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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 ..... (for short `the Tribunal') in R.A. No.26 of 1998. 2. The facts necessary for deciding the aforementioned question are as under:- (i) Respondents Kamal Sengupta and Narayan Chandra Ghosh appeared in the competitive examination conducted by the West Bengal Public Service 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners state that under ROPA, 1990 the members of W.B.F. S.S., have been awarded three scales of pay namely scale Nos.16 (Rs.2200/- to ₹ 4000/-) 17 (Rs.3000/- to ₹ 4750/-) and 18 (Rs.3700/- to ₹ 5700/-) inasmuch as these scales correspond to Scale No.17 (Rs.660/- to ₹ 1600/-), Scale No.18 ₹ 1100/- to ₹ 1900/-) and No.19 (Rs.1600/- to ₹ 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. Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... post in the service as admitted by them. They have also reached the highest scale of pay as are admissible to the highest post. They are no longer eligible for any scale under the Career Advancement Scheme as the said Scheme is not meant for them. 12. With reference to the allegations contained in paragraphs 18 to 20 of the writ petition, it is denied that all the State services have been given the benefit of scale no.19 save and except West Bengal Food Supplies service or that cadre strength has anything to do with the Career Advancement Scheme or that there is any arbitrary act or act which is violative of the principles of equity and the principles of natural justice as wrongfully alleged or at all. In this context, I repeat and reiterate that the Career Advancement Scheme for the Government employees is guided by the Finance Department Memo dated June 21, 1990. In order to allow the benefit of higher pay scale to the incumbents of the respective services subject to fulfillment of certain conditions, the said Scheme was introduced. The members of the State Service including the West Bengal Food Supplies Service are entitled to promotion in the higher scale of pay being s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion was transferred to it and was registered as Transferred Application No.826 of 1996. By an order dated 25.2.1997, the Tribunal dismissed the same. It held that the pay structure has been worked out by the Third Pay Commission after proper job evaluation of different services and posts; that there cannot be any equality among the members of different services; that the State Government was free to frame appropriate scheme for grant of higher pay scales to the members of some services who did not have adequate promotional opportunities and that in the absence of any evidence of parity, a mandatory direction cannot be issued for grant of higher pay scales to the applicants. (vi) The respondents challenged the order of the Tribunal in WPST No.59 of 1997, which was dismissed by the High Court with an observation that the only remedy available to the petitioners was to file petition for special leave to appeal. Thereafter, the respondents filed SLP No.... of 1998 (CC 5925/1998), which was dismissed on 4.9.1998 as withdrawn in terms of the prayer made by their counsel. (vii) In the meanwhile, Joydeb Biswas and others filed O.A. No.148 of 1997 for grant of Scale Nos.17, 18 and 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o not agree for the simple reason that in Kamal Sengupta's case the question was whether scale nos.20 and 21 of ROPA Rules of 1990 should be extended to the officers of the Food Department and in that judgment there was no point for consideration as to how the scale nos.17, 18 and 19 are to be distributed amongst the officers of the Food Supply Department. So the third point taken by the State respondents also fails. That takes us to the irresistible conclusion that there is no valid ground to refuse the applicants the benefit of scale nos.17, 18 and 19 in the ratio of 6:3:1. At the risk of repetition we may say that the decision of the respondent no.2 as indicated in Annexure `G' is conclusive. The question whether the Secretary, Finance Department will issue necessary Government orders or whether such order will involve additional financial burden upon the State exchequer is of no consequence to us. When the administrative head of a particular department has taken a well reasoned decision on the representation of the applicant and pursuant to our direction in the earlier writ petition, the respondent no.1 cannot be allowed not to implement the same on any plea, whats ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment shall prevail. (xi) By an Order dated 30.11.1999, the Tribunal dismissed the review application on the premise that power of review cannot be exercised after dismissal of the SLP. (xii) The legality and correctness of the aforementioned order was challenged by the respondents in WPST No.37 of 2000, which was allowed by the Division Bench of the High Court on the premise that dismissal of the SLP as withdrawn did not affect the Tribunal's power of review. Accordingly, a direction was given to the Tribunal to decide the review application afresh. (xiii) In compliance of the direction given by the High Court, the Tribunal heard the review application on merits and allowed the same vide order dated 25.9.2001. The Tribunal made detailed reference to the pleadings of the parties and arguments of their advocates, recommendations made by Secretary, Food and Supplies Department and rejection thereof by the Finance Department as also Memo dated 13.3.2001 issued by the State Government for creation of additional posts in Scale No.19 for various State Services including the service of which the respondents were members and held :- Be that as it may, it now appears fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in their knowledge, they were not praying for review, which was admissible under the provisions of Section 21 of the Administrative Tribunals Act, 1985 and also under Section 14 of the Limitation Act, 1963. In our view this was certainly a sufficient cause for belated filing of the application for review. Though the Tribunal did not deal with the issue relating to entitlement of the respondents to Scale No.21, but directed the appellants herein to extend the benefit of the said scale to them. This is evident from the operative part of the Tribunal's order, which is extracted below: In the facts and circumstances of the case, we are, therefore, inclined to allow the instant prayer for review put in by the applicants. We, thus allow the Review application and direct the respondent authorities concerned, particularly respondent No.2 (i.e. Secretary, Finance Deptt.) to take necessary steps for extending the benefits of Scale No.19, if not already extended to the applicants and also to extend the benefits of Scale No.21 to the applicants in accordance with the Rules and law and provisions contained in Notification No.6075-F dated 21.6.90 meant for W.B.C.S. (Executive) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to be reviewed suffers from an error apparent on the face of the record. Shri Gupta argued that the Tribunal could not have reviewed order dated 25.2.1997 by relying on order dated 25.3.1998 passed in Joydeb Biswas's case, because that order did not contain any determination on the issue of sanction of posts in Scale Nos.19 and 21 under the Scheme circulated vide Memorandum dated 21.6.1990. He further argued that even if the order passed by the Tribunal in Joydeb Biswas's case could be relied upon for the purpose of holding that recommendations made by the Secretary of the Administrative Department are binding on the Government, a mandatory direction could not have been given for extension of the benefit of Scale Nos.19 and 21 to the respondents ignoring the fact that those scales had not been given to members of other services as well. Learned counsel invited our attention to the annexure appended to the Scheme to show that the State Government had not sanctioned posts in Scale No.19 for three services including the one of which the respondents were members and posts in Scale No.21 were sanctioned only for 2 out of 17 State Services and argued that the plea of discrimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taka [2006 (9) SCC 406] and argued that the Tribunal did not commit any illegality by reviewing order dated 25.2.1997. Learned counsel further argued that failure of the appellants to sanction posts in Scale Nos.19 and 21 for members of the service resulted in hostile discrimination between similarly situated persons and, therefore, the Tribunal rightly directed them to extend the benefit of those scales to the respondents. Shri Mehta pointed out that order passed in Joydeb Biswas's case was relied upon by the Tribunal for the limited purpose of reiterating the settled legal position that the recommendations made by the Secretary of the Administrative Department are binding on the State Government and argued that this Court may not interfere with the orders under challenge on the ground that the Tribunal did not advert to the grounds of review enumerated in Order 47 Rule 1 CPC. Shri Mehta emphasized that the respondents were stagnating on the same posts and were drawing salary in the same pay scale since 1982 and argued even though this fact was clearly discernible from the averments contained in the affidavit filed in support of the writ petition, the Tribunal failed to consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and adjudication of applications relating to service disputes. Chapter V contains miscellaneous provisions including transfer of the cases pending before the Civil Courts and High Courts. The original format of the Act excluded jurisdiction of all the Courts including the High Courts and Supreme Court in relation to service matters. Later on, the exclusion clause contained in Section 28 was amended and jurisdiction of the Supreme Court to deal with such matters was restored. The jurisdiction of the High Courts in relation to service matters was partially restored by the judgment of the larger Bench of this Court in L. Chandra Kumar vs. Union of India and others (1997) 3 SCC 261. 8. With a view to achieve the object underlying the enactment of Article 323A i.e. expeditious adjudication of service disputes/complaints, the Tribunals established under the Act have been freed from the shackles of procedure enshrined in the CPC but, at the same time, they have been vested with the powers of a Civil Court in respect of some matters including review of their decisions. This is clearly evinced from the plain language of Section 22 of the Act, which is reproduced below :- 22. Proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from 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 decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. 11. Since the Tribunal's power to review its order/decision is akin to that of the Civil Court, statutorily enumerated and judicially recognized limitations on Civil Court's power of review the judgment/decision would also apply to the Tribunal's power under Section 22(3)(f) of the Act. In other words, a Tribunal established under the Act is entitled to review its order/decision only if either of the grounds enumerated in Order 47 Rule 1 is available. This would necessarily mean that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR 1981 HP 1] a Full Bench of Himachal Pradesh High Court considered the above reproduced explanation and held that a subsequent judgment of the Supreme Court or a larger bench of the same Court taking a contrary view on the point covered by the judgment does not amount to a mistake or error apparent on the face of the record. In Gyan Chandra Dwivedi vs. 2nd Additional District Judge, Kanpur and others [AIR 1987 Allahabad 40], the learned Single Judge of Allahabad High Court took cognizance of the explanation, referred to the judgment of this Court in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma [AIR 1979 SC 1047] and held : 9. It will thus be seen that while power of review may be inherent in the High Court to review its own order passed in a writ petition, the same has to be exercised on well recognised and established grounds on which judicial orders are reviewed. For example the power may be exercised on the discovery of some new and important matter or evidence which was not within the knowledge of the parties seeking review despite due exercise of diligence when the order was made. Review can also be sought when the order discloses some error apparent on the face of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the Court/Tribunal on a point of fact or law. In any case, while exercising the power of review, the concerned Court/Tribunal cannot sit in appeal over its judgment/decision. 16. We may now notice some of the judicial precedents in which Section 114 read with Order 47 Rule 1 CPC and/or Section 22 (3) (f) of the Act have been interpreted and limitations on the power of the Civil Court/Tribunal to review its judgment/decision have been identified. 17. In Rajah Kotagiri Venkata Subamma Rao vs. Rajah Vellanki Venkatrama Rao [1990 (27) Indian Appeals 197], the Privy Council interpreted Sections 206 and 623 of the Civil Procedure Code and observed: Section 623 enables any of the parties to apply for a review of any decree on the discovery of new and important matter and evidence, which was not within his knowledge, or could not be produced by him at the time the decree was passed, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. It is not necessary t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ient reason must mean a reason sufficient on grounds, or least analogous to those specified in the rule . 20. In Thungabhadra Industries Ltd. vs. Govt. of A.P. [AIR 1964 SC 1372] it was held that a review is by no means an appeal in disguise whereof an erroneous decision can be corrected. 21. In Parsion Devi and Others vs. Sumitri Devi and Others [1997 (8) SCC 715], it was held as under:- Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. 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 the record justifying the Court to exercise its power of review under Order 47, Rule 1 CPC. In exercise of the jurisdiction under Order 47, Rule 1 CPC it is not permissible for an erroneous decision to be reheard and corrected . There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all matters or errors committed by the Subordinate Court. 24. In K. Ajit Babu and others vs. Union of India and others [1997 (6) SCC 473], it was held that even though Order 47 Rule 1 is strictly not applicable to the Tribunals, the principles contained therein have to be extended to them, else there would be no limitation on the power of review and there would be no certainty or finality of a decision. A slightly different view was expressed in Gopabandhu Biswal vs. Krishna Chandra Mohanty and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant, there was no justification for the Tribunal to review its order and allow the revision of the appellant. Some of the observations made in that judgment are extracted below: The learned counsel for the State also pointed out that there was no necessity whatsoever on the part of the Tribunal to review its own judgment. Even after the microscopic examination of the judgment of the Tribunal we could not find a single reason in the whole judgment as to how the review was justified and for what reasons. No apparent error on the face of the record was pointed, nor was it discussed. Thereby the Tribunal sat as an appellate authority over its own judgment. This was completely impermissible and we agree with the High Court (Justice Sinha) that the Tribunal has traveled out of its jurisdiction to write a second order in the name of reviewing its own judgment. In fact the learned counsel for the appellant did not address us on this very vital aspect. 28. The principles which can be culled out from the above noted judgments are : (i) The power of the Tribunal to review its order/decision under Section 22(3)(f) of the Act is akin/analogous to the power of a Civil Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been recruited by the same method and, therefore, there was no justification to deny the benefit of Scale Nos.19 and 21 to members of the service. He produced a chart of the State Services whose members were given the benefit of Scale Nos.19 and 21 and pleaded that denial thereof to members of the service was ex-facie arbitrary, discriminatory and unjustified. However, he did not plead stagnation as a ground for claiming benefit in terms of the Scheme. Even after transfer of the case to the Tribunal, the respondents did not raise the plea of stagnation. A careful reading of the averments contained in the affidavit of respondent no.2 shows that the same did not contain even a trace of the plea of stagnation so as to enable the Tribunal to read the same as an implicit ground in support of the respondents' claim for Scale Nos.19 and 21. The reason for this omission is not far to seek. Within a short span of 15 to 16 years of service, both the respondents got three promotions i.e. as Assistant Director, Deputy Director and Director. In their counter, the appellants categorically averred that the Scheme was meant only for those employees who did not have adequate promotional opp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facie prove this allegation. The respondents also relied on order dated 25.3.1998 passed in Joydeb Biswas's case in support of their plea that recommendations made by the Secretary of the Administrative Department are binding on the Government and pleaded that in view of the latter decision, the earlier order is liable to be reviewed. 31. The Tribunal made a detailed note of the arguments of the senior counsel appearing for the respondents and held that they have been discriminated in the matter of grant of Scale Nos.19 and 21. For this purpose, the Tribunal relied on Memorandum dated 13.3.2001 issued by the State Government for sanction of posts in Scale Nos.19 and 21 for different State Services. The Tribunal also relied on the ratio of Joydeb Biswas's case and held that the contra view expressed by it on the issue of binding character of the recommendations made by Head of the Administrative Department was not correct. 32. In our opinion, neither of the grounds set out in the Review Petition warranted exercise of power by the Tribunal under Section 22(3)(f) of the Act. At the cost of repetition, we consider it necessary to mention that the plea of stagnation was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Scale No.19 will be the same as stated in F.D. No.6075-F dated 21.6.90. Six additional posts of Special Secretary/Secretary in the revised Scale No.21 are sanctioned for W.B.C.S. (Ex) and such posts are to be filled up by selection from amongst W.B.C.S. (Ex) Officers who have completed twenty five years of total service in the cadre including three years as Joint Secretary. Govt. has also decided to fill up some of the posts of the District Magistrates by W.B.C.S. (Ex) Officers. Detailed Govt. order in this respect will be issued later on. ii) One additional post of Special Commissioner, Commercial Taxes in the Scale No.21 is created and such post is to be filled up by selection from amongst the Additional 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isted some other reason analogous to an error apparent, reviewed that order simply on the basis of the decision taken by the State Government to sanction posts in Scale No.19 for members of the service apart from other State Services. 33. The Tribunal's reliance on the order passed in Joydeb Biswas's case was clearly misplaced because the only point decided in that case was whether members of the service are entitled to the benefit of Scale Nos.16, 17 and 18 under ROPA 1981 in the ratio of 6:3:1. The Scheme notified on 21.6.1990 was not the subject matter of consideration in that case. In the counter filed in Joydeb Biswas's case, the appellants herein did rely on order dated 25.2.1997 passed in the case of the respondents 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, decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra), the Three Judges Bench made detailed discussion on this Court's power of review but the same was meant only for the purpose of admission of the review application. This is evident from the last line of the order, which is extracted below : We make it clear that the observations made in this order are only for the purpose of deciding the limited aspect of admission of the review petitions. 38. That apart, a careful reading of the judgment shows that in paragraph 13 thereof, this Court categorically observed that an important argument regarding the alleged illegality of the approval granted by the Central Government to the proposal of the State Government had not been considered and copy of order dated 14.1.1999 passed by the Chief 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 ref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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