Union Of India Through The Secretary vs Central Administrative Tribunal, Chandigarh Bench, Chandigarh And Another

Lalit Batra, J

CM No.9313 of 2019 in RA No.271 of 2019

Application is allowed as prayed for.

RA No.271 of 2019 in CWP No.13667 of 2019

To begin with, it would be pertinent to mention here that previously CWP No.13667 of 2019 titled "Union of India through the Secretary Vs. Central Administrative Tribunal, Chandigarh Bench, Chandigarh and another" was filed by petitioner (applicant-Union of India) impugning the legality of order dated 19.03.2019 passed by Central Administrative Tribunal, Chandigarh Bench, Chandigarh, in OA No.060/01509/2018 titled "Ägam Singh Bedi Vs. Union of India", which writ petition was decided by this Court, vide judgment dated 28.05.2019 and the concluding paras No.10 and 11 of said judgment read as under:-

"10. In view of above, it can be safely concluded that respondent (applicant) did not undergo Foundation Course. Against his name, there was specific remark that his up-gradation can undergo a change due to reasons mentioned therein. Once above said circumstance had arisen due to non-joining of two candidates who were allocated IRS (IT), then indeed right of respondent (applicant) for consideration of above said up-gradation deserves to be allowed by petitioner (respondent) and the said right cannot be permitted to be defeated only on the apprehension of administrative inconvenience.

As a sequel to above said findings, it is held that Central Administrative Tribunal, vide its order dated 19.03.2019, has rightly allowed OA No.060/01509/2018 moved by respondent (applicant) and further rightly directed petitioner (respondent) to allocate respondent (applicant) from IRS (C&CE) to IRS (IT) and as such said findings are sustained. In this view of the matter, instant writ petition moved by petitioner (respondent) being devoid of merits is dismissed."

Applicant (petitioner-Union of India) has moved instant application for review of judgment dated 28.05.2019 passed by this Court.

The detailed facts as pleaded by petitioner (applicant-Union of India) in its petition and also the contentions of respondent-Agam Singh Bedi, have already been discussed in length in judgment dated 28.05.2019 passed by this Court and need not to be repeated for the sake of brevity.

In the instant application for review of judgment dated 28. 05.2019 filed by applicant (petitioner-Union of India), it has been pleaded that this Court while delivering judgment dated 28.05.2019 did not appreciate the procedure by which joining/non-joining of a candidate of a particular Civil Services Examination (hereinafter to be referred to as "CSE"), is determined by concerned Cadre Controlling Authorities (hereinafter to be referred to as "CCAs"). It is only after the commencement of Foundation Course/ Professional Training that the CCAs would be able to determine whether a candidate has joined the service or not. Due to various procedures a complete picture of the candidate joining/non-joining can be determined by the CCAs only after a lapse of time between the allocation of service and the actual determination of non-joining. Hence, to ensure that the service allocation process is completed and a finality is given to it, the non-joining/leave of a candidate is not treated as a vacancy for the year in which CSE was held. These vacancies are carried forward as vacancies for subsequent CSE, thus, fulfilling the requirements of remaining posts within the service. Hence, UPSC does not recommend waiting list of the candidates. It is pleaded that respondent-Agam Singh Bedi has misrepresented this Court by suppressing the fact that he has been confirmed in the IRS (C&CE) in the third iteration of service allocation dated 24.08.2018 and has already joined the Professional Training and subsequent grant of extra-ordinary leave. In the instant case, candidatures of Mr. Tuhin Sinha (CSE-2017, Rank 281) and Mr. Albert John (CSE-2017, Rank 327) were cancelled only on 22.03.2019 by the Ministry of Finance. Thus, it is quite evident that the decision of cancellation of candidatures of above said two candidates was taken by the Ministry of Finance on 22.03.2019 i.e. well after the decision dated 19.03.2019 rendered by Central Administrative Tribunal. As such there was no information with the applicant-Union of India regarding non-filling of two vacancies in the cadre of IRS(IT). Those unfilled vacancies are to be carried forward for the subsequent CSE. Thus, there is mistake apparent on the face of the record of the case that applicant (petitioner) could not offer IRS(IT) to respondent-Agam Singh Bedi. Further, this Court has also not taken note of the fact that respondent-Agam Singh Bedi in fact did not join 93rd Foundation Course which commenced from 27.08.2018 and straightway joined Professional Training in National Academy of Customs, Indirect Taxes and Narcotics (NACIN) Faridabad, and immediately proceeded on extra-ordinary leave on the following day. It is further pleaded that this Court has not appreciated the fact that the service allocation is a chain process and it is not possible to fill a particular vacancy arisen on account of resignation, non-joining of service for the same examination year as it would upset the whole chain process and, thus, it would be an unending process leading to total uncertainty in allotment process. Further, this Court has not appreciated the fact that change in service allocation as being sought by respondent-Agam Singh Bedi would severely affect the training process as the similarly placed candidates would also seek up-gradation of their allocation and this would result in the shifting of candidates from one service to another service and from one training academy to another academy and it would be recurring phenomena every year and would throw selection and allocation process out of gear. Further it would also result in multiple litigations on claims and counter-claims throughout the country for years together. Thus, it is prayed that in view of various errors/mistakes/misrepresentations made by respondent-Agam Singh Bedi in the petition, which are apparent on the face of the record, instant application for review deserves to be allowed and resultantly judgment dated 28.05.2019 deserves to be reviewed.

We have heard learned counsel for applicant (petitioner-Union of India) and have carefully gone through the record of the case.

Learned counsel for the applicant (petitioner-Union of India) while reiterating the cause of applicant has vehemently argued that on account of suppression of material facts and misrepresentation by respondent-Agam Singh Bedi, before Central Administrative Tribunal, it has resulted in peculiar situation as in case plea of respondent-Agam Singh Bedi, is allowed to stand, it would lead to administrative inconvenience and then selection and allocation process would never come to an end. He further urged that service allocation is a chain process to be accomplished by the applicant (petitioner-Union of India) in a well organized manner. He further urged that instant application for review deserves to be allowed and consequently, judgment dated 28.05.2019 rendered by this Court be reviewed accordingly.

Regarding aspect of controversy as to whether in a given situation, review of judgment is maintainable or not, in case "Kamlesh Verma Versus Mayawati and others" 2013(4) RCR (Civil) 75 (Supreme Court), it has been held that in the following grounds, review is maintainable;

(i)Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; (ii)Mistake or error apparent on the face of the record;

(iii)Any other sufficient reason.

Further, in the above said ruling, various situations have been described where review will not be maintainable and the said situations are enumerated as under;

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications;

(ii) Minor mistakes of inconsequential import;

(iii) Review proceedings cannot be equated with the original hearing of the case;

(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice;

(v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error;

(vi) The mere possibility of two views on the subject cannot be a ground for review;

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched;

(viii) The appreciation of evidence on record is fully within the domain of the appellate Court, it cannot be permitted to be advanced in the review petition;

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.

Further, in case "Virendra Singh Kothari Versus State of Rajasthan" 2004 (2) RCR (Civil) 90 (Rajasthan High Court), it has been held that it is settled legal proposition that scope of review is very limited and under the garb of review a party cannot be permitted to reopen the entire case.

In the instant review application, main thrust of applicant is upon the aspect that in a particular CSE, joining/non-joining of a candidate is determined by concerned CCAs and that too after a lapse of time between the allocation of service and the actual determination of non-joining. Further, applicant has laid emphasis on the aspect that by the time service allocation process is completed and given finality, non-joining/leave of a candidate is not to be treated vacancy for the year in which CSE was held and those vacancies are to be carried forward for the subsequent CSE.

To clarify above said stand of applicant (Union of India), it would be relevant to mention here that though vide letter dated 24.08.2018 (Annexure A-7), respondent-Agam Singh Bedi was informed about his allocation of IRS (C&CE) but said respondent having qualified subsequent CSE, 2018 (Preliminary), had sought exemption from Foundation Course, which permission was granted to him. Further, two candidates namely Mr. Tuhin Sinha and Mr. Albert John, who were allocated IRS(IT) in CSE, 2017, they were offered appointment on 03.12.2018. Though letters of their appointment have not been placed on record at the instance of applicant (Union of India) but a bare perusal of appointment letter dated 27.11.2018 (Annexure A-13) pertaining to candidate of IRS (C&CE) of CSE, 2017, which is on similar footing, it is quite evident that appointee's acceptance or otherwise must reach the Department within fifteen days from the date of issue of letter failing which it will be presumed that appointee is not interested in joining the service and the offer will automatically stand cancelled. It is relevant to point out here that Mr. Tuhin Sinha and Mr. Albert John, who were allocated IRS(IT) in CSE, 2017, neither they sought exemption of Foundation Course nor they joined the Cadre but as a matter of fact as they (Mr. Tuhin Sinha and Mr. Albert John) were allocated IPS Cadre out of CSE, 2016, they had already joined that service. This fact must have been in the notice of applicant-Union of India. Despite offering appointment to Mr. Tuhin Sinha and Mr. Albert John in IRS(IT) out of CSE, 2017, as they did not opt to join allocated service i.e. IRS(IT) within fifteen days from the date of issuance (03.12.2018) of their appointment letters, said offer automatically stood cancelled latest by 18.12.2018. In this background, stand propounded by applicant-Union of India that candidatures of Mr. Tuhin Sinha and Mr. Albert John were cancelled only on 22.03.2019 does not come to its rescue. As a matter of fact, above said two candidates to whom slots of IRS(IT) out of CSE, 2017, were allocated, they never joined latest by 18.12.2018, in this scenario these slots were never consumed and in fact said slots are to be treated as vacant and then said slots are to be offered to candidates next in merit. To this effect reference may be made in case CWP No.83 of 2017 titled "Navkirat Singh Randhawa Vs. State of Punjab and others" decided on 09.02.2017 by this Court, wherein while dealing with intricacies of a particular clause of appointment letter, it was held that said letter was only an offer of appointment and not an appointment letter until there is an acceptance by the selectee/addressee. Further it was held that mere offer of appointment will not amount to consumption of the vacancy, rather there must be an acceptance by the selected candidate and in the absence thereof, by no stretch of imagination, the same shall be termed as appointment letter. Once in the instant case, respondent-Agam Singh Bedi, whose cadre allocation could undergo a change and that too upto five iterations, he (Agam Singh Bedi) has a vested right of consideration of up-gradation of his choice of IRS(IT) as two slots of IRS(IT) out of CSE, 2017, were never consumed by appointment of anyone as allocatees (Mr. Tuhin Sinha and Mr. Albert John) had neither undergone any Foundation Course nor joined the Cadre and in fact they joined IPS and that too out of CSE, 2016.

In the instant case, respondent-Agam Singh Bedi had qualified CSE, 2017, and in order of preference, he had given choices No.1 to 5 i.e. IAS, IPS, IFS, IRS(IT) and IRS(C&CE) respectively. It is pertinent to mention here that in the Service Allocation List (hereinafter to be referred to as 'SAL'), wherein name of respondent-Agam Singh Bedi occurred at Serial No.311 with merit rank No.332, in the SAL issued on 31.07.2018 (Annexure A-5) against his name asterisk (*) was marked which shows that his allocation was provisional and he was having a chance of up-gradation. Though, vide letter dated 24.08.2018 (Annexure A-7), applicant-Union of India had informed respondent-Agam Singh Bedi about his allocation of IRS(C&CE) and for that Foundation Course was to be undergone by him but on his request, he was granted exemption to undergo Foundation Course. At this juncture, it is relevant to point out here that vide Annexure P-4, it is quite evident that OA No.060/01509/2018 titled "Ägam Singh Bedi Vs. Union of India", was instituted on 14.12.2018 by respondent-Agam Singh Bedi, before Central Administrative Tribunal, Chandigarh Bench at Chandigarh. It is pertinent to mention here that for the said reason alone, respondent-Agam Singh Bedi had no occasion to mention acceptance of offer of appointment in IRS(C&CE), which offer was accepted by him on 17.12.2018, as is evident, vide Annexure RA/P-5. Besides that in terms of Sanction Order dated 18.12.2018 (Annexure RA/P-5(colly), with reference to application dated 17.12.2018 for Extra-Ordinary Leave (EOL) without pay moved by respondent-Agam Singh Bedi alongwith other Officer Trainees of 70th Batch IRS(C&CE), they were sanctioned EOL with effect from 17.12.2018 till the date of joining of next batch, for appearing in CSE, 2019. Further it was mentioned in the above said sanction order that all such IRS(C&CE) Officer Trainees of 70th Batch proceeding on EOL will join Professional Training with the next Batch of the Officer Trainees on a date to be notified by the Academy later. It will not be out of place to mention here that once OA No.060/01509/2018, as detailed above, was instituted by respondent-Agam Singh Bedi on 14.12.2018, developments which took place on 17.12.2018 and 18.12.2018, said facts could not have been narrated in the said OA by respondent-Agam Singh Bedi. As such there was no concealment of any fact in the above said OA by respondent-Agam Singh Bedi (petitioner therein). However, applicant-Union of India after having received notice of above said OA and that too after 14.12.2018 had filed reply before the Central Administrative Tribunal, but applicant-Union of India did not make any effort to bring on record above said developments as shown, vide documents (Annexures R-A/P-2 to P-5) and that too at the relevant time and in fact those documents have been placed on record by applicant-Union of India for the first time alongwith instant review application. For the said reason alone, documents (Annexures R-A/P-2 to P-5) were not considered by the Central Administrative Tribunal as well as by this Court at the relevant time. Once it has come on the record that respondent-Agam Singh Bedi was granted exemption to undergo Foundation Course and further he was granted exemption to undergo Professional Training of IRS (C&CE), vide sanction order dated 18.12.2018 (Annexure R-A/P-5 (colly) and he has not joined allocated cadre, in this scenario, there is no question of estoppel against him (Agam Singh Bedi) to claim the relief as granted by this Court, vide judgment dated 28.05.2019.

Learned counsel for applicant-Union of India has again raked up the issue of administrative inconvenience in the entire exercise of cadre allocation, though said aspect has already been dealt in detail, vide judgment dated 28.05.2019, but it is pertinent to mention here that when the fundamental rights of the citizens are pitted against some administrative inconvenience that the applicant-Union of India may suffer in case relief was to be granted to the aggrieved respondent-Agam Singh Bedi, the so-called administrative inconvenience has to give way to the fundamental rights of the citizens. As already observed, once matter regarding two vacancies of IRS(IT) in the names of Mr. Tuhin Sinha and Mr. Albert John, could have been finalized by 18.12.2018, cancellation of candidatures of Mr. Tuhin Sinha and Mr. Albert John only on 22.03.2019 by applicant-Union of India, appears to be manoeuvre on its part to carry forward two vacancies of IRS(IT) to the subsequent CSE, so as to debar the rightful claim of respondent-Agam Singh Bedi, which has accrued in his favour in lawful manner.

In view of above, discovery of new documents (Annexures R-A/P-2 to P-5 (colly) do not serve the cause of applicant-Union of India and in fact those documents find favour in the cause of respondent-Agam Singh Bedi. Apart from that there is no mistake or error apparent on the face of the record. Besides that there is no other sufficient reason to review the judgment dated 28.05.2019 passed by this Court. Resultantly, review on above said aspects is not maintainable.

As a sequel to above said findings, instant application moved by applicant (petitioner-Union of India) for review of judgment dated 28.05.2019 passed by this Court in CWP No.13667 of 2019 titled "Union of India through the Secretary Vs. Central Administrative Tribunal, Chandigarh Bench, Chandigarh and another", being devoid of merits, is dismissed.