Central Administrative Tribunal - Delhi
Dr. Indu Kaushik vs Union Of India Through on 29 January, 2014
Central Administrative Tribunal
Principal Bench, New Delhi.
RA-10/2014 in
OA-3981/2012
New Delhi this the 29th day of January, 2014.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Dr. Indu kaushik,
Specialist Grade-I (Gynae & Obst.)
ESI Corporation, New Delhi
R/o A-23, Sector-34, Noida. . Review Applicant
Versus
1. Union of India through
Secretary, Ministry of Labour
Shram Shakti Bhawan,
New Delhi-1.
2. Director General,
ESI Corporation,
Panchdeep Bhawan,
CIG Road,
New Delhi-2. . Respondents
O R D E R
Mr. Shekhar Agarwal, Member (A) This Review Application has been filed for review of our order dated 28.11.2013 in OA-3981/2012. By this order, the O.A. filed by the applicant had been dismissed. Now the applicant has filed this review application. The grounds taken for review and our findings thereon are discussed as hereunder:-
1.1 The first ground taken by the review applicant is that the Tribunal committed an error apparent on the face of the record by saying in para-4.3 of the judgment that the respondents had decided not to implement the clause dealing with the Specialist Grade-I in consultation with the Ministry of Labour. According to the review applicant there is no material on record to establish this because the impugned order issued by the respondents states that SAG Scale to doctors working in ESIC who were promoted as a Specialist as on 23.06.2006 without fulfilling the minimum required service in NFSG may not be APPROPRIATE. 1.2 We have seen our judgment. Para-4.3 of the same reads as follows:-
4.3 Further, we notice that when modified DACP Scheme was accepted it contained a clause that those Specialist Grade-I who had been promoted as such on the date of initial implementation of the Scheme can be granted SAG grade even if they had not rendered full 7 years of service in that grade. The respondents had stated that in consultation with Ministry of Labour they had decided not to implement this clause and insisted on 7 years service in the grade of Specialist Grade-I before promotion to SAG. The reason given by the respondents during arguments was that the date of initial implementation of the Scheme was different for Central Government and ESIC. Thus, for Central Government the date of initial implementation of this Scheme was 05.04.2002. Consequently, Specialist being promoted after being given benefit of this clause would have rendered almost 6 = years of service by the time the modified DACP Scheme was adopted w.e.f. 29.10.2008. However, as far as ESIC is concerned since the date of initial implementation of DACP was 01.03.2008, if this clause had been implemented then Specialist Grade-I with even 6 months service as such would have become eligible for promotion to SAG. Consequently, the Ministry of Labour had clarified that it would be appropriate to insist on the requisite service before promotion.
In our opinion the review applicant is only indulging in hair-splitting. There is no material difference in what has been stated in our order and what has been stated in the impugned order. The impugned order says that the respondents decided in consultation with the Ministry that it would not be appropriate to implement the clause regarding Specialist Grade-I whereas our order says that the respondents decided not to implement this clause. Either formulation makes no difference to the outcome of this case. Hence this ground is totally baseless.
1.3 The next ground taken by the review applicant is that the Tribunal committed an error apparent on the face of the record by saying that the date of initial implementation of the Scheme is 2002 whereas the initial implementation of DACP Scheme for SAG is 29.10.2008.
We have seen our judgment, para-4.4 of which reads as follows:-
4.4 In our opinion, the stand taken by the respondents is totally justified. The DACP Scheme was primarily issued by the Ministry of Health and Family Welfare for Government doctors falling under that Ministry. Initially this Scheme was implemented from 05.04.2002. On 29.10.2008 it was extended to SAG grade as well. The modification introduced in this Scheme on 21.07.2009 further provided that those Specialists who were holding the Specialist Grade-I post on the date of initial implementation of the Scheme could be promoted to SAG without insisting on 7 years service. All these clauses were primarily intended for Government of India doctors with the full knowledge that the DACP Scheme has been implemented w.e.f. 05.04.2002. The ESIC subsequently decided to adopt this Scheme and they did so w.e.f. 01.03.2008. However, if the clause dealing with dispensing with 7 years service as Specialist Grade-I for promotion to SAG had been mutatis mutandis applied to ESIC also it would have given unintended extra ordinary benefits to the doctors of ESIC considering the fact that there was a gap of 6 years in the date of initial implementation of the Scheme in Central Government and ESIC. Such a situation was neither envisaged nor is desirable. Hence we agree with the stand taken by the respondents. It is not disputed that the Ministry of Health and Family Welfare initially introduced this Scheme for Government doctors under that Ministry w.e.f. 05.04.2002. This is clear from the applicants own representation available at page-30 of the paper-book. The first line of which reads as follows:-
The D.A.C.P. Scheme was approved on 17.03.2008 which was already late as C.H.S. had already approved it on 05.04.2002. It was only extended to SAG grade w.e.f. 29.10.2008 and the modification which provided that the Specialists who were holding Grade-I posts on the date of initial implementation of the Scheme could be promoted to SAG without insisting on seven years of service was introduced on 21.07.2009. We have taken a view in our judgment that the date of initial implementation of the Scheme referred to the O.M. dated 21.07.2009 means 05.04.2002 i.e. the date on which this Scheme was first introduced for CHS doctors. The review applicant is questioning our view on this issue by contending that the date of initial implementation in this O.M. means the date of implementation of this Scheme for SAG grade i.e. 29.10.2009. In our opinion, this does not constitute an error apparent on the face of the record. If the review applicant feels this view is erroneous and is aggrieved by it then it is open to her to challenge the order of this Tribunal in appropriate judicial forum. If we allow the review on this ground, we would be sitting in judgment over our own order, which is not permissible.
While considering the scope of review, Honble Supreme Court in the case of Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma, (1979) 4 SCC 389 referred to an earlier decision in the case of Shivdeo singh Vs. State of Punjab, AIR 1963 SC 1909 and observed as under:-
It is true as observed by this Court in Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909, there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which is inherent in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all matters or errors committed by the Subordinate Court. Similarly in the case of Ajit Kumar Rath Vs. State of Orissa and Others, AIR 2000 SC 85 the Apex Court reiterated that power of review vested in the Tribunal is similar to the one conferred upon a Civil Court and held:-
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 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 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. [Emphasis added] In the case of Gopal Singh Vs. State Cadre Forest Officers Assn. and Others [2007 (9) SCC 369], the Apex Court held that after rejecting the original application filed by the appellant, there was no justification for the Tribunal to review its order and allow the revision of the appellant. Some of the observations made in that judgment are extracted below:-
The learned counsel for the State also pointed out that there was no necessity whatsoever on the part of the Tribunal to review its own judgment. Even after the microscopic examination of the judgment of the Tribunal we could not find a single reason in the whole judgment as to how the review was justified and for what reasons. No apparent error on the face of the record was pointed, nor was it discussed. Thereby the Tribunal sat as an appellate authority over its own judgment. This was completely impermissible and we agree with the High Court (Justice Sinha) that the Tribunal has traveled out of its jurisdiction to write a second order in the name of reviewing its own judgment. In fact the learned counsel for the appellant did not address us on this very vital aspect. 1.4 Lastly, the review applicant has also stated that Railways in their Circular No. 148/09 have clearly stated that the date of initial implementation of the Scheme for SAG Grade is 07.01.2009 and not 2002. Again we feel that this ground is not tenable. While the date for initial implementation of the Scheme for SAG Grade may be 07.01.2009, it is not the initial date of implementation of the Scheme which was from an earlier date. In any case, the facilities given by Railways to their doctors cannot be mutatis mutandis extended to the applicant as no such case for parity has been made out. The department of the review applicant is not under any compulsion to follow the orders of the Railway Board.
2. Under these circumstances, we are of the opinion that none of the grounds taken by the applicant for review is tenable. The R.A. is dismissed in circulation. No costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
/Vinita/