Central Administrative Tribunal - Bangalore
M N Narasimha Murthy vs M/O Personnel,Public Grievances And ... on 21 September, 2022
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RA.No.170/17/2020/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
REVIEW APPLICATION NO.170/00017/2020
IN
OA. NO. 170/00543/2019
DATED THIS THE 21ST DAY OF SEPTEMBER, 2022
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
1. Union of India,
Represented by the Secretary,
Ministry of Personnel, Public Grievances and Pensions,
Department of Personnel and Training,
North Block, New Delhi-110 001.
2. Union of India,
Represented by the Secretary,
Ministry of Finance,
Department of Revenue,
North Block, New Delhi - 110 001
3.The Chairman,
Central Board of Excise & Customs,
North Block, New Delhi - 110 001
4. The Director General,
Directorate of General of Performance Management,
Customs, Central Goods and Service Tax,
5th Floor, 'D' Block, I.P. Bhavan, I.P. Estate,
New Delhi - 110 002.
5. The Principal Director General,
Directorate of Revenue Intelligence Hqrs.,
7th Floor, 'D' Block, I.P. Bhavan,
I.P. Estate, New Delhi - 110 002
6. The Additional Director General,
Directorate of Revenue Intelligence,
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RA.No.170/17/2020/CAT/Bangalore Bench
Zonal Unit, No. 8(2)P,
Opposite to BDA Complex,
1st Block, 3rd Stage, H.B.R. Layout,
Kalyan Nagar Post,
Bangalore - 560 043. ..Applicants in RA
(By Advocate Shri Vishnu Bhat)
Vs.
Shri M.N. Narasimha Murthy
S/o N. Narasiyappa,
Aged 44 years,
Working as Inspector,
Office of the Superintendent of
Central Excise & Central Tax,
Customs Building, Bandar Road,
Kumta-581343.
Residing at No. 09, 'H' Block,
Central Excise & Customs Staff Quarters,
B.T.M. Layout,
Bangalore - 560 068. ....Respondent in RA
(Party in Person)
O R D E R (ORAL)
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The present Review Application has been filed under Section 22(3)(F) of the Administrative Tribunals Act, 1985 read with Rule 17 of CAT (Procedure) Rules, 1987. In this Review Application, the review applicants (Respondents in OA.), has sought a review of the orders passed by this Tribunal in OA.No.543/2019 dated 01.08.2019.
2. This Tribunal in its order dated 01.08.2019 had issued the following directions:
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RA.No.170/17/2020/CAT/Bangalore Bench "Apparently, after hearing both sides, we find there were three backlog vacancies available and the applicant being the first among them, he is eligible for this backlog vacancy. Since his promotion had been dated back from 2010, it has now to go back to 2009, from where his promotion will now be considered. Everything else will be accordingly re-arranged, including two other backlog vacancies also. We will give 2 months' time to the respondents to do this."
3. The facts of the case as averred by the review applicants are as follows:
a) The respondent (Original applicant) had filed OA.No.434/2010 seeking promotion to the grade of Intelligence Officer (IO) as per roster point applicable to Scheduled Tribe candidate in the Reservation Roster. This Tribunal in its order dated 09.08.2011 issued the following directions to the department:
"In view of this, the department is duty bound to observe the reservation policy as per law. We therefore, consider it necessary, just and fair to direct the respondent department to recast the final merit list for the ten vacancies as was sought to be filled by Annexure A-16, accommodate the candidates eligible on the basis of reservation and in particular, accommodate the applicant as per his roster point as applicable to the promotional post. On the basis of such list, the respondents will issue necessary orders of promotion to the applicant with necessary retrospective effect having regard to the date on which the other candidates in the list at Annexure A-16 have started officiating. Within two months from the date of receipt of a copy of this order such modified list shall be published along with the necessary posting order to the applicant. The consequential benefits will be paid to the applicant within two months thereafter. No order as to costs."4
RA.No.170/17/2020/CAT/Bangalore Bench
b) In pursuance of the above order dated 09.8.2011 of this Tribunal, Review Applicant No.5 herein vide Office Order dated 16.12.2011 issued under DRI F.No. A-34011/01/2007-Esst., promoted the respondent (Original applicant) to officiate as Intelligence Officer with effect from 17.09.2010 i.e., the date on which the reserved vacancy for ST candidate arose in the cadre of IO's after application of reservation roster.
c) The respondent (Original applicant) filed Contempt Petition No.21/2018, stating that the department has not implemented the order dated 09.08.2011. This Tribunal disposed of the CP. No. 21/2018 stating as under:
"Since those people were also parties in the earlier matter and since the focus was on reservation, the comparative merit of those candidates have not been adjudicated. Therefore, we will now give liberty to the applicant to agitate it in a fresh OA after impleading all the necessary parties, but the CP cannot lie for the simple fact that the basic content of the order has been satisfied.
The CP is therefore disposed off with liberty. Notices discharged. No order as to costs."
d) Consequently, OA. No. 543/2019 was filed by the applicant after impleading all the necessary parties in this OA, in which the order under review has been passed by this Tribunal.
e) The Review Applicants have submitted that the Department made sincere efforts to implement this Tribunal's order dated 01.08.2019 for determining the backlog vacancy after applying reservation in post 5 RA.No.170/17/2020/CAT/Bangalore Bench based roster in the post of Intelligence Officer. In this regard best efforts have been made to trace out old records related to vacancy position and seniority list in the grade of IO and SIO w.e.f. 1997. However, the records are traceable since the year 2001 only. Further, the department has faced difficulty in implementing the order dated 01.08.2019.
f) In the absence of combined seniority list of Ministerial Cadres for recruitment of IO by transfer, it is not feasible to ascertain exact post based roster. Secondly, in order to prepare combined seniority list of Ministerial Cadres, department will have to consider all the Ministerial staff who have joined the department since the date when vacancy arose in earlier post, then accommodate them as per their seniority. This will be effective from the date when vacancy of IO cadres arises in each year.
g) There is no post based roster maintained in the cadre of Intelligence Officer, it is not feasible to decide whether the officers have been promoted on their own merits or otherwise, hence all the officers have to be placed as if they have been promoted on their own merits and shown as unreserved slot. In view of the same, again it is not feasible to ascertain the backlog vacancies.
h) In order to implement this Tribunal's order dated 09.8.2011, reservation policy was applied on this office order No.50/2009 dated 29.07.2009 and the said order No.50/2009 was recast vide which 10 candidates were recruited on transfer in the grade of Intelligence 6 RA.No.170/17/2020/CAT/Bangalore Bench Officer. As per reservation roster 14th point was reserved for ST and the respondent herein belonging to ST category, was appointed as IO as per reservation roster point and in terms of CATs. Order, retrospectively w.e.f. 17.9.2010 i.e. the date on which vacancy arose in the cadre of IO for ST category.
i) The contention of the learned counsel is that there was an error made by the Tribunal in concluding that there were 3 backlog vacancies, and that the applicant being first among them, was eligible for this backlog vacancy.
4. A perusal of the pleadings filed by the parties in OA.No.543/2019 reveal that in para 13 of the Original Application No: 543/2019 filed by the applicant, the applicant had stated as follows:
"The modified list for 10 posts has not been published by the respondent in OA.434/2010 as per post based reservation roster points and service rules. The post at Sl.Nos. 14, 28 and 40 out of 52 posts in the cadre strength of Intelligence Officer are meant for Scheduled Tribe Category as on 29.07.2009. All these three backlog vacancies at post No.14, 28 and 40 are occupied by the General Category candidates on 29.07.2009 who are selected on merit based on the recommendation of DPC in violation of the Reservation Policy."
5. The respondents in their reply to the OA.No.543/2019 had submitted as follows:
"The final merit list for 10 vacancies was recast and Reservation Policy was applied for these 10 vacancies. Since, the Scheduled Tribe vacancy for the grade of Intelligence Officer arose only at the 14th position on 7 RA.No.170/17/2020/CAT/Bangalore Bench 17.09.2010, therefore, the applicant was appointed to officiate as Intelligence Officer w.e.f. 17.09.2010. The contention of the applicant that 3 backlog vacancies in the grade of Intelligence Officer meant for Scheduled Tribe category are being filled by 'General Category candidates on 29.07.2009 who are selected on merit based on the recommendation of DPC in violation of the Reservation policy' is already settled by this Tribunal in OA.No.434/2010 and CP. No. 21/2018."
6. A perusal of the rival contentions of the parties clearly indicates that the fact whether 3 backlog vacancies available was the point under consideration in the OA.No.543/2019. This has been adjudicated by this Tribunal after hearing both the parties.
7. Hence, there is no ground for the review applicants to contend that there is error on the face of the records in the order passed by this Tribunal.
8. The Hon'ble Supreme Court in the case of Shri. Kamlesh Verma v/s Mayawati and Others reported in 2013 (8 SCC page 320) has laid down the legal principles on the issue of review as follows:
"19) Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII Rule 1 of CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction.
Summary of the Principles:
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RA.No.170/17/2020/CAT/Bangalore Bench
20) Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:
20.1 When the review will be maintainable:-
i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;
ii) Mistake or error apparent on the face of the record;
iii) Any other sufficient reason.
The words "any other sufficient reason" has been interpreted in Chhajju Ram vs. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius & Ors., (1955) 1 SCR 520, to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India vs. Sandur Manganese & Iron Ores Ltd. & Ors., JT 2013 (8) SC 275.
20.2 When the review will not be maintainable:-
i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
ii) Minor mistakes of inconsequential import.
iii) Review proceedings cannot be equated with the original hearing of the case.
iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error.9
RA.No.170/17/2020/CAT/Bangalore Bench
vi) The mere possibility of two views on the subject cannot be a ground for review.
vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.
viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.
9. All other issues agitated by the review applicants in their Review Application pertain to merits of the case. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction. It is well settled that the scope and ambit of review jurisdiction is limited. Review is not re-hearing of the Original Application. It also cannot be treated as an appeal in disguise.
10. Keeping the above in view, there is no merit in the Review Application and it deserves to be dismissed. Accordingly, it is dismissed.
11. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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