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Judgment
Nita Chowdhury, Member (A)
This Review Application has been filed by the Review Applicants seeking review of order passed in Original Application (OA) No.3043/2013 on 25.04.2018 (Annexure RA-1). The relevant paras of the said order read as under:-
The short point involved in this case is whether applicants are entitled to be promoted from retrospective date or not? The answer, to our mind, is in the negative. Nobody can claim promotion retrospectively as held by a catena of decisions of various courts.
The controversy involved in the present case has been dealt with in detail by this Tribunal in the case of Manjit Singh Vs. Govt. of NCT of Delhi and Others - OA No.1837/2013 decided on 09.09.2016. The relevant paragraphs of the said order reads as under:-
".....The respondents have also stated that the advice of UPSC and DOP&T was also obtained for retrospective promotion w.e.f. 13.01.2004. UPSC in its reply dated 06.12.2012 advised that the promotion has to be prospective in terms of para 6.4.4 of the DOP&T OM dated 10.04.1989. To same effect is the opinion of the DOP&T.
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The controversy is clearly covered by a catena of judgments of the Apex Court in Union of India & others v K. K. Vadrra & others [1989 Supp (2) SCC 625]; Nirmal Chandra Sinha v Union of India & others [(2008) 14 SCC 29]; State of Uttaranchal & another v Dinesh Kumar Sharma [(2007) 1 SCC 683]; and Sk. Abdul Rashid & others v State of Jammu & Kashmir [(2008) 1 SCC 732]. A similar view has been expressed by the High Court of Delhi in Union of India & others v Vijender Singh & others [(176) 2011 DLT 247 (DB)]. Another Bench of this Tribunal in its judgment dated 08.09.2016 in OA No.3811/2012 - J. D. Vashisht & others v Union of India & others considered the entire controversy. It has been ruled that retrospective promotion is impermissible unless the rules so provide.........".
Similarly the Hon'ble High Court of Delhi in W.P. ( C) No. 8102 of 2012 and connected cases - UOI and Another Vs. K.L. Taneja and Other connected cases decided on 12.04.2013 held as under:-
"7. As we would proceed to note the law on the subject, we would find that to the normal rule of law that nobody can be promoted with a retrospective effect except the exception is that when there exist facts which necessitates so or there is a rule which permits so. Thus, the facts which necessitated the exception to be applied have to be specifically pleaded.
In the decision reported as 1987 (4) SCC 566 K.Madhavan & Anr. vs.UOI & Ors., the Supreme Court held that nobody can claim a right for appointment to a post as a matter of right. It was held that as a rule, retrospective appointment or promotion to a post should not be resorted to unless on a sound reasoning and foundation it becomes necessary to sparingly do so. With respect to scheduled DPCs, only if they were cancelled mala fide, arbitrarily or without any reasonable justification to the prejudice of an employee, could the Government in such a case, to undo the injustice caused, grant promotion from a retrospective date.
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Relevant would it be to note that as per the decision there was no rule which was cited before the Court as per which promotion to the post had to be with retrospective effect i.e. from the date the post fell vacant. The observations of the Supreme Court that 'We do not know of any law' would mean that service jurisprudence does not jurisprudentially recognize retrospective promotions. The decision would therefore mean that unless a specific rule exists evidencing to the contrary, promotions take effect from the date the person is actually promoted and not retrospectively.
In the decision reported as (1998) 7 SCC 44 Baij Nath Sharma vs. Hon'ble Rajasthan High Court At Jodhpur & Anr., relying upon the law declared in K.K.Vadera's case (supra), since no rule was shown which could justify a retrospective promotion, and no mala fides pleaded or proved in delaying promotions, the Supreme Court held that the appellant, a Member of the Rajasthan Judicial Service, could not be promoted from the date a vacancy accrued in the Rajasthan Higher Judicial Service against which vacancy he was ultimately promoted.
The same view was reiterated in the decisions reported as AIR 2004 SC 3460 Sanjay K.Sinha & Ors. vs. State of Bihar & Ors., 2006 (13) SCALE 246 State of Uttaranchal & Ors. Vs.Dinesh Kr.Sharma and 2008 (14 ) SCC 29 Nirmal Chandra Sinha vs. UOI & Ors. The last decision i.e. in Nirmal Chandra Sinha's case (supra) referred to certain observations made by the Supreme Court in the decision reported as 1997 (8) SCC 89 UOI vs. B.S.Aggarwal which tends to show to the contrary, as being made on the special circumstances of that case and on humanitarian consideration (refer para 9 of the decision in Nirmal Chandra's case.)
In the decision reported as (2007) 1 SCC 683 State of Uttaranchal & Anr. vs. Dinesh kumar Sharma it was observed:-
"Respondent was working as a Subordinate Agriculture Services Group-I. Subsequently, he became eligible for promotion. A promotional post became vacant and thereafter, substantive appointment of Respondent to said post was made.
Respondent claimed seniority and consequential benefit from date when promotional post became vacant. State Government rejected claim made by Respondent. On writ, Division Bench of High Court directed state to reconsider case of Respondent. Hence the appeal was filed which was allowed and it was held that under Rule 8 of Uttar Pradesh Government Servants Seniority Rules, 1991 a person appointed on promotion shall not get seniority of any earlier year but shall get seniority of year in which his/her appointment is made. Hence respondent was not entitled to seniority from date when promotional post became vacant as no retrospective effect could be given to order of appointment order under the Rules."
The decision is in line with the reasoning that unless a rule to the contrary exists, promotions cannot be made or directed to be made retrospectively".
Similarly, the Hon'ble Apex Court in Uttaranchal Forest Rangers' Assn. (Direct Recruit) v. State of U.P., (2006) 10 SCC 346, held as under:-
"We are also of the view that no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre so as to adversely affect the direct recruits appointed validly in the meantime, as decided by this Court in Keshav Chandra Joshi v. Union of India [1992 Supp (1) SCC 272] held that when promotion is outside the quota, seniority would be reckoned from the date of the vacancy within the quota rendering the previous service fortuitous. The previous promotion would be regular only from the date of the vacancy within the quota and seniority shall be counted from that date and not from the date of his earlier promotion or subsequent confirmation. In order to do justice to the promotees, it would not be proper to do injustice to the direct recruits......".
Thus seen from any angle, we do not find any merit in the OA and the same deserves to be dismissed. Accordingly, the same is dismissed. No costs."
The facts, in brief, are that while deciding the OA, this Tribunal had considered all the issues raised by the Review Applicants and disposed of the same on merits on 25.04.2018 (Annexure-RA-1) by a detailed order after hearing the parties at length. Now the Review Applicants have filed the present RA bearing No.93/2018 for reviewing the indicated order, mainly on the grounds which have already been adjudicated by this Tribunal in detail while deciding the main OA. Moreover, it is now well settled principle of law that 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 re-hearing of the matter to facilitate a change of opinion on merits.
It is now well settled principle of law that the earlier order can only be reviewed if the case squarely falls within the legal ambit of review and not otherwise. Order 47 Rule 1 CPC read with Section 22(3)(f) of the Administrative Tribunals Act, 1985 regulates the provisions of review of the orders. According to the said provision, a review will lie only when there is discovery of any new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by the review applicant seeking the review at the time when the order was passed or made on account of some mistake or error apparent on the face of the record. It is now well settled principle of law that 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 re-hearing of the matter to facilitate a change of opinion on merits. The reliance in this regard can be placed on the judgments of the Hon'ble Supreme Court in cases of Parsion Devi and Others vs. Sumitri Devi and Others (1997) 8 SCC 715, Ajit Kumar Rath Vs. State of Orissa (1999) 9 SCC 596, Union of India Vs. Tarit Ranjan Das (2003) 11 SCC 658 and Gopal Singh Vs. State Cadre Forest Officers' Association & Others (2007) 9 SCC 369.
An identical question came up to be decided by Hon'ble Apex Court in case State of West Bengal and Others Vs. Kamal Sengupta and Another (2008) 8 SCC 612. Having interpreted the scope of review and considering the catena of previous judgments mentioned therein, the following principles were culled out to review the orders:-
"(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 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 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".
Meaning thereby, the original order can only be reviewed if case strictly falls within the domain of Order 47 Rule 1 CPC read with Section 22(3)(f) of the Administrative Tribunals Act, 1985 and not otherwise. In the instant RA, the review applicants have not pointed out any error apparent on the face of record warranting a review of the order dated 25. 04.2018 (Annexure RA-1). Moreover, the issues now sought to be urged, were subject matter of the OA and have already been adjudicated upon by the Tribunal.
In the light of the aforesaid reasons, as there is no apparent error on the face of record, so no ground is made out to entertain the present Review Application, which is accordingly dismissed. No costs.