Sh. Lalit Kumar vs Union Of India

S.N. Terdal, J

We have heard Mr. S.S.Tiwari, counsel for applicant and Mr.B.K.Berera, counsel for respondents, perused the pleadings and all the documents produced by both the parties.

This is a Review Application seeking review of the order dated 6.05.2016 passed in OA No.1769/2012. The applicant had filed a Writ Petition (Civil) bearing no.1169/2017 challenging the above said order before the Hon'ble High Court of Delhi. After arguing the writ petition for sometime on 13.02.2017, he made submission before the Hon'ble High Court for withdrawing the said writ petition with liberty to file this review petition. While the said writ petition was dismissed with liberty to file review application, but however, the Hon'ble High Court clearly stated that the review application would be decided within the parameters of review jurisdiction. The relevant portion of the High Court's order dated 13.02.2017 is extracted below:

"Learned counsel for the petition seeks liberty to withdraw the present writ petition and approach the Tribunal by way of a review application. We grant the said liberty, without expressing any opinion on merits. We further clarify that in case a review application is filed, the same would be examined within the parameters of review jurisdiction.

With the aforesaid observations, the writ petition is dismissed as withdrawn, with liberty as prayed. CM no. 5322/2017 stands withdrawn."

The counsel for the review applicant contended that this Tribunal has not considered the relevant Recruitment Rules (RRs) of 1985 for promotion to Grade-II PA. We have perused the impugned order under review. In the impugned order all aspects including the RRs were also considered and detailed order was passed and ultimately this Tribunal dismissed the OA. The relevant paras of the order are extracted below:-

"24. Thus after perusal of all the orders in the relevant OAs brought on record by the parties, we do not find any order of the Tribunal that has, or can be interpreted to have, directed the official respondents to count the seniority of the re-optees from the date of their respective options or that the past service of a re-optee will not be considered for the purpose of seniority. The date of exercising fresh option by re-optees, therefore, is not relevant in the context of fixation of seniority. We are, therefore, not persuaded by the contention of the applicant that the impugned order dated 12.12.2011 and parawise comments dated 29.02.2012 are illegal or arbitrary and against the directions issued by this Tribunal on 02.04.2009.

In the light of the foregoing discussion and reasons stated above, we find the OA devoid of merit and the same is dismissed as such."

In support of his contention, the counsel for the applicant relied upon the judgment of Hon'ble Supreme Court in the case Indu Shekhar Singh & Ors Vs. State of U.P. & Ors (Appeal (Civil) 6960/2015).

The scope of review lies in a narrow compass as prescribed under Order XLVII, Rule (1) of CPC. None of the grounds raised in the RA brings it within the scope and purview of review. It appears that the review applicant is trying to re-argue the matter afresh, as if in appeal, which is not permissible. If in the opinion of the review applicant the order passed by the Tribunal is erroneous, the remedy lies elsewhere. Under the garb of review, the review applicant cannot be allowed to raise the same grounds, which were considered and rejected by the Tribunal while passing the order under review.

Existence of an error apparent on the face of the record is sine qua non for reviewing the order. The review applicant has failed to bring out any error apparent on the face of the order under review.

On the power of the Tribunal to review its own orders, the Hon'ble Supreme Court has laid down clear guidelines in its judgment in the case of State of West Bengal & others Vs. Kamal Sengupta and another, [2008 (3) AISLJ 209] stating therein that "the Tribunal can exercise powers of a Civil Court in relation to matter enumerated in clauses (a) to (i) of sub-section (3) of Section (22) of Administrative Tribunal Act including the power of reviewing its decision."

At Para (28) of the judgment, the principles culled out by the Supreme Court are as under:-

"(i) The power of Tribunal to review it 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 specific grounds

(iv) An error which is not self-evident and which can be discovered by a long process of reasoning, cannot be treated as a error apparent in the fact of record justifying exercise of power under Section 22(2) (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 a larger bench of the Tribunal or of a superior court.

(vii) A decision/order cannot be reviewed under Section 22(3)(f).

(viii) 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.

(ix) 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."

In view of the facts and circumstances of the case and in view of the law laid down by the Hon'ble Supreme in the above stated case and also as the law down by the Hon'ble Supreme Court in the case of Indu Shekhar Singh & Ors (supra) relied upon by the applicant is not applicable in the present case, accordingly, the RA is dismissed.