Central Administrative Tribunal - Delhi
Mercy Thomas vs M/O Health And Family Welfare on 8 November, 2017
1 R.A. No.228/2017 In OA No.3323/2013 CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH R.A. No.228/2017 In O.A. No.3323/2013 New Delhi this the 8th day of November, 2017 HON'BLE MR. V. AJAY KUMAR, MEMBER (J) HON'BLE MS. NITA CHOWDHURY, MEMBER (A)
1. Mercy Thomas D/o Mr. A. K. Thomas R/o 177E, J3, Jay Apartments, Ward no.2, Mehrauli, New Delhi.
2. Monica Tiwari W/o Mr. S. K. Tiwari R/o 375 A, Shakti Khand, Indirapuram, Gaziabad, UP.
3. Veena Balooni D/o Mr. Shalig Ram R/o L-74A, Malviya Nagar, New Delhi.
4. Rekha Rani D/o Mr. Jagdish Saran R/o 198D/18C, Shri Ram Nagar, Shahdra, Delhi. ..Review Applicants Versus
1. Union of India Through Secretary, Ministry of Health & Family Welfare, North Block, New Delhi.
2. All India Institute of Medical Science Through its Director, Ansari Nagar, New Delhi.
3. Sh. Shekhar Chandra
4. Mrs Anjoo Kher (Nee Misri)
5. Ms Savita Prabha Mahendru 2 R.A. No.228/2017 In OA No.3323/2013
6. Mrs Grace Yohaunan
7. Sh. Anupam Jackson Lall
8. Sh.Willam R.Masih
9. Sh.Vineet Sharma
10. Sh.Jyotish Kumar Jha
11. Sh. Surender Singh
12. Sh. Bhim Singh Bisht
13. Sh. Rakesh Chawla
14. Sh. Manoj Kumar Gupta
15. Sh. Pankaj Kumar
16. Sh. Nishchal Tyagi
17. Sh. Pankaj Kumar
18. Sh. Mahavir Singh
19. Sh. Mohan Lal Sharma
20. Sh, Ashok Kumar
21. Sh. Harish Chandra Singh Rana
22. Sh. Manish Mittal
23. Sh. Ajay Kumar
24. Sh. Sushil Kumar Pandey
25. Sh Keshav Dev
26. Ms. Shiji Binu (Nee Varghese)
27. Sh. Suresh Kumar
28. Sh. Ravi Shanker Belwal 3 R.A. No.228/2017 In OA No.3323/2013
29. Ms. Sangita Joshi
30. Sh. Jitender Kumar Sharma
31. Sh. Vikas Sachdev
32. Ms. Bimla Bahuguna
33. Ms. Shalini Singhal
34. Ms. Kamlesh Tharkoti
35. Sh.Omander Kumar
36. Sh. Rajiv Kumar
37. Ms.Sushma Singh
38. Ms.Om Vati Vats (Nee Sharma)
39. Sh. Kirpal Singh Bisht
40. Sh. Sanjay Tiwari
41. Ms.Pooja
42. Ms Yogita Dixit
43. Sh.Leslie James
44. Sh. Praveen Kumar Bhardwaj
45. Sh. Kapil Shastri
46. Mrs. Chanda Panwar
47. Sh. Govind Pal
48. Mrs. Savita Saini
49. Ms. Esther Philip
50. Ms.Saroj Rana
51. Sh Rajender Kumar 4 R.A. No.228/2017 In OA No.3323/2013 52 Sh. Jitendra Kumar
53. Sh. Fateh Singh
54. Sh. Raj Kumar
55. Sh. Sudhanshu Shekhar Pd.
56. Sh. Vijay Prakash
57. Sh Mukesh P.Nayak
58. Sh. Upendra Singh
59. Sh. Khoob Chand
60. Sh. Mukesh Kumar
61. Sh. Mohd. Iftekhar Alam
62. Sh. Rakesh Kumar
63. Sh. Riyaz Ahmed Bakshi
64. Sh. Rajendra Singh
65. Mrs. Chandni Yadav
66. Mrs. Neelima Prasad
67. Sh. Ajit Singh
68. Sh. Rajib Borah
69. Sh. Virender Rana
70. Mrs. Nazmeen Pathan
71. Sh. Ajay Prakash
72. Sh. Amit Yadav
73. Sh. Pradeep Kumar
74. Sh. Sudhir Sharma 5 R.A. No.228/2017 In OA No.3323/2013
75. Sh Sumit Kumar Gola
76. Sh. Raj Singh
77. Ms Komal
78. Ms Purnima Gola
79. Sh. Dharmendra Kumar
80. Sh. Vivek Johri
81. Sh. Arvind Debas
82. Ms Aradhna Malhotra (Nee Bhola)
83. Ms. Chitra Sharma
84. Sh. Jitender Singh
85. Sh Anand Kumar
86. Sh. Nizamuddin
87. Sh. Harpal
88. Sh. Rajiv Kumar
89. Ms. Kirti Rao
90. Sh. Ved Pal
91. Sh. Tomer Manjeet Kumar
92. Mohd. Salauddin
93. Ms. Rinku Saini
94. Sh. Ashwani
95. Sh. Praveen Chaudhry
96. Sh. Sanjeev Yadav
97. Sh. Sanjeev Kumar 6 R.A. No.228/2017 In OA No.3323/2013
98. Sh. Ajay Drall
99. Ms. Jyoti P.
100. Ms Rajni Bathla [Respondents no.3 to100 to be served through respondent no.2] ...Respondents ORDER BY CIRCULATION Hon'ble Ms. Nita Chowdhury, Member (A) The facts, in brief, are that while deciding the Original Application (OA) bearing No.3323/2013, this Tribunal considered all the issues raised by the Review Applicants and disposed of the same on merits on 13.09.2017 (Annexure-RA-1). The operative part of the said order reads as under:-
"13. The issue involved in this case is with regard to date from which the seniority is to be assigned to the applicants. Actually applicants had obtained Diploma from unrecognized institute and their results were withheld. But subsequently, as a one time measure, the competent authority granted relaxation but at that time court case was pending in the High Court of Delhi, so they could not join. They were finally issued offer of appointment on 21.05.2007 and joined the said post. Moreover, applicants case is also covered by the OM of DOP&T dated 03.03.2008 wherein it was held that, "when appointment against unfilled vacancies are made in subsequent year or years either by direct recruitment or promotion, the persons so appointed shall not get seniority of any earlier year (viz. year of vacancy/panel or year in which recruitment process was initiated) but should get the seniority of the year in which they are appointed on the substantive posts". Hence, applicants cannot claim that they should be assigned seniority from the year 2004, which cannot be granted as held by the Apex Court in the case in Pawan Pratap Singh (supra), that "no retrospective promotion can be granted nor any 7 R.A. No.228/2017 In OA No.3323/2013 seniority can be given on retrospective basis from a date when an employee has not even born in the cadre". The relevant part of the said order reads as under:-
"41. This Court emphasized in the case of Uttaranchal Forest Rangers' Association (Direct Recruit) Vs. State of U.P. (2006) 10 SCC 346 that no retrospective promotion can be granted nor any seniority can be given on retrospective basis from a date when an employee has not even born in the cadre. In this regard, the Court relied upon earlier decisions of this Court in State of Bihar & Ors. v. Akhouri Sachindra Nath & Ors. and Jagdish Ch. Patnaik (1991 (suppl.) 1 SCC
334.
42. In the case of State of Uttaranchal Vs. Dinesh Kumar Sharma (2007) 1 SCC (L&S) 594, this Court was concerned with U.P. Agriculture Group `B' Service Rules, 1995 and the 1991 Rules. With reference to rule 8 of the 1991 Rules, this Court held that seniority cannot be reckoned from the date of occurrence of the vacancy and should be reckoned only from the date of substantive appointment to the vacant post under the Rules and not retrospectively from the date of occurrence of vacancy".
14. Thus seen from any angle, this OA is without any merit and is dismissed. No costs".
2. Now the Review Applicants have filed the present RA bearing No.228/2017 for reviewing the indicated order, mainly on the grounds which have already been considered by this Tribunal while deciding the main OA.
3. The main ground pressed into service by the Review Applicants to review the order is that the Tribunal failed to appreciate that some other persons who have also done Diploma in MLT not from a recognized institute and not fulfilling the eligibility criteria as per RRs were given due seniority but applicants have denied. The same very plea was raised by the applicants in the additional affidavit filed by them which was considered by the Tribunal in detail while delivering the judgment on 13.09.2017.
4. It is now well settled principle of law that the earlier order can only be reviewed if the case squarely falls within the legal ambit of review and not otherwise. Order 47 Rule 1 CPC read with Section 22(3)(f) of the 8 R.A. No.228/2017 In OA No.3323/2013 Administrative Tribunals Act, 1985 regulates the provisions of review of the orders. According to the said provision, a review will lie only when there is discovery of any new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by the review applicant seeking the review at the time when the order was passed or made on account of some mistake or error apparent on the face of the record. It is now well settled principle of law that 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 re- hearing of the matter to facilitate a change of opinion on merits. The reliance in this regard can be placed on the judgments of the Hon'ble Supreme Court in cases of Parsion Devi and Others vs. Sumitri Devi and Others (1997) 8 SCC 715, Ajit Kumar Rath Vs. State of Orissa (1999) 9 SCC 596, Union of India Vs. Tarit Ranjan Das (2003) 11 SCC 658 and Gopal Singh Vs. State Cadre Forest Officers' Association & Others (2007) 9 SCC 369.
5. An identical question came up to be decided by Hon'ble Apex Court in case State of West Bengal and Others Vs. Kamal Sengupta and Another (2008) 8 SCC 612. Having interpreted the scope of review and considering the catena of previous judgments mentioned therein, the following principles were culled out to review the orders:-
"(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.9 R.A. No.228/2017 In OA No.3323/2013
(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".
6. Meaning thereby, the original order can only be reviewed if case strictly falls within the domain of Order 47 Rule 1 CPC read with Section 22(3)(f) of the Administrative Tribunals Act, 1985 and not otherwise. In the instant RA, the review applicants have not pointed out any error apparent on the face of record warranting a review of the order dated 13.09.2017 (Annexure RA-1). Moreover, the issues now sought to be urged, were subject matter of the OA and have already been adjudicated upon by the Tribunal.
10 R.A. No.228/2017 InOA No.3323/2013
7. In the light of the aforesaid reasons, as there is no apparent error on the face of record, so no ground is made out to entertain the present Review Application, which is accordingly dismissed.
(NITA CHOWDHURY) (V. AJAY KUMAR) MEMBER (A) MEMBER (J) Rakesh