Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1694 OF 2006
The State of West Bengal and others …
Appellants
Versus
Kamal Sengupta and another … Respondents
J U D G M E N T
G.S. Singhvi, J.
1. Whether a Tribunal established under Section 4 of the Administrative
Tribunals Act (for short ‘the Act’) can review its decision on the basis of
subsequent order/decision/judgment rendered by a coordinate or larger
bench or any superior Court or on the basis of subsequent
event/development is the question which arises for determination of this
appeal filed by the State of West Bengal and others against the judgment of
the High Court of Calcutta, whereby the said High Court declined to
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interfere with order dated 25.9.2001 passed by the West Bengal
Administrative Tribunal (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’).
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(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 to the
State Government to take action in accordance with the
recommendations made by Secretary, Food and Supplies Department
vide his DO No.G-5250/FC dated 5.10.1992, G-5302/FC dated
16.10.1992 and Con-223/FS dated 27.4.1994. They further prayed
for issue of direction to the non-petitioners (the appellants herein) to
declare the posts in Scale Nos.19 and 21 under Rule 2(b) of ROPA
1990 to be in the ranks of Joint Secretary and Special Secretary
respectively and sanction those posts for members of the service in
the same ratio as was done in the case of West Bengal Civil Services
Officers.
(iii) In the affidavit filed by him in support of the writ petition, Narayan
Chandra Ghosh (respondent no.2 herein) referred to the factum of
sanction of Pay Scale Nos.17, 18 and 19 to members of the service
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under ROPA 1981, recommendations made by the Third Pay
Commission, the Scheme and averred that they have been subjected
to hostile discrimination in the matter of grant of Scale Nos.19 and
21. For the sake of reference, paragraphs 5, 9, 13, 17 and 18 of the
affidavit of respondent no.2 are reproduced below :-
“5. That the petitioners having entered in to W.B.F.& S.S.,
in the year of 1974/75 after successfully passing the West
Bengal Civil Service (Executive) and certain allied service
examination held in 1973 were first posted in the basic grade
posts of Sub-Divisional Controller of Food and Supplies and
thereafter in recognition to meritorious service since rendered
by them were posted in different senior posts and posts with
higher responsibilities like Assistant Director, Deputy Director
and lastly were posted as Director in the year of 1991 and 1992
respectively.
9. That the petitioners were awarded Scale No.19,
(Rs.1600/- to 2250/-) according to their respective seniority
cum merit w.e.f. 01.03.1982 and 01.11.1982 respectively and
st
on 1 January, 1986 when the pay of the petitioners were to be
fixed notionally in terms of the provision of West Bengal
Services (ROPA) Rules, 1990, the petitioners were drawing
pay Rs.1840/- and Rs.1780/- respectively.
13. That the petitioners 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 Rs.4000/-) 17
(Rs.3000/- to Rs.4750/-) and 18 (Rs.3700/- to Rs.5700/-)
inasmuch as these scales correspond to Scale No.17 (Rs.660/-
to Rs.1600/-), Scale No.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 :
5
Name of Service Grade _Scales__ Eligibility condition
Strength 19 21 for Scale No.19 &
21 (Revised)
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 566 8 1 Same as for
Tax Service W.B.C.S.
3. W.B. Co-operative 162 2 Nil - do -
Service.
4. W.B. Excise 190 1 Nil - do -
Service.
5. W.B. National Emp- 170 1 Nil - do -
loyment Service.
6. W.B. Labour Service 132 1 Nil - do -
7. W.B.F. & S.S. 280 Nil Nil - do -
8. W.B. Police Service 279 2 Nil - do -
(Group B Service)
9. W.B. General Service 3 Nil - do –
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not known.
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 recruitment have been given
the benefit of Scale No.19 under Career Advancement Scheme
save and except the West Bengal Food and Supplies Service
which is a duly constituted State Service and belongs to Group
“A” State Services along with other, under West Bengal Civil
Services (Exe) and Certain allied Services.”
(iv) In the counter-affidavit filed on behalf of the appellants herein, it was
averred that the Scheme was framed to improve the standard of
administration and career prospects of the employees, who did not
have adequate promotional opportunities. It was further averred that
benefit of the Scheme was not extended to the writ petitioners
because they had been promoted to the higher posts and were paid
salary in the scales prescribed for those posts. As regards the
recommendations made by Secretary, Food & Supplies Department, it
was averred that the same are not binding on the State Government.
Paragraphs 7, 12 and 13 of the counter affidavit which are reflective
of the stand taken by the appellants read as under :-
“7. With reference to the said paragraph, it is pertinent to
point out that so far as the service of writ petitioners is
concerned, they have reached their highest 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.
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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 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 account of the said various
factors. If necessary, I shall crave leave to refer to a copy of
the recommendation of the Third Pay Commission at the
hearing.
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13. With reference to the allegations contained in paragraphs
21 to 25(b) of the writ petition, it is denied that there is any
discrimination as alleged or at all. The D.O. letter dated
October 5, 1992 is a mere recommendation by the departmental
head as is usual practice for all the departmental heads to
forward representations which were received from their
employees. As already stated above, the consideration which
are relevant for the purpose of extending the Career
Advancement Scheme are totally different. The incumbents
who are holding the post of Commercial Tax Services are not
obviously at par with the post held by the petitioners. In this
context, it is also pertinent to mention that the matter of
extending the Career Advancement Scheme is a matter of
policy decision. As already stated and admitted by the writ
petitioners that they have reached the scale no.19, under ROPA
Rules, 1990 and as such their getting further career
advancement does not and/or cannot arise.”
(v) On establishment of the Tribunal, the writ petition 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.
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(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 to members 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
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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 are
extracted below:-
“That takes us to the question whether the distribution of scales
of pay in the ratio of 6:3:1 should be extended to the
applicants. It may be true that the rationale which attracted the
decisions in the case of Audit and Accounts Service and the
West Bengal Judicial Service may not be fully applicable to the
case of the applicants employed in Food and Civil Supply
Department, but the broad fact remains that the authority
competent to decide this question is the Departmental Secretary
being the respondent no.2, who by his elaborate and reasoned
order in Annexure ‘G’, has fully upheld the case of the
applicants. Being the administrative head of the concerned
Department he is the most competent person to decide about
the cadre strength, the promotional prospect and the
distribution of the promotional scales of pay, and going
through his order we do not find any unreasonableness or
arbitrariness in his judgment.
In view of the conclusion reached on the second point above,
we may dispose of the third contention raised by the State
respondents that due to the decision in Kamal Sengupta’s case
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the point is concluded against the applicants. We do 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, whatsoever.”
[Emphasis 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
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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 “D”.
III. For that this learned Tribunal was pleased to hold the
recommendation mainly the Administrative Head of
Department of your applicants as a mere
recommendation and allowed the objection of the
Finance Secretary to prevail. In the matter of granting
the benefit, which this learned Tribunal was pleased to
grant to the said other petitioners merely because their
Administrative Head of Department had made such
recommendation, and despite the objections of the
Finance Secretary in that case.
IV. For that the Orders as in Annexures “C” and “D” make
for judicial anarchy and scuttle the belief in the judicial
system.
V.
For that even otherwise, the said orders as in Annexure
“C” and “D” cannot both stand, without violating the
principles of natural justice not only enshrined in Article
14 of the Constitution of India, but also in Section 22 of
the Act of 1985, being the parent Statute of this learned
Tribunal read with Article 323-A of the Constitution of
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India, and it is fit and proper that this learned Tribunal be
pleased to review its order as in Annexure “C” in the
light of the later judgment as in Annexure “D”, on the
principle that the later judgment 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
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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 from the Supplementary
Affidavit filed by 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 in which 13 applicants of the said case being
employees of the Food and Supplies Department claimed the
benefits of scale nos.17, 18 and 19. It appears that in that case
this Bench held inter alia that the recommendation made by the
Food Secretary, being Head of the Administrative Department
was binding on the Secretary, Finance Department and hence
the State respondent authorities concerned could not refuse to
implement the said recommendation of the Administrative
Head on “any plea what-so-ever”. In that view of the matter, it
appears that by the said judgment and order dated 25.3.98, the
Division Bench of this Tribunal directed the concerned
respondent authorities to issue necessary Govt. order extending
the benefit of scale nos.17, 18 and 19 to the applicants of the
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said case. The contention of the Ld. Counsel for the applicants
of this case was that this judgment and order was not within
their knowledge and hence documents in that regard could not
be produced by the applicants before the Ld. Tribunal at the
appropriate time and that upon discovery of new and important
material, viz., judgment and order, dated 23.5.98, which was
not within 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 other Allied Services
officers within a period 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
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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 Tribunal, orders dated 8.1.2001 and 21.8.2003 passed by the
High Court in WPST No.37 of 2000 and WPST Nos.1 and 2 of 2001
respectively and order dated 4.9.1998 passed by this Court in SLP No…. of
1998 (CC 5925/1998) and argued that the Tribunal committed a
jurisdictional error by entertaining the review application on the ground that
in Joydeb Biswas’s case a direction had been given to the State
17
Government to act on the recommendations made by the Secretary of the
Administrative Department for grant of relief to the applicants of that case
and while dismissing the SLP, the Supreme Court had observed that the
petitioners can seek review of the order passed in the transferred
application. Shri Gupta submitted that power vested in the Tribunal under
Section 22(3)(f) of the Act to review its order/decision is similar to that of
the Civil Court and the same can be exercised only on the grounds specified
in Order 47 Rule 1 of CPC. Learned counsel emphasized that any
subsequent decision on an identical or similar point by a coordinate or
larger bench or even change of law cannot be made basis for recording a
finding that the order sought 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
18
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 discrimination raised by the
respondents was rightly rejected 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
19
No.19 had not been sanctioned for 3 out of 17 State Services and posts in
Scale No.21 were sanctioned only for two services viz., West Bengal Civil
Service (Executive) and West Bengal Commercial Service and the Tribunal
had not struck down the Scheme as a whole on the ground of violation of
Articles 14 and 16 of the Constitution. In support of his
arguments/submissions, Shri Bhaskar Gupta relied on judgments of this
Court – State of U.P. vs. J.P. Chaurasia [1989 (1) SCC 121], State of
Maharashtra and another vs. Prabhakar Bhikaji Ingle [1996 (3) SCC
463], K. Ajit Babu and others vs. Union of India and others [1997 (6)
SCC 473], Gopabandhu Biswal vs. Krishna Chandra Mohanty and
others [1998 (4) SCC 447], Ajit Kumar Rath vs. State of Orissa and
others [1999 (9) SCC 596], Union of India vs. Pradip Kumar Dey [2000
(8) SCC 580], Sankar Deb Acharya vs. Biswanath Chakraborty [2007
(1) SCC 309] and Union of India vs. Arun Jyoti Kundu and others [2007
(7) SCC 472].
5. Shri Dhruv Mehta, learned counsel for the respondents referred to the
judgments of this Court in Indian Charge Chrome Ltd. vs. Union of India
[2005 (4) SCC 67], Board of Control for Cricket in India vs. Netaji
Cricket Club [2005 (4) SCC 741], and K.T. Veerappa vs. State of
Karnataka [ 2006 (9) SCC 406] and argued that the Tribunal did not
20
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 consider the same and dismissed the transferred
application 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
21
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/structure at various levels of governance and
recovery of revenue etc. These Articles enabled Parliament to make laws
for creation of alternative adjudicatory forums comprising of experts i.e. the
Tribunals with exclusive jurisdiction, power and authority to deal with and
decide the disputes and complaints with respect to recruitment and
conditions of service of persons appointed to public services and posts in
connection with the affairs of the Union or of any State or of any local or
22
other authority etc. and other matters enumerated in Clause 2 of Article
323B.
7. In exercise of the power vested in it under Article 323A, Parliament
enacted the Act. Chapter II of the Act contains provision for establishment
of Tribunals and Benches thereof, qualifications of Chairman and Members,
term of their office etc. Chapter III comprises of five sections relating to
jurisdiction, powers and authority of the Central, State and Joint
Administrative Tribunals, power of such Tribunals to punish for contempt
and distribution of business among the Benches. Chapter IV contains
various provisions relating to procedure to be followed for institution 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.
23
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. Procedure and powers of Tribunals .– (1) A Tribunal
shall not be bound 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;
24
(c) receiving evidence on affidavits;
(d) subject to the provisions of Sections 123 and 124 of the
Indian Evidence Act, 1872 (1 of 1872), requisitioning
any public record or document or copy of such record or
document from any office;
(e) issuing commissions for the examination of witnesses or,
documents;
(f) reviewing its decisions;
(g) dismissing a representation for default or deciding it ex
parte;
(h) setting aside any order of dismissal of any representation
for default or any order passed by it ex parte; and
(i) any other matter which may be prescribed by the Central
Government.
9. A reading of the above reproduced section makes it clear that even
though a Tribunal is not bound by the procedure laid down in the CPC, it
can exercise the powers of a Civil Court in relation to matters enumerated in
clauses (a) to (i) of sub-section (3) including the power of reviewing its
decision.
10. The power of a Civil Court to review its judgment/decision is
traceable in Section 114 CPC. The grounds on which review can be sought
are enumerated in Order 47 Rule 1 CPC, which reads as under :
Order 47 Rule 1
25
1. Application for review of judgment .- (1) Any person
considering himself aggrieved-
(a) by a decree or order from which an appeal 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 Tribunal can review its
order/decision on the discovery of new or important matter or evidence
which 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
26
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 of pecuniary jurisdiction simply because the same has been
rendered doubtful in the light of subsequent decision of the High Court and
answered the same in negative. However, a contrary view was expressed in
Thadikulangara Pylee’s son Pathrose vs. Ayyazhiveettil Lakshmi
Amma’s son Kuttan and others [AIR 1969 Kerala 186]. In that case, the
learned Single Judge of the Kerala High Court opined that a subsequent
27
decision authoritatively declaring the law can be made basis for reviewing
an earlier judgment. The Law Commission took cognizance of these
divergent opinions and suggested amendment of Order 47. That led to
insertion of explanation below Rule 2 of Order 47 by Civil Procedure Code
(Amendment) Act, 1976. The same reads as under :
Explanation .- 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.
13. In Nalagarh Dehati Co-operative Transport Society Ltd.,
Nalagarh vs. Beli Ram etc. [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
nd
Gyan Chandra Dwivedi vs. 2 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
28
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 record or on grounds analogous thereto. These are
all grounds which find mention in various judicial
pronouncements 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 that where a review is sought on
the ground of discovery of new matter or evidence, such matter or evidence
must be relevant and must be of such a character that if the same had been
produced, it might have altered the judgment. In other words, mere
29
discovery of new or important matter or evidence is not sufficient ground
for review ex debito justiciae. Not only this, the party seeking review has
also to show that such additional matter or evidence was not within its
knowledge and even after the exercise of due diligence, the same could not
be produced before the Court earlier.
15. The term `mistake or error apparent’ by its very connotation signifies
an error which is evident per se from the record of the case and does not
require detailed examination, scrutiny and elucidation either of the facts or
the legal position. If an error is not self-evident and detection thereof
requires long debate and process of reasoning, it cannot be treated as an
error apparent on the face of the record for the purpose of Order 47 Rule 1
CPC or Section 22(3)(f) of the Act. To put 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
30
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 to
decide in this case whether the latter words should be confined
to reasons strictly ejusdem generic with those enumerated, 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
31
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 bring the case
within the purview of Order XLVII, Rule 1, Civil Procedure
Code. ”
19. In Moran Mar Basselios Catholicos and another vs. The Most
Rev. Mar Poulose Athanasius and others [1995 (1) SCR 520], this Court
interpreted the provisions contained in Travancore Code of Civil Procedure
which are analogous to Order 47 Rule 1 and observed :
“Under the provisions in the Travancore Code of Civil
Procedure which is similar in terms to Order XLVII, Rule 1 of
our Code of Civil Procedure, 1908, the Court of review has
only a limited jurisdiction circumscribed by the definitive
limits fixed by the language used therein. It may allow a review
on three specified grounds, namely, (i) discovery of new and
important matter or evidence which, after the exercise of due
diligence, was not within the applicant’s knowledge or could
not be produced by him at the time when the decree was
passed, (ii) mistake or error apparent on the face of the record
and (iii) for any other sufficient reason. It has been held by the
Judicial Committee that the words “any other sufficient 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.
32
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
cannot be allowed to be “an appeal in disguise”.”
[Emphasis added]
22. In Haridas Das vs. Usha Rani Banik and others [2006 (4) SCC 78],
this 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
33
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 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. Where the order in question is
appealable the aggrieved party has adequate and efficacious
remedy and the court should exercise the power to review its
order with the greatest circumspection.”
23. In Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma
(supra) , this Court considered the scope of the High Courts’ power to
review an order passed under Article 226 of the Constitution, referred to an
earlier decision in Shivdeo Singh vs. State of Punjab [AIR 1963 SC 1909]
and observed :
"It is true as observed by this Court in Shivdeo Singh v.
State of Punjab, AIR 1963 SC 1909, there is nothing in
Article 226 of the Constitution to preclude a High Court
from exercising the power of review which is inherent in
every Court of plenary jurisdiction to prevent
miscarriage of justice or to correct grave and palpable
errors committed by it. But, there are definitive limits 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
34
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 others [1998 (4) SCC 447]. In that case it was held that the
power of review granted to the Tribunals is similar to the power of a Civil
Court under Order 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
35
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 it. It may be pointed out that the expression “any
other sufficient reason” used in Order 47 Rule 1 means a
reason sufficiently analogous to those specified in the rule.
Any other attempt, except an attempt to correct an apparent
error or an attempt not based on any ground set out in Order 47,
would amount to an abuse of the liberty given to the Tribunal
under the Act to review its judgment.”
[Emphasis added]
26. In State of Haryana and Others vs. M.P. Mohla [2007 (1) SCC
457], this Court held as under :-
“A review petition filed by the appellants herein was not
maintainable. There was no error apparent on the face of the
record. The effect of a judgment may have to be considered
afresh in a separate proceeding having regard to the subsequent
cause of action which might have arisen but the same by itself
may not be a ground for filing an application for review.”
27. In Gopal Singh vs. State Cadre Forest Officers’ Assn. and Others
[2007 (9) SCC 369], this Court held that after rejecting the original
application filed 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
36
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 Court
under Section 114 read with Order 47 Rule 1 of CPC.
(ii) The Tribunal can review its decision on either of the grounds
enumerated in Order 47 Rule 1 and not otherwise.
(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.
37
(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 of due diligence, the same could not be
produced before the Court/Tribunal earlier.
29. In the light of the above, we shall now consider whether order dated
25.2.1997 passed by the Tribunal in Transferred Application No.826 of
1996 suffered from any patent mistake or an error apparent so as to warrant
its review under Section 22(3)(f) of the Act. A recapitulation of the facts
would show that the respondents’ claim for grant of the benefit of higher
scales in terms of the Scheme was entirely founded on the plea of
discrimination. In the affidavit filed by him, respondent no.2 - Narayan
Chandra Ghosh, briefly referred to his own service profile along with that of
respondent no.1 – Kamal Sengupta and pleaded that in view of the
recommendations made by the Secretary of the Administrative Department,
38
the State Government was bound to extend the benefit of Scale Nos.19 and
21 to them, but the Finance Department arbitrarily rejected their claim.
According to Shri Ghosh, members of all the State Services 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 opportunities and that the writ petitioners were not entitled to
Scale Nos.19 and 21 because they had already received promotions and
39
were holding the highest post. According to the appellants, 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
same are not binding on the Government. It is thus evident that the Tribunal
had considered all the points raised by the respondents and negatived their
claim by assigning cogent reasons. The Tribunal did not consider the issue
40
of stagnation because neither any such plea was taken in the affidavit of
respondent no.2 nor any argument was advanced on that score.
30. In the review application, the respondents did assert that they were
stagnating on the same post and in the same pay scale since 1982, but no
material was placed before the Tribunal to substantiate the said assertion or
to show that members of other State Services had been given benefit of
Scale Nos.19 and 21 despite the fact that they received promotions during
the course of service. The respondents reiterated the plea of discrimination
by alleging that benefit of Scale Nos.19 and 21 had been extended to
members of other State Services but the same was denied to them
without any rhyme or reason, but no evidence was produced by them
to prime 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
41
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 not raised in the affidavit filed in support of the writ
petition. In the Memo of Review, the respondents made a bald assertion
that they were stagnating on the same post and in the same pay 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
42
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 Kolkata
th
13 March, 2001
MEMORANDUM
“The question of improving the existing Career
Advancement Scheme for the State Government employees as
introduced in Finance Deptt. No.6075-F dated 21.6.90 has been
under consideration of the Government for sometime past. The
recommendations of the Fourth Pay Commission on this aspect
have also been under examination of the State Government.
After careful consideration, the Governor is now pleased to
modify the existing Career Advancement Scheme of the State
Government employees in the manner indicated below.
1 to 3. xx xx xx xx
4. Over and above the existing posts in Scale Nos.19 and
21 in various State Services as mentioned in F.D. No.6075-F
dated 21.6.90 the following additional posts shall be available
to different State Services :
i) Forty three additional posts in Scale No.19 in West
Bengal Civil Service (Executive) are created and the eligibility
43
condition for 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 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
44
Services and the eligibility condition for Scale No.19 will be
same as stated in F.D. No.6075-F dated 21.6.90.
vii) The number of posts in the basic grade in various State
Services as mentioned above will stand reduced by the
equivalent number of posts created in Scale Nos.19 and 21.
5. Other provisions of the existing Career Advancement
Scheme as contained in this Department No.6075-F, dated
21.6.90 which are not inconsistent with the provisions of this
memorandum shall continue to remain in force.
6. This will come into effect from 1.1.2001.”
[Emphasis added]
The plain language of the above reproduced Memorandum shows that
the State Government had, after considering the representations made by
employees of different services, sanctioned additional number of posts in
Scale Nos.19 and 21. For the Officers of Food and Supplies Department,
two posts were sanctioned in Scale No.19. This development had taken
place after more than four years of dismissal of Transferred Application
No.826 of 1996. A holistic reading of the Memorandum dated 13.3.2001
makes it clear that the same cannot, by any stretch of imagination, be read as
suo moto acceptance by the State Government of the respondents’ claim for
Scale Nos.19 and 21. Therefore, the Tribunal could not have considered the
same for granting relief to the respondents and that too by ignoring para 6 of
the Memorandum in terms of which the additional posts were to become
operative from 1.1.2001. In any case, the Tribunal could not have, without
45
recording a reason based finding that order dated 25.2.1997 was vitiated by
a mistake or error apparent on the face of the record or there existed 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. I n 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, 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
46
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 mere recommendations of the
Secretary of the Administrative Department or for that reason any other
authority, are not binding on the Government – Union of India vs. Arun
Jyoti Kundu and others (supra), we do not consider it necessary to finally
pronounce on this issue, because it will prejudice adjudication of the matter
pending before the High Court.
35. The most astonishing feature of order dated 25.9.2001 is that without
making any discussion on the entitlement of the respondents to get the
benefit of Scale No.21, the Tribunal directed the State Government to
sanction that pay scales to them. While doing so, the Tribunal conveniently
overlooked the fact that benefit of the Scheme (Scale No.19) had not been
47
given to members of three State Services i.e. West Bengal Agricultural
Income Tax Service, West Bengal Fisheries Service and West Bengal Food
& Civil Supplies Service and benefit of Scale No.21 had been extended to
the members of only 2 out of 17 State Services i.e. West Bengal Civil
Services (Executive) and West Bengal Commercial Tax Services and that
any direction in favour of the respondents would result in huge
discrimination qua members of other State Services.
36. For the reasons mentioned above, we hold that the Tribunal
committed a jurisdictional error by entertaining and allowing the review
application filed by the respondents and the direction given by it for
extending the benefit of Scale Nos.19 and 21 to them is legally
unsustainable.
37. The three judgments cited by Shri Dhruv Mehta, learned counsel for
the respondents are clearly distinguishable. In Indian Charge Chrome
Ltd. vs. Union of India (supra), 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.”
48
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 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
49
take into consideration subsequent event has to be treated as confined to the
facts of the case involving the controversy between rival Cricket
Associations.
40. The third judgment in K.T. Veerappa vs. State of Karnataka
(supra) deals with the issue of discrimination in the matter of grant of pay
scales but does not contain any discussion on the issue of Tribunal’s power
to review its decision.
41. We may now advert to the High Court’s order. A perusal thereof
shows that even while accepting the contention of the appellants that the
Tribunal did not have the jurisdiction to review order dated 25.2.1997, the
High Court approved the direction given for extending the benefit of Scale
Nos.19 and 21 to the respondents, albeit without taking cognizance of the
stark fact that they had received promotions on the posts of Assistant
Director, Deputy Director and Director; that they were holding highest posts
in the service; that they were given the benefit of higher pay scales under
ROPA 1981 and ROPA 1990 and no material had been placed before the
Court to show that members of other State Services to whom the benefit of
Scale Nos.19 and 21 had been given under the Scheme had also received
three promotions after joining the service. The High Court also overlooked
50
the fact that members of three out 17 State Services had not been given
benefit of Scale No.19 and posts in Scale No.21 had been sanctioned only
for 2 out of 17 State Services. It is our considered view that in the absence
of factual foundation, the High Court was not justified in recording a
conclusion that denial of Scale Nos.19 and 21 had resulted in violation of
the respondents’ fundamental rights guaranteed under Articles 14, 16 and 21
of the Constitution and that too by ignoring the fact that the respondents had
not produced any tangible evidence to prima facie prove that they had been
subjected to hostile discrimination or that the decision of the State
Government not to extend the benefit of Scale Nos.19 and 21 to members of
the service was irrational and arbitrary. It is trite to say that in such matters
the onus is always on the employee to prima facie substantiate the plea of
discrimination or arbitrary exercise of power and only then the State or its
instrumentality/agency or the public body (the employer) can be called upon
to show that its decision is non-discriminatory, non-arbitrary, fair and in
public interest.
42. In the result, the appeal is allowed. The order of the High Court as
also the one passed by the Tribunal in R.A. No.26 of 1998 are set aside.
The parties are left to bear their own costs.
51
……………………. J.
(B.N. Agrawal)
…………………….J.
(G.S. Singhvi)
New Delhi
June 16, 2008