Secretary And Ors vs Devi Saran

Nita Chowdhury, Member (A)

Heard learned counsel for the review applicants and learned counsel for the review respondent.

The present Review Application has been filed by the Review Applicants (respondents in original lis) seeking review of the Order dated 2.1.2018 passed in OA 312/2015 by this Tribunal, the operative part of the said Order reads as under:-

"9. The second O.A. (O.A. No.392/2015) is filed by Mr. Subh Pal, who was also party to the impugned order dated 14.08.2014, which has been quashed by this Tribunal in O.A. No.164/2015 vide judgment dated 07.02.2017. This judgment in the case of Satish Kumar has attained finality. The claims of the applicants in these O.As. are squarely covered by the aforesaid judgment and the directions contained therein.

Accordingly, these O.As. are allowed in terms of the directions issued in O.A. No.164/2015 vide judgment dated 07.02.2017. The applicants herein shall be entitled to the benefits granted therein within the same period as directed in the aforesaid O.A."

The review applicants have also filed Misc. Application for condonation of delay in filing the present RA. For the reasons stated therein, the same is allowed. The delay in filing the present RA is condoned.

The contentions of the review applicants in this Review Application are similar, as raised in RA 72/2018 filed in OA 392/2015 and this very Bench after considering the same passed the Order dated 4.2.2019 in the said RA. The relevant paras of the said Order are reproduced as under:-

"4. The main contention of the learned counsel for the review applicants in this case is that this Tribunal by the Order under review allowed the same with the direction to the department to extend the benefits as granted to the applicant in OA 164/2015 and the said decision of this Tribunal was based on the decision of Ernakulam Bench of this Tribunal in OA 755/1997 as well as of Calcutta Bench but the department made the amendment in the same and three advance increment granted to Shri Pulak Kumar Datta, Ex. JWM/OFB for acquiring higher qualification, i.e., AMIE with effect from 26.6.1986 was withdrawn vide order dated 12.12.2017.

This Court finds that the said Order dated 12. 12.2017 has been passed by the department during the pendency of the OA No.392/2015 as the OA was decided vide Order dated 2.1.2018 and it is not the case of the review applicants that the said order dated 12. 12.2017 had ever been brought to the notice of this Tribunal either before or on the date of passing the Order in the OA. As such the present Review Application is not based on any error apparent on the face of record. In fact, the review applicants are questioning the conclusion arrived at by this Tribunal in the said Order. If we agree to review applicants' prayer, we would be going into the merits of the case again and re-writing another judgment of the same case. By doing so, we would be acting as an appellate authority, which is not permissible in review. In the case of Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma, [AIR 1979 SC 1047], the Hon'ble Supreme Court has observed as follows:-

"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 may enable an Appellate Court to correct all matters or errors committed by the Subordinate Court."

Again in the case of Ajit Kumar Rath vs. State of Orissa and others, 1999 (9) SCC 596, the Hon'ble Supreme Court has observed as follows:-

"The provisions extracted above indicate that the power of review available to the Tribunal is the same as has been given to a court under Section 114 read with Order 47 CPC. The power is not absolute and is hedged in by the restrictions indicated in Order 47. The power can be exercised on the application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing 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]

In the case of Gopal Singh vs. State Cadre Forest Officers' Assn. and others, (2007 (9) SCC 369), the Hon'ble Supreme Court observed as follows:-

"The learned counsel for the State also pointed out that there was no necessity whatsoever on the part of the Tribunal to review its own judgment. Even after the microscopic examination of the judgment of the Tribunal we could not find a single reason in the whole judgment as to how the review was justified and for what reasons. No apparent error on the face of the record was pointed, nor was it discussed. Thereby the Tribunal sat as an appellate authority over its own judgment. This was completely impermissible and we agree with the High Court (Justice Sinha) that the Tribunal has traveled out of its jurisdiction to write a second order in the name of reviewing its own judgment. In fact the learned counsel for the appellant did not address us on this very vital aspect."

Thus, on the basis of the above citations and observations made hereinabove, we come to the conclusion that it was not open to the review applicants to question the decision taken by this Tribunal. In fact, the review applicants could have only pointed out any error apparent on the face of record, which has not been done in any of the grounds taken in the Review Application. As such this Review Application is devoid of merit and the same is accordingly dismissed."

For parity of reasons in RA 72/2018 in OA No.392/2015, the present Review Application is also accordingly dismissed.