Deepak Bhardwaj & Others vs Govt. Of NCTD And Others

Nita Chowdhury, J

The instant Review Application No.68/2019 has been filed in OANo.324/2019 challenging the order dated 30.01.2019, which reads as under:-

"Heard applicant of this OA. This matter has been decided recently by the Hon'ble Supreme Court and subsequent to that, no OM has been issued at present by DoPT with regard to reservation in promotion. Hence, prima facie, there is no ground and no cause of action in this OA at present. Nevertheless the applicant requests to issue notice to the respondents on the question whether any OM has been issued subsequent to the order of the Hon'ble Supreme Court negating the principle of reservation in promotion. Mr. KK Patel, learned standing counsel, appears on advance notice for respondent no.3 - DoPT. They are granted six weeks' time to file the counter affidavit. Rejoinder, if any, may be filed within three weeks thereafter.List the case on 01.08.2019 before the Registrar's Court for completion of pleadings."

The aforesaid order was passed wherein reservation was challenged and on the same point, this Tribunal in OA No.3476/2013 and batch in Ram Pher Yadav and Others Vs. The Secretary, Railway Board and Others held as under:-

"15. In the circumstances and for the aforesaid reasons, the respondents are directed to act in terms of M. Nagaraj (supra), i.e. without following the rule of reservation in promotions and to redraw the promotional lists/panels, if already issued, with all consequential benefits, however, without any back wages in the circumstances. This exercise shall be completed within 90 days from the date of receipt of a copy of this order. Accordingly, all the O.As. are disposed of.[16. All the other pending MAs, if any, stand disposed of. No costs".

Further, this Tribunal while disposing of the batch of OAs, by its common order dated 22.01.2018, directed the respondents to act in terms of the Constitutional Bench decision in M. Nagaraj and Others Vs. Union of India and Others, (2006) 8 SCC 212, only. The common order dated 22.01.2018 of this Tribunal in O.A. No.3476/2013 and batch, was already upheld by the Hon'ble High Court of Delhi in W.P. (C) No.5601/2018 in Manoj Kumar Meena and Others Vs. Union of India and Others vide Order dated 23.05.2018. The said order reads as under:-

"1. The petitioners are aggrieved by a common judgment dated 22.01.2018, passed by the Central Administrative Tribunal, wherein the issue relating to reservation in promotion was raised. In the impugned judgment, the Tribunal had relied on the directions issued by the Supreme Court in the case of M. Nagaraj & Ors. Vs. Union of India & Others reported as (2006) 8 SCC 212, particularly, in paras 3 and 4 thereof and held that in view of the categorical findings recorded in the aforesaid judgment and another decision of the Supreme Court in the case of Suresh Chand Gautam Vs. State of Uttar Pradesh and Others reported as AIR 2016 SC 1321, wherein it has been held that the State is not bound to make reservations for SCs/STs in matters of promotion and if the State wishes to exercise the discretion to make such provision, it must collect quantifiable data showing backwardness of the Class and inadequacy of the representation of that Class in public employment in addition to compliance with Article 335 of the Constitution of India. Noting that the respondents herein have not conducted the exercise as directed by the Constitution Bench in the case of M Nagaraj (supra) and without such an exercise being conducted, no State/Authority can apply the rule of reservation in promotion, the Tribunal has disposed of the original application with directions issued to the respondents to make compliances of the judgment in M. Nagaraj (supra), by collecting the quantifiable data for giving effect to the rules of reservation in promotions.

Dr.K.S.Chauhan, learned counsel for the petitioners submits that the Tribunal failed to appreciate that in a recent order dated 14.11.2017, passed by the Supreme Court in Civil Appeals No.4562-4564 of 2017 entitled State of Tripura & Ors. vs. Jayanta Chakraborty & Ors., it was opined that the case requires to be heard by a Bench as per the constitutional mandate under Article 145(3) of the Constitution of India, for consideration including a relook, if necessary, at the judgment of M. Nagraj (supra).

On perusing the order dated 14.11.2017, we find that the counsel for the petitioners therein had pressed for an interim relief, which was declined by the Supreme Court with an express view that even interim relief needs to be considered by the Constitution Bench and liberty was granted to the parties to mention the urgency before the Hon'ble Chief Justice of India.

This being the position, we are not inclined to interfere in the impugned judgment or entertain the present petition, which is disposed of alongwith the pending applications with liberty granted to the petitioner to approach the Supreme Court for appropriate relief".

Further, the order dated 26.09.2018 in SLP No.30621/2011 in Jarnail Singh & Others vs. Lachhmi Narain Gupta & Others, basing on which the review applicants are seeking to review the order in the O.A. dated 30.01.2019 still holds the field. The review applicants themselves have stated that Jarnail Singh (supra) holds the field and there is no other decision on this point which can be relied upon.

Moreover, we may mention that a review cannot be filed against an order passed at the admission stage itself to ascertain as to whether any OM has been issued after the decision rendered by the Hon'ble Apex Court in Jarnail Singh (supra) and time was granted to the respondents to file their reply in the matter as it is now well settled principle of law that the earlier order can only be reviewed if the case squarely falls within the legal ambit of review and not otherwise. Order 47 Rule 1 CPC read with Section 22(3)(f) of the Administrative Tribunals Act, 1985 regulates the provisions of review of the orders. According to the said provision, a review will lie only when there is discovery of any new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by the review applicants seeking the review at the time when the order was passed or made on account of some mistake or error apparent on the face of the record. Further the scope for review is rather limited and it is not permissible for the forum hearing the review application to act as an Appellate Authority in respect of the original order by a fresh and re-hearing of the matter to facilitate a change of opinion on merits. The reliance in this regard can be placed on the judgments of the Hon'ble Supreme Court in cases of Parsion Devi vs. Sumitri Devi (1997) 8 SCC 715, Ajit Kumar Rath Vs. State of Orissa (1999) 9 SCC 596, Union of India Vs. Tarit Ranjan Das (2003) 11 SCC 658 and Gopal Singh Vs. State Cadre Forest Officers' Association & Others (2007) 9 SCC 369.

An identical question came up to be decided by Hon'ble Apex Court in case State of West Bengal and Others Vs. Kamal Sengupta and Another (2008) 8 SCC 612. Having interpreted the scope of review and considering the catena of previous judgments mentioned therein, the following principles were culled out to review the orders:-

"(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.

(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".

After carefully perusing the Review Application of the applicants, we do not find any valid ground to invoke the review jurisdiction of this Tribunal to review the aforesaid order dated 20.1.2019 passed in OA 324/2019 as the review applicants have failed to show any error apparent on the face of the record and also the fact that the Original Application is still pending and as such the present RA at this stage cannot be entertained.

In the aforesaid facts and circumstances, the RA is dismissed being devoid of any merit as the OA has only been admitted, notice has been issued to the respondents and the said IA is listed for 1.8.2019. The applicants can raise all the points, if they want when they file their rejoinder to the counter affidavit to be filed by the respondents. No costs.