Union Public Service Commission vs Nidhi Pandey And Anr

K.N. Shrivastava, Member (A)

Through the medium of these Review Applications (RAs) filed by the original respondent no.1 in the OA no.2390/2016 & batch under Rule 17 of the Central Administrative Tribunal (Procedure) Rules, 1987 the review applicant/original respondent no.1 has sought review of our common order dated 22.03.2018 passed in OA no.2390/2016 and batch.

The review applicant has raised the following important grounds in support of the RAs:

2.1 The Tribunal erroneously passed the impugned order without taking into consideration that the rules enacted by the Parliament under the Drugs and Cosmetics Rules, 1945 govern a different field and cater to different purposes. The advertisement and the recruitment have to be in consonance with the Recruitment Rules (RRs) which are statutory in nature. It is further stated that the Tribunal did not take into consideration the fact that the purpose of RRs is specific and different from the purpose of Drugs and Cosmetics Rules, 1945 and that the specific always excludes the general and there is no conflict between the Drugs and Cosmetics Rules, 1945 and the statutory RRs. The RRs do not supplant the Drugs and Cosmetics Rules, 1945; rather the same are supplemental in nature.

2.2 The Tribunal while passing the impugned judgment did not take into consideration that the requirement of experience under the RRs has a salient purpose of recruiting experienced and skilled persons. The RRs have been enacted at a later point of time. The requirement and need may not have been there at the time of enactment of Rule 49 of the Drugs and Cosmetics Rules, 1945 and further that the Drugs and Cosmetics Rules could not have been made the basis of the impugned decision passed by the Tribunal in preference to the RRs which were not even challenged by the applicants in the OAs.

2.3 The Tribunal while passing the impugned order did not take into consideration that the necessity of required experience does not create any conflict with Rule 49 of the Drugs and Cosmetics Rules, 1945, as the need of the employer can be better catered by experienced persons which can only be done by setting higher standards at the selection stage itself.

2.4 The Tribunal while passing the impugned judgment dated 22.03.2018 did not take into consideration the law laid down by the Hon'ble Apex Court in Official Liquidator v. Dayanand & Ors., [(2008) 10 SCC 1], wherein the Hon'ble Apex Court held that the prescribing the source and mode of recruitment and the qualification and criteria of selection are matters which exclusively fall within the domain on the employer.

2.5 Non-consideration of the aforesaid principles of law and facts and circumstances by the Tribunal constitute an error apparent on the face of record. Hence, the judgment dated 22.03.2015 of the Tribunal deserves to be recalled and reviewed in the interest of justice.

Pursuant to the notices issued, the original applicants/respondents in RA filed their reply wherein the following important averments have been made:

3.1 The present RAs filed by the review applicant/original respondent no.1 are not maintainable as they do not disclose any error apparent on the face of the record. No grounds have been raised which fall within the ambit and scope of Order XLVII, Rule (1) of CPC. The review petitions filed in the guise of review seek to challenge the correctness of the order without pointing any error apparent on the face of the record.

3.2 It is well settled that the review petitions are not by way of appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule (1) of CPC. It has been held by the Apex Court in a number of cases that the power of review may be exercised only 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 at the time when the order was made; it may be exercise where some mistake or error apparent on the face of the record is found; it may also be exercised on logical grounds, but may not be exercised on the ground that the decision was erroneous on merits.

3.3 The scope of filing review is limited and is exercised when the error apparent on the face of the record is such an error which strikes on mere looking at the record without requiring any long drawn process of reasoning or points which have all been considered and discussed in the OA filed by review applicant/original respondent no.1.

3.4 The order passed by this Tribunal cannot now be reviewed by reconsidering and re-appreciating the entire evidence with a view to finding out the alleged apparent error for justifying the invocation of review power in the Tribunal.

3.5 The present RAs even otherwise are not maintainable as the same have been filed after considerable delay beyond the period prescribed for filing the same with the mala fide intention of faulting the implementation of the decision passed by the Tribunal in favour of the original applicants.

3.6 The original applicants/respondents in RAs fulfilled eligibility criteria in accordance with law and since the RRs were contrary to statutory provisions of law, the Tribunal was without jurisdiction to comment upon the same. The issue before the Tribunal was whether the original applicants/respondents in RAs were required to be considered for appointment to the post of Drug Inspector as defined in the Drugs & Cosmetics Act, 1940.

We have heard Shri Naresh Kaushik with Shri Gaurav Ahlawat, learned counsel for the review applicant/original respondent no.1 and Smt. Anju Bhattacharya with Ms. Deepika Kumari, Shri Rajinder Nischal, Shri Anuj Aggarwal, Shri Hitendra Nath Rath, Shri Munish Kumar and Shri Yogesh Chhabra, learned counsel for the respondents in RA/original applicants and also gone through the material placed on record.

We have perused the RAs. 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 RAs bring them 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.

The learned counsel for the review applicant has argued at length all the points which were urged at the earlier stage when the OAs were allowed, thus making out that a review proceeding virtually amounts to re-hearing. May be, we were not right in granting reliefs to the original applicants/respondents in RA; but, once an order has been passed by this Tribunal, a review thereof must be subject to the rules of the game and cannot be lightly entertained. A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or grave error has crept in earlier by judicial fallibility. A mere repetition, through different counsel, of old and over-ruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient, as held by the Hon'ble Supreme Court in Sow Chandra Kanta And Another vs Sheik Habib, [AIR 1975 SC 1500].

For the reasons discussed in the foregoing paras, we do not find any merit in the RAs. Accordingly, the RAs are dismissed.

In view of the above, no separate order is required to be passed in the MAs for condonation of delay, which accordingly stand disposed of.