawan,
New Delhi.
4. S. Ramesh Kumar s/o K. Shreedharan Nair,
Working as T.O. DAC,
Mayur Vihar, Delhi.
5. R. Gopalkrishnan s/o B. Ramamurthy,
Working as T.O. at NTRO,
Adrin, 203, Akbar Road,
Tarband Manovikash Nagar,
Secunderabad (A.P.)
6. Kapil Kumar s/o Sh. Ved Prakash Malhotra,
Working as T.O. DAC Mayur Vihar,Delhi.
7. M.R. Suresh s/o Shri M.K. Ramachandra
8. K.S. Ramesh s/o Late K.C. Subramanyam.
9. H.S. Jeevan Prakash s/o Shri K. Setty.
10. K. Rama Bhat s/o R. Thirumaleshwara.
11. Shivanand B. Pagad s/o Basappa.
12. Govind Keshav Shat s/o Late Shri Keshav Shet.
13. C.S. Shrihari s/o Late Shri C.S.N. Rao.
(All applicants No. 7 to 13 are working as T.O. NTRO Reliance Commo building, HMT Area platinum City Road, Opp. Toewe Peenya, Bangalore.)
Review Applicants
Versus
1. Union of India
National Technical Research Organisation,
Through its Chairman, Old JNU Campus,
Block-3, New Delhi.
2. The Senior Advisor,
NTRO, Old JNU Campus,
Block-3,New Delhi.
3. The Controller of Administrator (COA),
NTRO, Old JNU Campus,
Block-3, New Delhi.
4. The Director (Establishment-II),
Old JNU Campus, NTRO,
Block-3,New Delhi. Respondents
Appearance: Sh.Devesh Singh and Sh. R.K. Shukla,
Counsel for review applicants in RAs.
Shri Krishan Kumar, counsel for
respondents in both the RAs.
ORDER
By Dr. B.K. Sinha, Member (A):
Both the Review Applications (RA No.108/2012 in OA No.1169/2011 and RA No. 113/2012 in OA No. 3808/2011) are being disposed of by this common order as they involve identical issues and are sought review of the common order of the Tribunal passed on 15.02.2012 in three Original Application bearing OA Nos. 1169.2011, 2443/2011 and 3808/2011. The review applicants in both the RAs have prayed for the following relief(s):-
To allow the review application of the applicants and the judgment dated 16.02.2012 (where it should be 15.02.2012) may be reviewed accordingly in the interest of justice and equity;
Any other and further relief or order which this Honble Court may deem fit and proper in the facts and circumstances of the case be also granted.
2. In support of the review applications, the review applicants have taken the following grounds:-
That subsequent to passing of the impugned order, a document has come to light to which the applicants did not have access at that time indicating manifestly wrong statement of the respondents filed during the course of the arguments. The Tribunal had relied upon the unsigned documents, incorrect comparative statements and wrong facts submitted by the respondents without having given an opportunity to the review applicants to refute the same. It has been submitted in para 10 of the impugned order dated 15.02.2012 that eleven FO (Ts), who got their financial upgradation under Assured Career Progression (hereinafter referred to as ACP) Scheme and were getting pre-revised pay in the Pay Scale of Rs.8000-275-13500 and four others, who had put in longer period of service than the applicants as FO (T)s, were fitted as TO (C) in Pay Band-3 with Grade Pay of Rs.5400. The review applicants submit that this discriminatory treatment had been meted out on the basis of unsigned and incorrect statement without having any official stamp/seal in making an incorrect comparative statement. The review applicants have pointed out specific instances of one M.C. Loshali, who had completed 5 years of residency period on 04.02.2007; A.K. Dass, who was brought in the Grade Pay of F.O. (T) w.e.f. 19.07.2002, completed 5 years of residency period on 18.07.2007. Likewise, one R.C.G. Khatri, who was brought in the Grade Pay of F.O. (T) w.e.f. 19.07.2002, completed 5 years of residency period on 18.07.2007. Though the statements produced by the respondents indicate that M.C. Loshali completed 4 years 11 months residency period, A.K. Dass completed 4 years 7 months and R.C.G.Khatri completed 4 years 7 months till the date of joining the NTRO, yet the respondents had deliberately filed this incorrect statements in order to cover their residency period in respect of which no relaxation was permissible.
In the second place, there is a glaring error committed by the Tribunal in holding that Grade Pay of Rs.5400/- is admissible in PB-3 and not in PB-2. The review applicants have relied upon the instance of one R.S. Jaswal to hold that the Grade Pay of Rs.5400/- was also admissible in PB-2.
In the third place, the Tribunal has incorrectly appreciated the provision of FR 22(1). The impugned order records that FR 22(1) applies in case of promotion and discharging higher duties when an additional increment is to be granted and that is not the case of the applicants in the OA. On the other hand, the review applicants have relied upon a clarification in referencer for Central Government Employees published by Nabhi Publication that if there is no such stage in the new scale, the pay for the new post will be fixed at the stage next above the pay drawn in the lower post where a new post does not involve duties and responsibilities of greater importance than the old post. This entitles the applicants to Grade Pay of Rs.5400/- in PB-2 without treating it a promotional grade irrespective of residency period as enumerated in the recruitment rules.
In the fourth place, the review applicants have also assailed the findings of the Tribunal contained in para no.8 of the impugned order to the extent that there are three categories in NTRO i.e. TO (A), TO (B) and TO(C).
3. The respondents have filed a common counter affidavit in both the review applications refuting the averments of the review applicants stating the following grounds:-
No review application lies in the instant case as the points indicated already stand covered in the impugned order. Drawing attention to page 18 of the impugned order, the learned counsel for the respondents submitted that the order is quite clear and in case the applicants disagree with the findings, the obvious remedy is to go in appeal and not come in review. In fact, what the review applicants have sought is to re-argue the case on the basis of old facts or the facts already covered in disguise of the review applications, which is impermissible.
The Tribunal in its impugned order having taken a note of the submissions made by the review applicants in regard to their points related to unsigned documents and relaxation of residency period etc., did not find any justification as the Fitment Committee had come out with three specific criterion of the modalities on the basis of which Ex-ARC officers were fitted into the NTRO cadre. Since these modalities have been discussed and taken care of in the impugned order, there is nothing discriminatory on record.
The respondents have also submitted in respect to interpretation of FR 22(1) that it is based upon a decided case of Honble Supreme Court in Syed Abdul Qadir Versus State of Bihar [2009-3-SCC-475].
In relation to the case of R.S. Jaswal, respondents have submitted that this order was correct and the submissions had been made in the OA on the basis of the correct version. The respondents have also refuted the plea of the review applicants regarding the categories in NTRO on the ground that the posts of TO(A) and TO(B) have been merged as per the Government orders with Grade Pay of Rs 4600/-. The merged posts have been designated in NTRO with next promotional avenues of TO(C) (a Group A post) with a Grade Pay of Rs. 5400/- in PB-3, which is equivalent to that of SFO in ARC being a Group A post there). The non Ex-ARC employees of NTRO in the grade of Technical Officer are still in PB-2 with Grade Pay of Rs.4600/-. It is only those Ex-ARC employees, who have got their pay fixed in ARC in Grade Pay of Rs.4800/-, have been allowed the said fixation in NTRO in order to protect the pay granted by their erstwhile parent department where they continued till 01.01.2006.
4. We have carefully examined the pleadings as also the documents submitted by the parties and have taken note of their oral submissions.
5. The only issue to be decided in this respect is that whether the review applications are maintainable?
6. The review applicants have relied upon the case of Honble Supreme Court in the case of Ajit Kumar Rath versus State of Orissa and Others [(1999) 9 SCC 596] wherein their Lordships in para 30 have held as under:-
30. 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 S. 114 read with O. 47, C. P. C. 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.
7. Since the review of the impugned order has been sought on the ground of there being error apparent on the face of it, we feel that it is necessary to go into the arguments of the review applicants for a just decision in the matter. For the sake of convenience, we take four arguments of the review applicants as the facts in issue and deal with them in the same order:-
In so far as the first argument regarding unsigned documents is concerned, we find that the impugned order has principally relied upon the report of the Fitment Committee. What the respondents have argued in the review applications have also been covered in paragraph 10 of the impugned order which did not find any justification for the arguments of the review applicants as the Fitment Committee had clearly spelt out three specific criterion on basis of which this integration of the Ex-ARC employees in the NTRO cadre was made. For the sake of clarity, it is necessary to reproduce para 10 of the impugned order:-
10. Shri Devesh Singh very labouriously argued that there had been invidious discrimination against the applicants by not granting them Grade Pay of Rs.5400. His submission was that as on 01.01.2006 in ARC, there Grade Pay was fixed at Rs.4800 and on getting absorbed later on in the NTRO, some others of Ex ARC Field Officers got Rs.5400 as Grade Pay. This contention was opposed by Shri Krishna Kumar, learned counsel appearing on behalf of the respondents. He submitted during the final hearing a comparative statement which disclosed that those (eleven FO(T)s) who got their financial upgradation under ACP Scheme and were getting pre-revised pay in the Pay Scale of Rs.8000-275-13500 and four others who had put in longer period of service than the applicants as FO (T)s were fitted as Technical Officer-C in the Pay Band-3 with Grade Pay of Rs.5400. Even seven of these 15 Technical Officers- C have retired. We do not find any justification in this ground as the Fitment Committee spelt out three specific criteria/modalities and categorised FOs, coming from ARC, and on the basis of these modalities the officers were fitted. We do not find any discriminatory approach on the part of NTRO.
8. From the above, it is apparent that the arguments were raised and the matter had had been considered.
In so far as the second argument regarding FR 22(1) is concerned, paragraph 12 of the impugned order has gone into it meticulously. The impugned order has also relied upon the decided case of Honble Supreme Court in the matter of Syed Abdul Qadir Versus State of Bihar (supra), para 39 of which has interpreted FR 22(I)(a)(1) holding that when a Government servant is promoted or appointed to a higher post and the higher post carrying duties and responsibilities of greater importance, his initial pay in the time-scale of the higher post is to be fixed at the stage next above the notional pay arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at the stage at which such pay has accrued to him. Para 40 of the afore-cited judgment further provides that when the post does not involve higher responsibilities then the benefit of additional increment is not available.
Whether this interpretation is right or wrong is something to be challenged before superior courts in a regular appeal. It is not for this Tribunal to consider that whether the interpretation is right or wrong in a review application particularly when the point has already been considered and decided with cogent reasons.
In so far as the third argument relating to R.S. Jaswal is concerned, the arguments of the parties had already been taken note of in the impugned order. The review applicants have alleged discrimination on the ground that the pay slip of the said R.S. Jaswal fixing his pay in PB-2 with Grade Pay of Rs. 5400/- was not available at that time and has now become available as has been submitted herein. The respondents have denied this fact on the ground that this order had been superseded by a further order dated 19.12.2011 vide which the pay of the said R.S. Jaswal was corrected to be in PB-3 + Grade Pay of Rs.5400/- and grant of MACP benefits of financial upgradation to the Grade Pay of Rs. 6600/-. We also take a note of the fact that pay of the said R.S. Jaswal, who is admittedly an Ex-ARC officer, had been fixed in PB-2 + Grade Pay of Rs. 5400/- since the same had been fixed by ARC and entered into the service book vide order dated 04.03.2011. Subsequently, based on clarifications obtained ARC corrected the pay fixation of R.S. Jaswal in PB-3 with Grade Pay of Rs. 5400/- vide their pay fixation order dated 23.02.2012 (Annexure-IV). Thereafter, the pay of R.S. Jaswal was accordingly fixed in NTRO. This adequately clarifies the position and there does not appear any patent error on face of it.
Coming to the arguments with regard to the Grades of NTRO, we take a note of the fact that the post of TO(A) and TO(B) have been merged as per the Government order with Grade Pay of Rs.4600/-. These merged posts have been re-designated as TO in NTRO with next promotional avenues of TO(C) [a Group A post with Grade Pay of Rs. 5400/- in PB-3). This post is equivalent to that of SFO in ARC, again a Group A post in ARC. We further take a note of the submissions of the learned counsel for the respondents that the non ex-ARC employees of NTRO in the grade of Technical Officer are still in the PB-2 with Grade Pay of Rs. 4600/- and it is only Ex-ARC employees, who have had their pay fixed in ARC in Grade pay of Rs. 4800/-, have been allowed the fixation in NTRO and also to protect the pay granted to them by their erstwhile parent department on whose pay rolls they continued till 01.01.2006.
9. It is quite clear that the submissions made by the review applicants do not reveal any patent error apparent on the face of the impugned order as the facts have been satisfactorily explained. They do not work out to any discrimination against the review applicants.
10. In view of the above discussions, we have not the least hesitation in holding that both these review applications have not brought forth either any patent error of law or of facts or any new facts, which existed at the time of decision but could not be placed before the Tribunal being not in possession of the review applicants, which would have led the Tribunal to decide differently then what it has done. On the other hand, we find that the impugned order has succinctly covered all the points raised. It is to be reiterated once again that a review application is not an appeal in disguise or a fresh hearing and for that the proper remedy is to file an appeal before the appropriate forum/superior court. Hence, we find no merit in these Review applications and the same stand dismissed. There shall be no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman \naresh/