Central Administrative Tribunal - Ernakulam
Dr.Selvan Lukose vs Employees State Insurance Corporation on 4 July, 2016
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Review Application No.180/00036/2016
in Original Application No.1047/2013
Monday, this the 4th day of July, 2016
CORAM:
HON'BLE Mr. JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs. P. GOPINATH, ADMINISTRATIVE MEMBER
Dr.Selvan Lukose, S/o.Lukose,
Specialist Grade - II (Surgery),
ESIC Model & Superspeciality Hospital, Asramam, Kollam.
Residing at Thodipurayidom, Divya Nagar - 39,
Pattathanam P.O., Kollam - 691 021. . . . . Review Applicant
(By Advocates Mr.Millu Dandapani)
Versus
1. Employees State Insurance Corporation,
Panchadeep Bhavan, New Delhi,
represented by its Director General -110 001.
2. State of Kerala,
represented by the Secretary to Government,
Labour and Rehabilitation Department,
Government Secretariat,
Thiruvananthapuram - 695 001. . . . . Review Respondents
(By Advocates Mr.T.V.Ajayakumar [R1] & Mr.M.Rajeev,GP [R2])
O R D E R (In circulation)
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER This Review Application has been filed by the applicant in the O.A.No.1047/2013 to review the common order dated 16.3.2016 passed in the O.As. The relevant portion of the order reads as under :
'19. The applicants' services had been extracted in the post of Specialist since 2003. The applicants aver that in the State Government service, there is no recruitment exclusively for the Specialist post nor is there a seniority list separately maintained for the purpose. Those who were accommodated against Specialist posts by virtue of their qualification were treated as having been appointed as Specialists by giving them a specialist allowance of Rs.350/- since there is no separate pay scale for the post.
20. Applicant in O.A.No.1047/2013 participated in Specialist Grade II direct recruitment of ESIC and qualified for appointment in the said post.
Applicants in O.A.No.948/2013 and O.A.No.949/2013 could not participate in Specialist Grade II direct recruitment since they were overaged. The services of the applicants were, on obtaining Post Graduate Diploma/Degree, utilized against the post of Specialist Surgeon (O.A.No.1047/2013), Specialist Orthopedic Surgeon (O.A.No.948/2013) and Specialist Pediatrician (O.A.No.949/2013) in State Medical Insurance Service since 2001/2002. The applicants had the qualification and experience necessary for the Specialist post as per conditions in the earlier organization. This was confirmed by applicant in O.A.No.1047/2013 being recruited to the Specialist post by ESIC respondent.
21. There is a delay of 208 days each in two Original Applications and 84 days in another Original Application in filing. Considering the contentions that have been adverted to in the preceding paragraphs, these 3 Miscellaneous Applications (M.A Nos.1031/13, 1032/13 and 1033/13) are allowed. Delay stand condoned.
22. The act of the respondents in not considering the factum of their services as had been referred to above does not appear to be a fair treatment. Having extracted the services of the applicants, respondents' organisation should have allowed the applicants to be absorbed as Specialist Grade II in ESIC.
23. In the result, the applicants in the above three Original Applications are directed to be absorbed as Specialist Grade II in ESIC on the date of absorption option exercised.
24. The Original Applications are allowed accordingly. No order as to costs.'
3. Hon'ble Apex Court in State of West Bengal and others v. Kamal Sengupta and another 2008 (2) SCC (L&S) 735 has enumerated the principles to be followed by the Administrative Tribunals while invoking the power of review under Section 22 (3) (F) of the Administrative Tribunals Act, 1985 :
(i) The power of the Tribunal to review its order/decision under Section 22(3)(f) of the Act is akin/analogous to the power of a Civil Court under Section 114 read with Order 47 Rule 1 of CPC.
(ii) The Tribunal can review its decision on either of the grounds enumerated in Order 47 Rule 1 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 under Section 22(3)(f) 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.
(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.
4. In this case we do not find any error apparent on the face of record brought out by the review applicant. It appears from the contentions in the Review Application that the review applicant wants a re-hearing of the matter which cannot be permitted in a Review Application. A matter which requires consideration after a long process of adjudication is not a matter to be dealt with in an application for review.
5. In the light of the above, this Tribunal is not inclined to allow this R.A. R.A is, accordingly, dismissed.
(Dated this the 4th day of July 2016)
(P. GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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