K.Sanish Kumar & Ors. vs Union Of India & Ors.

Review applicants are the original applicants 3 to 14. They had moved this Tribunal with the OA seeking a direction to the respondents to accept their option for permitting them to migrate to CCS (Pension) Rules, eventhough they were appointed as USL during 2006-07. They contended that though they were appointed in 2006-2007, were selected prior to 2001 and therefore their option pursuant to the notification should have been accepted and they should have been allowed to migrate to CCS (Pension) Rules.

It is submitted that after the dismissal of the Original Applications, the father of the 5^th respondent raised certain queries under the Right to Information Act seeking details of promotion and retirement of persons during the period from 01.01.2004 to 31.12.2007 to the 2^nd respondent. The said application under Right to Information Act is produced as Annexure RA-2. To Annexure RA-2, Annexure RA-3 reply was given stating that records are not maintained in the office after five years. So, according to the petitioners, it is clear that the above said document relating to the vacancies of unskilled labourers was not with the respondents in the years 2022, 2023, 2024. While reply statement was filed in the present case, these material aspects were not considered by the Tribunal when the Original Application was rejected. Therefore, in the light of Annexures RA-2 and RA-3, the matter has to be reopened.

According to the applicants, they were included in the select list in the year 2001 pursuant to the selection conducted as per the notification issued in 1999 which can only be the vacancies as existed as on the date of Annexure A-2 select list. Respondents themselves submit that the appointments were delayed only because of the various pending litigations. But the respondents in Annexure A-15 have rejected the representations of the applicants for inclusion in the statutory pension scheme stating that eventhough the applicants were selected in the year 2001, due to the ban on recruitment and subsequent abolition of posts, the applicants were appointed against the vacancies occurred after 01.01.2004. The respondents are therefore duty bound to prove that the applicants were appointed in the vacancies occurred after 01.01.2004. But the respondents could not prove that the applicants were appointed in the vacancies arose after 01.01.2004. It is also clear from Annexures RA2 and RA3 that the respondents are not having any material with them to prove that the applicants were appointed in the vacancies occurred after 01.01.2004, that they have submitted a false reply statement. The applicants could not produce the above said documents and the new facts have come to know only when RA3 letter was received by the father of the 5^th applicant and therefore, RA1 order of the Tribunal is an error apparent on the face of the record. The respondents had no documents with them, could not be placed before the Tribunal and therefore, the order of the Tribunal dismissing the Original Application is to be reviewed.

Further it is submitted that the respondents did not state anywhere in the reply statement or in the additional reply statement about the date on which vacancies had occurred after 01.01.2004 and how those vacancies had occurred. These facts ought to have been considered by the Tribunal while dismissing the OA and on consideration, is an error apparent on the face of the record.

The respondents have filed objection denying the contentions in the RA. According to them, the review applicants are seeking a re-hearing of the case on merits which is beyond the scope of the Review Application.

Basing on authorities it is submitted that there is distinction which is real though it might not always be capable of exposition between a mere erroneous decision and decisions which could be characterized and vitiated by an error apparent. A review is by no means an appeal in disguise whereas an erroneous decision is reheard and corrected but lies only for patent error.

Similarly, a mistake and an error apparent on the face of the record alone can be opened to a review. An error which is not self evident and has to be detected by a process of reasoning can hardly be said an error apparent on the face of the record justifying the exercise of power under Order 47 CPC.

Further, it is submitted that the Original Application is not maintainable. The order was passed after detailed examination. The materials produced by the respondents indicated that 209 posts were abolished and the applicants were later appointed during 2006-2007 against the vacancies occurred after lifting the ban on appointment.

Further it is submitted the applicants case rest on the ground whether they were appointed to the vacancies advertised against which they were called for. It was reiterated that during the operational period of the recruitment ban, the competent authority had accorded approval for filling up 35 unskilled labour vacancies at the behest of the 3^rd respondent on account of acute shortage of manpower. The applicants were called for the said vacancies. Subsequently, approval for 18 more vacancies were granted thus making a total of 53 USL vacancies. Eventhough recruitment action was initiated the same could not be proceeded due to pending litigation. The 3^rd respondent initiated action to fill up 13 vacancies on account of acute manpower shortage. However, only three vacancies were filled from the 2001 merit list and further appointment was called off at the instruction of the Standing Counsel. Out of the remaining 50 vacancies, 38 had to be filled as per the Court order in OA 54/1997 and in OP(CAT) 8904/1999. Remaining 12 vacancies had to be filled up as per the direction of the Hon'ble High Court in OP 32563/2000. As such, all the vacancies at the per the disposal of the respondents were exhausted on filling the vacancies in compliance with the Court order. Resultantly, vacancies for which the applicants were called for, got filled up prior to 01.01.2004. As such, apart from the three personnel appointed in August - September 2001, no candidate from the merit list of 2001 was appointed against vacancies notified for the period in question.

Subsequently the High Court directed that further appointment should be made from 2001 merit list, the said list was operated for the vacancies that had occurred after 01.01.2004 and accordingly, the applicants were appointed to that vacancies. The peculiar situation arose due the retrospective abolition of 209 posts. Contention of the applicants that there was only a proposal to abolish 209 posts and no order was issued is false and can be termed as a mere attempt to mislead the Tribunal. They have also produced copy of communication issued to Chief of Naval Staff dated 05.08.2005 from the Ministry of Defence and the Annexure therein have been highlighted showing that 209 posts were abolished.

Heard Sri Sandesh Raja, learned Counsel for the review applicants and Sri Thomas Mathew Nellimoottil, learned Standing Counsel for the respondents. According to the learned Counsel for the review applicants, the Annexure RA-3 reply to the query made under the Right to Information Act clearly indicates that the respondents did not have any document as to how many promotions and how many retirements were made during the period in question. These are matters exclusively within the knowledge of the respondents but they were avoiding the answers. It is not disputed that the applicants were selected prior to 2001, and there is no document to say that so much posts were abolished. According to them, posts were not abolished and they were appointed against the posts created prior to 2004; they cannot prove a non-existing fact. They are playing a game. Even in the objection, they have not stated as to how the applicants were appointed or against which vacancies or when the posts were created, etc. The number of vacancies are usually stated in the notification.

On the otherhand, according to Sri Thomas Mathew Nellimoottil, the grounds under Order 47 CPC are not available, document which was obtained after the dismissal of the Original Application cannot be stated discovery of new facts which is not sufficient to review the order. According to him, the applicants are trying to mislead the Tribunal. Sufficient reasons are not made out to order a review. He also submitted that the OP filed against the connected case is pending before the Hon'ble High Court and thus, the matter is subjudice.

After hearing counsel on both sides, I am of the view that all the objections raised by the respondents are valid and sustainable. This Tribunal need not re-state the grounds under which a review can be made under Rule 1 of Order 47 of CPC. So the question is whether any of those grounds is made out by these petitioners.

Review proceedings, it is a settled proposition, are not by way of an appeal and have to strictly confine to the scope and ambit of Order 47 Rule 1 CPC. Review petition has to be entertained only on grounds of error apparent on the face of records or any other ground stated in Order 47. An error apparent on the face of records must be such an error which must strike on mere looking at the record and would not require any long drawn process of reasoning on points where there may be two opinions (see the decision in Meera Bhanja vs. Nirmala KumarI Chaudary – [(1995) 1 SCC 170]. Here, the broad contentions of the parties are not in dispute. The applicants, who were appointed as unskilled labourers in 2006-2007, wanted them to be given the benefits of the CCS Pension Rules, accepting the options given by them on the basis of the OM issued by the respondents on 17.02.2020. Their options were rejected on the ground that they were appointed only in 2006-07. It is true that they were selected in 2001 but due to intervening litigations, they were not appointed. These facts have been stated by the Tribunal in paragraph 16 and 17 of Annexure RA-1 order.

The respondents had contested that there were retrospective abolition of posts, that 209 posts of unskilled labourers were abolished, that the applicants were appointed thereafter in 2006-2007. This is contested by the applicants. The Tribunal approved the version of the respondents on the basis of the communication dated 05.08.2005 produced by the learned Standing Counsel, across the Bar, while the OA was heard, and found that 209 posts were abolished. Now that communication has been produced and marked as Annexure RA R1 along with the objection filed by the respondents.

The learned Counsel has reiterated that the respondents did not have a case that the vacancies had arisen after 2004, this is clear from Annexure RA3 reply given to RA-2 query made under the Right to Information Act. Therefore, the applicants wanted this Tribunal to conclude that the respondents were raising contention regarding number of vacancies or sources of vacancies out of nothing and therefore, it was not proper on the part of the Tribunal to rely on their version. According to the learned Counsel, they did not raise any contention in the reply statement as to how the vacancies had arisen or when the vacancies had arisen; in the absence of such a version, it must be stated that we cannot presume that vacancies had arisen or existed prior to 01.01.2004. Applicant is the master of the proceedings. He must produce all materials and evidence supporting the case. He cannot win by making holes in the case of the opposite side.

The Original Application was dismissed on the basis of reasons which have been stated in clear terms. Now that cannot be undone on the basis of some documents obtained under the RTI Act subsequent to the dismissal of the OA.

I do not find any error apparent on the face of records. The Tribunal had dismissed the OA finding that there were no vacancies for accommodating the applicants prior to 01.01.2004. It is true that the respondents had parried the question in the pleadings and feigned ignorant about the source of vacancies. Still that is not a ground for review. Such questions or such materials should have been brought to the notice of the Tribunal prior to the disposal of the Original Application.

As noticed earlier, though the communication dated 05.08.2005 produced at the time of final hearing, the Tribunal was supplied with materials to reach a conclusion on the disputed question.

Top it all, it is submitted by the respondents that some of the original applicants in the OA have already moved High Court and OP(CAT) 77/2026; it is a challenge against Annexure RA-1 common order. That OP is pending. That means the order is under challenge and on that ground also the Review Application is not sustainable.

Resultantly, the Review Application is dismissed. No costs.

Annexure RA-1- Certified copy of the Order dated 05.08.2025 in OA no. 478/2021 and connected cases of the Central Administrative Tribunal, Ernakulam.

Annexure RA-2- True copy of the application submitted under Right to Information Act to the Public Information Officer of the 3^rd respondent dated nil.

Annexure RA-3- True copy of the reply dated 06.11.2025 issued by the Public Information Officer of the 3^rd respondent.

Annexure RA-R1- True copy of MoD letter CP(NG)/2853/1110/US/MP/D(N-II)/2005 dated 05.08.2005.