Central Administrative Tribunal - Kolkata
N K Shunmugam vs Bharat Sanchar Nigam Limited on 9 December, 2022
a> SS ww 2 1 | TRE 1 Ra. 25.22 CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA R.A/ 25/2022 (KOLKATA) Date of Order: 09.12.2022 (OA 1626/2022) With M.A.No.765/2022 M.A.No.766/2022 Coram: Hon'bleMr.Jayesh V. Bhairavia, Judicial Member Hon' bleMr.Anindo Majumdar, Administrative Member 1. N.K. Shunmugam S/o Krishnan N, Aged: 51 years SDE (Transmission), BSNL O/o Divisional Engineer(TXN) Attingal, Thiruvananthapuram District R/o 434, Kavimani Nagar, Nagercoil - 629002, Tamil }:..du. 2. T. Jayaseelan S/o M. ThankiahNadar Aged "3 years Sub Divisional Engineer, BSNL R/o 14A, Shiji College KeelamaravanKudierappuKottar, Nagarcoil - 629002, Tamil Nadu. --Applicants -versus- 1. Vinod Kumar Nagwanshi, S/o Late C Nagwanshi Aged 47 years, Sub divisional Engineer BSNL, Residing at PurtiUtsav complex, Flat No. Onam - 401, Rajarhat, Kolkata-700135. 2. Secretary, Ministry of Communication Bharat, Sanchar Nigam Ltd through the Chairman and Managing director Bharat Sanchar Nigam Limited BSNL Bhavan, Janpat, NewDelhi-110001. 3. Director (HR) Bharat Sanchar Nigam Limited 4th Floor Bharat Sanchar BhawanJanpath, New Delhi- 110001 4. Assistant General Manager (DPC-SM) Bharat Sanchar Nigam Limited, 4th, Floor, Bharat Sanchar BhawanJanpath, New Delhi- 110001 5. Chief General Manager BSNL, West Bengal Telecom Circle 1st Floor, CTO Building, 8 Red cross place, Kolkata-700001 6. Secretary Gol, Ministry of Personnel, Public Grievances & Pensions, Depiuiment of Personnel & Training, North Block, New Delhi, 110001. --Respondents we 2 RA. 25.22 For The Applicant(s) : Mr. S. Sadasivan, counsel For The Respondent(s): None ORDER(ORAL) Jayesh V. BhairaviaMember (J):
Heard Learned Counsel for the review applicants.
2. The review applicants have filed M.A.No.765/2022 seeking permission of this Tribunal to move the R.A. jointly. They have alsc riled M.A.No.766/2022 for condonation of delay in filing the R.A. Having heard the Learned Counsel for the review applicants, both the M.As are allowed.
3. The present RA has been filed by the applicants who were not parties in the O.A No. 1626/2022 which was disposed of on 13.09.2022 by this Tribunal. 4, At the outset, it is required to mention that the original O.A was filed by one \ . .
Vinod Kumar Nagwanishi, JTO aggrieved by a provisional seniority list which was published on 10.08.2020. The cause title of the said O.A. and the prayers sought by the said applicant, Mr. Vinod Kumar is reproduced below for ready reference :-
Vinod Kumar Nagwanshi Son of Late T. C. Nagwanshi, Aged about 47 years, working as SDET) (Staff No.162009), under West Bengal Telecom Circle, BSNL Present Pay Grade (IDA) Rs.29.500-54,500/- And residing at PurtiUtsav Complex, Flat No. Onam-401, Rajarhat, Kolkata-700135.
veceveeea Applicant Versus
1. Secretary, Ministry of Communication. Bharat Sanchar Nigam Ltd.
Through the Chairman & Managing Director, Bharat Sanchar Nigam Ltd, 3rd Floor, Bharat Sanchar Bhawan, Janpath, New Delhi-110 001.
2. Director (H.R), Bharat Sanchar Nigam Ltd 4th Floor, Bharat Sanchar Bhawan, Janpath, New Dethi-110001. .
3. Asstt, General Manager (DPC-SM) Bharat Sanchar Nigam Lid..Personnel Branch.4th Floor, Bharat Sanchar Bhawan, Janpath, New Delhi-1 10001.
4. Chief General Manager. West Bengal Circle. BSNL.1 Floor, CTO Building.8, Red Cross Place. Kolkata - 700 001 3 RA. 25.22
5. Secretary, Government of India Ministry of Personnel. Public Grievances & Pensions, Department of Personnel. &Traininig. North Block, New Delhi- 110 001 Respondents"
4.1. The applicant i.e Vinod Kumar Nagwanshi in the said O.A 1626/2022 had prayed for the following relief:
"i) Recall the purported Final SDES(T) Seniority List Number 9 [Annexure All and amend/modify the same in consistency with the Provisional Seniority List No.9 (annexure-a8) so as to incorporate the petitioner including others similarly circumsanced as the petitioner in the category as CQ with firm determination of relative seniority/inter se seniority of all promotes and appointees on or about 02.07.2013 confining to vacancy year 2006-07, in accordance with the DOPT instructions vis-a-vis the Apex Court Judgment allowing rotation of quotas in that year.
ii) Rescind recall, withdraw and/or cancel 'and/or amend/modify so as to incorporate promotes from SQ as well as CQs in accordance with the successive vacancy years confining to the DOPT's instruction as well as the Apex Court Judgments as applicable from 19.11.2019 or after that.
iti) Remove the name the petitioner appearing in Serial No.1721 in Seniority List No.2 in Annexure-A2 so as to be incorporated in the Seniority List No.9 as to be prepared as sought for in (1) above.
iv) Certify and transmit the entire records and papers pertaining to the applicant's case so that after the causes shown thereof conscionable justice may be done unto the applicant by way of grant of reliefs as prayed in (i) to (i) above.
(v) Pass such other order/orders and/or direction/directions as deemed fit and proper.
vi} Costs."
4.2 After, considering the materials on record and submission of the Ld. Counsel for both parties, this Tribunal allowed the said O.A vide order dated 13.09.2022, with the following observations;
"The applicant was appointed in BSNL on of about 18.05.2002 15 JTO(T) as a direct recruit candidate and was promoted as SDEM) offer 3 years of service as ITO with effect from 17.07.2013 against the vacancy year of 2006-07.
He fell aggrieved with a provisional seniority list which was published on 10.08.2020 putting the 50 (Seniority Quota) candidates enblock ahead of the CO (Competitive Quota) candidates including the applicants. Although errors and omissions therein if any were invited from the candidates, it was not acted upon. DOPT circulars were issued from time to time in the wake of the decision in Union of India &Ors. Vs, N.R. Parmar&Ors. (2012) 13 SCC 340 decided on ah 4 RA. 25.22 27.11.2012 and K. Meghachandra Singh &Ors. Vs. NingamSiro&Ors. decided on 19.11.2019, whereunder the inter-se-seniority/relative seniority of SO and CQ candidates had to be decided "by rotation" in the ratio of 2:1, and in K. Meghachandra Singh it was decided the direct recruits and promotes appointed/joined during the period between the period 27.11.2012 and 18.11.2019 the inter-se-seniority shall be governed by the provisions of OMS dated 07.02. 1986/03.07.1986 read with OM dated 04.03.2014 unless where a different formulation/manner of determination of seniority has been decided by any Tribunal or Court.
The applicants who belong to Competitive Quota (CQ) were appointed between 27.11.2012 and 18.11.2019. They were incorporated in the seniority list under the rotation of quota. In the final seniority list issued on 22.02.2022 they were relegated to a much later date of seniority. As a result while considering their promotion to the next higher post of AGM, the applicant would suffer prejudice in as much as the candidates who have illegally gained advantage over them would be marching ahead.
The applicant therefore, would prefer representation for drawing up final seniority list in terms of the DoPT OM dated 13.08.2021 issued in the light of K.Meghachandra Singh judgment and sought for the following reliefs:-
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2. Ld. Counsels were heard, records perused. Reply, rejoinder have been exchanged.
3. At hearing both the counsels agreed that the representation preferred by the applicant seeking amendment of the provisional seniority list No.9 (Annexure A-8) to incorporate promotees as SDE(T) in SO and CQ by rotation of quotas as per DOPTs Circulars (Annexures A-5, A-6 & A-7) in tune with the DOPT OM dated 13.08.2021 (Annexure A-10) against vacancy year 2006-07 and in terms of the decision rendered in K. Meghachandra Singh, be accorded. Till such time the respondents shall not give effect to office order being Annexures A-1, A-2 & A-3 and shall nct proceed with the promotion from SDE(T) to AGM cadre.
4, Ordered accordingly. Let a detailed speaking order be issued on the representation and let a seniority list be published afresh in the light of the DOPT OM dated 13.08.2021 in consideration of the grievance of the applicant as projected in their representations and fill such time there shall not be any promotion from SDE(T) to AGM cadre.
5. The entire exercise be completed within a period of 2 months from the date uf receipt of a copy of this order.
6. O.A. accordingly stands disposed of. No costs."
5. The applicants have filed the present R.A to recall the said order dated 13.09.2022, mainly on the ground that the order under review is mot in consonance ap 5 RA. 25,22 with the.law laid down by various judgments passed by the Hon'ble Supreme Court. According to the applicant, the order dated 13.09.2022 has not been passed by this Tribunal in terms of the DOPT guidelines with respect to issue involved in this case. 5.1 5.2 5.3 Further, It is stated that the order passed by this Tribunal will affect the seniority of the applicants herein as well as other similarly placed officers.
It is submitted that the original official respondent No.2 i.e. BSNL has also filed a Review Application No.R.A.22/2022 against the order under review herein and the said R.A. is pending. Further it is stated that the seniority list which was under challenge before this Tribunal was also subject matter in O.A.No.454/2020 before the C.A.T., Chennai Bench as well as before the C.A.T., Principal Bench in O.A.No.1263/2021. The C.A.T., Chennai Bench disposed of the O.A.No.454/2020 vide order dated 28.01.2021. Similarly the
0.A.1263/2021 also came to be disposed of by C.A.T., Principal Bench vide order dated 15.07.2021 (Annexure RA/3). It is stated that in compliance with the order dated 28.01.2021 passed by C.A.T., Chennai Bench the Office of the respondents issued speaking order dated 09.07.2021 (RA-4) whereby it was decided that the seniority list would be finalized as per the earlier decisions of the Hon'ble Supreme Court in 12.08.2014 in SLP (C ) No.35756/2012 in BSNL & Others Vs. S. Sadasivan, Civil Appeal No.7830/2014 in BSNL & Others Vs. S.K. Dubey and Others and also vide order dated 02.04.2019 in Civil Appeal No.14967/2017 in Vinod Verma Vs. Union of India and Others, whereby the inter-se seniority between the two groups of promote Sub Divisional Engineers in BSNL promotéd at two different point of time by OL 5.4 5.5 6 RA, 25.22 two different methods in terms of SDE(T) Recruitment Rules 2002 were settled on the basis of the criteria of date of joining the cadre SDE(T).
Further it is stated that as per the direction issued by C.A.T., Principal Bench vide order dated 15.07.2021, the respondents have published seniority list on 22.02.2022. It is submitted that as per the above final seniority lists, the original applicant in the present O.A. is accommodated in the seniority list at Srl. No.12 with seniority No.121853 and these review applicants have been accommodated in seniority list No.10 with higher seniority Nos.110210 and 100063 respectively on the basis of the date of joining in the cadre SDE(T) and in accordance with their promotion orders dated 15.05.2009 since these review applicants joined/promoted as SDE earlier than the original applicants.
It is stated that the present applicants came to know about the judgment dated 13.09.2022 sought to be reviewed on 03.11.2022. That if the judgment and final order dated 13.09.2022 passed by this Hon'ble Tribunal in O.A.No.350/1626/2022 is implemented, it will, not only affect these review applicants but also will, unsettle the seniority list prepared and finalized based on the principles of seniority laid down by the Hon'ble Supreme Court in the above referred SLP and Civil Appeals while interpreting the SDE(T) Recruitment Rules 2002 in BSNL. Hence, the present review application is preferred seeking review ap 7 RA. 25.22 of the above order dated 13.09.2022 in the present O.A.seeking the following reliefs :-
"a) This Hon'ble Tribunal be pleased to recall the order Annexure: RAl Dated 13.09.2022 passed in O.A Neo.
350/1626/2022.
b) This Hon'ble Tribunal be pleased to allow this review application and dismiss O.A in the light of the foregoing submissions: and/or
d) Any other and further order(s) be passed as this Hon'ble Tribunal deem fit and proper in the facts and circumstance of this R.A in the interest of justice." 5.6 At hearing the review applicants submit that one R.A.No.22/2022 filed by the official respondents in connection with the same O.A. is pending for decision before this Tribunal. On perusal of the record of R.A.22/2022 we find that the said R.A. has already been disposed of on 11.11.2022 with the following order:-
"A, The order very clearly indicates that the respondents shall consider the representation preferred by the applicants (0.A.), in the light of the Apex Court decision etc., before any promotion is granted, so that no further rights are created in favour of any class of promotes, to avoid further litigations. There was no mandatory order to accord promotion. Therefore, it would only be fair on the part of the authorities to consider the representation, dispose it of and then grant promotions.
5. However, as sought for, the recording of the facts that the order was passed on the basis of reply and rejoinder is modified to the extent that the paragraph 2 of the order passed in O.A.No.350/1626/2022 dated 13.09.2022 shall read as under:-
2, Heard Learned Counsels"
Further, since the word "accorded" in 3 Para of the order dated 13.09.2022 is creating confusion as urged by Learned Counsel Mr. Mukherjee, it is replaced with the word "considered".
6. Accordingly the R.A. stands disposed of. No costs."
6. It is important to mention that it is not the case of the present applicants that they have submitted any objection or representations before the competent authority against the provisional seniority list published on 10.08.2020 and had ever claimed ol 8 . RA, 25.22 for correction in the said provisional seniority list for proper assignment of their seniority in the cadre. There is no material on record that because of the order dated 13.09.2022 passed by this Tribunal in O.A.No.1626/2022 the respondents have denied any rightful claim of the present applicants or any adverse steps taken by the respondents resulting disturbing the seniority of the applicants. It emerges from the record that applicants herein had never submitted any application to implead them as party in the O.A. 6.1 The counsel for the applicants submits that even the employee who is not a party to the O.A. can file review application if the order passed by this Tribunal directly affects his seniority and other rights. In this. regard he placed reliance on the decision of the Full Bench of C.AT., Bangalore Bench in the case of John Locus and Another Vs. Additional Chief Mechanical Engineer, S.C. Railways and Others reported in (1987)3 ATC 328. The said judgment was referred to by the Hon'ble Apex Court in the case of Ajit Babu and Others Vs. Union of India & Others reported in (19976 SCC 473 wherein it has been held that "Right to review is available to the aggrieved person on restricted ground mentioned in Order 47 of CPC if filed within the period of limitation."
There cannot be any dispute with respect to ratio laid down in the judgment as relied upon by the Counsel for the applicants. In the present case, in absence of any material whereby based on the order passed by this Tribunal the official respondents have disturbed the seniority of the applicants herein as well as in absence of any representation submitted before the competent authority, it cannot be said that the order under review has caused any prejudice to the right of the applicants. Under the circumstances, it cannot be said that the pe applicants are directly affected parties. 9 RA. 25.22
7. It is worth to mention that the scope of review of an order passed by courts/Tribunal is very limited and the applicants. cannot seek review for correction of the view taken earlier or for rehearing of the matter. The scope for Review Application is clearly defined in various orders of the Hon'ble Supreme Court. In the case of State of West Bengal & others v. Kamal Sengupta and another (2008) 8 SCC 612 the Hon'ble Apex Court held that the "Tribunal can exercise the powers of a Civil Court in relation to matters enumerated in clauses (a) to (i) of sub-section (3) of Section 22 of the Administrative Tribunals Act including the power of reviewing its decision. By referring to the power of a Civil Court to review its judgment/decision under Section 114 CPC read with Order 47 Rule I CPC, the Hon'ble Supreme Court further laid down the principles subject to which the Tribunal can exercise the power of review. In this regard, it is appropriate to refer para 28 of the said judgment the which reads as under :-
"ij) The power of the Tribunal to review its order/decision under Section 22(3)(f) of the Act is akin/analogeus to the power of a Civil Court under Section 114 read with Order 47 Rule I CPC.
(ii) The Tribunal can review its decision on either of the grounds enumerated in Order 47 Rule I and not otherwise.
(iii) The.expression "any other sufficient reason" appearing in Order 47 Rule 1 has to be interpreted in the light of other specified grounds.
(iv) An error which is not self-evident and which can be discovered by a long process of reasoning, cannot be treated as an error apparent on the face of record justifying exercise of power under Section 22(3)(f).
(v) An erroneous order/decision cannot be corrected in the guise of exercise of power of review.
(vi) A decision/order cannot be reviewed unger Section 22(3)(j) on the basis of subsequent decision/judgment of a coordinate or larger Bench of the Tribunal or of a superior Court.
(vii) While considering an application for review, the tribunal must confine its adjudication with reference to material which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.
O 40 RA. 25.22
(viii) Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to Show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the Court/Tribunal earlier."
8. In another judgment passed in Union of India v/s TaritRanjan Das 2004 SCC (L&S) 160 the Hon'ble Supreme Court while dealing with the order passed in Review Application held in paragraph 13 as under:
"The Tribunal passed the impugned order by reviewing the earlier order. A bare reading of the two orders shows that the order in review application was in complete variation and disregard of the earlier order and the strong as well as sound reason contained therein whereby the original application was rejected. The scope for review is rather limited and it is not permissible for the forum hearing the review application to act as an appellate authority in respect of the original order by a fresh and rehearing of the matter to facilitate_a_change of opinion on merits. The Tribunal seems to have transgressed its jurisdiction in dealing with review petition as if it was hearing original application. This aspect has also not been noticed by the High Court."
9. Further, Hon'ble Apex Court in R.A.(Crl.) No.453 of 2012 [Writ Petition (Cri.) 135 of 2008 - KamleshVerma vs. Mayawati and Ors.| held vide its judgment dated 8th August, 2013, as-under:-
"(13) In a review petition, it is not open to the Court to re-appreciate the evidence and reach a different conclusion, even if that is possible. Conclusion arrived at on appreciation of evidence cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. This Court, in Kerala State Electricity Board vs.HitechElectrothermics&Hydropower Ltd. &Ors., (2005) 6 SCC 651, held as under:
"10.0 ..0000 In a review petition it is not open to this Court to re- appreciate the evidence and reach a different conclusion, even if that is possible. Learned counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. Tite appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion that conclusion cannot be.ussailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on question of appreciation of 11 RA. 25.22 evidence would amount to converting a review petition into an appeal in disguise."
14) Review is not re-hearing of an original matter. The power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. A repetition of old and overruled argument is not enough to re-open concluded adjudications. This Court, in Jain Studios Ltd. vs. Shin Satellite Public Co. Ltd., (2006) 5 SCC 501, held as under:
11.So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases.
12.When a prayer to appoint an arbitrator by the applicant herein had been made at the time when the arbitration petition was heard and was rejected, the same relief cannot be sought by an indirect method by filing a review petition. Such petition, in my opinion, is in ihe nature of "second innings"
which is impermissible and unwarranted and cannot be granted."
15) Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII Rule I of CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction."
10. Bearing in mind the above dicta as laid down by the Hon'ble Supreme Court, it can be seen that existence of an error on the face of the record is sine gua non for review of an order. But it is not permissible for the Courts/Tribunal to hear the review application as an Appellate Authority in respect of the original order by a fresh hearing of the matter to facilitate a change of opinion on merits.
11. Inabsence of above, at this stage we are not inclined to entertain this R.A., the judgements relied upon by the applicants in our considered view, same is not applicable in the facts and circumstance in the present case. We do not find any apparent error in the face of the record in the order passed by this Tribunal. Any gy'?
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