Central Administrative Tribunal - Delhi
Habib Ahmed vs M/O Information And Broadcasting on 13 September, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
RA No. 150/2023
in
O.A. No. 1025/2018
Reserved on: 29.08.2024
Pronounced on: 13.09.2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
1. Habib Ahmad
S/o Noor Mohd. Aged 35 Years
R/o D-149, Abul Fazal Enclave-1
Okhla Village, Jamia NagarDelhi-110 025
2. Neeraj Kumar
S/o Late Shri Sulekh Chand
R/o WS-61, Gali No.1 Sudama Puri
Babarpur, Shahdara Delhi 110 032
3. Ramakanta Dash
S/o Rajakishora Dash
R/o H-13, Adchini3rd Floor, New Delhi 110 017
4. Moshahid Ammar
S/o Iftekharul Haque
R/o J-23, 2nd Floor, Gali No. 12
Near Abdula Masjid, Ramesh Park
Laxmi Nagar, New Delhi 110 092
5. Shamim Ara
D/o Naseeruddin
R/o D-33, Jauhari Farm,
Jamia Nagar, Okhla Delhi 110 025
6. Mirza Shamshulhaq Baig
S/o Mirza Subhan Baig
R/o D-319, Abul Fazal Enclave
Jamia Nagar, Okhla Delhi 110 025
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7. Saltnat Zehra Naqvi
D/o Mohd. Ali Naqvi
R/o A-7 Jauhari Farm,
Jamia Nagar, Delhi 110 025
8. Karan Kumar
S/o Late Tulish Dass
R/o E-63, Ground Floor Behind Devi Mandir
Tagore Garden Extension New Delhi 110 027
9. Sheena Santosh
W/o C G Santosh
R/o 150-B, DDA Flat
Shahpur Jat, New Delhi 110 049
10. Geeta Rawat
W/o S S Rawat
R/o A-40 Mandir Marg Staff QuartersNew Delhi
110 001
11. Lalit Kumar Thakur
S/o Lakheshwar Thakur
R/o 121-122 3rd Floor
Pocket -4, Sector 25,Rohini, Delhi 110 085
12. Dharmendra Kumar
S/o Late Nain Singh
R/o House No. 489 Nai Basti
Devli Village, New Delhi 110 062
13. Harish Kumar Singh
S/o Satya Narayan Singh
r/o House No. 848-A, Nyay Khand-III
Indirapuram, Ghaziabad
14. S. Venkataramana
S/o S Subramanayam Naidu
Flat No. 136, 2nd Floor
DDA Flat, Shahpur JatNew Delhi 110 049
15. Pradeep Chaudhary
S/o Krishan Kumar
R/o House No. 27, Peeli Kothi
Khanpur, M.B. Road, New Delhi 110 080
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16. Mukesh
S/o Late Shri Veer Pal
R/o F-321, Dr. Ambedkar Nagar
Sector 5, New Delhi 110 062
17. Rajneesh Kumar
S/o Late Shri Bainiprasad
R/o H-1/12 Sector-16Rohini, Delhi 110 089
18. Syed Nazam Iqbal
S/o Gayasuddin
R/o E-35, Ground Floor,
Abul Fazal EnclaveJamia Nagar, OkhlaNew
Delhi 110 025
19. Samreen Naaz
D/o Mohd. Ikram
R/o B-28/2, Mannat Apartments
Thokar No.7, Shaheen Bagh
Jamia OkhlaNew Delhi-11- 025
20. Rahul Bhakri
S/o Late Shri Ramesh Chander Bhakri
R/o Flat No. 10-B, Sector-56
Gharaunda SocietyPlot No. 33
21. Mohd Mushfique Alam
S/o Abdur Rashid
R/o C-220-21
Raghubir Nagar, Near Police ChowkiNew Delhi-
110 027
22. Mohd. Salim
S/O Mohd. Arif.
R/O D-44/11 Zakir Nagar WestNew Delhi 110
025
23. Mohd. Ataur Rahman
S/o Mohd Moinuiddin
R/o 270/3 Street No.3
3rd Floor, Main RoadZakir Nagar, Okhla
New Delhi 110 025
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24. Anjali Sharma
D/o R.K. Sharma
House No. 17, Vrindavan Garden Exension
Near Aradhna Cinema, SahibabadGhaziabad
25. Vikas Kumar
s/o Sh Mahender Singh
r/o V.P.O Kultana Distt. Rohtak, Haryana-
124119
26. Shivraj
s/o Sh. Bhura Lal
r/o 344 Shahpurjat, New Delhi-110049
27. Vimal Kumar Shukla
s/o Late S.N Shukla
r/o 24/2c MZH Road, Naya KatraAllahabad-
211002 (UP)
28. Victor Murmu
s/o Dominic Murmu
r/o24/2c MZH Road, Naya KatraAllahabad,
211002 (UP)
29. Dhirendra Singh Rawat
s/o Sate Singh Rawat
r/o A-19, 2nd Floor, Dayal Bagh Colony,
Surajkund, Faridabad-121009
30. Jyotsna Shukla
Mr. Jagdish Narayan Shukla
R/o 287-C, DDA FlatsGazipur, Delhi 110 096
31. Farhan Najam
s/o Najmul Haq
r/o 76/159, Street-1, Ghaffar Manzil,
Jamia Nagar OkhlaNew Delhi
...Review Applicants
(By Advocate: Ms. Bushra Parveen)
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VERSUS
1. Union of India
Through Secretary,
Ministry of I&B, Govt. of India
756/21, Chabi Ganj,
Opposite Vardhan House,
Kashmere Gate
New Delhi-110006
2. Prasar Bharati
Through CEO,
Prasar Bharti Secretariat,
2nd Floor, PTI Building,
Sansad Marg, New Delhi-110001
3. Director General (DG-DD)
Doordarshan,
Doordarshan Bhawan, Copernicus Marg
New Delhi-110001 4
.... Respondents
(By Advocates: Ms. Vertika Sharma with Mr. Kunal
Goswami)
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ORDER
By Hon'ble Mr. Manish Garg, Member (J) :
Learned counsel for the review applicants submitted that there are two points for consideration in the present Review Application:
(i) Non-consideration of MA No. 2891/2021.
(ii) Manifest errors in the Order/Judgment dated 12.09.2023.
1.1. Highlighting the first point, i.e., "Non-consideration of MA No. 2891/2021", learned counsel for the review applicants submitted that the review applicants have been denied 10% increment in their remuneration while other similarly situated employees, doing the same work, are paid the said increment only for the reason that there is a "Status Quo" order passed in their favour on 28.03.2018 by this Tribunal and this action of the respondents was challenged by the applicants in MA No. 2891/2021. 1.2. Learned counsel for the review applicants contended that vide order dated 20.09.2022, this Tribunal directed that the said MA shall be heard along with the OA. Learned counsel added that the same was also brought to the notice of the Tribunal on 21.04.2023 and it was directed that the 7 R.A. No. 150/2023 in O.A. No. 1025/2018 (C-V, Item-02) said MA shall be heard along with OA. Learned counsel for the review applicants argued that though in Para 4 of the final order dated 12.09.2023, the same observation has been recorded but there is no adjudication of the said MA and this Tribunal did not consider the prayer clause (ii) which reads as under:
"Direct the respondents to pay the applicants the same salary and other benefits as been received by their counterparts (doing the same work) in compliance of the judgment of Hon'ble Supreme Court in State of Punjab vs Jagjit Singh (2017) 1 SCC 148."
1.3. Learned counsel for the review applicants argued that the review applicants are still being denied the increment in salary at par with the other similarly situated employees. Placing reliance upon the Judgment of the Hon'ble Supreme Court in State of Punjab vs Jagjit Singh (2017) 1 SCC 148, she further argued that Equal Pay for Equal Work is a right based on Article 14 and the review applicants are entitled to increments and the arrears as prayed for in M.A No.2891/2021.
1.4. Highlighting the second point, i.e., "Manifest errors in the Order/Judgment dated 12.09.2023", learned counsel for the review applicants submitted as under: 8 R.A. No. 150/2023
in O.A. No. 1025/2018 (C-V, Item-02) In para-16, the Hon'ble Tribunal, after referring to the arguments of both sides, observed that the applicants cannot lay claim on the regularization policies of 1992/1993 because they were engaged as per the contractual policy of 2012. This finding is factually incorrect because the applicants were appointed from 2001 to 2011. They have put in 12-22 years of service. The initial appointment of none of the applicants was under the contractual policy.
In Para-17-18, the Hon'ble Tribunal observed that there were neither regular/sanctioned posts nor regular appointment method; that the benefit of Uma Devi cannot be given to the applicants; that Lok Sabha Committee recommendations will not benefit the Applicants as their appointments are only contractual. The reasons given in para-17-18 are contrary to the following pleadings and arguments of the applicants besides being untenable in law:
(i.) In para-4 of the Final Order, this Hon'ble Tribunal has noted applicants submissions, where it is clearly mentioned that:
"3. The Applicants were appointed against the vacant sanctioned post As per the answer given in Lok Sabha on 9 R.A. No. 150/2023 in O.A. No. 1025/2018 (C-V, Item-02) 12.02.2021 by the Ministry of 18B, 10247 vacancies in DD and 12086 vacancies in Akashwani, consisting of Group A, B and Care vacant 4 The Applicants main contention is that the judgment passed by the Hon Ne Supreme Court in Uma Devi 2006(4) SCC 1 has no application in present case as when the Applicants were appointed by Doordarshan it was a regular appointment and was not contrary to any statutory rules as no statutory rules, in fact existed. Therefore, their appointment was neither illegal nor irregular."
Though the submission was noted in the above para but still findings have been given contrary thereto. (ii.) It is on record that from year 1967 onwards DD/AIR under the Ministry of I&B has been following its own method of appointing the artists. The review applicants were appointed on sanctioned posts in the Phase II & III. From pages 107-122 of the OA, documents have been annexed to show that fixation of salary and qualifications were notified by the Doordarshan. Advertisements were also issued by the Respondent. In this entire process, only the nomenclature changed. Therefore, the finding that there was no method of recruitment is not correct. (iii.) In OM dated 06.10.2014, the respondents have admitted that there is low strength of manpower in Doordarshan as there is vacant sanctioned strength and the Prasar Bharati has been resorting to adhocism by 10 R.A. No. 150/2023 in O.A. No. 1025/2018 (C-V, Item-02) employing persons on contractual/casual basis against such vacant sanctioned posts.
(iv.) The Applicants being appointed in Phase II & III, they are entitled to be regularized on the basis of regularization scheme 1992 (as clarified on 17.03.1994) which continued till 2017.
(v.) Since the appointments were regular in nature and not contrary to any statutory rules, the judgment passed by the Hon'ble Supreme Court in Uma Devi 2006(4) SCC I has no application in present case. Uma Devi judgment has laid down law to bring recruitment process in consonance with Article 14 & 16 when the State acted against the statutory rules. In the present case, no statutory rules existed which were not followed, it is not even the case of respondents. The review applicants never claimed any benefit of the regularization scheme envisaged in Uma Devi case. They claimed benefit of regularization as per 1992/1994 scheme because there was denial of regular appointment in spite of such appointment being against the sanctioned vacancies and on fulfillment of all the conditions of appointment. This was in violation of Article 14 & 16 of the Constitution. 11 R.A. No. 150/2023
in O.A. No. 1025/2018 (C-V, Item-02) (vi.) The reliance on Nihal Singh & Ors vs State of Punjab & Ors (2013) 14 SCC 65 (para 24 & 37); Yashwant Arjun More & Ors vs State of Maharashtra & Ors 2014(13) SCC 264 (para 11); State of Jharkhand vs Kamal Prasad & Ors (2014) 7 SCC 223 (Para 12-14, 41,42); Amarendra Kumar Mohapatra vs State of Orissa & Ors 2014(4) SCC 583; Narendra Kumar Tiwari & Ors vs State of Jharkhand (2018) 8 SCC 238 were relied upon and referred to point out that the judgment in Uma Devi cannot become a license for exploitation by the State and its instrumentalities.
(vii.) The Hon'ble Tribunal in para 17 erred in holding that the reports of Lok Sabha Committee would not support the Applicants. The Report of Lok Sabha Committee (2009-10) points out how the Doordarshan/Prasar Bharati has been making appointments in absence of recruitment rules and that the employees so appointed are required to be regularized as per the Scheme of 1992 & 1994 against the vacant posts.
1.5. Learned counsel for the review applicants further submitted that regarding Policy for Contractual Engagements, 2012, the following points are important: 12 R.A. No. 150/2023
in O.A. No. 1025/2018 (C-V, Item-02)
(i) To induct the persons though this Policy, existing personnel earlier engaged through BECIL were considered (or engaged by DD News from 2009 onwards).
(ii) Contractual engagement done by the Respondents was against sanctioned vacant posts. The contractual appointment was thus only a change in nomenclature.
1.6. Learned counsel for the review applicants further argued that it is a settled law that even in the case of contractual appointment Article 14, 16 and 21 of the Constitution has to be followed and the Hon'ble Tribunal erred in considering that the applicants herein are only being employed through the Contractual Policy by the respondents and the terms and conditions of the contract will be strictly applicable to them. This finding is contrary to Para 89 of Central Inland Water Transport Corporation vs Brojo Nath Ganguly AIR (1986) SC 1571. which was relied upon wherein the Hon'ble Supreme Court held that owing to unequal bargaining power, the court is required to ascertain whether a contractual term or a contract is unfair, unreasonable or unconscionable. 1.7. Further, learned counsel for the review applicants submitted that in DTC vs DTC Mazdoor Congress (1991) 13 R.A. No. 150/2023 in O.A. No. 1025/2018 (C-V, Item-02) Suppl | SCC 600, the Hon'ble Supreme Court held that the terms of the Contract of service which violates Article 14 and 19 of the Constitution are arbitrary and void.
2. The respondents have not filed reply to the RA. However, during the course of arguments, learned counsel for the respondents opposed the Review Application and submitted that there is no policy of regularization and the contractual employees cannot claim regularization in the absence of any such scheme. Accordingly, she prays that the present RA be dismissed.
3. Having heard the learned counsel for the respective parties and perused the pleadings available on record as well as the written synopsis filed on behalf of the review applicants, we would draw the following analysis:
4. ANALYSIS :
4.1 The present Review Application raises an interesting question, i.e., as to whether, non-consideration of a Miscellaneous Application while deciding an Original Application would call for the review powers of the Tribunal in a finally decided case?14 R.A. No. 150/2023
in O.A. No. 1025/2018 (C-V, Item-02) 4.2 The power to adjudicate Miscellaneous Application under the Administrative Tribunals Act, 1985 is akin to powers of Civil Courts under CPC. Such Miscellaneous Applications are procedural part in conduct of court proceedings. The Miscellaneous Applications are offshoot of original proceedings. They are not proceedings which are independent but owe their birth from original application. They are neither in the nature of execution proceedings or an application post decision, which are independent in nature.
4.3 It may be appropriate to refer to Section 141 of The Code of Civil Procedure, 1908, which reads as under:-
"141. Miscellaneous proceedings:
The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.
Explanation - In this section, the expression "proceedings"
includes proceedings under Order IX, but does not include any proceeding under article 226 of the Constitution." 4.4. In Babubhai Muljibhai Patel vs Nandlal Khodidas Barot & Ors decided on 17 September, 1974 , 1974 AIR 2105, 1975 SCR (2) 71, the Hon'ble Apex Court observed as under :-
15R.A. No. 150/2023
in O.A. No. 1025/2018 (C-V, Item-02) " ...Section 141 of the Code, to which reference has been made, makes it clear that the provisions of the Code in regard to suits shall be followed in all preceding in any court of civil jurisdiction as far as it can be made applicable. The words "as far as it can be made applicable" make it clear that, in applying the various provisions of the Code to proceedings other than those of a suit, the court must take into account the nature of those proceedings and the relief sought. The object of article 226 is to provide a quick and inexpensive remedy to aggrieved parties. Power has consequently been vested in the High Courts to issue to any person or authority, including in appropriate cases any government, within the jurisdiction of the High Court, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrant and certiorari. It is plain that if the procedure of a suit had also to be adhered to in the case of writ petitions, the entire purpose of having a quick and inexpensive remedy would be defeated. A writ petition under article 226, it needs to be emphasised, is essentially different from a suit and it would be incorrect to assimilate and incorporate the procedure of a suit into the proceedings of a petition under article 226. The High Court is not deprived of its jurisdiction to entertain a petition under article 226 merely because in considering the petitioner's right of relief, questions of fact may fall to be determined"
4.5 In S.P. Sampath Kumar Etc. vs Union Of India, 1987 AIR 386, the Hon'ble Supreme Court has held that the Tribunal is a substitute of the High Court and has jurisdiction, power and authority under Articles 226 and 227 with respect to service matters. In J.B. Chopra v. Union of India ( (1987) 1 SCC 422), the Hon'ble Supreme Court has held that as the Tribunal is the substitute of the High Courts, it has power, jurisdiction and authority to deal with the questions pertaining to constitutional validity of laws, notifications, rules etc. 16 R.A. No. 150/2023 in O.A. No. 1025/2018 (C-V, Item-02) 4.6 The principal bench of this Tribunal consisting of the then Chairman, Hon'ble Mr. Justice K. Madhava Reddy, and then Member Hon'ble Mr. Kaushal Kumar was called upon to decide about the existence of its power under Articles 226 and 227 in Surinder Nath v. Union of India, 1 ATC 656 (CAT) (ND). Referring to the word "proceeding" in Section 29 (1) of the Act Hon'ble the then Chairman observed as under:
"The expression 'proceeding' has not been defined either under the Constitution or the Administrative Tribunals Act or even in General Clauses Act, 1897 .... It is however, a term of wide import and takes within its ambit all matters pending in any court or tribunal. There may be an original proceeding or appellate proceedings or revisional proceedings. They may be interlocutory proceeding or main petition; they may be a proceeding taken on petitions filed invoking the ordinary original jurisdiction or the extraordinary jurisdiction or special jurisdiction conferred on a court or a Tribunal or a High Court. We do not find any justification for restricting the ambit of this wide expression and exclude there from proceedings initiated before the High Court under Articles 226 and 227."
4.7. The then Hon'ble Chairman further pointed out that even in Halsbury's Laws of England writ petitions have been referred to as proceedings. Also the Supreme Court in various cases has held that a petition under Article 226 is a proceeding. Also, referring to the proviso to Section 29 of the Act, he pointed out that this proviso, which saves from transfer to the Tribunal the appeals pending before the 17 R.A. No. 150/2023 in O.A. No. 1025/2018 (C-V, Item-02) High Courts, shows the intention of the Parliament that writ petitions were intended to be transferred and the power to deal with these under Articles 226 and 227 was vested in the Tribunal.
4.8. Speaking on the situation which may arise if it is held that Tribunal has no power under Articles 226 and 227, Hon'ble the then Chairman, made the following important observations:
"If we restrict the meaning of the word 'proceeding' occurring in Section 29(1) so as to exclude there from proceedings under Articles 226 and 227 of the Constitution, then a very anomalous situation would arise. While the jurisdiction of the High Courts stands excluded in respect of service matters and, therefore the High Court cannot deal with those matters, at the same time those matters do not stand transferred under Section 29(1), then there would be no other forum to dispose of these proceedings validly pending in the High Court on the appointed day. In the absence of a forum to adjudicate upon them, they would perhaps lapse. Parliament would never have contemplated creating such a situation."
(emphasis supplied) 4.9. Differing from a decision of Hon'ble Allahabad High Court on the above point, Hon'ble Mr. Justice Madhava Reddy, the then Chairman, also rejected the argument that the Explanation to Section 141 of the Civil Procedure Code excludes writ petitions from the definition of the term "proceeding" occurring in that section. Therefore, the term "proceeding" occurring in Section 29 of the Administrative 18 R.A. No. 150/2023 in O.A. No. 1025/2018 (C-V, Item-02) Tribunals Act also excludes writ petitions from its purview. Going into the reasons for addition of the explanation to Section 141 of the C.P.C., it was pointed out that the explanation has been added by the Parliament because the word "proceeding" ordinarily includes writ petitions; and a clarification was needed to clarify certain confusion created in the area of procedural law; and as provided in this explanation, it is limited only to Section 141 of the C.P.C. and has no general application.
4.10. Talking in terms of statutory construction, Hon'ble Mr. Justice Madhava Reddy, J., the then Chairman pointed out that, if it is held that the High Court still continue to have power of superintendence under Article 227 in service matters, Section 28 of the Act will be rendered wholly otiose. It is well established that no provision of law should be so read.
4.11. Coming to the other grounds urged in the Review Application, we find that the same are touching on the merits of the case. In view of the above analysis, we can safely state that once the judgment has been pronounced after going through the merits of the case, the non consideration of Miscellaneous Application is only a 19 R.A. No. 150/2023 in O.A. No. 1025/2018 (C-V, Item-02) procedural part for which no Review Application shall lie. In other words, the non consideration of Miscellaneous Application cannot be ground for review of the decision in the OA as the said Miscellaneous Application derives its birth on account of pending Original Application. Since, the Original Application had been decided, the Miscellaneous Application by necessary implication or by doctrine of merger or even otherwise dies with it. Non-consideration of the Miscellaneous Application cannot amount to non- consideration of case on merits.
4.12 In Review Petition (Civil) No. 1620 OF 2023 in Civil Appeal No. 1661 OF 2020 - titled Sanjay Kumar Agarwal Versus State Tax Officer (1) & Anr. decided on 31.10.2023, the Hon'ble Apex Court has observed as under:
"15. It is very pertinent to note that recently the Constitution Bench in Beghar Foundation vs. Justice K.S. Puttaswamy (Retired) and Others , 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 20 R.A. No. 150/2023 in O.A. No. 1025/2018 (C-V, Item-02) 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."
5. CONCLUSION :
In view of the above detailed analysis and detailed discussion as well as case laws, we find there is no substantive mistake or error on the face of record which would have resulted in different outcome of the case. We, therefore, dismiss the Review Application. All pending MAs, if any, shall stand disposed of. No Costs.
(Dr. Chhabilendra Roul) (Manish Garg)
Member (A) Member (J)
/as/