Central Administrative Tribunal - Delhi
M/O External Affairs vs Kapil Nagi on 18 October, 2024
1
(C-5, Item -29) RA No.119/2023
in
O.A. No.1293/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
RA No.119/2023
IN
O.A. No.1293/2016
M.A. No.3010/2023
M.A. No.3009/2023
M.A. No.3008/2023
Reserved on: 18.09.2024
Pronounced on: 18.10.2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S Khati, Member (A)
Union Public Service Commission
Dholpur House, Shahjahan Road,
New Delhi through its Secretary
....Applicant
(By Advocate: Mr. R V Sinha)
VERSUS
1. Kapil Nagi, Age : 36 years
Designation - Personal Assistant
S/o Sh. Raj Kumar Nagi
R/o WZ-25A, Street No. 8,
Krishna Puri, Tilak Nagar,
New Delhi - 110018
2. Union of India,
Through Secretary,
Ministry of External Affairs,
South Block,
New Delhi.
.... Respondents
(By Advocate: Ms. Saahila Lamba
Mr. Gyanendra Singh)
2
(C-5, Item -29) RA No.119/2023
in
O.A. No.1293/2016
ORDER
Hon'ble Mr. Manish Garg, Member (J):
This RA has been filed by the review applicant (respondent No.2 in the OA) under Section 22 (3) (f) of the Administrative Tribunals Act, 1985, seeking review of the judgment dated 16.05.2023 passed by this Tribunal in OA No.1293/2016.
2. Mr. Sinha, learned counsel for the review applicant submitted that in view of error apparent on the face of law and facts, the respondent No. 2 in the OA, i.e., UPSC has filed the present RA. He highlighted the following grounds supporting the RA:-
(i) Learned counsel for the review applicant submitted that the judgment dated 16.05.2023 has been passed contrary to own finding recorded by the Tribunal in para 9 thereof wherein it has been noted that the respondent No.2 has taken appropriate action as per laid down criteria for selection. Once the said view has been taken by the Tribunal, the quashing of the impugned order 3 (C-5, Item -29) RA No.119/2023 in O.A. No.1293/2016 is perverse, without jurisdiction and is liable to be reviewed.
(ii) Another ground urged by the learned counsel for the review applicant is that the decision of the Tribunal is contrary to the facts, as while deciding the OA the Tribunal though recorded the submissions of the learned counsel for the respondents, did not deal with the same. On the contrary, the Tribunal has proceeded on assumptions and presumptions ignoring the submissions made by learned counsel for the respondents.
(iii) Furthermore, learned counsel for the review applicant argued that Section 22 of the Administrative Tribunals Act 1985, particularly sub-Sections (1) and (3) thereof, states that the Tribunal is not bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908), however, in Section 22(3) an exception has been carved out. Therefore, he submits that the Tribunal has inherent powers to review its own 4 (C-5, Item -29) RA No.119/2023 in O.A. No.1293/2016 decision. He further submitted that if one out of the two Members of the Division Bench is replaced by a new Member for any reason, which in the present case is demitting of office by one of the Members, i.e., Hon'ble Judicial Member, comprising the Bench, on completion of his tenure, it would be appropriate if the present Hon'ble Members decide the present R.A.
3. Learned counsel for the review applicant submitted that though he has relied upon three judgments referred to in the RA to support his contentions, however, he would confine to the following judgments:-
(a) Govt. of NCT of Delhi through its Secretary, Land and Building Department & Anr. Vs. K.L. Rathi Steels Limited & Ors. 2024 SCC Online SC 1090. Paras 55 to 60 of the said judgment are reproduced hereinbelow:-
"55. Precedents on the aspect of review are legion and we do not wish to burden this judgment by tracing all the decisions. However, only a few that were considered in the split verdict, some which were cited by 5 (C-5, Item -29) RA No.119/2023 in O.A. No.1293/2016 the parties before us and some that have emerged on our research on the subject and considered relevant, are discussed/referred to here.
56. Two of these decisions, viz. A.C. Esubmits v. Serajuddin and Raja Shatrunji v. Mohd. Azmat Azim Khans were rendered prior to introduction of the Explanation in Rule 1 of Order XLVII, CPC Significantly, even without the Explanation, substantially the same view was expressed.
57. In A.C. Esubmits (supra), a bench of three Hon'ble Judges of this Court, while dismissing the civil appeal and upholding the order of the High Court at Calcutta, held as follows:
"Our attention in this connection is drawn to Section 29(5) of the Act which gives power to the Controller to review his orders and the conditions laid down under Order 47 of the Code of Civil Procedure. But this cannot be a case of review on the ground of discovery of new and important matter, for such matter has to be something which exist at the date of the order and there can be no review of an order which was right when made on the ground of the happening of some subsequent event (see Rajah Kotagiri Venkata Subbamma Rao v. Raja Vellanki Venkatrama Rao). (emphasis supplied)
58. The next is the decision of a Bench of two Hon'ble Judges of this Court in Raja Shatrunji (supra) While dismissing an appeal and upholding the order of the Allahabad High Court, reference was made to "any other sufficient reason" in Rule 1 of Order XLVII, CPC and the decision in Rajah Kotagiri 6 (C-5, Item -29) RA No.119/2023 in O.A. No.1293/2016 Venkata Subbamma Rao (supra) whereupon it was held :
"13. ***the principles of review are defined by the Code and the words any other sufficient reason in Order 47 of the Code would mean a reason sufficient on grounds analogous to those specified immediately previously in that order. The grounds for review are the discovery of new matters 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 the review is asked for on account of some mistake or error apparent on the face of the record. In Rajah Kotagiri Venkata Subbamma Rao v Rajah Vellanki Venkatrama Rao Lord Davey at p. 205 of the Report said that 'the section does not authorise the review of a decree which was right when it was made on the ground of the happening of some subsequent event'."
(emphasis supplied)
59. What was laid down in Netaji Cricket Club (supra), upon reading Order XLVII, CPC, can be better understood in the words of the Hon'ble Judge authoring the judgment. The relevant passages are quoted hereunder:
"88. ***Section 114 of the Code empowers a court to review its order if the conditions precedent laid down therein are satisfied. The substantive provision of law does not prescribe any limitation on the power of the court except those which are expressly provided in Section 114 of the Code in terms whereof it is empowered to make such order as it thinks fit.7
(C-5, Item -29) RA No.119/2023
in
O.A. No.1293/2016
89. Order 47 Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.
90. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor What would constitute sufficient reason would depend on the facts and circumstances of the case. The words 'sufficient reason' in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate. An application for review may be necessitated by way of invoking the doctrine 'actus curiae neminem gravabit'."
In the next paragraph, Their Lordships quoted a portion of paragraph 32 from the Larger Bench decision in Moran Mar Basselios Catholics (supra) but held that "the said rule is not universal".
60. Netaji Cricket Club (supra) was followed in Jagmohan Singh v State of Punjab It was held there that Rule 1 of Order XLVII, CPC does not preclude the High Court or a court to take into consideration any subsequent event and that if imparting of justice in a given situation is the goal of the judiciary, the court may take into consideration (of course on rare occasions) the subsequent events"
8(C-5, Item -29) RA No.119/2023
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O.A. No.1293/2016
(b) State of Rajasthan & Anr. Vs. Surendra Mohnot & Ors. (2014) 14 SCC 77. Paras 20 to 26 of the said judgment are reproduced hereinbelow:-
"20. Having stated so, we shall presently proceed to address whether the Writ Court was justified in rejecting the application for review. The order of rejection only notices that the order was passed on agreement and, therefore, it could not be the subject-matter of review. The learned Single Judge, as it appears, did not think it appropriate to appreciate the stand of the State and passed an absolutely laconic order.
21. While dealing with the inherent powers of the High Court to review its order under Article 226 of the Constitution in Shivdeo Singh v. State of Punjab14 the Constitution Bench observed (AIR p. 1911, para 8) that nothing in Article 226 of the Constitution precludes a High Court from exercising the d power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it.
22. In Aribam Tuleshwar Sharma v Aribam Pishak Sharmals, the two- Judge Bench speaking through Chinnappa Reddy, J. observed thus: (SCC p. 390, para 3) "3. ....It is true as observed by this Court in Shivdeo Singh v. State of Punjab14, there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres 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 9 (C-5, Item -29) RA No.119/2023 in O.A. No.1293/2016 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 powers which may enable an appellate court to correct all manner of errors committed by the subordinate court."
23. In Thungabhadra Industries Ltd. v. State of A. P16, while dealing with the concept of review, the Court opined thus: (AIR p. 1377, para 11) "11. ...A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out."
24. In Northern India Caterers (India) Ltd. v Lt. Governor of Delhi, R.S. Pathak, J. (as His Lordship then was) while speaking about jurisdiction of review observed that: (SCC p. 172, para 8) 10 (C-5, Item -29) RA No.119/2023 in O.A. No.1293/2016 "8. ...it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except 'where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility"
25. To appreciate what constitutes an error apparent on the face of the record, the observations of the Court in Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale 18 are useful (AIR p. 137) "An error which has to be established by a long- drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ."
26. In the case at hand, as the factual score has uncurtained, the application for review did not require a long-drawn process of reasoning It did not require any advertence on merits which is in the province of the appellate court. Frankly speaking, it was a manifest and palpable error. A wrong authority which had nothing to do with the lis was cited and that was conceded to. An already existing binding precedent was ignored. At a mere glance it would have been clear to the Writ Court that the decision was rendered on the basis of a wrong authority. The error was self-evident When such self-evident errors come to the notice of the Court and they are not 11 (C-5, Item -29) RA No.119/2023 in O.A. No.1293/2016 rectified in exercise of review jurisdiction or jurisdiction of recall which is facet of plenary jurisdiction under Article 226 of the Constitution, a grave miscarriage of justice occurs. In appeal the Division Bench, we assume, did not even think it necessary to look at the judgments and did not apprise itself of the fact that an application for review had already been preferred before the learned Single Judge and faced rejection. As it seems, it has transiently and laconically addressed itself to the principle enshrined in Section 96(3) of the Code of Civil Procedure, as a consequence of which the decision rendered by it has carried the weight of legal vulnerability."
(c) Surjit Singh & Ors. Vs. Union of India & Ors. (1997) 10 SCC 592. Para 7 of the said judgment reads as under:-
"7. In the light of these directions, it is obvious that the Government of India had prepared the seniority list. The contention of the promotees which was found acceptable to the Tribunal that preceding the date of amendment the Government was devoid of power to carry forward all unfilled vacancies to the direct recruits and that all these vacancies are meant to be thrown open to the promotees, is clearly a misinterpretation of the rules and on that basis the directions came to be issued by the Tribunal. This Court had suggested on earlier occasion that vacancies meant for the direct recruits may be carried forward for two years after the recruitment year and thereafter the unfilled vacancies would be thrown open to the respective cadres. Under these circumstances, the view of the Tribunal is 12 (C-5, Item -29) RA No.119/2023 in O.A. No.1293/2016 clearly illegal; unfortunately, the Tribunal has wrongly stated that if they commit mistake, it is for this Court to correct the same. That view of the Tribunal is not conducive to the e proper functioning of judicial service. When a patent error is brought to the notice of the Tribunal, the Tribunal is duty-bound to correct, with grace, its mistake of law by way of review of its order/directions"
4. Learned counsel for the respondent (Original Applicant in OA) states that there is no error apparent in the judgment dated 16.05.2023 and the present R.A. is liable to be dismissed. She further states that the UPSC, being the examination conducting agency, required the APARs (Annual Performance Appraisal Reports) from the Ministry concerned, i.e., Ministry of External Affairs. However, the said Ministry did not forward the APAR to UPSC in time and for the same, the applicant cannot be faulted.
5. Having heard learned counsel for the respective parties and perused the records, we would draw the following analysis:
13(C-5, Item -29) RA No.119/2023
in
O.A. No.1293/2016
6. ANALYSIS :
6.1. We have examined the order/judgment dated 16.05.2023 under review which has been passed by this Tribunal and the contents of the Review Application. We find that the said order/judgment dated 16.05.2023 has been passed based on the factual and procedural aspect of the selection process.
No fault was found on the part of the UPSC in processing the candidature of the applicant as the relevant documents/APARs for consideration of the candidature of the applicant were to be supplied by the user department, i.e., Ministry of External Affairs. The said Ministry has not come in appeal or filed Review Application qua the judgment dated 16.05.2023.
6.2 It is also important to note that it is not the role of the UPSC to call for complete documents pointing out shortcomings while processing the case of a candidate as the selection of the candidate is based on the material so supplied to UPSC by the concerned 14 (C-5, Item -29) RA No.119/2023 in O.A. No.1293/2016 department/Ministry, which in the present case is Ministry of External Affairs.
6.3 In the case of Ajit Kumar Rath vs. State of Orissa and others, 1999 (9) SCC 596, the Hon'ble Supreme Court has observed as under:-
"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."
[Emphasis added] 15 (C-5, Item -29) RA No.119/2023 in O.A. No.1293/2016 6.4 In a recent decision, the Hon'ble Apex Court in Review Petition (Civil) No. 1620 of 2023 in Civil Appeal No. 1661 OF 2020 titled as Sanjay Kumar Agarwal Versus State Tax Officer & Anr. dealt with the power to review and observed as under :-
"9. In the words of Krishna Iyer J., (as His Lordship then was) "a plea of review, unless the first judicial view is manifestly distorted, is like asking for the Moon. A forensic defeat cannot be avenged by an invitation to have a second look, hopeful of discovery of flaws and reversal of result......... A review in the Counsel's mentation cannot repair the verdict once given. So, the law laid down must rest in peace."2
10. It is also well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case.
The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so.
11. In Parsion Devi and Others vs. Sumitri Devi and Others4, this Court made very pivotal observations: -
"9. 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 (1980) 2 SCC 167, M/s. Northern India Caterers (India) Ltd. vs. Lt. Governor of Delhi 3 AIR 1965 SC 845, Sajjan Singh and Ors. vs. State of Rajasthan and Ors. 4 (1997) 8 SCC 715 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". A review petition, it must 16 (C-5, Item -29) RA No.119/2023 in O.A. No.1293/2016 be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise."
12. Again, in Shanti Conductors Private Limited vs. Assam State Electricity Board and Others5, a three Judge Bench of this Court following Parsion Devi and Others vs. Sumitri Devi and Others (supra) dismissed the review petitions holding that the scope of review is limited and under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided.
13. Recently, in Shri Ram Sahu (Dead) Through Legal Representatives and Others vs. Vinod Kumar Rawat and Others6, this Court restated the law with regard to the scope of review under Section 114 read with Order XLVII of CPC.
14. In R.P. (C) Nos. 1273-1274 of 2021 in Civil Appeal Nos. 8345- 8346 of 2018 (Arun Dev Upadhyaya vs. Integrated Sales Service Limited & Another), this Court reiterated the law and held that: -
"15. From the above, it is evident that a power to review cannot be exercised as an appellate power and has to be strictly confined to the scope and ambit of Order XLVII Rule 1 CPC. An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions."
15. It is very pertinent to note that recently the Constitution Bench in Beghar Foundation vs. Justice K.S. Puttaswamy (Retired) and Others (2021) 3 SCC 1 , held that even the change in law or subsequent decision/ judgment of co-ordinate Bench or larger Bench by itself cannot be regarded as a ground for review.
16. The gist of the afore-stated decisions is that: -
(i) A judgment is open to review inter alia if there is a mistake or an error apparent on the face of the record.
(ii) A judgment pronounced by the Court is final, and departure from that principle is justified only when 17 (C-5, Item -29) RA No.119/2023 in O.A. No.1293/2016 circumstances of a substantial and compelling character make it necessary to do so.
(iii) 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 record justifying the court to exercise its power of review.
(iv) In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be "reheard and corrected."
(v) A Review Petition has a limited purpose and cannot be allowed to be "an appeal in disguise."
(vi) Under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided.
(vii) An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.
(viii) Even the change in law or subsequent decision/ judgment of a co-ordinate or larger Bench by itself cannot be regarded as a ground for review.
**********
24. Apart from the well-settled legal position that a co- ordinate Bench cannot comment upon the judgment rendered by another co-ordinate Bench of equal strength and that subsequent decision or a judgment of a co- ordinate Bench or larger Bench by itself cannot be regarded as a ground for review, the submissions made by the learned Counsels for the Review Petitioners that the court in the impugned decision had failed to consider the waterfall mechanism as contained in Section 53 and failed to consider other provisions of IBC, are factually incorrect. As evident from the bare reading of the impugned judgment, the Court had considered not only the Waterfall mechanism under Section 53 of IBC but also the other provisions of the IBC for deciding the priority for the purpose of distributing the proceeds from the sale as liquidation assets."
18(C-5, Item -29) RA No.119/2023
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O.A. No.1293/2016
6.5 The argument of the learned counsel for the
review applicant that the finding by the Tribunal in para 9 of the judgment dated 16.05.2023 is contradictory with great respect appears to be incorrect in light of the fact that it was incumbent upon the Ministry of External Affairs to supply the complete record at the time of selection process which ought to have been put before the Selection Committee.
There is no procedural lapse on the part of the UPSC.
The role of UPSC was restricted to that of a recruiting agency on behalf of Ministry of External Affairs. Even otherwise, the role of UPSC is advisory in nature. We observe, that it is an undisputed fact that incomplete record was sent by the Ministry of External Affairs, which resulted in non-consideration of the case of the applicant thus, the only direction which has been passed is to re-assess, the case of the applicant with directions to the Ministry of External Affairs to provide complete records of APARs for consideration of the same qua the applicant taking into consideration the OMs issued on the subject from time to time. We find 19 (C-5, Item -29) RA No.119/2023 in O.A. No.1293/2016 that the review applicant is questioning the conclusion arrived at by this Tribunal. Due consideration was given to all averments while passing the judgment dated 16.05.2023 and any further deliberations on these points would be akin to reconsider the same and going into the merits of the case by re-writing another judgment.
7. CONCLUSION :
Keeping in view the afore-stated legal position as well as facts of the case, it is observed that the review applicant has not been able to point out any error apparent on the face of record. Rather, the review applicant is trying to re-argue the whole case, which is not permissible in view of the aforesaid observations of the Hon'ble Supreme Court. As such this RA is devoid of merit and the same is accordingly dismissed. All pending MAs, if any, shall also stand disposed of. No costs.
(Dr. Anand S Khati) (Manish Garg)
Member (A) Member (J)
/sm/