Calcutta High Court
Kamal Sengupta And Ors. vs State Of West Bengal And Ors. on 10 December, 2004
Equivalent citations: 2005(2)CHN116
Author: Altamas Kabir
Bench: Altamas Kabir, Jyotirmay Bhattacharya
JUDGMENT Altamas Kabir, J.
1. Shri Kamal Sengupta and Shri Narayan Chandra Ghosh, the respondent Nos. 1 and 2 in W.P.S.T. No. 1 of 2002, filed a writ application, being W. P. No. 1547 of 1995, before this Court praying, inter alia, for a writ in the nature of Mandamus upon the State Government authorities to allow the writ petitioners the benefit of Scale Nos. 19 and 21 under the West Bengal Services (ROPA) Rules, 1990 after cancellation of the decision of the respondent authorities communicated under Memo No. 229/F dated 6th January, 1995, whereunder the petitioners were specifically excluded from the Career Advancement Scheme as recommended by the Third Pay Commission on account of their better promotional avenues and/or opportunities. With the formation of the West Bengal Administrative Tribunal the writ petition was transferred to the Tribunal and was renumbered as T.A. No. 826 of 1996.
2. In course of time the matter was heard by a Division Bench of the Tribunal and was dismissed on 25th February, 1997.
3. Being aggrieved by such decision the writ petitioners filed another writ application before this Court on 10th June, 1997 challenging the order of dismissal passed by the learned Tribunal on 25th February, 1999. The said writ petition was, however, dismissed by this Court on 2nd March, 1998, on the ground that in view of the decision in L. Chandra Kumar's case, this Court had no jurisdiction to entertain the said application. A Special Leave Petition was filed before the Hon'ble Supreme Court on 12th March, 1998, challenging the order passed by the Tribunal on 25th February, 1997, but the same was also dismissed allegedly on the ground that the proper remedy of the appellants lay before the West Bengal Administrative Tribunal where a review application should have been filed. Accordingly, the Special Leave Petition was dismissed as withdrawn on 4th September, 1998, on the prayer of the writ petitioners who are the appellants before the Hon'ble Supreme Court.
4. It is in such circumstances, that a review application was filed by the writ petitioners before the Tribunal on 25th September, 1998 and the same was dismissed by the learned Tribunal on 30th November, 1999. The writ petitioners then filed a third writ application in this Court challenging the order passed by the Tribunal dismissing the review petition by them. The said matter, being W.P.S.T. No. 37 of 2000, was heard by a Division Bench of this Court which set aside the order of the learned Tribunal dated 13th November, 1999 and directed the Tribunal to dispose of the review application filed by the writ petitioners on merit and in accordance with law. The learned Tribunal thereafter took up the review application as directed in the order of 8th January, 2001 on merits for disposal in accordance with law.
5. Before the learned Tribunal it was urged on behalf of the said writ petitioners that they had become victims of hostile discrimination and had been deprived of the Career Advancement Scheme, 1990, as they were not given scale Nos. 19 and 21 like other senior officers of other Government departments, although, they too were stagnating on the same scale since 1982. It was also the case of the writ petitioners that the said discrimination took place despite the recommendation of the Administrative Head of the Food and Supplies Department who had recommended grant of Scale Nos. 19 and 21 to the officers of the Food and Supplies Department as well. During the pendency of the matter before the learned Tribunal the State Government extended the benefit of Scale No. 19 to the officers of the Food and Supplies Department. Since Scale No. 21 had not been given it was urged on behalf of the writ petitioners that in order to remove stagnation a direction should issue to the Government to provide Scale No. 21 to the officers of the Food and Supplies Department as well.
6. Before the learned Tribunal it was also urged on behalf of the writ petitioners that a similar matter, being O. A. No. 148 of 1997, had been decided by the learned Tribunal on 25th February, 1997, in which the benefits of Scale Nos. 17, 18 and 19 were extended to the officers of the Food and Supplies Department. It was submitted that the said decision had not been brought to the notice of the Tribunal on 30th November, 1999 when the prayer of the applicants had been rejected. It was urged that the facts of the said case were similar to the facts of the instant case, and, as such, in an identical situation the order rejecting prayer of the writ petitioners for grant of Scale Nos. 19 and 21 was liable to be recalled.
7. On behalf of the State it was submitted before the learned Tribunal that the review application was barred and was also not maintainable on merit, inasmuch as, the question of granting higher scales under the Career Advancement Scheme of the Government was purely a question of policy in which a decision rested with the Government and it was for the Government to decide as to who should be given the benefit of such scales in each case.
8. The learned Tribunal on consideration of the submissions made and relying on the judgment delivered on 25th March, 1998, in O.A. No. 148 of 1997, held that the claim of the writ petitioners was bona fide and accordingly allowed the review application. The respondents, and in particular the Secretary, Finance Department, was directed to take necessary steps for extending the benefits of Scale No. 19, if not already extended to the writ petitioners, and also to extend the benefit of Scale No. 21 to them in accordance with the rules and provisions contained in Notification No. 6078/F dated 21st June, 1990 meant for W.B.C.S. (Executive) and officers of other Allied Services, within a period of four months from the date of communication of the order.
9. Two writ petitions have been filed against the said judgment and order of the learned Tribunal recalling its earlier order dated 25th February, 1997 in T.A. No. 826 of 1996. W.P.S.T. No. 2 of 2001 was filed by Shri Kamal Sengupta and Shri Narayan Chandra Ghosh, while W.P.S.T. No. 1 of 2002 was filed by the State of West Bengal and its authorities.
10. Appearing in support of the appeal preferred by the State of West Bengal, Mr. Anindya Mitra urged that the very basis of the review petition filed by the learned, Tribunal was erroneous, inasmuch as, the decision in a subsequent proceeding could not be a ground for review of an earlier judgment as had been held by this Court in the case of Sarat Kumar Roy v. Sripati Chatterjee, reported in AIR 1990 Calcutta, Page 287, in which it had been observed that the law does not authorise review of a decree which was valid when it was made, on the ground of the happening of some subsequent event. Mr. Mitra submitted that the said view had subsequently been followed by the different High Courts in India. In particular, Mr. Mitra referred to the decision of the Punjab High Court in the case of Lachhmi Narain Balu v. Ghisa Behari, , wherein in connection with an application for adoption under the Hindu Law it was observed that once a case is decided, it is hardly permissible to review that decision on the mere ground that on a subsequent date another decision has been given, the ratio of which may induce the Court to change its previous view.
11. Mr. Mitra then urged that the extent of the power of review of Tribunals created under the Administrative Tribunals Act, 1985, had fallen for consideration of the Hon'ble Supreme Court in the case of Ajit Kumar Rath v. State of Orissa, . While considering the provisions of Section 22(3)(f) of the aforesaid Act, the Hon'ble Supreme Court observed, inter alia, that power of review available to the Tribunal is the same as has been given to a Court under Section 114 read with Order 47 of the Code of Civil Procedure. The power of review is not, therefore, absolute, but circumscribed by the principles embodied in Order 47 Rule 1 of the Code.
12. The same view was expressed by the Hon'ble Supreme Court in K. Ajit Babu v. Union of India, and in the case of Gopalbandhu Biswal v. Krishna Chandra Mohanty and Ors., .
13. It was, however, urged that the facts of this case did not attract the provisions of Section 22(3)(f) of the Administrative Tribunals Act which were analogous to the principles embodied in Order 47 Rule 1 CPC and the review application was, therefore, not maintainable and was liable to be dismissed. Mr. Mitra submitted that the learned Tribunal had erred in law in allowing the review application by placing reliance on its subsequent decision in O.A. No. 148 of 1997 in which it was held that the recommendation of the Head of the Administrative Department in the Food and Supplies Department, regarding extension of Scale Nos. 17, 18 and 19 to its employees, was binding on the Secretary, Finance Department.
14. Mr. Mitra submitted that when there was a difference of opinion in respect of an earlier order passed by the Tribunal, the proper course of action open to the learned Tribunal would be to make a reference to a Larger Bench for setting at rest such disputes. Mr. Mitra submitted that when two views of the learned Tribunal were in conflict with each other, the remedy of the writ petitioners before the learned Tribunal was not by way of a review application but by way of a reference to a Larger Bench. Mr. Mitra submitted that the learned Tribunal had erred in recalling its earlier order on a review petition on the basis of a different order which had been passed by the learned Tribunal on the self-same subject.
15. The next submission of Mr. Mitra was with regard to the finding of the learned Tribunal in the review proceedings regarding the recommendation made by the Head of the Department. Mr. Mitra submitted that although the learned Tribunal had on a later occasion held that the recommendation of the Head of the Department was binding on the State Government and proceeded to unsettle its earlier decision, the learned Tribunal had erred in doing so having regard to the views expressed by the Hon'ble Supreme Court in the case of Union of India v. Pradip Kumar Dey, , wherein the recommendations made by the Directorate of CRPF to the Pay Commission was under consideration and it was observed that the factual statements contained in the recommendation of a particular department alone cannot be considered per se proof of such things or they cannot by themselves vouch for the correctness of the same. The Hon'ble Supreme Court observed further that the said recommendation could not be taken as a recommendation made by the Government and even otherwise a mere recommendation did not confer any right on a party to make a claim for a writ in the nature of Mandamus.
16. Mr. Mitra lastly submitted that by allowing the review application and also granting relief on the main application, the Tribunal had acted on the contrary to the views of Order 47 Rule 8 C.P.C. which contemplated that the review would first have to be allowed before the main prayer could be taken up at a later stage.
17. Mr. Mitra submitted that the procedure adopted by the learned Tribunal on the review application filed by Shri Kamal Sengupta and Shri Narayan Chandra Ghosh was erroneous and the order passed therein was, therefore, liable to be set aside having particular regard to the fact that the question of grant of higher scales was a matter of policy which lay within the domain of the State Governments discretion. It was urged that it would have to be so as otherwise the question of equivalence of posts in the different departments would assume relevance and a complete exercise would have to be undertaken on the basis of comparison of the work undertaken by the different sets of employees in the different departments of the State Government. Mr. Mitra submitted that it was, therefore, within the discretion of the State Government to decide whether the benefit of higher scale should be allowed to a particular set of employees or not and unless there is absence of transparency it was not for the Courts to interfere with the exercise of such discretion.
18. Appearing for Shri Kamal Sengupta and Shri Narayan Chandra Ghosh, Mr. L. C. Behani, learned Senior Counsel, submitted that the writ petition filed on behalf of the State was not maintainable against his clients, inasmuch as, the Food Department which had recommended the grant of the higher scales to his clients has been joined as writ petitioners, which amounted to the Department challenging its own recommendations.
19. Apart from the above, Mr. Behani sought to urge that the grant of a benefit to one section of employees while denying the same to another set of similarly-circumstanced employees amounted to hostile discrimination which attracted the provisions of Article 14 of the Constitution. Mr. Behani submitted that it was not merely a question of the learned Tribunal reversing its decision on the basis of a subsequent finding but the main question involved was whether by virtue of two sets of orders passed by the learned Tribunal certain benefits could be given to one set of employees while denying the same benefit to the other set of employees. Mr. Behani submitted that in order to maintain parity of the service conditions of the two sets of employees it was incumbent on the part of the learned Tribunal to review its earlier order denying the benefit of the recommendation made by the Head of the Department to one set of employees while acting on the basis of such recommendation in respect of another set of employees.
20. Mr. Behani submitted that in order to remove the anomaly, the learned Tribunal had no option but to fall in line with its subsequent decision to give the orders of the Tribunal a harmonious construction. Mr. Behani sought to distinguish the decision of this Court in the case of Sarat Kumar Roy v. Sripati Chandra and that of the Hon'ble Supreme Court in the case of Ajit Kumar Rath v. State of Orissa (supra) by submitting that the circumstances in which such decisions had been rendered were completely different from those existing in the present circumstances. Mr. Behani submitted that strictly speaking the provision of the Code of Civil Procedure would not be applicable to proceedings before the learned Tribunal which had been given liberty to evolve its own rules based on the principle of doing justice to the parties. Mr. Behani submitted that it would be wrong to follow the confining parameters of Order 47 Rule 1 CPC in matters intended to be decided in the interest of justice.
21. Mr. Behani submitted that not only was the hostile discrimination confined to the Food and Supplies Department, but as will appear from the materials on record the initial decision to grant the benefit of the higher scales had been given to the various departments while excluding such benefit from the employees of the Food and Supplies Department. It was urged that a matter of policy could not be evolved by the Government which would have the effect of treating similarly-placed employees differently as that will offend the principles of equality before the law enshrined in the Constitution.
22. In balancing the submissions made on behalf of the respective parties we have been called upon to decide a delicate issue involving the equality clause as enshrined in the Constitution. If a strictly technical view is to be taken in the matter, the submissions made by Mr. Mitra would undoubtedly have had force, inasmuch as, as has been held by the Hon'ble Supreme Court, the powers of the Tribunal under Section 22(3)(f) of the Administrative Tribunals Act, 1985 have been held to be similar to the principles embodied in Order 47 Rule 1 CPC. In order that an application for review should succeed, the primary consideration would be that the same came within the purview of such principles. While Mr. Mitra very correctly pointed out that a review application cannot be based on a subsequent decision which was not in existence at the time when the initial order was passed, we cannot ignore the submissions made on behalf of Shri Kamal Sengupta and Shri Narayan Chandra Ghosh that by virtue of two different orders passed by the learned Tribunal two sets of employees of the same department would be treated differently and be afforded separate benefits. As has been pointed out by Mr. Behani such a situation cannot be allowed to continue in violation of the equality principles as embodied in Articles 14, 16 and 21 of the Constitution. It is also no doubt true that extending the benefits of a Scale/Career Advancement Scheme is within the complete discretion of the State and its authorities. We are not really concerned with the said question but with the fact that while one set of employees has been extended such benefit by virtue of an order of the learned Tribunal, another set of employees have been denied the same benefit by another order of the same learned Tribunal. In other words, two similarly-circumstanced set of employees have been treated differently not because of any policy decision of the State Government, but on account of two different orders passed by the learned Tribunal on the selfsame issue.
23. We are not, therefore, inclined to interfere with the order passed by the learned Tribunal on 25th September, 2001, in Case No. R. A. - 26 of 1998 arising out of T. A. No. 826 of 1996 and directing the State Government and its authorities to carry out the directions given by the learned Tribunal in its said judgment and order dated 25th September, 2001. Consequently, the writ application filed by the State Government and its authorities, being W.P.S.T. No. 1 of 2002, stands dismissed and the writ application filed by Shri Kamal Sengupta and Shri Narayan Chandra Ghosh, being W.P.S.T. No. 2 of 2001 stands disposed of.
24. There will be no order as to costs.
25. All parties to act on the xerox signed copy of the operative portion of this judgment on the usual undertakings.
Jyotirmay Bhattacharya, J.
26. I agree.