TaxTMI 
TaxTMI 
2008 (6) TMI 578
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....n conducted by the West Bengal Public Service Commission in 1973 for recruitment to West Bengal Civil Services (Executive) and other Allied Services. They were declared successful and were allotted to West Bengal Food and Supplies Service (hereinafter described as `the service'). Initially, they were posted as Sub-Divisional Controller of Food and Supplies. In due course, they were promoted as Assistant Director, Deputy Director and finally as Director and their pay was fixed in the scales prescribed for those posts. They were also given the benefit of revised scales under the West Bengal (Revision of Pay and Allowance) Rules, 1981 (hereinafter referred to as `ROPA 1981') and the West Bengal (Revision of Pay and Allowance) Rules, 1990 (hereinafter referred to as `ROPA 1990'). (ii) After 20 years of joining the service, the respondents filed Writ Petition No.1547 of 1995 for quashing letter dated 6.1.1995 vide which the Finance Department of the State Government rejected their claim for grant of Pay Scale Nos.19 and 21 in terms of the Career Advancement Scheme (for short `the Scheme') framed by the Government of West Bengal, which was circulated vide Memorandum da....
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....nd to Scale No.17 (Rs.660/- to Rs. 1600/-), Scale No.18 Rs. 1100/- to Rs. 1900/-) and No.19 (Rs.1600/- to Rs. 2250/-) under ROPA, 1981. 17. That the distribution of posts in revised Scale Nos.19 and 21 for the services shown in Annexure to the Memo No.6075-F dated 21.06.1990 (Annexure "C" to this Writ Petition) is given hereunder : Name of Service Grade Strength Scales Eligibility condition for Scale No.19 & 21 (Revised) 19 21 1 2 3 4 1. W.B.S.C. (Exe) 1767 64 4 20 years of total service on Revised Scales Nos.16, 17, 18 and their unrevised counter parts and 3 years in unrevised scale no.19 or revised scale no.18. 2. W.B. Commercial Tax Service 566 8 1 Same as for W.B.C.S. 3. W.B. Co-operative Service. 162 2 Nil - do - 4. W.B. Excise Service. 190 1 Nil - do - 5. W.B. National Employment Service. 170 1 Nil - do - 6. W.B. Labour Service 132 1 Nil - do - 7. W.B.F. & S.S. 280 Nil Nil - do - 8. W.B. Police Service (Group B Service) 279 2 Nil - do - 9. W.B. General Service not known. 3 Nil ....
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.... the said Scheme was introduced. The members of the State Service including the West Bengal Food & Supplies Service are entitled to promotion in the higher scale of pay being scale nos.16, 17 and 18. In addition to the above benefit, as per promotion policy of the Government, the members of some of the State services have been allowed the benefit of scale nos.19 and 21 as per Career Advancement Scheme referred to above. The said benefit of higher scale nos.19 to 21 as per Career Advancement Scheme referred to above has not been allowed to the State Services in general since the prospect of promotion to the higher scale of pay depends on a variety of consideration namely ratio of higher post to base level post in the feeder grade, hierarchical structure of the department, the level of work and nature of responsibilities, the proportion of direct recruitment, the pace of growth of normal activities of a department, the avenue of normal promotion etc. On consideration of the above factors, there is hardly any justification to bring all State Services on the same footing in respect of extension of the benefit of higher scale of pay as per promotion policy of Career Advancement Scheme. ....
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....98 as withdrawn in terms of the prayer made by their counsel. (vii) In the meanwhile, Joydeb Biswas and others filed O.A. No.148 of 1997 for grant of Scale Nos.17, 18 and 19 to members of the service under ROPA 1981 in the ratio of 6:3:1. They relied on Finance Department Memorandum No.9425-F dated 9.8.1983, whereby posts in different services were distributed in the ratio of 6:3:1 and orders passed by the High Court of Calcutta for grant of Scale Nos.17, 18 and 19 to the members of State Audit and Accounts Service and West Bengal Judicial Service in the ratio of 6:3:1 and pleaded that they are entitled to similar treatment. (viii) The appellants contested the application of Joydeb Biswas and others by asserting that their claim of parity with members of other State Services was untenable. In support of this plea, the appellants relied on the order passed in Transferred Application No.826 of 1996 (Kamal Sengupta and another vs. State of West Bengal and others). (ix) The Tribunal distinguished the order passed in Kamal Sengupta's case by observing that the question of distribution of Scale Nos.17, 18 and 19 was not considered in that case and directed the State Governme....
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....e representation of the applicant and pursuant to our direction in the earlier writ petition, the respondent no.1 cannot be allowed not to implement the same on any plea, whatsoever." [Emphasis added] (x) After dismissal of the Special Leave Petition, the respondents filed R.A. No.26 of 1998 for review of order dated 25.2.1997 by asserting that they were stagnating in the same scale of pay since 1982 and the non-applicants arbitrarily denied them benefit of the higher scales which were given to the members of other services. The respondents pleaded that in view of the recommendations made by Secretary of Food and Supplies Department, which are binding on the State Government, they are entitled to Scale Nos.19 and 21. In support of this plea, the respondents relied on order dated 25.3.1998 passed in O.A. No.148 of 1997 Joydeb Biswas and others vs. State of West Bengal and others. The precise grounds on which review was sought by the respondents are reproduced below:- "I. For that this learned Tribunal was pleased to reach two opposite conclusions on the same point of law as in Annexures "C" and "D" and thereby dismissing the case of your applicants, while allowing that of t....
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.... of additional posts in Scale No.19 for various State Services including the service of which the respondents were members and held :- "Be that as it may, it now appears from the Supplementary Affidavit filed by the applicants that the respondent authorities concerned have come forward and issued necessary Govt. orders extending the benefit of Scale No.19 to the Officers of Food & Supplies Department w.e.f. 1.1.2001 vide Memo No.3015-F dated 13.3.2001 being annexure `C' to Supplementary Affidavit. It was argued before us by the Ld. Senior Counsel for the applicants that because of the extension of such benefit of Scale No.19 to the Officers of Food & Supplies Department, the instant case stood disposed of in their favour but in part. In our view, the extension of the benefit of Scale No. 19 pointed out only to a glaring fact that the Officers of Food & Supplies Department were also entitled to such a Scale, but they were deprived of the same for a long time for reasons best known to the authorities concerned. It was indeed a clear case of hostile discrimination." The Tribunal then referred to order dated 25.3.1998 passed in O.A. No.148 of 1997, Joydeb Biswas's case, a....
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....efits of Scale No.21 to the applicants in accordance with the Rules and law and provisions contained in Notification No.6075-F dated 21.6.90 meant for W.B.C.S. (Executive) and other Allied Services officers within a period of four months from the date of communication of this order." 3. The appellants challenged the aforementioned order in WPST No.1 of 2001 by asserting that the Tribunal did not have the jurisdiction to review order dated 25.2.1997 on the basis of subsequent order passed in Joydeb Biswas's case. Another plea taken by the appellants was that the recommendations made by the Secretary of the Administrative Department are not binding on the State Government. The Division Bench of the High Court held that the Tribunal could not have entertained and allowed the review application on the basis of a decision which was not in existence at the time of initial order, but declined to interfere with order dated 25.9.2001 by observing that denial of higher pay scale to members of the service had resulted in violation of their fundamental rights under Articles 14, 16 and 21 of the Constitution. 4. Shri Bhaskar P. Gupta, Senior Advocate appearing for the petitioners exte....
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....rvices including the one of which the respondents were members and posts in Scale No.21 were sanctioned only for 2 out of 17 State Services and argued that the plea of discrimination raised by the respondents was rightly rejected by the Tribunal in the first instance because the respondents had already reached the highest positions in the service and were being paid salary in the revised scales introduced under ROPA 1990. Learned counsel pointed out that while dismissing the SLP as withdrawn, this Court did not give liberty to the respondents herein to apply for review of order dated 25.2.1997 and argued that letter written by the counsel could not be made basis for presuming that such liberty had, in fact, been given. Another argument of the learned senior counsel is that the plea of stagnation was not raised by the respondents till the filing of review application and, therefore, the same could not have been considered by the Tribunal in conjunction with the decision contained in Memorandum dated 13.3.2001 for recording a finding that the State had discriminated the respondents in the matter of grant of higher pay scales. Shri Gupta lastly argued that the High Court committed ser....
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....1982 and argued even though this fact was clearly discernible from the averments contained in the affidavit filed in support of the writ petition, the Tribunal failed to consider the same and dismissed the transferred application on the specious ground that the State Government had the discretion to prescribe different pay scales for different posts and services. Learned counsel then referred to Memorandum dated 13.3.2001 to show that the State Government suo moto sanctioned posts in Scale No.19 for different services including the one to which the respondents belonged and argued that the Tribunal did not commit any illegality by taking cognizance of the said Memorandum for the purpose of recording a positive finding on the issue of discrimination in the matter of grant of higher pay scales to similarly situated persons. 6. We have given serious thought to the entire matter and scrutinized the record. Articles 323A and 323B were inserted in the Constitution by Section 46 of the Constitution (Forty-second Amendment) Act, 1976 in the backdrop of pendency of large number of cases relating to recruitment and conditions of service of the employees of the Central and State Governments....
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....espect of some matters including review of their decisions. This is clearly evinced from the plain language of Section 22 of the Act, which is reproduced below :- "22. Procedure and powers of Tribunals.- (1) A Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and subject to the other provisions of this Act and of any rules made by the Central Government, the Tribunal shall have power to regulate its own procedure including the fixing of places and times of its inquiry and deciding whether to sit in public or in private. (2) A Tribunal shall decide every application made to it as expeditiously as possible and ordinarily every application shall be decided on a perusal of documents and written representations and after hearing such oral arguments as may be advanced. (3) A Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely,- (a) summoning and enforcing the attendance of ....
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....established under the Act is entitled to review its order/decision only if either of the grounds enumerated in Order 47 Rule 1 is available. This would necessarily mean that a Tribunal can review its order/decision on the discovery of new or important matter or evidence which the applicant could not produce at the time of initial decision despite exercise of due diligence, or the same was not within his knowledge or if it is shown that the order sought to be reviewed suffers from some mistake or error apparent on the face of the record or there exists some other reason, which, in the opinion of the Tribunal, is sufficient for reviewing the earlier order/decision. 12. Before proceeding further, we consider it proper to mention that there was divergence of opinion among the High Courts on the question whether the subsequent contra judgment by the same or a superior Court on a point of law can be treated as an error apparent on the face of the record for the purpose of review of an earlier judgment. In Lachhmi Narain Balu vs. Ghisa Bihari and another [AIR 1960 Punjab 43], the learned Single Judge of the then Punjab High Court held that the Court cannot review its judgment merely be....
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....of the parties seeking review despite due exercise of diligence when the order was made. Review can also be sought when the order discloses some error apparent on the face of record or on grounds analogous thereto. These are all grounds which find mention in various judicial pronouncements right from the earliest time as well as in the Rules of Order XLVII of the Civil P.C. as permissible grounds of review. An Explanation was added to Order XLVII Rule 1 by the amendment of the Civil P.C. by Central Act No. 104 of 1976. It reads : "The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment." 10. This explanation was added on the recommendation of the law Commission to put an end to the controversy which had arisen as regards whether a judgment could be reviewed merely on the ground that the decision on a question of law on which the same was founded has been reversed or modified by the subsequent decision of a superior Court. Almost all the High Courts, save for the solitary exception of Kerala....
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....d by him at the time the decree was passed, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. It is not necessary to decide in this case whether the latter words should be confined to reasons strictly ejusdem generic with those enumerated, as was held in Roy Meghraj v. Beejoy Gobind Burral [(1875) Ind. L.R. 1 Calc. 197]. In the opinion of their Lordships, the ground of amendment must at any rate be something which existed at the date of the decree, and the section does not authorize the review of a decree which was right when it was made on the ground of the happening of some subsequent event." [Emphasis added] 18. In Sir Hari Shankar Pal and another vs. Anath Nath Mitter and others [1949 FCR 36], a Five Judges Bench of the Federal Court while considering the question whether the Calcutta High Court was justified in not granting relief to non-appealing party, whose position was similar to that of the successful appellant, held : "That a decision is erroneous in law is certainly no ground for ordering review. If the Court has decided a point and decided it erroneously, the error could not be one apparent on the fa....
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..... While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise"." [Emphasis added] 22. In Haridas Das vs. Usha Rani Banik and others [2006 (4) SCC 78], this Court made a reference to explanation added to Order 47 by the Code of Civil Procedure (Amendment) Act, 1976 and held : "In order to appreciate the scope of a review, Section 114 CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the court since it merely states that it "may make such order thereon as it thinks fit". The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason". The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highli....
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.... on the power of review and there would be no certainty or finality of a decision. A slightly different view was expressed in Gopabandhu Biswal vs. Krishna Chandra Mohanty and others [1998 (4) SCC 447]. In that case it was held that the power of review granted to the Tribunals is similar to the power of a Civil Court under Order 47 Rule 1. 25. In Ajit Kumar Rath vs. State of Orissa and Others [1999 (9) SCC 596], this Court reiterated that power of review vested in the Tribunal is similar to the one conferred upon a Civil Court and held:- "The provisions extracted above indicate that the power of review available to the Tribunal is the same as has been given to a court under Section 114 read with Order 47 CPC. The power is not absolute and is hedged in by the restrictions indicated in Order 47. The power can be exercised on the application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient r....
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....rom the above noted judgments are : (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 sub....
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....eputy Director and Director. In their counter, the appellants categorically averred that the Scheme was meant only for those employees who did not have adequate promotional opportunities and that the writ petitioners were not entitled to Scale Nos.19 and 21 because they had already received promotions and were holding the highest post. According to the appellants, the Scheme was framed by an Expert Committee and in the absence of any patent arbitrariness, the High Court did not have the jurisdiction to issue a mandamus to extend the benefit of higher scales to the petitioners. It was also pleaded that recommendations made by the Secretary of Administrative Department were not binding on the Government. The Tribunal elaborately referred to the pleadings of the parties, considered the arguments of their counsel and held that the petitioners (applicants) are not entitled to the benefit of the Scheme because they were holding highest post in the service and were being paid salary in the scale prescribed for that post. The Tribunal further held that the Scheme was not discriminatory because benefit of higher scales was given to different services keeping in view the ratio of higher post....
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....n warranted exercise of power by the Tribunal under Section 22(3)(f) of the Act. At the cost of repetition, we consider it necessary to mention that the plea of stagnation was not raised in the affidavit filed in support of the writ petition. In the Memo of Review, the respondents made a bald assertion that they were stagnating on the same post and in the same pay scale in 1982 but the said assertion was ex-facie farcical because as per their own showing (para 5 of the affidavit of respondent no.2 - Narayan Chandra Ghosh), the respondents had joined service in the basic grade post i.e. Sub- Divisional Controllers of Food and Supplies and within a short span of 15 to 16 years they got three promotions and were also granted benefit under ROPA 1981 and ROPA 1990. Therefore, the plea of stagnation could not have been made basis for reviewing the finding recorded in the earlier order that the respondents had not been discriminated. Unfortunately, the Tribunal did not advert to the well recognized limitation on the exercise of power of review under Section 22(3)(f) of the Act read with Order 47 Rule 1 CPC and straightaway recorded a finding of discrimination by placing reliance on Memora....
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....adre including three years as Joint Secretary. Govt. has also decided to fill up some of the posts of the District Magistrates by W.B.C.S. (Ex) Officers. Detailed Govt. order in this respect will be issued later on. ii) One additional post of Special Commissioner, Commercial Taxes in the Scale No.21 is created and such post is to be filled up by selection from amongst the Additional Commissioners who have put in a total service of thirty years since entry into West Bengal Commercial Tax Service including six years in Scale No.19 are also created for West Bengal Commercial Tax Service and the eligibility condition for Scale No.19 will be the same as stated in Govt. order No.6075-F dated 21.6.90. iii) Fifty-five additional posts in Scale No.19 in West Bengal Health Service are created and the eligibility condition for Scale No.19 will be the same as stated in Govt. order No.6075- F dated 21.6.90. iv) Ten posts in Scale No.19 in West Bengal E.S.I. Medical Service are created and the eligibility condition for Scale No.19 will be total service of 20 years on revised Scales No.16, 17 & 18 and their unrevised counterparts and three years in Scale No.18. v) The additional po....
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....laced because the only point decided in that case was whether members of the service are entitled to the benefit of Scale Nos.16, 17 and 18 under ROPA 1981 in the ratio of 6:3:1. The Scheme notified on 21.6.1990 was not the subject matter of consideration in that case. In the counter filed in Joydeb Biswas's case, the appellants herein did rely on order dated 25.2.1997 passed in the case of the respondents to show that the decision taken by the State Government not to distribute Scale Nos.16, 17 and 18 in the ratio 6:3:1 was not discriminatory, but the Tribunal refused to consider the same by observing that the question relating to distribution of posts in Scale Nos.16, 17 and 18 under ROPA 1981 had not been considered in that case. This being the position, the Tribunal could not have, by relying on the order passed in Joydeb Biswas's case, declared that the recommendations made by Secretary of Food and Supplies Department are binding on the State Government. In any case, in view of the explanation added to Order 47 by the 1976 amendment, the Tribunal could not have relied on the subsequent order for holding that the contra view expressed in the earlier order was erroneous.....
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....se of deciding the limited aspect of admission of the review petitions." 38. That apart, a careful reading of the judgment shows that in paragraph 13 thereof, this Court categorically observed that an important argument regarding the alleged illegality of the approval granted by the Central Government to the proposal of the State Government had not been considered and copy of order dated 14.1.1999 passed by the Chief Minister on which reliance was placed by the Court had not been supplied to the party and the same was not even available on record and all this prima facie constituted an error apparent on the face of the record. 39. In Board of Control for Cricket in India vs. Netaji Cricket Club (supra), this Court considered whether the Division Bench of Madras High Court was justified in admitting the review petition. After making an elaborate reference to the factual matrix of the case and some judgments, the Two Judges Bench concluded that the High Court did not commit any error by entertaining the review petition. In para 91 of the judgment, reference has been made to an earlier judgment in Moran Mar Basselios Catholicos and another vs. The Most Rev. Mar Poulose Athanasiu....