M.C. Ghatak vs The Union of India

Tapabrata Chakraborty, J.—Four original applications being OA No. 41/AN/11, OA No. 44/AN/11, OA No. 133/AN/11 and OA No. 177/AN/11 were preferred by the petitioner herein. All the said original applications were heard analogously and judgment was delivered by the learned tribunal on 17th December, 2012. Aggrieved by the said judgment, the petitioner preferred two applications under Article 226 of Constitution of India being WPCT No. 271/2013 and WPCT No. 272/2013 pertaining to the original applications being OA No. 177/AN/2011 and OA No. 41/AN/2011 respectively.

The said two writ applications being WPCT No. 271/2013 and WPCT No. 272/2013 were heard analogously and dismissed by judgment dated 11th March, 2014.

Aggrieved by the said judgment dated 11 March, 2014 passed in WPCT No. 271 of 2013 and WPCT No. 272/2013 pertaining to OA No. 177/AN/2011 and OA No. 41/AN/2011 respectively the petitioner had preferred two independent review applications being RVW No. 001 of 2014 and RVW No. 002 of 2014.

The facts in OA No. 41/AN/2011, in a nutshell, are that the petitioner, after serving Indian Armed Force for 18 years, pursued the Master Degree course in Mechanical Engineering and successfully completed the same. Subsequent thereto, the petitioner participated in a selection process and upon recommendation by the Union Public Service Commission the petitioner was appointed to the post of Lecturer in Mechanical Engineering in Dr. BR. Ambedkar Institute of Technology, Pahargaon, Port Blair vide memorandum dated 22nd June 1998. Thereafter, by memorandum dated 28th February, 2003 the petitioner was granted two additional increments on the rudiments of his Post Graduate qualification with effect from 1st April, 1999. According to the petitioner, he was entitled to the said additional increments with effect from 10th August, 1998, i.e. from the date of his joining, on the basis of the provisions of All India Council for Technical Education (Pay Scales, Service Conditions and Qualification For The Teachers And Other Academic Staffs In Technical Institution within (diploma) Regulations, 2010 (hereinafter referred to as the said Regulations). But vide memorandum dated 22nd November, 1999, the petitioner was granted the additional increment with effect from 1st April, 1999.

In the review application, being RVW No. 002 of 2014, Mr. Khan, learned advocate appears on behalf of the petitioner and submits that there is an apparent error on the face of the record inasmuch as the grant of the additional increments with effect from 1st April 1999 instead of 10th of August 1998 is contrary to the scheme itself and that the court erroneously denied such benefit to the petitioner without appreciating that, in an earlier OA No. 138/AN/2007 pertaining to the non-grant of senior scale with effect from 10th of August, 2003 the petitioner''s claim, was upheld by the Hon''ble Supreme Court.

Mr. Khan further submits that not a single submission of the petitioner which he made through his learned counsel has been reflected in the order impugned and that the said judgment and order dated 17th December, 2012 is devoid of reasons.

Mr. Khan further submits that the court had not dealt with the amendment application being MA No. 46/AN/2011 preferred by the petitioner for bringing on record and for challenging the order dated 22nd November 1999 by which the petitioner was conferred the incremental benefits erroneously with effect from 1st April, 1999.

In the review application a further ground has been taken to the effect that the respondent authorities misled the Hon''ble Court by relying upon documents which were not at all relating to the scheme in question and that the court recorded and relied upon unnecessary and unwarranted statements made by the respondent.

According to Mr. Khan, the grounds taken in the review application, placing reliance upon which he had argued, are sufficient grounds for review of the impugned judgment and order dated 11th March, 2014.

In support of his contention, Mr. Khan had relied upon the judgment delivered by the Hon''ble Supreme Court in the case of Devaraju Pillai Vs. Sellayya Pillai, .

The facts in OA No. 177 of 2011 are, inter alia, that the two additional increments which were granted with effect from 1st April, 1999 were excluded while fixing his pay for grant of Lecturer (Senior Scale) by order dated 20th May 2010. Such fixation of pay was absolutely arbitrary. The representation made challenging such pay fixation were not responded to. The said order dated 20th May, 2010 was the subject matter of challenge before the learned tribunal. The said application was dismissed by the learned tribunal observing, inter alia, that the petitioner had approached the learned tribunal belatedly and that no explanation was furnished towards such delay. Furthermore, the tribunal observed that the fixation of pay of employee is absolutely within the domain of administrative functioning and decision taken by the Government cannot be lightly interfered with.

The order of the tribunal dated 17th December, 2012 was challenged by the petitioner before this Court and by the judgment dated 11th March, 2014 the reasonings given by the learned tribunal were accepted and affirmed and the writ application was dismissed. The said judgment dated 11th March, 2014 delivered in WPCT No. 271 of 2013 pertaining to OA No. 177/AN/2011, is the subject matter of the review application being RVW No. 001 of 2014.

Mr. Khan, learned advocate appearing for the petitioner in RVW No. 001 of 2014 submits there is apparent error on the face of record inasmuch as though in paragraph 22 of the learned tribunal order dated 17th December, 2012 there is a finding in favour of the petitioner, the original application had been illegally dismissed.

Mr. Khan further submits that the learned tribunal had not considered the issue of discrimination as highlighted by the applicant. According to Mr. Khan the tribunal ought to have rectified the fixation of pay of the petitioner in the post of Lecturer (Senior Scale) as the said fixation was erroneously made by excluding the additional incremental benefits granted to the petitioner with effect from 1st April, 1999.

According to the respondents no ground had been made out by the petitioner warranting interference of this court in the review applications and that the order cannot be revisited in the absence of any apparent error on the face of the records.

The issues involved in the OA No. 41/AN/2011 and OA No. 177/AN/2011 are interlinked inasmuch as in the former the subject matter of challenge is the order denying the grant of incremental benefits to the petitioner with effect from date of appointment and the subject matter of challenge in the latter application is an order towards pay fixation in the post of Lecturer (Senior Scale) wherein it had been alleged that such pay fixation had been made by excluding the additional increments granted to the petitioner with effect from 1st April, 1999. For such reasons, the review applications being RVW 001 of 2014 and RVW 002 of 2014 are taken up for analogous hearing.

We have heard the submissions of the learned advocates appearing for the respective parties and have considered the materials on record.

The issues involved in the original proceedings were as to whether the Administration had the duty to enforce the All India Council for Technical Education (hereinafter referred to as AICTE) pay scale with effect from 1st of January, 1996 and as to whether the order fixing the petitioner''s pay with effect from 1st April, 1999 was sustainable in law. The issues had been elaborately dealt with by the tribunal in the original application and upon considering the said Regulation and the scheme the learned tribunal came to finding that the entire liability on account of the pay scale is with the State Government and that the State Government after taking into consideration all legal considerations may decide in their discretion to introduce the scale of pay. According to the learned tribunal the policy decision of the Government cannot be interfered with on the rudiments of the grounds taken by the petitioner in the original proceedings.

In the judgment dated 11th March, 2014 this court did not interfere with the order passed by the learned tribunal on the rudiments of the reasoning to the effect that since it was a policy decision of the Administration to give effect to the incremental benefits from a particular date and as such decision was made applicable not only to the petitioner but also to the other persons under similar situations and that as there was no discrimination whatsoever, such policy decision of the Government cannot be interfered with. In the judgment under review it was further observed that the writ petitioner remained silent for a period of about seven years without taking any steps and the delay towards filling the original application was also not explained by the petitioner. In the back drop of such findings the writ application was ultimately dismissed.

The law on the subject-exercise of power of review, as propounded by the Hon''ble Apex court and various other High Courts may be summarized as hereunder:

i) review proceedings are not by way of appeal;

ii) power of review may be exercised when some mistake or error apparent on the face of record is founded. But, error on the face of record must be such an error which must strike on mere looking at the record and would not require any long drawn process of reasoning on the point where there may be conceivable two opinions;

iii) power of review may not be exercised on the ground that the decision was erroneous on merits;

iv) power of review can also be exercised for any sufficient reason which is wide enough to include the misconception of fact or law by the court or even the advocate;

v) the application for review may be necessitated by way of invoking a doctrine of "Actus Curia Neminem Gravabit".

The arguments advanced by Mr. Khan and the grounds taken in the writ application do not in any manner establish any error whatsoever on the face of the record nor the application for review had been preferred upon discovery of a new and important piece of evidence.

In the judgment relied upon by the petitioner in the case of Deveraju Pillai (supra) it was, inter alia, observed that if a party is aggrieved by judgment of a single judge, appropriate remedy for the party is to file a appeal against that judgment and that the remedy by way of application for review is entirely misconceived. There is no dispute as regard the proposition of law as reflected in the said judgment. Though relied upon by the petitioner, the said judgment would not support him in any way.

For the reasons stated above, no interference is called for and the review applications are, accordingly, dismissed.

There shall, however, be not order as to costs.

Ashim Kumar Banerjee, J.

I agree.