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Judgment
ORDER
Per Shri Jayesh V Bhairavia, Member (J)
1 The present review application No.02/2019 is filed by the original applicant seeking recall/review of order dated 04.06.2018 passed in OA No.123/2015 (Annexure A/1). The Miscellaneous Application No.54/2019 filed by the applicant for condonation of delay in preferring the present R.A. was allowed vide order dated 09.03.2021 by this Tribunal.
2 It is noticed that the applicant herein had approached this Tribunal by filing OA No.123/2015 upon being aggrieved by in action of the respondent to regularize his engagement as Multi Media Designer or as Scientific Assistant (Multi Media) A or C in the Development and Educational Communication Unit (DECU) of Indian Space Research Organization (ISRO), Ahmedabad and sought various relief as contended in first para of the order in review. After considering the material on record and the submission of the learned counsel for the parties, the OA being devoid of merit, was dismissed by this Tribunal vide order dated 04.06.2018 wherein this Tribunal mainly recorded its finding as under:-
“Para 9; The documents placed on record nowhere indicate that the applicant has been engaged against any regular post. He has only worked as Multi Media Designer under a contractual arrangement for about five years and that too not in a continuous spell. His engagement has been intermittent intervals.”
Para 10; The respondent-DECU in the year 2014 has advertised recruitment for regular post of Scientific Assistant-A (Multi Media) in the year 2014 for which the following qualification has been prescribed:-Essential: B.SC in Multi Media/Animation (Minimum 3years duration) with Ist Class from UGC/AICTE/Govt. recognised Institutions. Desirable: Multi Media Software Knowledge-Maya, 3DS Max, Premiere, CFX, After Effects, Flash, Photoshop, Core/Draw etc.”
Para 11: The Applicant did not apply for the said post as he does not possess the essential qualification.
Para12: Under these circumstances, he cannot even be granted the benefits of age relaxation treating him as departmental candidate.
Para 13: In view of the discussion, in the foregoing paras, we do not find any merit in this OA. The OA is accordingly, dismissed.
Para 14: In view of the orders passed in OA, no separate orders are required to be passed in MAs, which are accordingly disposed of.
3 In the present RA, the applicant prays for review and recall the aforesaid order dated 04.06.2018 mainly on the following grounds as contended in the RA.
It is contended that that this Tribunal had not appreciated the pleadings that (i) work is of perennial nature and when applicant was selected and engaged, there was not a single permanent employee to discharge duties of Multi Media Designer in any post whatsoever with the respondent department. (ii) Applicant was engaged on monthly payment basis and that he was not a daily wager who usually do not hold any post. (iii) The applicant was paid as per contract and same was described as “remuneration” and he was also not considered as an “employee”. (iv) though all empanelment, were with remark “this is not a regular job and you will be called to work on contract basis as and when required.” the applicant was engaged on the work of perennial nature on monthly payment by 24 short term contracts with two or three days’ break in between imposed by the respondent. This way in effect, it is a regular job and his selection was against unfilled vacant post because there was not a single person to discharge the functions of Multi Media Designer in regular set up. (v) initially the applicant’s selection was based on vide spread advertisement in daily newspaper and it was based on performance in panel interview and practical test. There was nothing in the advertisement or in empanelment or in contract that it was first specific work/project or that it was for a stop gap arrangement. (vi) Applicant holds diploma in fine arts with first class which is a five year full time course, termed parallel to degree.(vii) when applicant filed this OA, the respondent discontinued the applicant by non renewal of his contract without notice.
Further, in para 2 and 3 of the RA, the applicant had contended that there were errors of fact in recording contention of the applicant and reiterated the ground to justify his claim for regularization of his engagement/service.
In para 4, the applicant contended that this Tribunal’s observation is erroneous and stated that (i) in para 6 of the order, this Tribunal had observed that “each time, when the applicant was firstly empanelled he was required to sign a contract agreement....” in fact applicant was not contracted by a single contract for entire duration of work requirement or for the entire duration of empanelment. Applicant was engaged by 24 contracts of short duration with notional breaks (Annexure-A/26) to plead that he was not engaged continuously to deny rights flowing from continuous service. (ii) The observation in para 8 that “a plain reading of the contract agreement makes it absolutely clear the applicant has been empanelled for a prescribed period and has been engaged thereafter under a contract agreement”. It is contended by the applicant that infact neither advertisement nor empanelment letter have any end date, hence he was empanelled for a prescribed period is erroneous observation.
Further, it is contended that this Tribunal had denied all reliefs to him and this Tribunal committed an error in law while dismissing the OA of the applicant. In this regard, the applicant has reiterated his submission stated in the OA.
On the aforesaid ground as also the grounds stated in the OA, have been reiterated in the present R.A. and the applicant herein is seeking recall/review of order dated 04.06.2018 passed in OA No.123/2015 (Annexure A/1).
On the other hand, the respondent had filed their counter reply and objected to entertain the present RA. It is stated that the case of the applicant had already been adjudicated purely based on merits upon submissions and as such, there is no error of fact of law in the order dated 04.06.2018 passed by this Tribunal. The respondents reiterated that applicant was never offered or appointed to any sanctioned or regular post. He himself had admitted that his engagement was on contractual basis. There is no post of Scientific Assistant-C (Multi Media) in DECU/ISRO. As such, no regular recruitment was carried out for such post. The engagement pursuant to advertisement issued in the year 2009 was purely on contractual basis. The respondent had issued an advertisement for regular recruitment for duly sanctioned post of Scientific Assistant-A (Multi Media) with the stipulation of qualification of degree of Bachelor of Science (B.Sc) only in the year 2014. Therefore, the contention of the applicant to treat his education of diploma of five years is irrelevant. As such, the applicant does not possess minimum essential qualification for regular post of Scientific Assistant-A (Multi Media).
Learned counsel Ms.R.R.Patel appears for the respondent by relying upon the judgments passed by the Hon’ble Apex Court in the case of Kamlesh Verma vs. Mayawati reported in (2014) 1 SCC (L&S) 96, Ajitkumar Rath vs. State of Orissa (1999) 9 SCC 596, Meera Bhnaja (Smt.) vs. Nirmalakumar Choudhary (smt.) (1995) 1 SCC 170 and UOI vs. Tarit Ranjan Das (2004) SCC (L&S) 160 submits that the order in review does not suffer from any error apparent on the face of record. As such, this Tribunal cannot adjudicate the review application as an appellate authority. The ground raised by the applicant in the review application are not the ground for entertain the review application in light of the law laid down by Hon’ble Apex Court. Therefore, the applicant is not entitled for any relief as claimed in the present RA.
Heard the learned counsel for the parties and perused the material on record.
At the outset, it is apt to note that the scope for a “review application” is clearly defined in various orders of the Hon’ble Supreme Court. The Hon’ble Supreme Court in the case of State of West Bengal & others v. Kamal Sengupta and another (2008) 3 AISLJ 209 has held that the Tribunal can exercise the powers of a Civil Court in relation to matters enumerated in clauses (a) to (i) of sub-section (3) of Section 22 of the Administrative Tribunals Act including the power of reviewing its decision. By referring to the power of a Civil Court to review its judgment/decision under Section 114 CPC read with Order 47 Rule 1 CPC, the Hon’ble Supreme Court laid down the principles subject to which the Tribunal can exercise the power of review. At para 28 of the said judgment the Hon’ble Supreme Court culled out the principles which are as under:
“(i)The power of the Tribunal to review its 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 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 specified grounds.
(iv)An error which is not self-evident and which can be discovered by a long process of reasoning, cannot be treated as an error apparent on the face of record justifying exercise of power under Section 22(3)(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 larger Bench of the Tribunal or of a superior Court.
(vii)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.
(viii)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.”
8 The Hon’ble Supreme Court in an another judgment in the case of Union of India v/s Tarit Ranjan Das 2004 SCC (L&S) 160 while dealing with the order passed in Review Application at paragraph 13 observed as under:
“The Tribunal passed the impugned order by reviewing the earlier order. A bare reading of the two orders shows that the order in review application was in complete variation and disregard of the earlier order and the strong as well as sound reason contained therein whereby the original application was rejected. The scope for review is rather limited and it is not permissible for the forum hearing the review application to act as an appellate authority in respect of the original order by a fresh and rehearing of the matter to facilitate a change of opinion on merits. The Tribunal seems to have transgressed its jurisdiction in dealing with review petition as if it was hearing original application. This aspect has also not been noticed by the High Court.”
9 Bearing in mind the above principles laid down by the Hon’ble Supreme Court, in our considered view, existence of an error on the face of the record is sine qua non for review of an order. It is not permissible for the forum to hear the review application to act as an Appellate Authority in respect of the original order. It is also not permissible by a fresh re-hearing of the matter to facilitate a change of opinion on merits.
We have examined the grounds urged by the review applicant in support of his prayer for reviewing the order and we find that the review applicant has failed to bring out any apparent error on the face of order under review. It can be seen that after due consideration of the contention of the applicant as well as respondents in OA, this Tribunal had considered the main grievance and the same had been found lacking in merit for the reasons narrated in paras 6 to 14 of the order for review. The judgment relied upon by the counsel for the applicant is also not helpful to interfere with the order under review in the facts and circumstances as stated hereinabove.
10 Thus, in view of above discussion and in light of the law laid down by Hon’ble Apex Court (supra), the applicant has failed to point out any error much less an error apparent on the face of record justifying the exercise of power under sub-clause (f) of sub-section (3) of Section 22 of the Administrative Tribunals Act, 1985. The review application deserves to be dismissed and accordingly, the same is dismissed.