Central Administrative Tribunal - Kolkata
Eastern Railway vs Bikash Mitra on 22 February, 2019
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- ? w CENTRAL ADMINISTRATIVE TRIBUNAL CALCUTTA DENCH Review Application No.350/00019/2018 In Original Application No.350/00132/2016 Date of Order: This, the 22nd Day of February, 2019.
THE HON'BLE SMT. MANJULA DAS, JUDICIAL MEMBER THE HON'BLE DR (SMT) NANDITA CHAHERJEE, ADMINISTRATIVE MEMBER Chairman Railway Recruitment Bogrd/JCpIkatp Metro Railway A.V. Complex; Ghitpur . Opp. to R.G.-kar Meclicdl.Cbll.egd ^ Hospital Kolkata-700 037. f vK ... ',!;•••- ....
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2. Secretary -yy-y-:-'-' ■ ... i Railway Recruitment B'odrd/kdlkata Metro Railway A.V. Complex, Chftpur To R.G.Kar Medical College & Hospital Kolkata-700 037. , ' ../Review applicants ~r' • Versus -
Bikash Mitra Son of Subrata Mitra Aged about 31 years By profession Unemployed At present residing at Debipur Duttapukur, P.O: Digha Daspara P.S: Duttapukhur, Dist: 24 Pgs(N) PIN: 743248.
... Opposite Party Advocate for review applicants: Mr.M.K.Bandyopadhyay /
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RA.350/00019/2018
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Advocafe for the .opposite party: Mr.C.Sihha ■
O R D E R fin Circulation)
MANJULA DAS, MEMBER f JV.
By this review application, the review applicants have prayed for recall of the order dated 19.09.2018 passed in OA.
No.350/00132/2016 and prayed as under:-
" Under the1, factor -and circumstances, your ■< applicants, most humbly and jespectfuJiy pray that the .Hoh'ble J-ribuba! nipy gracipusly be pleased to allow^fhis order dated 19.0^201^fe^||^^:^.350/b0132 of 2016 on - review in spirit dnd pass such other ordef::orrbt^6rs^d's^may be'-deemed fit and proper." i
2. This Tribunal after considering' the pleadings and hearing the parties, vide order dated 31.01.201-8 had passed the following order:-
"10. We note that Ms. Mou'mita Ghosh/ who was -selected for the post of ECRC had given 3,d preference for the said post whereas applicant given his 2nd preference for the said posl. Mere so, learned counsel for the applicant vociferously argued thal Ms. Moumita Ghosh who was selected against her 3rd preference got lesser marks than the applicant. The RT1 information furnished on 27.11.2015 reveals that applicant bearing Roll No.5071722 (UR) obtained KX 1*\, i.
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102.? 2 as normalised marks in the 2n^ stage written examination of CEN-03/20t2. The total number vacancy for the post of ECRC was as under:-
UR= A, UR(OH)= A, UR(HH)=3, UR(VH)=2 The cut off marks for UR candidates for the posts of ECRC,. Goods Guard, Senior Clerk-cum-Typist, Assistant Station Master, were 108.2, 92.41, 84.13 and 69.31 respectively. Undisputedly applicant in the 2nd stage Main examination secured 102.12 „ marks whereas Ms. Moumita Ghosh secured 96.09 marks.
Moreover, Ms.Moumita Ghosh who was selected against her 3rd preference for the post of ECRC scored much below than the cut off marks for UR candidate, i.e., 108.2 marks. According to the learned counsel for the applicant,, medical examination is conducted-for post(s) -and not,Tor a single post. The employment npttee,: glsa^pjpscribes different medical stands Tor th0^-posJ.l;^f^£C^6'T.and Goods Guard. For the post of ECRC the/equisite^ standard is A-2 whereas for the past df. Goods Guard it is C-l. The requisite medical standards .for the A-2 and C-1 had already been quoted above. Thus, the submissions made by the learned Counsel-for the applicant is hold good. . '
11. Secondly, -if the wait lisied candidate Ms. Moumita Ghosh with 96.09 marks much less than the applicant's 102.12 marks can be considered against her 3rd preference i.e., ECRC why Ihe department ignored the case of the applicant for his 2nd preference by conducting his medical fitness test for the post of ECRC. Accordingly, the decision of the respondents in declaring the applicant unfit irrespective of any post is not acceptable. As such, we are of the view that applicant's candidature ought to have been considered by the railways as per his preference and the prescribed medical examination. Accordingly, the respondents are directed,to consider the candidature of the applicant in order of marks/merit in the main (2nd stage)
i) v! •/O RA.350/00019/2018 i f' . <f 4 examination pursuant to CEN No. 03/201-2 coupled with the chotee/optlen of pests as suBrntHe.^ applicant. ' \ '
12. The OA is disposed of as above. There shall be no order as to costs."
3. Order XLVII, Rule 1, Code of Civil Procedure provides the grounds on which a prayer for review can be entertained, namely, (i) discovery of new and important matter or evidence • , • ; '.'v- ■s';- .
which after exercise of due diligence was not within his . v , knowledge or could not/bepfolducep^by hifn; (ii) some mistake or error apparent on the fdcj&'.Pf^he'fedprd; dnd .(iii) any other sufficient reasons.
4. The law relating to-review is well- settled as succinctly summarized by the Hon'ble Supreme Court in State of West Bengal and others vs. Kamal Sengupta and another, (2008) 2 SCC (L&S) 735, para 35 which reads thus:-
"35. The principles which can be culled out from the above-npte'd judgments are:
. (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 CPC.
(***} i. / i RA.350/00019/2018 5 (ji) The Tribunal can review its decision on either of the grounds enumerated In Order 4/ Rule l cnc.
(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 d 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 decisiqn/judgment of a coordinate or larger Bench of the tribunal or of asuperior court.
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(vii) While considering an'application for review, the tribunal must confine jts 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.
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(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."
5. We have carefully perused the RA and the order sought to be reviewed. The review applicants in their review O \?
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application have failed to project any ground which falls under Order XLVII, Rule 1, Code of Civil Procedure. Review applicants have also failed to produce any case law in support of their grounds raised in the RA. Basically the review applicants in the review application have reiterated the contentions in the proceeding of OA, and the same had been considered by this / i Tribunal while disposing of the OA. In our considered view, the / review applicants are basically challenging the 'findings recorded by this Tribunal vide Order dated 19.09.2018, which is .-I impermissible. V V ' A .v
6. In view of the above, there/is no merit .in the present R.A. and the same is accordingly dismissed.
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(DR.NANDITA CHATTERJEE) (MANJULa DAS)
ADMINISTRATIVE MEMBER JUDICAIL MEMBER
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