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TMI Blog2008 (6) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice Commission in 1973 for recruitment to West Bengal Civil Services (Executive) and other Allied Services. They were declared successful and were allotted to West Bengal Food and Supplies Service (hereinafter described as `the service'). Initially, they were posted as Sub-Divisional Controller of Food and Supplies. In due course, they were promoted as Assistant Director, Deputy Director and finally as Director and their pay was fixed in the scales prescribed for those posts. They were also given the benefit of revised scales under the West Bengal (Revision of Pay and Allowance) Rules, 1981 (hereinafter referred to as `ROPA 1981') and the West Bengal (Revision of Pay and Allowance) Rules, 1990 (hereinafter referred to as `ROPA 1990'). (ii) After 20 years of joining the service, the respondents filed Writ Petition No.1547 of 1995 for quashing letter dated 6.1.1995 vide which the Finance Department of the State Government rejected their claim for grant of Pay Scale Nos.19 and 21 in terms of the Career Advancement Scheme (for short `the Scheme') framed by the Government of West Bengal, which was circulated vide Memorandum dated 21.6.1990 and for issue of a mandamus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .18 Rs. 1100/- to Rs. 1900/-) and No.19 (Rs.1600/- to Rs. 2250/-) under ROPA, 1981. 17. That the distribution of posts in revised Scale Nos.19 and 21 for the services shown in Annexure to the Memo No.6075-F dated 21.06.1990 (Annexure "C" to this Writ Petition) is given hereunder : Name of Service Grade Strength Scales Eligibility condition for Scale No.19 & 21 (Revised) 19 21 1 2 3 4 1. W.B.S.C. (Exe) 1767 64 4 20 years of total service on Revised Scales Nos.16, 17, 18 and their unrevised counter parts and 3 years in unrevised scale no.19 or revised scale no.18. 2. W.B. Commercial Tax Service 566 8 1 Same as for W.B.C.S. 3. W.B. Co-operative Service. 162 2 Nil - do - 4. W.B. Excise Service. 190 1 Nil - do - 5. W.B. National Employment Service. 170 1 Nil - do - 6. W.B. Labour Service 132 1 Nil - do - 7. W.B.F. & S.S. 280 Nil Nil - do - 8. W.B. Police Service (Group B Service) 279 2 Nil - do - 9. W.B. General Service not known. 3 Nil - do - 18. It is evident from the foregoing paragraph that all the State Services constituted under Art. 309 of the Constitution of India and having same method of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scale nos.16, 17 and 18. In addition to the above benefit, as per promotion policy of the Government, the members of some of the State services have been allowed the benefit of scale nos.19 and 21 as per Career Advancement Scheme referred to above. The said benefit of higher scale nos.19 to 21 as per Career Advancement Scheme referred to above has not been allowed to the State Services in general since the prospect of promotion to the higher scale of pay depends on a variety of consideration namely ratio of higher post to base level post in the feeder grade, hierarchical structure of the department, the level of work and nature of responsibilities, the proportion of direct recruitment, the pace of growth of normal activities of a department, the avenue of normal promotion etc. On consideration of the above factors, there is hardly any justification to bring all State Services on the same footing in respect of extension of the benefit of higher scale of pay as per promotion policy of Career Advancement Scheme. In fact, the Third Pay Commission as an expert body held that it is not possible to grant equal opportunities of promotion to the higher post to the employees in general on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbers of the service under ROPA 1981 in the ratio of 6:3:1. They relied on Finance Department Memorandum No.9425-F dated 9.8.1983, whereby posts in different services were distributed in the ratio of 6:3:1 and orders passed by the High Court of Calcutta for grant of Scale Nos.17, 18 and 19 to the members of State Audit and Accounts Service and West Bengal Judicial Service in the ratio of 6:3:1 and pleaded that they are entitled to similar treatment. (viii) The appellants contested the application of Joydeb Biswas and others by asserting that their claim of parity with members of other State Services was untenable. In support of this plea, the appellants relied on the order passed in Transferred Application No.826 of 1996 (Kamal Sengupta and another vs. State of West Bengal and others). (ix) The Tribunal distinguished the order passed in Kamal Sengupta's case by observing that the question of distribution of Scale Nos.17, 18 and 19 was not considered in that case and directed the State Government to implement the recommendations made by Secretary, Food and Civil Supplies Department. The relevant portions of order dated 25.3.1998 passed by the Tribunal in O.A. No.148 of 1997 ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is added] (x) After dismissal of the Special Leave Petition, the respondents filed R.A. No.26 of 1998 for review of order dated 25.2.1997 by asserting that they were stagnating in the same scale of pay since 1982 and the non-applicants arbitrarily denied them benefit of the higher scales which were given to the members of other services. The respondents pleaded that in view of the recommendations made by Secretary of Food and Supplies Department, which are binding on the State Government, they are entitled to Scale Nos.19 and 21. In support of this plea, the respondents relied on order dated 25.3.1998 passed in O.A. No.148 of 1997 Joydeb Biswas and others vs. State of West Bengal and others. The precise grounds on which review was sought by the respondents are reproduced below:- "I. For that this learned Tribunal was pleased to reach two opposite conclusions on the same point of law as in Annexures "C" and "D" and thereby dismissing the case of your applicants, while allowing that of the other applicants. II. For that the order as in Annexure "C" therefore suffers from this grave inconsistency and irregularity on the face of the record when compared to the Order as in Annexure " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicants that the respondent authorities concerned have come forward and issued necessary Govt. orders extending the benefit of Scale No.19 to the Officers of Food & Supplies Department w.e.f. 1.1.2001 vide Memo No.3015-F dated 13.3.2001 being annexure `C' to Supplementary Affidavit. It was argued before us by the Ld. Senior Counsel for the applicants that because of the extension of such benefit of Scale No.19 to the Officers of Food & Supplies Department, the instant case stood disposed of in their favour but in part. In our view, the extension of the benefit of Scale No. 19 pointed out only to a glaring fact that the Officers of Food & Supplies Department were also entitled to such a Scale, but they were deprived of the same for a long time for reasons best known to the authorities concerned. It was indeed a clear case of hostile discrimination." The Tribunal then referred to order dated 25.3.1998 passed in O.A. No.148 of 1997, Joydeb Biswas's case, and held :- "Switching now over to the other aspect of the case, we find from Annexure `D' to the application for review that the Ld. Division Bench of this Tribunal delivered a judgment in OA 148/97 on 25.3.98 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of four months from the date of communication of this order." 3. The appellants challenged the aforementioned order in WPST No.1 of 2001 by asserting that the Tribunal did not have the jurisdiction to review order dated 25.2.1997 on the basis of subsequent order passed in Joydeb Biswas's case. Another plea taken by the appellants was that the recommendations made by the Secretary of the Administrative Department are not binding on the State Government. The Division Bench of the High Court held that the Tribunal could not have entertained and allowed the review application on the basis of a decision which was not in existence at the time of initial order, but declined to interfere with order dated 25.9.2001 by observing that denial of higher pay scale to members of the service had resulted in violation of their fundamental rights under Articles 14, 16 and 21 of the Constitution. 4. Shri Bhaskar P. Gupta, Senior Advocate appearing for the petitioners extensively referred to the pleadings of Writ Petition No.1547 of 1995, which was later on converted into Transferred Application No.826 of 1996, R.A. No.26 of 1998, orders dated 25.2.1997, 25.3.1998 and 25.9.2001 passed by the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by the Tribunal in the first instance because the respondents had already reached the highest positions in the service and were being paid salary in the revised scales introduced under ROPA 1990. Learned counsel pointed out that while dismissing the SLP as withdrawn, this Court did not give liberty to the respondents herein to apply for review of order dated 25.2.1997 and argued that letter written by the counsel could not be made basis for presuming that such liberty had, in fact, been given. Another argument of the learned senior counsel is that the plea of stagnation was not raised by the respondents till the filing of review application and, therefore, the same could not have been considered by the Tribunal in conjunction with the decision contained in Memorandum dated 13.3.2001 for recording a finding that the State had discriminated the respondents in the matter of grant of higher pay scales. Shri Gupta lastly argued that the High Court committed serious error by refusing to set aside the order impugned in the writ petition ignoring the stark fact that posts in Scale No.19 had not been sanctioned for 3 out of 17 State Services and posts in Scale No.21 were sanctioned only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on the specious ground that the State Government had the discretion to prescribe different pay scales for different posts and services. Learned counsel then referred to Memorandum dated 13.3.2001 to show that the State Government suo moto sanctioned posts in Scale No.19 for different services including the one to which the respondents belonged and argued that the Tribunal did not commit any illegality by taking cognizance of the said Memorandum for the purpose of recording a positive finding on the issue of discrimination in the matter of grant of higher pay scales to similarly situated persons. 6. We have given serious thought to the entire matter and scrutinized the record. Articles 323A and 323B were inserted in the Constitution by Section 46 of the Constitution (Forty-second Amendment) Act, 1976 in the backdrop of pendency of large number of cases relating to recruitment and conditions of service of the employees of the Central and State Governments and their agencies/instrumentalities and other matters concerning the public at large before the Civil Courts throughout the country and long delays in the disposal of such cases which adversely affected administrative set up/str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and subject to the other provisions of this Act and of any rules made by the Central Government, the Tribunal shall have power to regulate its own procedure including the fixing of places and times of its inquiry and deciding whether to sit in public or in private. (2) A Tribunal shall decide every application made to it as expeditiously as possible and ordinarily every application shall be decided on a perusal of documents and written representations and after hearing such oral arguments as may be advanced. (3) A Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely,- (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) subject to the provisions of Sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the applicant could not produce at the time of initial decision despite exercise of due diligence, or the same was not within his knowledge or if it is shown that the order sought to be reviewed suffers from some mistake or error apparent on the face of the record or there exists some other reason, which, in the opinion of the Tribunal, is sufficient for reviewing the earlier order/decision. 12. Before proceeding further, we consider it proper to mention that there was divergence of opinion among the High Courts on the question whether the subsequent contra judgment by the same or a superior Court on a point of law can be treated as an error apparent on the face of the record for the purpose of review of an earlier judgment. In Lachhmi Narain Balu vs. Ghisa Bihari and another [AIR 1960 Punjab 43], the learned Single Judge of the then Punjab High Court held that the Court cannot review its judgment merely because in a subsequent judgment different view was expressed on the same subject matter. In P.N. Jinabhai vs. P.G. Venidas [AIR 1972 Gujarat 229], the learned Single Judge of the Gujarat High Court considered the question whether the Court can revise its view on the question o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncements right from the earliest time as well as in the Rules of Order XLVII of the Civil P.C. as permissible grounds of review. An Explanation was added to Order XLVII Rule 1 by the amendment of the Civil P.C. by Central Act No. 104 of 1976. It reads : "The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment." 10. This explanation was added on the recommendation of the law Commission to put an end to the controversy which had arisen as regards whether a judgment could be reviewed merely on the ground that the decision on a question of law on which the same was founded has been reversed or modified by the subsequent decision of a superior Court. Almost all the High Courts, save for the solitary exception of Kerala High Court, were unanimous in their opinion that the fact that the view of law taken in a judgment has been altered by a subsequent decision of a superior Court in another case could not afford a valid ground for the review of the judgment." 14. At this stage it is apposite to observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, as was held in Roy Meghraj v. Beejoy Gobind Burral [(1875) Ind. L.R. 1 Calc. 197]. In the opinion of their Lordships, the ground of amendment must at any rate be something which existed at the date of the decree, and the section does not authorize the review of a decree which was right when it was made on the ground of the happening of some subsequent event." [Emphasis added] 18. In Sir Hari Shankar Pal and another vs. Anath Nath Mitter and others [1949 FCR 36], a Five Judges Bench of the Federal Court while considering the question whether the Calcutta High Court was justified in not granting relief to non-appealing party, whose position was similar to that of the successful appellant, held : "That a decision is erroneous in law is certainly no ground for ordering review. If the Court has decided a point and decided it erroneously, the error could not be one apparent on the face of the record or even analogous to it. When, however, the court disposes of a case without adverting to or applying its mind to a provision of law which gives it jurisdiction to act in a particular way, that may amount to an error analogous to one apparent on the face of the record sufficient to brin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court made a reference to explanation added to Order 47 by the Code of Civil Procedure (Amendment) Act, 1976 and held : "In order to appreciate the scope of a review, Section 114 CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the court since it merely states that it "may make such order thereon as it thinks fit". The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason". The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict. This is amply evident from the Explanation to Rule 1 of Order 47 which states that the fact that the decision on a question of law on which the judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder 47 Rule 1. 25. In Ajit Kumar Rath vs. State of Orissa and Others [1999 (9) SCC 596], this Court reiterated that power of review vested in the Tribunal is similar to the one conferred upon a Civil Court and held:- "The provisions extracted above indicate that the power of review available to the Tribunal is the same as has been given to a court under Section 114 read with Order 47 CPC. The power is not absolute and is hedged in by the restrictions indicated in Order 47. The power can be exercised on the application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise. (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 a 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 decision/judgment of a coordinate or larger bench of the Tribunal or of a superior Court. (vii) While considering an application for review, the Tribunal must confine its 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. (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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lants, the Scheme was framed by an Expert Committee and in the absence of any patent arbitrariness, the High Court did not have the jurisdiction to issue a mandamus to extend the benefit of higher scales to the petitioners. It was also pleaded that recommendations made by the Secretary of Administrative Department were not binding on the Government. The Tribunal elaborately referred to the pleadings of the parties, considered the arguments of their counsel and held that the petitioners (applicants) are not entitled to the benefit of the Scheme because they were holding highest post in the service and were being paid salary in the scale prescribed for that post. The Tribunal further held that the Scheme was not discriminatory because benefit of higher scales was given to different services keeping in view the ratio of higher posts to base level posts in the feeder grade, hierarchical structure of the department, the level of work and nature of responsibilities, the proportion of direct recruitment, the pace of growth of normal activities of a department and the avenues of promotion. The Tribunal then observed that recommendations are usually made by all departmental heads but the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scale in 1982 but the said assertion was ex-facie farcical because as per their own showing (para 5 of the affidavit of respondent no.2 - Narayan Chandra Ghosh), the respondents had joined service in the basic grade post i.e. Sub- Divisional Controllers of Food and Supplies and within a short span of 15 to 16 years they got three promotions and were also granted benefit under ROPA 1981 and ROPA 1990. Therefore, the plea of stagnation could not have been made basis for reviewing the finding recorded in the earlier order that the respondents had not been discriminated. Unfortunately, the Tribunal did not advert to the well recognized limitation on the exercise of power of review under Section 22(3)(f) of the Act read with Order 47 Rule 1 CPC and straightaway recorded a finding of discrimination by placing reliance on Memorandum dated 13.3.2001, which, in our considered view, did not advance the cause of the respondents. For better appreciation of this aspect of the case, the relevant portions of Memorandum dated 13.3.2001 are extracted below : "Government of West Bengal Finance Deptt. Audit Br. No.3015-F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioners who have put in a total service of thirty years since entry into West Bengal Commercial Tax Service including six years in Scale No.19 are also created for West Bengal Commercial Tax Service and the eligibility condition for Scale No.19 will be the same as stated in Govt. order No.6075-F dated 21.6.90. iii) Fifty-five additional posts in Scale No.19 in West Bengal Health Service are created and the eligibility condition for Scale No.19 will be the same as stated in Govt. order No.6075- F dated 21.6.90. iv) Ten posts in Scale No.19 in West Bengal E.S.I. Medical Service are created and the eligibility condition for Scale No.19 will be total service of 20 years on revised Scales No.16, 17 & 18 and their unrevised counterparts and three years in Scale No.18. v) The additional posts in Scale No.19 are created for West Bengal Secretariat Service and the eligibility conditions for these two posts will remain the same as at present. vi) As regards other constituted State Services as mentioned in Finance Department Memo No.6075-F dated 21.6.90 which have not been mentioned in this Memo, two additional posts in Scale No.19 are created for each of those constituted State Ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts to show that the decision taken by the State Government not to distribute Scale Nos.16, 17 and 18 in the ratio 6:3:1 was not discriminatory, but the Tribunal refused to consider the same by observing that the question relating to distribution of posts in Scale Nos.16, 17 and 18 under ROPA 1981 had not been considered in that case. This being the position, the Tribunal could not have, by relying on the order passed in Joydeb Biswas's case, declared that the recommendations made by Secretary of Food and Supplies Department are binding on the State Government. In any case, in view of the explanation added to Order 47 by the 1976 amendment, the Tribunal could not have relied on the subsequent order for holding that the contra view expressed in the earlier order was erroneous. 34. There is another reason for our conclusion that the Tribunal was not entitled to rely on the order passed in Joydeb Biswas's case for the purpose of reviewing order dated 25.2.1997. Undisputedly, that order is under challenge in the writ petitions filed before the High Court of Calcutta. Therefore, even though prima facie we are inclined to agree with learned senior counsel for the appellants that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Minister on which reliance was placed by the Court had not been supplied to the party and the same was not even available on record and all this prima facie constituted an error apparent on the face of the record. 39. In Board of Control for Cricket in India vs. Netaji Cricket Club (supra), this Court considered whether the Division Bench of Madras High Court was justified in admitting the review petition. After making an elaborate reference to the factual matrix of the case and some judgments, the Two Judges Bench concluded that the High Court did not commit any error by entertaining the review petition. In para 91 of the judgment, reference has been made to an earlier judgment in Moran Mar Basselios Catholicos and another vs. The Most Rev. Mar Poulose Athanasius and others (supra) in which expression `any other sufficient reason' was interprted and it has been observed that the said rule is not universal. However, the judgment of the Two Judges Bench is conspicuously silent as to why the ratio of the earlier judgment warrants a deviation. The one line observation contained in para 93 that while exercising review jurisdiction the Court can take into consideration subsequent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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