D.B. Kauser vs Comptroller and Auditor General of India and Others

Ashok Bhushan, J.—Heard Sri D.B. Kauser, the applicant appearing in person and Sri Pankaj Srivastava, holding brief of Sri Satish Chaturvedi, for the respondents.

By this application, the applicant (hereinafter referred to as the petitioner) has prayed for review of the judgment and order dated 1st February, 2001 by which judgment after hearing the petitioner in person, the writ petition filed by him was dismissed.

Brief facts necessary for appreciating the contentions raised in the review application are; the petitioner was appointed on 14th October, 1958 in the office of Accountant General, U.P., Allahabad. By an order/scheme dated 19th December, 1983, the Comptroller and Auditor General of India introduced a scheme for restructuring the Indian Audit and Accounts Department into two separate wings, namely, "Accounts and Entitlement" and "Audit". Under the scheme the pay scales were proposed. The employees working in the office of the Accountant General were asked to submit their option by 31st June, 1984 opting Accounts Wing for which certain higher pay scales were proposed. The petitioner filed a writ petition being Writ Petition No. 840-A of 1984 challenging the bifurcation scheme dated 19th December, 1983 on the principal submission that Comptroller and Auditor General of India has no jurisdiction to issue any order affecting service conditions of the employees working in the office of Accountant General. It was submitted that service condition can be affected only by rules framed by the President of India in consultation with the Comptroller and Auditor General of India in accordance with Article 148 Sub-clause (5) of the Constitution of India. Large number of writ petitions were filed by different employees which all were clubbed together. Writ Petition No. 2981 of 1984 filed by 365 petitioners was treated to be leading writ petition. Writ Petition No. 840-A of 1984 filed by the petitioner was also clubbed along with Writ Petition No. 2981 of 1984 and was decided by common judgment of the Division Bench of this Court dated 20th September, 1985. The Division Bench of this Court held that impugned order (manual) introducing the scheme of restructuring the cadre in Indian Audits and Accounts Department is not liable to be struck down. All the writ petitions were dismissed. The petitioner did not choose to file any SLP before the Apex Court against the said Division Bench judgment. However, certain other employees filed civil appeal before the Apex Court being Civil Appeal No. 2674 of 1986 which was disposed of by the Apex Court vide its judgment and order dated 5th August, 1986 making certain clarificatory modifications. The petitioner had not given any option for Audit Wing and was continued in the office of the Account and Entitlement. The petitioner filed a claim petition before the Central Administrative Tribunal, Additional Bench, Allahabad being Application No. 639 of 1993 claiming promotional pay scale of Rs. 425-800 with benefit of pay fixation under F.R. 22-C retrospectively with effect from 1st March, 1984 allocating him suo moto to Audit Wing. The Central Administrative Tribunal vide its judgment and order dated 6th May, 1999 dismissed the claim petition relying on the Division Bench judgment of this Court in Writ Petition No. 2981 of 1984 filed by 365 employees as well as Writ Petition No. 840-A of 1984 filed by the petitioner himself.

The petitioner filed Writ Petition No. 34972 of 1999 challenging the order of Tribunal. The said writ petition has been dismissed by the Division Bench vide judgment and order dated 1st February, 2001. The petitioner attained the age of superannuation in the year 1993. This review application has been filed to review the said judgment. In the review application, the petitioner has prayed for following relief:

a) to declare the judgment dated 20th September, 1985 in Sudhish Chandra v. C. & AG, supra, as a nullity owing to massive fraud resorted to by Respondents in the earlier proceedings in this Hon''ble Court & subsequently confessed in unmistakable terms before the Apex Court in Special Leave (Civil) No. 6322 of 1990;

b) to declare that the Comptroller & Auditor General of India stands bereft of any authority under Article 148(5) of the Constitution or under any other statutory rule either to prescribe; or alter; or modify the conditions of service (including matters relating to seniority & promotion) of persons serving in the Indian Audit & Accounts Department in the context of 5-Judge Constitution Bench pronouncement of the Hon''ble Supreme Court of India dated 21st April, 1971 in Gurumoorthy''s case, supra, which is binding on this Hon''ble Court under Article 141 of the Constitution of India;

c) to declare that the Comptroller & Auditor General of India - having had no locus standi to withdraw the ''''WEIGHTAGE'' in seniority as afforded to SAS qualified personnel of the Indian Audit Department by the Governor General-in-Council vide orders contained in Circular No. 1757-E/1129 dated 18th April, 1921 - could not proclaim himself as the author of that Circular & crown himself with power to prescribe or modify the conditions of service of persons serving in the Indian Audit & Accounts Department through administrative orders/ instructions when that was not available to him under Government of India Acts 1919 and 1935;

d) to set-aside the judgment dated 1st February, 2001 in Civil Misc. Writ Petition No. 34972 of 1999 which may kindly be re-heard on merits in the interest of doing complete justice.

Sri D.B. Kauser, the petitioner appearing in person, has been heard at length.

The petitioner in support of the review application, has submitted that apparent error has been committed in the judgment dated 1st February, 2001 referring to the petitioner as one of the petitioners in Writ Petition No. 2981 of 1984. In his oral submissions, the petitioner has repeated various grounds taken in the review application to challenge the earlier Division Bench judgment of this Court dated 20th September, 1985 by which Writ Petition No. 2981 of 1984 filed by 365 employees along with Writ Petition No. 840-A of 1984 filed by the petitioner were dismissed. It is submitted that the Constitution Bench judgment of the Apex Court in the case of M. Gurumoorthy Vs. Accountant-General, Assam and Nagaland and Others, laying down that under Article 148 sub Clause (5) of the Constitution of India, it is the President who alone is competent to frame rules for employees working under the Accountant General after consultation with Comptroller and Accountant General and the subsequent judgment of three Judges Bench in the case of Accountant General and Another Vs. S. Doraiswamy and Others, was secured practising active fraud upon the Apex Court by not bringing in its notice the five Judges Constitution Bench judgment and other relevant facts. It is submitted that the Division Bench which delivered the judgment dated 20th September, 1985 had fallen victim of fraud and false affidavit on behalf of the Comptroller and Auditor General of India without noticing various relevant facts and documents which were placed by the petitioner in his special affidavit dated 20th March, 1985. He, therefore, submits that clarificatory order of the Apex Court dated 5th August, 1986 cannot be said to be a judicial pronouncement. A ground has also been taken in the application that res-judicata would not operate insofar as Writ Petition No. 34972 of 1999 was concerned.

We have considered the submissions of the petitioner who has appeared in person.

From the grounds, which have been taken in the review application as well as the submissions, which have been pressed during hearing of the review application, it is amply clear that the petitioner is still challenging the judgment dated 20th September, 1985 delivered by Division Bench of this Court in Writ Petition No. 2981 of 1984 filed by 365 employees and Writ Petition No. 840A of 1984 filed by the petitioner which was not even challenged by the petitioner in the Apex Court although other employees had filed SLP which was converted into Civil Appeal No. 2674 of 1986 and decided by the Apex Court on 5th August, 1986. The petitioner in Writ Petition 840-A of 1985 had challenged the scheme dated 19th December, 1983 for restructuring the office of the Accountant General. The petitioner did not give his option for Audit Wing, which was noted in the judgment dated 20th September, 1985 and continued in Account and Entitlement Wing after 1st March, 1984. The submission of the petitioner that Constitution Bench judgment in M. Gurumoorthy''s case (supra) was not considered by the Apex Court in subsequent judgment in the case of Accountant General v. S. Doraiswamy (supra) is not an issue which can be considered in the present application. Various grounds of challenge, which are raised in this review application with regard to Division Bench judgment dated 20th September, 1985 delivered in earlier writ petition of the petitioner cannot be allowed to be canvassed in this review application, which arises from different proceedings. As noticed above, the Division Bench judgment dated 20th September, 1985 was not challenged by the petitioner before the Apex Court although other employees had filed civil appeal which was decided by the Apex Court on 5th August, 1986. The said judgment is quoted in extenso in the Division Bench judgment of this Court sought to be reviewed. The petitioner appears to be obsessed by his submission, which has been pressed by him in his earlier Writ Petition No. 840-A of 1984 and repeating the same submission again and again although the judgment rendered was not challenged and became final between the parties. In this review application the petitioner repeats the same submission again and again which cannot be considered nor that can be scope of review application.

Insofar as the submission of the petitioner that manifest error was committed by the Division Bench in the judgment dated 1st February, 2001 in referring to the petitioner as one of the petitioners in Writ Petition No. 2981 of 1984 is concerned, suffice it to say that it is correct that petitioner was not one of the petitioners in Writ Petition No. 2981 of 1982 but he had filed separate Writ Petition No. 840-A of 1984 which writ petition was connected with Writ Petition No. 2981 of 1984 and was decided by common judgment dated 20.9.1985. The array of the parties of Writ Petition No. 2981 of 1984 and connected Writ Petition No. 840-A of 1984 was as follows:

Civil Misc. Writ Petition No. 2981 of 1984.

Shri Sudhish Chandra & 364 Ors. v. Comptroller & Auditor General of India, New Delhi and Anr.

Connected With

Civil Misc. Writ Petition No. 840 of 1984

Shri D.B. Kauser v. Comptroller & Auditor General, New Delhi & Anr

..............

In the Division Bench judgment dated 20th September, 1985 reported in 1986(1) All Ind.SLJ 136, it was specifically noticed that petitioner (D.B. Kauser) has filed Writ Petition No. 840 of 1984 and in paragraph 6 of the judgment the petitioner''s Writ Petition No. 840 of 1984 was separately considered. In the Division Bench judgment dated 1st February, 2001, sought to be reviewed, mere mention of fact that petitioner was one of the petitioners in Writ Petition No. 2981 of 1984 is inconsequential. The petitioner was not one of the petitioners in Writ Petition No. 2981 of1984 but the petitioner was petitioner in Writ Petition No. 840 of 1984, which was decided along with Writ Petition No. 2981 of 1984, thus the error which has been referred to by the petitioner as manifest error, does not have any substantial effect on the judgment dated 1st February, 2001 nor on the above reason the said judgment deserves to be reviewed.

As noticed above, the submissions in the review application are all against the earlier judgment of the Division Bench dated 20th September, 1985 with the repetition that Comptroller and Auditor General could not have enforced any scheme for restructuring the department and the petitioner has been denied higher pay scale. The Division Bench while dismissing the writ petition on 1st February, 2001 heard the petitioner, who had appeared in person, and after considering the earlier Division Bench judgment dated 20th September, 1985 and the judgment of the Apex Court, has rightly observed that earlier judgment shall operate as res-judicata.

The submissions in the review application are submissions challenging restructuring scheme dated 19th December, 1983, denial of higher pay scale to the petitioner and non allocation of the petitioner in the Audit Wing were all matters which were already closed. The review application cannot be treated as an application for rehearing of the petition. No ground is made out to review the judgment dated 1st February, 2001.

The review application is rejected.