Rajat Mitra And Others vs Union Of India And Others

M.A Nos. 229 of 2020 and 230 of 2020:

Both these miscellaneous applications are filed seeking execution of the common order passed by this Tribunal on 14.05.2019 in 0.A Nos. 1424 and

1421 of 2017. Seeking review of the common order dated 14.05.2019 passed in the above 0.As, the respondents have also filed R.A No. 20 of 2020 in

0.A No. 1424 of 2017 and R.A No. 19 of 2020 in 0.A No. 1421 of 2017. After hearing all the matters together, the review applications have been

dismissed by a reasoned order passed separately. The prayer for stay of implementation of the original order dated 14.05.2019 has also been rejected.

In view of the above, the respondents are directed to implement the common order dated 14.05.2019 passed in 0.A Nos. 1421 of 2017 and 1424 of

2017 without further delay.

Mr. Bhati, learned Senior Central Government Standing Counsel (Sr. CGSC) made a statement while hearing the review applications that the

review is sought primarily in view of the grounds canvassed therein, particularly in the matter of interfering with the promotion policy of the Union of

India and as far as the present two applicants are concerned, in their cases, the order would be implemented. The Promotion Board was to meet on

01.07.2020, but on account of certain reasons, it could not be held and in the next Promotion Board, their cases would be considered.

Taking note of the totality of the circumstance s, we direct that both M.A Nos. 229 and 230 of 2020 be listed on 20.07.2020 to report compliance of

the order dated 14.05.2019 passed by this Tribunal, failing which we would be constrained to take coercive action in the matter.

R.A Nos. 19 and 20 of 2020:

Both these review applications have been filed seeking review of the common order passed by this Tribunal on 19.05.2019 in 0.A Nos. 1421 and

1424 of 2017. There being a delay of 382 days in filing the review applications, M.A Nos. 869 and 870 of 2020 have been filed seeking condonation of

delay. After the common order was passed on 14.05.2019, the records indicate that the respondents had filed a Special Leave Petition before the

Hon'ble Supreme Court and on 07.02.2020, the leave to file appeal was rejected. In the meantime, execution proceedings were initiated by both the

original applicants on 16.01.2020, notices were issued to the respondents on 29.01.2020 before the SLP was taken up for consideration by the Hon'ble

Supreme Court. On 21.01.2020, when the execution applications came up for hearing, we were informed that an SLY had been filed before the

Hon'ble Supreme Court and that the same would be listed shortly. Accordingly, the matters were adjourned to 20.07.2020. On 07.02.2020, the Hon'ble

Supreme Court dismissed the SLP. However, the respondents did not take any action to implement the common order dated 14.05.2019. On the

contrary, as the case was being lingered on and the SLP was dismissed, the applicants filed miscellaneous applications for an early hearing of the

matters, which were allowed and the execution applications were directed to be listed for consideration on 01.04.2020. On 01.04.2020, on account of

the outbreak of COVID-19 pandemic, hearing in the matter did not take place. Finally, when the execution applications were taken up for

consideration on 16.06.2020, Mr. Bhati, learned Sr. CGSC submitted on instructions that a meeting of the Promotion Board would be held in the first

week of July 2020 and that action would be taken for implementing the common order passed in both the 0.As without delay. Even though serious

objections were raised by the learned counsel for the applicants, we granted time till today (06.07,2020) to submit a report with regard to the

implementation of the order passed by this Tribunal on 14.05.2019. Today, when the matter was taken up, Mr. Bhati submitted that so far as the two

applicants are concerned, the common order passed on 14.05.2019 would be implemented, however, due to certain reasons, the Promotion Board

could not be held on 01.07.2020. He also submitted that in the next Promotion Board, the cases of both the applicants would be considered. Keeping in

view the aforesaid undertaking, both the miscellaneous applications were adjourned by us and directed to be listed after two weeks. While so, both the

review applications have been filed by the respondents on 29.06.2020 and in the review applications, the grounds canvassed are primarily to say that

normally, in policy matters, the Courts/Tribunals should not interfere there being no arbitrariness, therefore, the common order passed by the Tribunal

calls for review. It was pointed out, at the time of hearing, that so far as the present two applicants are concerned, the order passed in their favour

would be implemented and that if it is implemented in all the cases, it would cause serious prejudice to the respondents. It was primarily on these

grounds, the review is sought for. Apart from the grounds canvassed, it was submitted by Mr. Bhati, learned Sr. CGSC that this Tribunal mainly

interfered in the matter only because the change in the policy adversely affected the applicants who belonged to particular stream (Dentist) and as the

policy had been changed to their disadvantage, without granting them an opportunity of being heard, the same is unsustainable. Mr. Bhati also argued

that the change in the policy was within the knowledge of the applicants and nobody objected to the same and that merely on the ground that it would

adversely affect certain category of persons, no interference is called for.

Before considering the questions that are canvassed before us with regard to review, we may take note of the legal principles applicable in the

matter of review of a judgment or order. Even though, in these cases, there is a delay of more than a year and the same is not very satisfactorily

explained in the applications for condonation of delay, we notice that it was only on 07.02.2020 when the SLP was dismissed, the review applications

were filed, after a period of more than four months after the dismissal of the SLP. However, the legal question would be as to whether a review

application is maintainable after the dismissal of the SLP, as canvassed by the learned counsel for the respondents. This need not detain us further, in

view of the fact that this principle of law in this regard stands concluded by the Hon'ble Supreme Court in the case of Khoda Distilleries Limited (now

known as Khoday India Limited) and others v. Sri Mahadeshwara Sahakara Sakkare Karkhane Limited, Kollegal (under liquidation) represented by

the Liquidator (2019) 4 SCC 376, wherein, it has been clearly laid down by the Hon'ble Supreme Court that in case a review petition is filed after an

SLP against the same order has been dismissed without a speaking order, review would be maintainable. However, before exercising the review

jurisdiction, the Court or the Tribunal has to examine, as to whether the same would amount to an abuse of the process or breach of judicial discipline.

This principle has been culled out in Paragraphs 16 to 19 of the decision in Khoday Distilleries Limited (supra). Being so, even though review petition

is maintainable after the dismissal of the SLP, the scope of interference is strictly in accordance with the principles laid down in the matter and the

question of conduct of the applicants that is whether it amounts to abuse of process or breach of the judicial discipline. The scope and jurisdiction for

review of an order passed by this Tribunal is akin to the powers conferred under Section 114 of the CPC read with Order XLVII Rule 1 and the

principles governing applicability of these statutory provisions have been explained in detail by the Hon'ble Supreme Court in the case of Sasi (dead)

through legal representatives v. Ara vindakshan Nair and others (2017) 4 SCC 692. After considering various judgments, particularly the decisions in

Thungabhadra Industries Ltd v. State of A.P (AIR 1964 SC 1372), Pars/on Devi v. Sumitri Devi (1997) 8 SCC 715 and various other decisions as

detailed in Paragraph 8 of the decision in the case of Sasi (supra), the Hon'ble Supreme Court has crystallised the law on the scope of jurisdiction in a

review petition to say that the review is maintainable only if there is an error apparent on the face of the record and the appellants have received

certain evidence or material which they could not bring to the notice of the Court at the time when the hearing of the original case was in progress.

The Hon'ble Supreme Court, in Paragraph 7, deals with the issue in the following manner:

In Thungabhadra Industries Ltd v. State of A.P (AIR 1964 Sc 1372), the Court while dealing with the scope of review had opined: (AIR p.

1377, para 11)

What, however, we are now concerned with is whether the statement in the order of September .1959 that the case did not involve any

substantial question of law is an ""error apparent on the face of the record"". The fact that on the earlier occasion the Court held on an

identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be

erroneous. Similarly, even if the statement was wrong, it would not follow that it was an ""error apparent on the face of the record'; for there

is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which

could be characterised as vitiated by ""error apparent"". A review is by no means an appeal in disguise whereby an erroneous decision is

reheard and corrected, but lies only for patent error."" (emphasis supplied)

Thereafter, in Paragraph 8, the scope of review is culled out, in the following manner:

In Pars/on Devi v. Sumitri Devi (1997) 8 SCC 715, the Court after referring to Thungabhadra Industries Ltd (AIR 1964 SC 1372, Meera

Bhanja v. Nirmala Kumari Choudhury (1995) 1 SCC 170 and Anbam Tuleshwar Sharma v. Aribam Pishak Sharma (1979) 4 SCC 389, held

thus: (Pars/on Devi case, SCC p. 719, para 9)

Under Order 47 Rule I CPC, a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the

record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on

the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under

Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be ""reheard and corrected"". A review petition, it must be

remembered, has a limited purpose and cannot be allowed to be ""an appeal in disguise':"" (emphasis supplied)

The principles of review as culled out by the Honible Supreme Court clearly demonstrate that the scope of review and the jurisdiction available in a

proceeding for review before this Tribunal is limited and it can only be exercised if the grounds, as permissible and enumerated under Order XLVII

Rule 1, are available. When we consider the principles laid down in Order XLVII Rule 1, we find that there has to be discovery of new and important

matters of evidence or facts, which, after exercise of due diligence, was not within the knowledge of the appellants and such material could not be

produced at the time of hearing or there has been an error apparent on the face of the record. If we analyse the grounds canvassed in the present

review applications, in the backdrop of the aforesaid principle, we find that the only grounds stated in the application are that once this Tribunal has

found the policy to be free from arbitrariness or any other illegality and when this Tribunal already holds that in policy matters interference should not

normally be made, it is stated that merely because certain category of persons who are in the dental faculty are adversely affected because of the

change in the promotion policy, interference into policy matters should not have been made. In our considered view, the grounds canvassed in the

applications for review, particularly the ground, as detailed herein above, do not, in any manner, whatsoever, fall within the category of error apparent

on the face of the record or the criteria laid down under Order XLVII Rule 1. On the contrary, this Tribunal, in the detailed order, had come to the

conclusion that for various reasons mentioned therein, the policy for promotion, which was impugned, takes away the right of promotion which were

available to the Dental Corps as per the old policy of 2006 and it adversely affected their right of promotion. The weightage given for certain courses

have been reduced in comparison with other faculties which has adversely affected them and they were not provided adequate opportunity nor were

they heard in the process of insinuating the change in the policy, particularly in the matter of reducing the marks for PG (MDS) qualification. It is only

because of these reasons that Para 12(c) of the policy letter dated 05.02.2016 was quashed. If we analyse the reasons that weighed with us at the

time of interfering with the policy, it would be crystal clear that we had considered various aspects of the matter and have indicated that even if there

is no arbitrariness in enforcing the policy and normally, in policy matters. The Courts should not interfere when there is no error apparent on the face

of the record and as laid down by the Hon'ble Supreme Court, a review application is, by no means, an appeal, whereby an erroneous decision is

permitted to be re-heard and corrected. What can be corrected is only a patent error or an error apparent on the face of record. An erroneous

decision or a reason given for arriving at a decision and the justification for the reason cannot be the grounds for review.

Taking note of all these factors and the well settled precedents, which need not be mentioned, we are of the considered view that the grounds

canvassed before us seeking review of the order do not fall within the category of the jurisdiction conferred on us for effecting a review under Order

XLVII Rule 1 and finding no reason to interfere with, we dismiss the review applications. Consequently, as we are dismissing the review applications,

now there is no necessity to pass any separate order in the M.As, the applications for condonation of delay stand rejected.

The applications for condonation of delay (M.A Nos. 869 and 867 of 2020) and the application for stay (M.A Nos. 870 and 868 of 2020), as a

consequence thereof, also stand rejected.