Central Administrative Tribunal - Delhi
Dr. Rajendra Prasad Mishra & Ors vs Union Of India & Ors on 6 February, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH RA NO.359 OF 2011 IN OA NO.492 OF 2009 And OA NO.493 OF 2009 WITH RA NO.357 OF 2011 IN OA NO.493 OF 2009 Orders reserved on 17.01.2013 Orders pronounced on : 06.02.2013 HONBLE DR. DHARAM PAUL SHARMA, MEMBER (J) HONBLE MRS. RAJWANT SANDHU, MEMBER (A) RA NO.359 OF 2011 IN OA 492 OF 2009: 1. Dr. Rajendra Prasad Mishra & Ors. S/o Late P. N. Mishra, OH-200, Pallav Puram Phase-II, Modipuram, Meerut. 2. Birjesh Sharma, S/o Sh. R.D. Sharma, 272, Shivlok, Kanker Khera, Meerut Cantt. 3. Prem Prakash Mishra, S/o Shri K.N. Mishra, OH-205, Phase II Pallanpuram Meerut. 4. Chet Ram, S/o Shri Dwarika Prasad, OH-202, Pallanpuram-II, Modipuram, Meerut. 5. Dhananjai Tripathi, s/o Sri Krishna Deo Tripathi, OH-201, Pallanpuram II, Modipuram, Meerut. 6. Shri Dinesh Kumar Pandey, S/o Shri R.N. Pandey, OH-199, Pallanpuram II Modipuram, Meerut. 7. Dr. V.K. Singh, S/o late R.K. Singh, NH-79, Pallanpuram Phase-II, Modipuram, Meerut 8. Shri Satish Kumar Bansal, S/o late Shri V.P. Bansal, 68- Shiv Shankar Puri, Meerut. 9. Shri Vipin Kumar, S/o late Shri Ved Pal Singh, Q-158, Pallanpuram, Phase-II, Modipuram, Meerut 10. Shri Krishanpal, S/o Shri D. Singh, R-55, Pallanpuram-II, Modipuram, Meerut 11. Dr. Prem Singh S/o Late Shri Niranjan Singh, B-10, Pallanpuram, Modipuram, Meerut. 12. Shri O.K. Tomar, S/o Shri Subey Singh, Q-157, Pallanpuram-II Modipuram, Meerut. 13. Shri Rai Bahadur, S/o Late Shri Har Gulal, 29/5, Jagriti Vihar, Meerut City. 14. Shri K.V. Anand, S/o Shri I.P. Anand, 68, Golden Avenue 1, Roorkee Road, Meerut 15. Shri Ravi Kant Sharma, S/o Late Shri V.D. Sharma, O-73, Phase-II, Pallanpuram II, Modipuram, Meerut. 16. Dr. B.K. Sharma, S/o late Mahabir Lal Sharma, BH-79, Pallanpuram, Phase-I, Modipuram, Meerut. 17. Brij Beer Singh, S/o Shri Godhu Ram, Town and Post-Daula, Ward No.1, District-Meerut 18. Dr. S.P. Singh, S/o Late Shri Balwant Singh, E-103, Shardhapuri-II, Meerut 19. Sh. Jagpal Singh S/o Sh. R.P. Singh, Q-74, Pallanpuram II, Modipuram, Meerut (U.P.). 20. Parmanand S/o Sh. Roopchand, Vill & Post Jittoly, Distt Meerut. 21. Mrs. Anju Verma, W/o Raj Kumar Verma, Q-282, Pallanpuram II, Modipuram, Meerut (U.P.). 22. Shri Alka Jain W/o Sh. Pankaj Jain, 259, Thaterwada, Meerut (U.P.). 23. Dr. Yogendra Singh, S/o Late Shri Lakhi Ram, R-127, Pallanpuram II, Meerut (U.P.). 24. Smt. Jailata Sharma, W/o Sh. K.K. Sharma, Q-222, Pallanpuram II, Modipuram, Meerut (U.P.). 25. Dr. Kamla Prasad, S/o late Sh. Hem Ram, D-37, Pallanpuram I, Modipuram, Meerut (U.P.). 26. S.K. Duhar, S/o Sh. I.S. Duhar, Q-235, Pallanpuram II, Modipuram, Meerut (U.P.). 27. Dr. S.S. Pal, S/o Satish Chandar Pal, H.No.53, Queens Land Park, Delhi Roorkee Bypass, Near Railway Crossing (Jotoli) Modipuram, Meerut (U.P.). 28. S.K. Gupta, S/o Sh. Rajendra Gupta, D-9, Meenakshi Puram, Meerut (U.P.). 29. Rajendra Singh, S/o Sh. Bhawar Singh, P14-15, EWS, Pallanpuram II, Meerut. ..Applicants/Review petitioners. (By Advocate: Shri Vishal Gupta ) VERSUS 1. Union of India & Ors through its Secretary, Ministry of Agriculture, Krishi Bhavan, New Delhi 2. Union of India through its Secretary, Department of Agriculture, Research and Education & Director General, ICAR, Krishi Bhawan, New Delhi 3. The Project Directorate for Cropping Systems Research, (Now) the Project Directorate for Farming Systems Research, through the Project Director, ICAR, Modipuram, Meerut (U.P.). .Respondents (By Advocate: Shri Gagan Mathur for R-2 and R-3) MEMO OF PARTIES IN O.A. NO.493/2009: 1. Dr. B. Gangwar, S/o Shri Net Ram, 44, GA, Phase-III, Roorkee Road, Dorli, Meerut 2. Dr. G.C. Sharma, S/o Late M.D. Sharma, 198, Govind Puri, Meerut Cantt. (U.P.) 3. Dr. Sughar Pal Singh, S/o Shri Bissi Ram Singh, Q-190, Pallanpuram II, Modipuram, Meerut 4. Dr. K.K. Singh, S/o Shri Mahabir Singh, OH-24, Pallavpuram Phase-II, Meerut U.P. 5. Dr. J.P. Singh, S/o Shri Hargovind Singh, 28/5, Jagriti Vihar, Meerut ..Applicants/Review petitioners. (By Advocate: Shri Vishal Gupta ) VERSUS 1. Union of India through its Secretary, Ministry of Agriculture, Krishi Bhavan, New Delhi 2. Union of India through its Secretary, Department of Agriculture, Research and Education & Director General, ICAR, Krishi Bhawan, New Delhi 3. The Project Directorate for Cropping Systems Research, (Now) the Project Directorate for Farming Systems Research, through the Project Director, ICAR, Modipuram, Meerut (U.P.). .Respondents (By Advocate: Shri Gagan Mathur for R-2 and R-3) RA NO.357/2011 IN O.A. NO.493/2009: 1. Dr. G.C. Sharma, S/o Late M.D. Sharma, 198, Govind Puri, Meerut Cantt. (U.P.) 2. Dr. Sughar Pal Singh, S/o Shri Bissi Ram, Q-190, Pallanpuram II, Modipuram, Meerut 3. Dr. K.K. Singh, S/o Shri Mahabir Singh, OH-24, Pallavpuram Phase-II, Meerut U.P. 4. Dr. J.P. Singh, S/o Shri Hargovind Singh, 28/5, Jagriti Vihar, Meerut 5. Dr. B. Gangwar, S/o Shri Net Ram, 44, GA, Phase-III, Roorkee Road, Dorli, Meerut ..Applicants/Review petitioners. (By Advocate: Shri Vishal Gupta ) VERSUS 1. Union of India through its Secretary, Ministry of Agriculture, Krishi Bhavan, New Delhi 2. Union of India through its Secretary, Department of Agriculture, Research and Education & Director General, ICAR, Krishi Bhawan, New Delhi 3. The Project Directorate for Cropping Systems Research, (Now) the Project Directorate for Farming Systems Research, through the Project Director, ICAR, Modipuram, Meerut (U.P.). .Respondents (By Advocate: Shri Gagan Mathur for R-2 and R-3) ORDER (ORAL) DR. DHARAM PAUL SHARMA, MEMBER (J) :
In these two Review Applications, the review applicants are seeking review of the common order dated 2.4.2009 passed in OA No.492/2009 and OA No.493/2009. The review applicants further pray for quashing and setting aside of the impugned order/circular dated 17/19.1.2009 and other related orders with all consequential benefits. Vide the impugned roder, the applicants were directed to occupy the houses allotted to them within the stipulated time frame, failing which their HRA would not be drawn and paid with effect from March, 2009.
2. The review applicants had earlier filed the Review Applications being RA No.93/2009 in OA No.492/2009 and RA No.94/2009 in OA No.493/2009 seeking review of the order dated 2.4.2009, pointing out that they were entitled to HRA under the relevant rules and OMs. The Tribunal, however, dismissed the Review Applications vide its order dated 30.6.2009 for the reason that the review applicants sought to re-agitate the points already decided by the Tribunal in its order dated 2.4.2009 and if the review applicants were not satisfied with it, the remedy would lie elsewhere and not in Review. The said order is annexed as Annexure A/8.
3. The review applicants then approached the High Court of Delhi in Writ Petition No.10577/2009. A copy of the said writ petition is annexed as Annexure A/9. The review applicants in the aforementioned Writ Petition filed rejoinder affidavit along with which they annexed certain documents which were earlier not part of the proceedings before the Tribunal as these have been subsequently obtained by them under RTI Act. The said Writ Petition was disposed of vide order dated 15.9.2011, as at Annexure A/4, the relevant part of which reads as follows:-
After some arguments, learned counsel for the petitioners, on instructions, seeks to withdraw the writ petition in view of the additional documents filed along with the rejoinder, which were not before the Tribunal and, therefore, not considered by the Tribunal while passing the impugned order with liberty to file appropriate applications/petitions for review of the impugned order in view of the additional documents in accordance with law, some of which are stated to have been received by the petitioners pursuant to the queries raised by them under the Right to Information Act.
In view of the statements made by the learned counsel for the petitioners, the writ petition is dismissed as withdrawn with liberty as prayed for.
All the pending applications are also disposed of.
However, considering the facts and circumstances, the interim order granted by this Court dated 11th August, 2009 shall continue and is extended for a further period of four weeks from today. Thereafter, the petitioners/applicants shall be at liberty to seek such interim orders as may be deemed appropriate by the petitioners from the Central Administrative Tribunal in accordance with law without prejudice to rights and contentions of the respondents.
Needless to say, the respondents shall be entitled to take such pleas and contentions as will be available to them in accordance with law to contest the applications/petitions which will be filed by the petitioners before the Central Administrative Tribunal.
Dasti to parties.
4. The present two Review Applications have thus been filed on the ground of discovery of new and important matter or evidence. These include: (i) copies of permission granted by the Directorate of Building and Loans and copies of permission granted by the Directorate for Building and Loans by Commercial Banks respectively, showing that the permission was granted by the respondent no.3 to some of the review applicants to acquire or construct houses of their own along with sanction orders for loan. These documents, though were in possession of the Review Petitioners at the time of filing of the OAs before this Tribunal, were inadvertently not annexed by the counsel of the Review Petitioners though a specific pleading in this regard was made by him in the Original Application; (2) orders dated 23.7.2010 of Allahabad Bench of the Tribunal in Prem Chand Tripathi & Ors. vs. Union of India & Ors., as at Annexure A/10, whereby a similar circular dated 14.1.2009 passed by the ICAR was quashed; (3) OM No.12034/68-Pol.III dated 27.06.2001 issued by the Directorate of Estate, Govt. of India, providing that HRA in cases of those who have their own accommodation and who have not applied for any government accommodation cannot be stopped. A copy of this OM along with communication under RTI is annexed as Annexure A/11 (colly.); & (4) OM dated 9.9.1975 and OM dated 14.11.2007, copies of which along with communication under RTI are annexed as Annexure A/13 (Colly.). The impugned notification dated 14.1.2009 was issued by ICAR, respondent no.2 on the basis of OM No.12034/1/2007/POL.III dated 14.11.2007. The review applicants submission has been that on a perusal of OM dated 14.11.2007, it will be seen that it relates to transfer of Government servant falling under para 4(a) (ii) issued by Ministry of Finance vide OM dated 27.11.1965 and did not relate to the class of Government employees falling under Rule 7 (i) of the HRA Rules, which fact has been deliberately concealed by the review respondents from this Tribunal. Furthermore, as per OM of 9.9.1975, none of the Government employees, who own their own houses have been held to be having liability for getting the Government accommodation. There is no circular providing that the Government servants owning their own accommodations would not be eligible for any HRA. It has thus been submitted by the review applicants that impugned circular dated 17/19.01.2009 would not be applicable to the employees, who own their own houses and are, therefore, not eligible for Government accommodation. The OM dated 22.10.1990 issued by the Directorate of Estate, as at Annexure A/13 (Colly.) at page 121 of the paperbook, providing that even in cases of employees who are residing in private accommodations and are insisted from shifting to the Govt. accommodations allotted to them, only 12 days HRA would be deducted from the salaries of such incumbents. The application form for allotment of houses by the ICAR in New Delhi posted by them online on their webside www.icar.org.in, as at Annexure A/14, from which it may be seen that the ICAR itself intended to exclude those employees, who are living in their own houses within the municipal limit, from occupying government accommodation available with them.
5. On the strength of the aforesaid documents, indicating discovery of new and important matter or evidence, the review applicants submitted that the Tribunal failed to appreciate that the impugned circular was in complete violation of principles of equality and reasonableness, as enshrined under Article 14 of the Constitution of India and ultra vires the OM and the Fundamental and Supplementary Rules, which clearly provide that Government Servants living in their own houses owned by themselves, their parents, children or spouse will be eligible for HRA. It has been further submitted that the Tribunal failed to appreciate that the houses built or acquired by the review applicants on loans taken from the Directorate or from commercial banks were with the consent and permission of the Directorate, forcing the review applicants to apply for and reside in Government accommodation when they own houses of their own or otherwise depriving them HRA is entirely arbitrary, unreasonable and violative of Article 14 of the Constitution. It has further been submitted that the Tribunal failed to appreciate that the review applicants form a separate class of Government servants dealt with specifically under Rule 7 of the OM, which was neither placed before, nor considered by, the Honble Supreme Court in Director, Central Plantation Crops Research Institute, Kesarangod and ors. vs. M. Purushothaman and ors, 1995 Supp (4) SCC 633, and therefore, the said case was distinguishable and not applicable to the case of the review applicants. It has further been submitted that the Tribunal failed to appreciate that it is unreasonable and arbitrary to withhold HRA of the review applicants on account of a serious lapse committed by the officers of the Directorate in acquiring accommodation far in excess of their requirement. Lastly, review applicants submitted that the Tribunal failed to appreciate that unlike in Purushothamans case (supra) where there was surplus accommodation already available with the Government, in the present case, the quarters which are now available with the Directorate were either built afresh or acquired from a sister organization, the Project Directorate on Cattle, without verifying the actual requirement or making projections for the future. Hence, the failure of the Directorate to exercise due care in reviewing their demand or requirement in expending public funds cannot be used as an excuse to circumvent the law and the conditions of service of the review applicants to force them to vacate their own houses and move into the new quarters available with the Directorate.
6. Opposing the Review Applications, the review respondents have taken a number of preliminary objections against the maintainability of the Review Applications. The Review Applications have thus been opposed being barred by time having been filed beyond the period of limitation as prescribed for filing Review Application. The Review Applications have also been opposed on the ground that review applicants have earlier filed Review Applications against the common order which is sought to be reviewed in these proceedings and the same were rejected and second review in respect of the same order is not maintainable under the Act. It has further been submitted that neither there is any mistake or error apparent on the face of the record nor there is discovery of any new and important matter or evidence, which was not within the knowledge of the review applicants. The Review Applications are not maintainable in view of the law laid down by the Honble Supreme Court in the case of Director, Central Plantation Crops Research Institute, Kesarangod and ors. vs. M. Purushothaman and ors, 1995 Supp (4) SCC 633. The Review Applications are also not maintainable on the ground of misjoinder or non-joinder of necessary parties, as ICAR can only be sued through its Secretary. Besides the HRA allowance is neither a statutory nor a vested right, which can be enforced by way of the present petitions. The review respondents then narrated the background under which the impugned order has been issued by them. The respondents then proceeded to state that the order whose review is being sought is in order and how the review applicants are not entitled to the relief claimed for by them. Insofar as the documents now being placed, based on which review is being sought, were very much in the knowledge of the review applicants or else they could have been obtained by them by due exercise of care and diligence. The review applicants have sought to give an impression that the Review Applications are being filed pursuant to the High Courts directions whereas the fact remains that review applicants themselves have sought to withdraw the said writ petitions for filing a review application with reference to the additional documents filed by them in the High Court. As regards the grounds on which the review is being sought, the same are denied as wrong and incorrect.
7. At the hearing, the counsels reiterated their averments made by them in their respective pleadings.
8. We have given our careful consideration to the respective submissions made by both the parties. We have also carefully perused the records of the case.
9. In law, the scope of an application for review is much more restricted than that of an appeal. The court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used in Order 47 Rule 1. Accordingly, the review may be allowed on three specified grounds, namely, (1) discovery of new and important matter or evidence, which after the exercise of due diligence, was not within the applicants knowledge or could not be produced by him at the time when the decree was passed or order was made; (2) mistake or error apparent on the face of the record; or (3) for any other sufficient reason. As such the power of review cannot be exercised in respect of an erroneous decision so as to enable the review applicants to have the matter re-heard and corrected. A Review Application cannot thus be allowed to be an appeal in disguise.
10. The review applicants have taken the ground of discovery of new and important matter or evidence in support of Review Applications. This ground needs to be considered with great caution before a review could be allowed on this ground. The review applicants must show discovery of new and important matter or evidence; such new and important matter or evidence was not within the knowledge of the review applicant or could not be produced by him at the time when the order whose review so sought was passed after exercise of due diligence. Thus, discovery of new and important matter or evidence itself is not sufficient. The review applicant has further to show due diligence after exercise of which he could not produce the new and important matter or evidence now sought to be produced and as such was not within his knowledge. The review should not be granted on this ground lightly as a matter of routine. Furthermore, the expression new and important matter or evidence refers to evidence or other matter in the nature of either evidence and not to the legal authority that could not brought to the notice of the Court on the given date. Case law not cited earlier is not covered by the expression new and important matter and no review is permissible on the basis of the judgment, which could not be cited in evidence either inadvertently or out of ignorance. The party cannot be given a chance of trying his luck one again on the plea of discovery of additional evidence in such a case.
11. Furthermore, successive Review Applications against the same order is not maintainable in law. Reference in this regard is made to the decision of the Honble Supreme Court in the case of Satyanarayana Murthy and others vs. Mandal Revenue Officer-cum-Land Acquisition Officer, AIR 1999 SC 40. The circumstances under which the review can be allowed in law are well settled. The power of review is not an inherent power. It must be conferred by law. The review, therefore, cannot be heard on the basis of any liberty. The liberty as referred to by the review applicants herein cannot be used as a means to achieve the advantage which is not otherwise available in law. It does not give a new right to the party to agitate the matter further. Nor does it confer the jurisdiction on the Court itself to further probe the correctness of the decision arrived it.
12. We may examine the present Review Applications in the light of the aforesaid principles.
13. At the very outset, it is noted that Rule 17 of the Central Administrative Tribunal (Procedure) Rules, 1987, provides in its sub rule (1) that no application for review shall be entertained unless it is filed within thirty days from the date of receipt of copy of the order sought to be reviewed. Sub rule (4) of Rule 17 further provides that when an application for review of any judgment or order has been made and disposed of, no further application for review shall be entertained in the same manner. Admittedly, in the present case, the review applicants have filed Review Applications being RA No.93/2009 in OA No.492/2009 and RA No.94/2009 in OA No.943/2009 in respect of the order dated 2.4.2009 passed in OA Nos.492-493 of 2009 whose review is being sought herein, and the same were disposed of vide order dated 30.6.2009. The present Review Applications being second one in number are not maintainable under Rule 17 of the Central Administrative Tribunal (Procedure) Rules, 1987. The liberty accorded by the High Court vide its order dated 15.9.2011 in respect of filing appropriate Application/Petition for review of the impugned order in view of the additional documents is in accordance with law. Thus, the said liberty is not of any help to the review applicants herein. In law, such liberty cannot be used as a means to achieve an advantage which is not otherwise available under law. It does not confer any jurisdiction upon this Tribunal de hors the rule by which this Tribunal is governed. Thus Review Applications are liable to be rejected on this limited ground alone.
14. Even otherwise, the review applicants have not been able to make out a case for review of the impugned order based on the documents of which they were already aware and having in their possession but the same having been inadvertently left out by their counsel. Furthermore, omission to refer to some of the decisions which ought to have been cited but had not been cited is not a ground for review. The expression new and important matter or evidence refers to evidence or otherwise matter in the nature of evidence and not the legal authority that might or might not have been in possession and have not been brought to the notice of the Tribunal on a given date. The case law, if not cited earlier is not covered by the expression new and important matter. Besides discovery of new and important matter or evidence is not itself sufficient unless the review applicants also show that they with reasonable care and diligence could not have brought forward these matters or documents at the time of passing of the order whose review is being sought. The review applicants have not adduced any evidence to show satisfaction of this requirement. Thus, no review is permissible. The Office Memorandums dated 9.9.1975 & 14.11.2007 based on which review is being sought, especially on the presumption that the Government servants living in their own houses are eligible to HRA, is not of much relevance in view of the following observations of the Tribunal in para 6.1 of its order whose review is being sought, namely, However, the point remains that the issue here is different. The issue under adjudication is not regarding the eligibility or otherwise for HRA of an employee living in his own accommodation but whether such HRA can be claimed even when the concerned employee has been allotted a Government accommodation which offer he has declined. Since this issue has specifically come for consideration of the Apex Court at length in the judgment cited by the respondents, we would dwell on it. and then the Tribunal has proceeded to passed its order on the basis of the decision in the case of Director, Central Plantation Crops Research Institute, Kesargod & Ors (supra), which squarely covers the issue under consideration as observed by the Tribunal hereinabove. The review applicants contend that the Tribunal erred in holding this view. That being so, the remedy would lie in an appeal against this order and not in review as is being sought herein.
15. In the facts and circumstances and for the reasons stated above, RAs are dismissed. No order as to cost.
(Mrs. Rajwant Sandhu) (Dr. Dharam Paul Sharma) Member (A) Member (J) /ravi/