Central Administrative Tribunal - Delhi
Shri Satbir Singh vs Govt. Of Nct Of Delhi Through Its on 21 August, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI R.A. No. 119/2013 IN O.A. NO.4436/2011 New Delhi this the 21st day of August, 2013 HONBLE SHRI G. GEORGE PARACKEN, MEMBER (J) HONBLE SHRI SHEKHAR AGARWAL, MEMBER (A) Shri Satbir Singh S/o Shri Niranjan Singh Physical Education Teacher Govt. Boys Senior Secondary School, Civil Lines, Magazine Road, Delhi-110054. ..Review Applicant Versus
1. Govt. of NCT of Delhi through its Chief Secretary, Govt. of NCT of Delhi, Delhi Secretariat, I.P. Estate, New Delhi-110002.
2. Secretary of Education, Govt. of NCT of Delhi, Old Secretariat, Delhi.
3. Director of Education, Govt. of NCT of Delhi, Old Secretariat, Delhi. ..Respondents ORDER BY CIRCULATION By Shri G. George Paracken:
This Review Application has been filed by the Original Applicant in OA No. 4436/2011 was dismissed vide order dated 08.05.2013. The operative part of the said order reads as under:
4. We have heard the learned counsel for the Applicant, Shri S.D. Raturi and the learned counsel for the Respondents, Shri B.N.P. Pathak. It is seen that the relief sought by the Applicant is to declare that he is entitled to be considered for promotion to the post of PGT (PET) with effect from the date his junior has been promoted to the aforesaid post with all consequential benefits. However, the Applicant has not filed any seniority list showing his name or the name of his juniors. An employee can only say that he is senior or junior to someone else only if his name appears in the same seniority list. Therefore, the prayer of the Applicant is absolutely unfounded and it cannot be entertained. Moreover, the Respondents have already clarified that the seniority list of male and female PETs are maintained separately. Therefore, the Applicants name will come only in the list of male PETs. The Respondents have submitted that none of the teachers junior to him in the male list have been promoted. Just because the female teachers recruited in subsequent years have been promoted first, the Applicant being a male teacher cannot claim the same benefits. The learned counsel for the Applicant, Shri Raturi has also tried to argue that the distinction between male and female in maintaining seniority is discriminatory and unconstitutional. However, he has not made any such averment in this case. He also not challenged the relevant rules/instructions issued by the Respondents for maintaining separate seniority list of male and female teachers.
5. In the above facts and circumstances of the case, we do not find any merit in this Original Application. Rather we consider is as a frivolous one. Accordingly, the same is dismissed.
6. There shall be no order as to costs.
2. The Review Applicant has sought review of the aforesaid order on the following main grounds:
(A) Because the aforesaid order dated 08.05.2013 is not sustainable and there are errors apparent on the face of the records and therefore the same warrants review.
(B) Because the findings as recorded in the aforesaid order dated 08.05.2013 are erroneous and incorrect and the same are neither factually, nor legally tenable and they are liable to be reviewed.
( C) Because this Tribunal did not appreciate that the impugned order/letter dated 13.09.2011 as issued by Respondents, whereby the employees juniors of the Applicant in the same department and at the same post as Applicant (i.e. Physical Education Teacher) were promoted without considering the case of the Applicant for the same promotion was per se illegal, void, discriminatory, unfair, unjust and unconstitutional.
Because the order dated 13.09.2011 as passed by Respondents was not sustainable in view of the settled judicial precedents as in the case titled Life Insurance Corporation of India and Others Vs. Jagmohan Sharma and Others (1998 (9) SCC 219) and also case title Bal Kishan Vs. Delhi Administration and Another (1989 (6) SLR 41). Although this Tribunal has noted that the Applicant herein has relied upon the aforesaid judgments and it also recorded the relevant portion of the said judgments which were relied upon by the Applicant herein, the same have not been appreciated, considered or applied to the present case while deciding the Original Application. The said judgments were fully applicable to the case of the Applicant. This Tribunal did not hold that the said judgments were inapplicable to the facts of the case or otherwise.
Because this Tribunal failed to appreciate that the impugned order/action of the Respondents was liable to be quashed as the same was unsustainable in view of the Constitutional mandate as provided under Article 14, Article 16 (1) & Article 16 (2). Whereas, Article 16 (1) contemplates equality of opportunity for all citizens in the maters relating to employment to any office under the State. Article 16 (2) further contemplates that no citizen shall be considered ineligible or discriminated against in the matters pertaining to employment only on the grounds of gender.
(G) It would be evident from the facts of the case that the Applicant herein was also aggrieved with the gender based discrimination in the matter of promotion which was arbitrary and unconstitutional. This Court misinterpreted the present case while passing the order dated 08.05.2013 and consequently it wrongly interpreted that the Applicant herein was not aggrieved of the alleged action of the Respondents in maintaining a separate list for Male PETs and Female PETs. The Applicant had been making representations to the Respondents to formulate and maintain seniority consolidated for Male and Female PETs as maintaining separate lists on the basis of gender was leading to serious anomalies and leading to illegal, arbitrary and unconstitutional fallouts.
Because this Tribunal failed to appreciate that the fundamental argument of the Applicant herein was germane to the issue of seniority. The Applicant herein articulated in his pleadings, as well as argued that he was aggrieved by the fallouts and consequences of the actions of the Respondents in deeming and maintaining separate lists for male and female PETs which was giving rise to anomalies. He agitated that there was no basis or rationale behind said classification (if any), there being an absence of intelligible differentia.
(I) As a matter of fact, the Respondent did not provide a copy of the alleged separate seniority lists for male and female PETs and for this reason this Tribunal directed the Respondents to produce the same vide order dated 09.01.2013. The Applicant was not in possession of the alleged separate seniority lists for male and female PETs.
Because the Respondents did not produce any Rule/Policy/Memorandum authorizing it to maintain separate lists for male and female PETs. Further, no such Rule or Policy was mentioned in its reply.
Because this Tribunal failed to appreciate that since the Respondents had agitated the aforesaid sole ground of maintaining separate lists for male and female PETs, the burden of proof was upon them to produce, prove and justify their stand in light of the said argument and produce the separate lists and the relevant Rules/Policies in that regard. This Tribunal apparently erred in recording that the Applicant did not produce the said different male and female PET lists or challenged the Rules/Instruction. As a matter of record, this Tribunal had directed the Respondents to produce the same vide its order dated 09.01.2013. The Respondents had miserably failed to produce the Rules/Policy on the basis whereof the said separate lists had been maintained.
Because this Tribunal has wrongly observed in the order dated 08.05.2013 that the Original Application of the Applicant was frivolous. As a matter of the fact the Application of the Applicant herein had substance and merits and he was aggrieved by the palpably illegal and unconstitutional orders/actions of the Respondents. The arguments advanced by the Applicant were in consonance with the settled legal and constitutional principles and the same were not frivolous by any stretch. It would be pertinent to point out that this Tribunal had issued notice to the respondents and had admitted the Application for deciding the same on merits.
Because this Tribunal did not consider the O.M. 9/11/55/RPs dated 14.01.1960 as issued by the Ministry of Home Affairs, Govt. of India and as relied upon by the Applicant herein while deciding the Original Application. The said Memorandum clearly stipulates that the seniority of persons appointed to posts would be determined in the order in which their names appear in the consolidated list.
Because this Tribunal did not consider the factual position that no separate lists for male and female employees was formulated for the promotional post i.e. PGT (Physical Education) which itself demonstrates that there was no criteria whatsoever for maintaining separate list for.
Because this Tribunal did not appreciate that in respect of the matters pertaining to service, or even otherwise, the concept of seniority by its very definition, parlance and meaning implies age of a person and/or the date of appointment in service. The said concept of seniority by no stretch of imagination contemplates or takes into account the gender of an employee. Since, gender could not be a basis or a factor for determining seniority of an employee, the same ought not to be a basis or a factor for denying promotions or other benefits in services. The Applicant was primarily seeking promotion on the basis of his seniority when his juniors had been promoted. The entire argument of the Respondents distinguishing the case of Applicant on the basis of his gender was untenable and on a tangent.
Because this Tribunal did not consider that the selection and appointment of the Applicant in 1988 was as per the common list which did not connote a separate list just because the names of the male and female candidates were given in different columns. The said list was the feeder cadre and the seniority of the Applicant in the said feeder cadre was the determining factor for promotion.
Because this Tribunal further erred in appreciating the controversy by insisting on the seniority list not being produced by the Applicant. As a matter of fact, the Respondents had not denied that the employees junior to the Applicant herein had been promoted. Since, this was an admitted fact, the same was not even an issue. The real issue which required adjudication was that of seniority in cases of promotions and whether the gender of an employee could be a reason for overlooking the seniority of an employee. The Respondents did not deny that the Applicant was senior to the employees who had been promoted vide impugned order dated 13.09.2011.
Because this Tribunal did not adjudicate the real and material issue as submitted in the foregoing ground and wrongly recorded that the Applicant did not challenge the alleged rule/instruction for maintaining separate list. The Respondents had not produced or relied upon any such rule/instruction. The basic challenge of the Applicant was in respect of seniority and there was no specific need to challenge the alleged rule/instruction or the separate seniority lists maintained by the Respondents. It is submitted that the alleged rule/instruction and separate seniority lists were not statutory provisions which mandated specific challenge. The Applicant had essentially challenged the action/inaction of the Respondents in denying promotion to the Applicant as per his seniority which was suffice.
Because the finding of this Tribunal that because the female PETs have been promoted prior to the Applicant who is a male PET does not entitle him to same benefits is prima facie and apparently erroneous being illegal, unconstitutional and discriminatory especially Article 16. This Tribunal did not address on the issue of seniority which was the prime contention of the Applicant. This Tribunal rendered such apparently erroneous finding without adjudicating upon the action of the Respondents in maintaining separate seniority lists for male and female PETs and its sustainability.
Because this Tribunal wrongly held that the Applicant did not make an averment pertaining to the action of Respondents in making separate seniority lists on the basis of gender, being discriminatory and unconstitutional. Because this Tribunal did not consider the contentions of the Applicant as made in the pleadings in totality. The Applicant herein had specifically pleaded that the actions of the Respondents were discriminatory and unconstitutional in Ground A and Ground C wherein the Applicant specifically emphasized on Article 16.
Because this Tribunal wrongly held that the prayer of the Applicant was unfounded or that the same could not be entertained. The Applicant had simply prayed for promotion on the basis of his seniority from the date when his juniors were granted the said promotion and consequential benefits.
Any other or further ground may be raised by the Applicant at the time or arguments with the prior permission of this Tribunal.
3. We have gone through the above mentioned grounds taken by the Applicant seeking review of the order of this Tribunal dated 08.05.2013. In our considered view, they are not tenable because they were already considered by the Tribunal in detail in paras 1 to 3 of the OA and moreover the judgments relied upon by the Applicant were also considered while deciding the OA. The scope of Review Application is very limited. It shall be within the parameters of Order 47 Rule 1 CPC, 1908 which is as under:-
1. Application for review of judgment.- (1) Any person considering himself aggrieved,
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or (C) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review..
4. In the present case, we do not find any such eventualities to review the aforesaid order dated 08.05.2013. In our considered opinion, the Review Applicant is only trying to reargue the matter which is not permissible under the Rules governing Review.
5. In Parsion Devi and Others vs. Sumitri Devi and Others [1997 (8) SCC 715], the Apex Court has held as under:-
"Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order 47, Rule 1 CPC. In exercise of the jurisdiction under Order 47, Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise"."
6. In Ajit Kumar Rath Vs. State of Orissa (1999 (9) SCC 596), 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 of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made. The power can also be exercised 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 analogous to those specified 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.
7. In view of the above position, we are not inclined to entertain this Review Application. Accordingly, the same is dismissed. Consequently, there shall be no order as to costs.
(Shekhar Agarwal) ( G. George Paracken ) Member (A) Member (J) Rakesh