Central Administrative Tribunal - Allahabad
Dr Santosh Kumar Tiwari vs M/O Defence on 31 August, 2020
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD
BENCH, ALLAHABAD
(This the 31st Day of August 2020)
Misc. Modification/Clarification Application No. 689 of 2020
IN
Review Application No.330/00015/19
IN
Original Application No. 969 of 2018.
HON'BLE MRS. JUSTICE VIJAY LAKSHMI, MEMBER - J
HON'BLE MR. ANAND MATHUR, MEMBER - A
Dr. Santosh Kumar Tiwari, son of late Bhagwan Tiwari, Principal Scientific
Officer, JAG (NFSG) Office of Controllerate of Quality Assurance (Material)
DGQA Kanpur 208004, under the Department of Defence Production,
Ministry of Defence, Government of India New Delhi 110011, (Presently
residing at Cantt. Kanpur 208004).
..... ............. Applicant
By Advocate: Shri Anil Kumar Singh/Shri A.K. Dave/
Shri Ashish Kumar Ojha
Versus
1. The Union of India through the Secretary (Department of Defence
Production) Ministry of Defence, Government of India , New Delhi
110011.
2. The Director General of Quality Assurance (DGQA), Department of
Defence Production, Ministry of Defence, Government of India, New
Delhi 110011.
3. The Addl. Director General of Quality Assurance (DGQA), Department
of Defence Production, Ministry of Defence, Government of India, New
Delhi 110011.
4. The Controller, Controllerate of Quality Assurance (Material) DGQA,
Kanpur 208004 Under the Department of Defence Production, Ministry
of Defence, Government of India, New Delhi 110011.
5. The Secretary (Revenue), Department of Revenue, Ministry of -
Government of India, New Delhi 110011.
..... ............. Respondents
By Advocate: Shri Shivaji Singh
2
ORDER
BY HON'BLE MRS. JUSTICE VIJAY LAKSHMI, MEMBER - J Heard Shri A.K. Dave, learned counsel for the applicant and Shri L.P Tiwari, learned counsel, appearing on behalf of the respondents. Perused the record available with us in pdf. form.
2. The present application has been filed by the applicant with prayer to modify/clarify the operative portion of the order dated 10.8.2020 (para 8) by adding the following sentence, "that the respondent should consider the applicant's promotion/placement to selection grade from 02.08.2019 with all consequential benefits by holding DPC within stipulated time."
3. Learned counsel for the applicant has submitted that on 10.08.2020, this Bench delivered the judgment in the Review Application No. 15/2019 filed in OA No. 969/2018 whereby allowing the Review Application and consequently the O.A. was also partly allowed with the direction to the respondents to consider the case of the applicant for regular promotion to selection grade in terms of DOPT's order No.22011/4/91-Estt (A) dated 14th September 1992. This Tribunal further directed that the name of the applicant should be considered by the DPC also accordingly.
4. The grievance of learned counsel for the applicant is that as no direction was issued by the Tribunal to the respondents to consider the claim of the applicant in a time bound manner, some clarification/modification is urgently needed in the operative portion of the aforesaid judgment, otherwise, irreparable loss may be caused to the applicant, in case the department conducts the DPC with inordinate delay.
5. Learned counsel for the respondents has vehemently opposed the modification/ clarification application by contending that by means of the 3 present modification/clarification application, prayer has been made by the applicant to review an order passed on a review application, which cannot be entertained by any court due to being specifically barred by Order XLVII Rule 9 CPC and also by Rule 17 (4) of C.A.T. (Procedure) Rules, 1987.
6. In reply, learned counsel for the applicant has contended that the statutory bar as created by Order XLVII R 9 CPC and Rule 17 (4) of C.A.T (Procedure) Rules, 1987, is applicable only in respect of review of an order passed on a review application and not against a Modification/Clarification Application. According to learned counsel for the applicant, he has moved the present application under Rule 24 of C.A.T. (Procedure) Rules, 1987 and not under Rule 17 of C.A.T (Procedure) Rules, 1987. Learned counsel has further submitted that Rule 24 of CAT Procedure Rules is similar to section 151 of CPC, which provides inherent power to a Court to make such orders as may be necessary for the ends of justice. It has been contended that as per Section 22 (3) of 'The Administrative Tribunal Act, 1985', a Tribunal shall have, for the purposes of discharging its functions under the Act, the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, therefore the Tribunal, in exercise of its inherent powers under Rule 24 of CAT (Procedure) Rules, 1987, and in the interest of justice, should allow the present application, otherwise the relief granted to the applicant vide order dated 10.8.2020 will become infructuous if the respondents will cause delay in holding the DPC.
7. We have given our thoughtful considerations to the rival submissions advanced by the learned counsel for both the parties and have carefully gone through all the relevant provision of 'The Administrative Tribunal Act' 1985, The CAT (Procedure) Rules 1987 and The Civil Procedure Code,1908, as quoted above by learned counsel for the parties. 4
8. Rule 24 of CAT (Procedure) Rules, 1987 is almost similar to the provision contained under Section 151 of CPC, which provides inherent power to the court to make such order as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
9. For ready reference Rule 24 of CAT (Procedure) Rules, 1987 is quoted below -
"24. Order and directions in certain cases - The Tribunal may make such orders or give such directions as may be necessary or expedient to give effect to its order or to prevent abuse of its process or to secure the ends of justice".
10. On 10.08.2020, we passed an order on Review Application filed in OA No.969 of 2018, by the applicant, the operative portion of which is quoted below :-
"8. Review application is allowed. Accordingly, the OA is partly allowed and the respondents are directed to consider the case of the applicant for regular promotion to Selection Grade in terms of DOPT's order ibid and any other order on this subject. The applicant's name should be considered by the DPC also accordingly".
11. Order XLVII Rule 9 of Civil Procedure Code creates a statutory bar on entertaining any application to review an order passed on a review application. Now the question is whether the present application is an application to review an order passed on a Review Application which is barred not only by the above mentioned provision of Civil Procedure Code but also by Rule 17 (4) of CAT (Procedure) Rules, 1987, which is analogous to Order XLVII Rule 9 CPC.
12. For ready reference Rule 17 (4) of CAT (Procedure) Rules is quoted below -
5
"Where an application for review of any judgment or order has been made and disposed of, no further application for review shall be entertained in the same matter".
13. Now the question which arises for consideration is whether the present application should be entertained under Rule 24 of CAT (Procedure) Rules, 1987 by exercising the inherent jurisdiction to give effect to the order passed by this bench on 10.08.20, quoted above or whether this application should be treated as the review of an order passed on a review application which is not maintainable.
14. The Hon'ble Apex Court in a catena of judgment has issued guidelines on the present controversy. In the case of Arjun Singh Vs. Mohindra Kumar, AIR 1964 SC 993, their Lordships of Hon'ble Supreme Court considered the scope of inherent powers of the civil court under Section 151 of the Civil Procedure Code and observed as under:
"19.......it is common ground that the inherent power of the Court cannot override the express provisions of the law. In other words if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates...........".
.
15. In the case of K.K Velusamy Vs. N. Palanisamy, (2011) 11 SCC 275, it was held by Hon'ble Apex Court as under :
"Court has no power to do that which is prohibited by law or the code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topics or aspect, and such provision either expressly or by necessary implication 6 exhaust the scope of the power of the Court, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or a manner inconsistent with such provisions."
16. The Hon'ble Apex Court in the aforesaid judgment has further observed as under :
"The power under section 151 CPC will have to use with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bonafide of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of Court".
17. Hon'ble Allahabad High Court in the case of Ramjeet and others Vs. Central Administrative Tribunal through Registrar and others, Writ - A no.10928 of 2013 has held as under :
"It the trite that the after deciding the lis pending before it, the Tribunal becomes functus officio. Subsequently, the judgment rendered by it can only be varied either under Article 226/227 or on a review application. The Tribunal could not have entertained the application for modification. The only course of action open to the aggrieved party was to challenge the said judgment under Article 226/227 or to file a review application.............the principle laid down by Hon'ble Apex Court with regard to section 151 CPC can very well be applied to the scope of power under Rule 24 of CAT (Procedure) Rules 1987. Applying the same it is evident that the power of review has been explicitly vested in the Tribunal under section 22 (3)
(f) of the Act of 1985 and Rule 17 of Rules of 1987, therefore, the power under Rule 24 should not be invoked in order to cut across the power of review conferred by the Act of 1985".
18. Thus, the settled legal position, in the light of above cited judgments of Hon'ble Apex Court and Hon'ble Allahabad High Court is that if 7 an express provision exists in the statute, the Court/Tribunal should follow that provision and should not invoke its inherent powers.
19. It is also noteworthy that the applicant has rushed to this Tribunal merely under the apprehension that the respondents may cause delay in holding the DPC, causing irreparable loss to him. We are unable to give any relief, based on an apprehension. However, we hope and trust that no delay shall be caused by the respondent concerned in holding the DPC.
20. On the basis of the aforesaid discussion in the light of guidelines issued by Hon'ble Apex Court and Hon'ble Allahabad High Court, and in view of the existence of express provisions under CAT Procedure Rules, 1987 creating a bar to entertain an application against an order passed on a review application, we are unable to invoke the inherent jurisdiction of the Tribunal. Accordingly, the relief sought by the applicant, cannot be granted.
21. Misc. Modification/Clarification Application No. 689 of 2020 is liable to be dismissed and is accordingly dismissed.
No order as to cost.
(ANAND MATHUR) (JUSTICE VIJAY LAKSHMI)
Member -A Member -J
Manish/-