Central Administrative Tribunal - Mumbai
Ranjan Kumar vs Defence on 19 November, 2024
1 RA No.39/2023 in
OA No.74/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, MUMBAI.
REVIEW APPLICATION NO.39/2023
in
ORIGINAL APPLICATION No.74/2023
Dated this Tuesday the 19th November, 2024
CORAM: Hon'ble Mr. Shri Krishna, Member (A)
Shri Ranjan Kumar,
Son of Late Shri Ramchandra Mistry,
Age 53 years,
Posted as Foreman (PP&C),
P.No.F2899W,
C.No.02, PPC
Office of the Admiral Superintendent,
Naval Dockyard,
Lion Gate, SBS Marg, Mumbai 400 023.
And residing at
304/E, Mora Sea View CHS,
Mora, Uran, Navi Mumbai 400 704
Mobile - 9082798019,
[email protected] ... Applicant
( By Advocate Shri Sanjay Kulkarni)
Versus
1. Union of India,
The Chief of Personnel,
Integrated Headquarter of
Ministry of Defence (Navy),
Sena Bhavan, New Delhi - 110 011.
Page 1 of 22
2 RA No.39/2023 in
OA No.74/2023
2. Captain (CP)
Directorate of Civil Personnel,
Integrated HQs,
Ministry of Defence (Navy),
Talkatora Stadium Annexe Building,
New Delhi - 110 001.
3. The Flag Officer Commanding-in-Chief
(for CCPO),
Headquarters, Western Naval Command,
Mumbai - 400 001.
4. Admiral Superintendent,
Naval Dockyard,
Mumbai - 400 023.
5. Commander
Senior Manager (PRP)
For Admiral Superintendent,
Office of the Admiral Superintendent,
Naval Dockyard,
Mumbai - 400 023. ... Respondents
( By Advocate Mrs. N.V. Masurkar )
Order reserved on : 12.11.2024
Order pronounced on : 19.11.2024
ORDER
The applicant has filed the present Review Application on 23.08.2023 under Section 17 of Central Administrative Tribunal (Procedure) Rules, 1987 seeking to review the final order Page 2 of 22 3 RA No.39/2023 in OA No.74/2023 dated 30.05.2023 passed by this Tribunal in O.A. No.74/2023 on the ground that the Tribunal while passing the order has not considered the Rules 23, 24 of the NCC Rules and the same may be considered in favour of the applicant and his transfer from Mumbai to Vishakhapatnam may be cancelled as the same is contrary to Rule 23 of the NCC Rules. He has further prayed for direction to the respondents to retain the applicant at Mumbai on promotional post of Technical Assistant (PP&C) as per promotion order dated 25.10.2022.
2. Brief facts of the case are that the applicant was appointed as Senior Chargeman (Planning) by appointment order dated 21.08.1995 and was posted as Foreman in PP&C department, Naval Dockyard, Mumbai. He was promoted and posted vide order dated 25.10.2022 as Technical Assistant (PP&C) in Naval Dockyard, Page 3 of 22 4 RA No.39/2023 in OA No.74/2023 Vishakhapatnam, Andhra Pradesh. In the OA, he had prayed for his retention at Mumbai on the post of Technical Assistant and to stay the promotion order dated 25.10.2022 in respect of him. The Tribunal, after detailed discussion, has dismissed the OA. The applicant has challenged the order before the Hon'ble High Court of Judicature at Bombay by way of Writ Petition No.9705/2023. The Hon'ble High Court vide order dated 10.08.2023 has passed the following order:
"3. The learned counsel for the Petitioner states that the Petitioner will apply for Review before the Tribunal. In light of this stand taken before us the Writ Petition is disposed of.
4. As regards the other contentions raised, the learned counsel for the Petitioner states that if review if not successful both the orders would be challenged on their own merits."
Thereafter, the applicant has filed this Review Application.
3. The applicant has submitted that while deciding his OA, Rule 23 and Rule 24 of the NCC Page 4 of 22 5 RA No.39/2023 in OA No.74/2023 Rules has not been considered. He submits that a person senior to him viz. R. Kumar appearing at para 2(f) of the transfer order has, on promotion, been retained at Mumbai which is contrary to transfer policy. He has submitted that when he is discharging the additional duties as Associate NCC Officer in addition to his regular duties with the Naval Dockyard, he should have been retained at Mumbai.
4. On notice, the respondents have filed their reply and contested the Review Application. It has been submitted that the grounds on which the review can be granted are specified in Order XL VII, Rule 1, the words & any other sufficient reason & in Sub-Section (1) mean a reason sufficient on grounds at least, analogous to those specified in the rule. The grounds specified in the rule are as follows: The discovery of new and important matter or evidence Page 5 of 22 6 RA No.39/2023 in OA No.74/2023 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 fact of the record. The applicant has failed to make out any case in aforesaid regard and, therefore, the respondents submit that the Present Review Application is liable to be dismissed with cost.
4.1 It has been further submitted that the question raised in review is not a question of law and for the said reason, the review application is liable to be dismissed. It has been submitted that the Tribunal has summarised each and every submission advanced across the bar by the learned counsel for the review application and has, accordingly, dealt with those specific submissions which were urged before this Tribunal. The issue now urged for the first time Page 6 of 22 7 RA No.39/2023 in OA No.74/2023 in the Review Application cannot be allowed to be raised being new and additional grounds which are not urged before this Tribunal when the OA was argued and, therefore, the Review Application itself is not maintainable on this ground. It has been submitted that no ground under Order 47 rule 1 of the Code of Civil Procedure, 1908 is made out. It has been submitted that the promotion orders for promotion from Foreman (Planning, Production & Control)(in short 'PP&C')to Technical Assistant (PP&C) for the vacancy years 2021-2022 were issued by the Integrated Headquarters, Ministry of Defence (Navy){IHQ MoD (N)} i.e. respondent No.2, vide letter dated CP(G)/4001/PT-Tas/Vol.IX dated 25.10.2022. As per this promotion order, the applicant has been promoted to the grade of Technical Assistant (PP&C), level-8 of Pay Matrix and transferred from Naval Dockyard, Mumbai (respondent No.4) to Page 7 of 22 8 RA No.39/2023 in OA No.74/2023 Naval Dockyard, Vishakhapatnam.
4.2 It has been submitted that the Review Petitioner joined service as Highly Skilled Grade-II w.e.f. 21.09.1992 in the office of the respondent No.4 (Naval Dockyard, Mumbai). In the year 1995, while working in the grade of Highly Skilled Grade-I, applicant had given Technical Resignation to take up the appointment as Senior Chargeman (PP&C) and posted at PP&C department at Naval Dockyard, Mumbai w.e.f. 21.08.1995. Thereafter, he was promoted as Foreman (PP&C) on 21.09.2017. Thus, he was working in Mumbai from September, 1992 to June 2022, almost for 30 years. It has been submitted that the Review Applicant was appointed as a Defence Civilian in a Defence Organisation under the Ministry of Defence as per CCS(CCA) Rules, 1965. The appointing authority of the applicant is the respondent No.2 i.e. Integrated Headquarters, Page 8 of 22 9 RA No.39/2023 in OA No.74/2023 Ministry of Defence, Navy.
4.3 It has been submitted that the applicant sought retention at Mumbai on the ground that he was carrying out additional duties of Associate NCC Officer (ANO) (Part-Time) at the Apprentice School. It is pertinent to mention that NCC Programme is a voluntary and part of Educational Activity as per official website of NCC. The applicant was not posted at the Dockyard Apprentice School for imparting full-time training to NCC Cadets. He has not been working full time at any College/Institute/Apprentice school. It has been submitted that the main reliance placed in his OA was that he will not be able to carry out duties as ANO (part-time) at Vishakhapatnam while serving as Technical Assistant(PP&C). The same was dealt by this Tribunal at para 4(g) of the order dated 30.05.2023. It was held that "if he wishes he can Page 9 of 22 10 RA No.39/2023 in OA No.74/2023 also join the NCC Unit at one of the colleges or institutions at Vishakhapatnam, where the NCC activities is carried out. It has been submitted that the applicant has been promoted to the post of Technical Assistant in level 8 in pay matrix which is grade of 'Civilian Technical Officer', Group 'B' Gazetted post, as per the provision of SRO 17/2020 and with due approval of the Competent Authority i.e. respondent No.2. Therefore, the applicant's contention seeking cancellation of his transfer is without any substance. It has been submitted that if the applicant wishes to serve voluntarily as ANO (part-time) as a part of educational activity at NCC Unit is concerned in addition to his duties as Technical Assistant (PP&C), he can join any NCC Unit at one of the colleges or Institutions at Vishakhapatnam. It has been submitted that the applicant does not have any right to claim Page 10 of 22 11 RA No.39/2023 in OA No.74/2023 posting at a particular place of his choice and is liable to serve anywhere in the country keeping in view the CCS(CCA) Rules governing his service condition. It has been further submitted that the Service Rules will have preference over the guidelines issued.
4.4 It has been submitted that the copies of the guidelines dated 04.04.2019 and DG NCC letters dated 03.01.1986 and 07.02.1997 pertain to transfer of Associate NCC Officers (ANO) of the Education department of State/Union Territories and their posting from one institution to another. It has been submitted that the present case is not a case of transfer but is a case of promotion and transfer and several other employees have been posted upon promotion to various stations. It has been submitted that the promotion and transfer of the applicant from one defence organisation to Page 11 of 22 12 RA No.39/2023 in OA No.74/2023 another defence organisation does not fall under the said guidelines. It has been submitted that the contention regarding person senior to the applicant has been retained at Mumbai has not been raised by the applicant in his OA. Notwithstanding the same, it has been contended that in the 'Policy Guidelines for Transfer of Civilian Personnel" of 2015, it is clearly provided that there is also a requirement to create an environment where service exigencies/requirement gets due importance and organisational compulsions would take precedence over personnel requirements. The applicant has been transferred from ND (Mumbai) to ND (Vizag) due to service exigencies and functional requirements. Regarding reliance of the review petitioner on Rules 23 and 24 of the NCC Rules, it has been submitted that the review petitioner's appointment and service condition Page 12 of 22 13 RA No.39/2023 in OA No.74/2023 are governed by CCS(CCA) Rules, applicable SROs and not the NCC Rules for the part-time work. 4.5 It has been submitted that in the matter between Shri Sunil Kumar Vs. Govt. NCT of Delhi, the Principal Bench of the Tribunal, New Delhi passed an order dated 25.09.2023 where the applicant was a teacher at Government Co-Ed Senior Secondary School and additionally NCC Officer. It was held that it cannot be said that he was appointed only as an NCC Officer and hence the provisions of Section 23 of the National Cadet Corps Act, 1948 is not expressively applicable to an NCC Officer holding additional charge.
4.6 The respondents have placed reliance on the judgement of Hon'ble Supreme Court in the case of M/s. Tungabhadra Industries Limited Vs. State of Andhra Pradesh (AIR 1964 SC 1372) in which it was held that "A review is by no means an appeal in disguise whereby an erroneous decision is reheard and Page 13 of 22 14 RA No.39/2023 in OA No.74/2023 corrected, but lies only for patent error". The reliance has been further placed on the judgment of Shri Subhas Vs. State of Maharashtra and Another, AIR 2002 SC 2537 wherein the Hon'ble Supreme Court has held that "The Tribunal could interfere only if an error pointed out is plain and apparent. Tribunal cannot proceed to re-examine the matter as if it is an Original Application before it". Similarly, in the case of Gopal Singh Vs. State Cadre Forest Officers' Association & Others, AIR 2007 SC 1878, the Hon'ble Supreme Court has held that 'the Tribunal cannot sit as an Appellate Authority over its judgement. The Tribunal cannot travel out of its jurisdiction to write a second order in the name of reviewing its own judgment'.
4.7 It has been further submitted that the Review Application suffers from delay and latches which has been filed beyond 30 days of passing of the order.
Page 14 of 22 15 RA No.39/2023 in OA No.74/2023
5. During arguments, learned counsel for the Review Petitioner Mr. Kulkarni fairly admitted that the applicant is an officer of Naval Dockyard. The Cadre Controlling Authority of the Review Petitioner is Naval Dockyard and not the NCC. The services which he is rendering as Associate NCC Officer (ANO) is a part time work. It has been admitted that the Review Petitioner is governed by Naval Dockyard transfer rules and not by NCC rules.
6. Learned counsel for the respondents Mrs. Masurkar has vehemently argued that the Review Petitioner is seeking to re-argue the OA in the garb of the Review Application which is not permissible under the law. She would argue that the applicant is an employee of the Naval Dockyard and not of NCC. He is governed by SRO 17/2020 and other rules of the Naval Department and not of NCC. The Review Petitioner is governed Page 15 of 22 16 RA No.39/2023 in OA No.74/2023 by CCS(CCA) Rules and not by the NCC guidelines. The Cadre Controlling Authority is Naval Dockyard and not NCC. Rules 23 and 24 of the NCC are applicable to the employees of the NCC and not to the Review Petitioner who is working as part-time ANO voluntarily. He is full time employee of Naval Dockyard and, therefore, Rules 23 and 24 of the NCC have no application in the case of the Review Petitioner as they are applicable to the employees of NCC. Therefore, she submitted that Review Application should be dismissed by imposing heavy cost.
7. I have heard learned counsel for the parties at length and perused the order dated 30.05.2023 passed in OA No.74/2023 and also gone through the review application and the reply filed by the respondents.
8. I find that contention of the Review Petitioner is that the Tribunal has not Page 16 of 22 17 RA No.39/2023 in OA No.74/2023 considered the Rules 23 and 24 of the NCC Rules while deciding his case is not correct. It is seen that the Tribunal while discussing the submissions has taken note of the submission of the applicant in para 3(a) as under:
"3(a) the Department has failed to appreciate that there is no Central Government funded NCC Unit at Naval Dockyard, Vishakhapatnam and posting the applicant at such a place is contrary to NCC Rules and Policy which stipulate that an officer of the Senior Division of NCC shall be posted to a unit of that Division by the Ministry of Defence and officer of the junior Division of NCC will be posted by State Government. The stipulation under Para 9 of the impugned order dated 25.10.2022 that for refusal of promotion, disciplinary proceedings shall be initiated is contrary to service jurisprudence. The applicant's promotion order has not been issued in consultation with DG, NCC. Similarly as per Rule 24 prior permission of DG, NCC is necessary for posting of NCC officers and such permission had not been taken before posting the applicant at Vishakhapatnam. Therefore, the order posting the applicant at Vishakhapatnam is liable to be set aside. The applicant even cannot be transferred to a station where Naval Wing of NCC Unit does not exist such as Naval Dockyard, Vishakhapatnam. The applicant's talent would be wasted by posting him there;
Similarly, while discussing the contention of the respondents, the Tribunal in para 3(g) of the order at page 9 of the order has noticed as Page 17 of 22 18 RA No.39/2023 in OA No.74/2023 under"
"3(g)..... "The applicant has been working as Foreman in the grade of Technical Supervisory Staff and has been promoted to the next higher level of Technical Assistant in the grade of Civilian Technical Officer as per the provision of SRO 17/2020. In addition to duties of Foreman, the applicant has been carrying out duties of Associate NCC Officer on part-time basis and, therefore, respondent No.2 has not agreed to his request due to exigency of service."
Similarly, in para 3(i), the Tribunal has noticed as under:
"3(i)... The averments of the applicant in para 9 of the OA are misleading, frivolous and grossly incorrect. They are not supported by any rules/regulations and thus have no merit. The applicant has also not submitted his unwillingness for promotion. Thus he wants to be promoted and also to be retained at Mumbai. NCC activities are run by Directorate of NCC in association with State Governments and, therefore, present respondents are not concerned with the NCC activities and their primary concern is to take care of the organizational responsibilities of Navl Units. After the order of his transfer on promotion, the applicant has not submitted any representation to the respondents. His work with NCC is only a extra duty on part-time basis and that duty is not his primary duty as Naval Officer. In view of these facts and the caselaws, there being no merit in the OA., it should be dismissed.
It is further seen that under the head 'Analysis and Conclusions', the Tribunal in paras 4(e), Page 18 of 22 19 RA No.39/2023 in OA No.74/2023 4(f) and 4(g) has noted as under:
"4(e) The Primary duty of the applicant under the Naval Dockyard is as Foreman (PP&C) i.e. as Naval Officer. His experience and work as ANO is only an additional duty performed by him on part-time basis. This is not his primary duty as Naval Officer. Therefore, performing of additional duty on part-time basis as ANO cannot have overriding priority over his primary duty and responsibility as Naval Officer.
4(f) No allegation of any malafide has been made by the applicant against any of the respondents. 4(g) At Naval Dockyard, Vishakhapatnam, there is no NCC Unit. NCC activities are run by the Directorate of NCC in Colleges in association with local State Government authorities. Therefore, the claim of the applicant that his skill and experience as ANO will get wasted at Vishakhapatnam is not justified. When he gets posted there, in addition to performing to his duty as Technical Assistant at Naval Dockyard, Vishakhapatnam, if he wishes he can also join the NCC Unit at one of the Colleges or Institutions at Vishakhapatnam where the NCC activity is carried out."
Therefore, it cannot be said that the Tribunal while passing the order in the OA has not considered the Rules 23 and 24 of the NCC Rules. It is clear from the above discussion that the Tribunal has very much considered Rules 23 and 24 of the NCC Rules. It is admitted fact that the applicant is a full time employee of Naval Page 19 of 22 20 RA No.39/2023 in OA No.74/2023 Dockyard and not of NCC. His service conditions are governed by SRO 17/2020 and other rules applicable to Civilian employees of the Naval Dockyard. His Cadre Controlling Authority is Naval Dockyard and not NCC Directorate. He is governed by the CCS(CCA) Conduct Rules and not by NCC Rules.
9. The submission of the Review Petitioner that a person named R. Kumar, who is senior to him, has been retained in Mumbai, was never taken in the OA. Thus, it is new ground which was never before the Tribunal in OA and, therefore, it cannot be allowed to be raised in Review Application. Moreover, Mr. R. Kumar has not been made a party respondent. Thus, Review Application suffers from non-joinder of parties.
10. In view of the above facts, I do not find any error apparent on the face of the record. If the Review Petitioner is not satisfied Page 20 of 22 21 RA No.39/2023 in OA No.74/2023 with the order passed by the Tribunal, remedy lies elsewhere. By way of this Review Application, he seeks to re-argue the OA in the garb of Review Application, which is not permissible in terms of the provisions contained in Section 22 (3) (f) of the Administrative Tribunals Act, 1985 read with Order XLVII, Rule (1) of CPC, and also in view of the ratio laid down by the Hon'ble Supreme Court in Union of India v. Tarit Ranjan Das, 2004 SCC (L&S) 160 and in the case of Gopal Singh (supra).
11. This Tribunal has passed the Order dated 30.05.2023 after going through the pleadings, records and relief sought as also the circumstances under which the impugned order in the OA was passed.
12. Further, on the power of the Tribunal to review its own orders, the Hon'ble Supreme Court has laid down clear and exhaustive guidelines in Page 21 of 22 22 RA No.39/2023 in OA No.74/2023 its judgment in the case of State of West Bengal & Others Vs. Kamal Sengupta and Another (2008(3) AISLJ 209). The prayer of the applicant in the RA is actually an appeal against the order of the Tribunal in the garb of a Review Application which is not permissible as per law.
13. In view of the above discussion and the judicial pronouncements on the issue as discussed above, I do not find any merit in the Review Application. Therefore, the same is liable to be dismissed and is, accordingly, dismissed. No costs.
(Mr. Shri Krishna) Member (A) ma.
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