THE STATE OF WEST BENGAL AND OTHERS v. KAMAL SENGUPTA AND ANOTHER

Citation: [2008] 10 S.C.R. 4

Court: Supreme Court of India

Bench: B.N. AGRAWAL, G.S. SINGHVI

Case summary

THE STATE OF WEST BENGAL AND OTHERS v. KAMAL SENGUPTA AND ANOTHER.pdf

Judgment text

[2008] 10 S,_C. R. 4 .. ~. ,THE STATE. OF WEST BENGAL AND OTHERS II. KAMAL SENGUPTA AND ANOTHER (Civil Appeal No. 1694 of 2006) JUNE 16, 2008 [B. N. AGRAWAL AND G. S. SINGHVI, JJ. ] ,_ · · Administrative Tribunals Act, 1985 - s. 22 (3) (f) - Power of Administrative Tribunal"- To review its decision - Scope of 1 ... :. Held: Tribunal's power to review its·order since is akin to that of civ/I court, triblfnal is entitled to review its decision only on the groun'tls-G;vailable under 0. 47 r. 1 CPC - Tribunal cannot review its decision on the basi$ of subsequent deci~ion of a coordinate or larger bench of the Tribunal or ofa superior Court ::- In the facts of the case, none of the grounds set outinreview petition warranted . exercise of power ofreview by . the Tribunal ... ,. Code of Civil_Procedure,-1908- s. 14, o. 47-r. 1(as amended · in 1976). :. .. . .

1' -successfully passing the West Bengal Civil Service (Executive) and certain allied service --:-·--::~ examination held in 1973 were first posted in the basic grade pos~s . of Sub-Divisional .. Controller of Food and Supplies and thereafter in recognition to meritorious service since rendered by them were posted in different senior posts and posts with higher responsibilities like Assistant Director, Deputy Director and lastly . were posted ·as Director in the year of 1991 "•'. -H and 19. 92 respectively. THE STATE OF \/VEST BENGAL & ORS. v. KAMAL 9 . 9. - That the petitioners were awarded Scale A. No. 19, (Rs. 1600/- to 2250/-) according to their respective seniority cum merit w. e. f 01. 03. 1982 and 01. 11. 1982 respectively and on 1st January, 1986 when the pay of the petitioners were to pe fixed ·notionally in terms of the provision of West Bengal Services (ROPA) Rules, 1990, the petitioners were drawing pay Rs. 18401- and Rs. 1780/- respectively. 13.

That the petitioners state that under RO. PA, 1990 the members of W. B. F. & S. S. , have been awarded three scales of pay namely scale Nos. 16 (Rs. 2200/- to. Rs. 4000/-) 17 (Rs. 3000/ - to Rs. 4750/-) and 18 (Rs. 3700/- to Rs. 5·700/ -) inasmuch as these scales co~respond 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) 1s given hereunder: Name of Service Grade Scales Eligibility condition Strength 19 21 for Scale No. 19 & 21 (Revised) 1 2 3 4 ---------------------- 1. W. B. S. C. (Exe) 1767 64 20 years of total 4 service on Revised Scales Nos. 16, 17, 18 and their unrevised counter parts and 3 years in unrevised scale no. 19 or revised soale no. 18. 2. W. B. Commercial 566 8 - 1 Same as for Tax Service W. B. C. S 3.

W. B. Co-opera- 162 2 Nil - do - -tive Service 4. W. B. Excise Serv. 190 1 Nil - do - 5. W. B. National 170 1 - Nil - do - Employment serv. 6. W. B. LabourServ. - 132 1 Nil - do - 7. W. B. F. & S. S. 280 Nil Nil - do - 8. W. B. Police Serv 279 2 Nil - do - - '(Group B Service. ) 9. W.. B. General 3 Nil - do - Service not known 18. It is evident from the foregoing paragraph that all the State Services constituted under Art. _309 of the Constitution of India and having same method of recruitment have been given the benefit of Scale No. 19 under Career Advancement Scheme save and except the West Bengal F9od and Supplies Service which is a duly'constituted State Service and belongs to Group "A" State Services along with other, under West Bengal Civil Services (Exe) and Certain allied Services.

" (iv) In the counter-affidavit filed on behalf of the appellants herein, it was averred that the Scheme was framed to improve the standard of administration c;tnd career - prospects of the employees, who did not have adequate promotional opportunities. It was further - ·averred that benefit of the Scheme was not extended to the writ petitioners because they had been promoted to the higher posts and were paid salary in the scales prescribed for those posts. As regards the recommendations made by Secretary, Food & Supplies D~partment, it was averred that the same . are not binding on the State Government. Paragraphs 7, 12 and 13 of the counter affidavit which are reflective of the stand taken by the appellants read as under:- "7. With reference to the said paragraph, it is pertinent to point out that so far as the service of writ petitioners is concerned, they have reached their highest pc;>st in the service as admitted by the. r:n.

They have also reached the highest scale of pay as are admissible to the highest post. They are no longer eligible for any scale under the Career Advancement Scheme as the said Scheme is not meant for ~~- 12. With reference to the allegations contained in paragraphs 18 to 20 of the writ petition, it is denied that all the State services have been given the benefit of scale no. 19 save and except West Bengal Food & Supplies service or that cadre strength has anything to do with the __ Career Advancement Scheme or that there is any arbitrary act or agt which is violative of the principles of equity and the principles of natural justice as wrongfully alleged or at all. In this context, I repeat and reiterate that the Career Advancement Scheme for the Government employees is guicfed by the Finance Department Memo dated June 21, 1990.

In order to allow the benefit of higher pay scale to · the incumbents of the respective services subject to fulfillment of certain conditions, the said Scheme was introduced. The members · of the State Service including the West Bengal Food & Supplies Service are entitletl ·tcr H- promotion in the higher scale of pay being scale nos. 16, 17 and 18. In addition to· the above be. nefit, as per ·promotion policy of the ·Government, the members of some of the State services have been allowed. the benefit of scale nos. 19and. 21 as per GareerAdvancement "'"! · 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 s"cale of pay depends on a variety of consideration. r:-iamely ratio of higher post to base le\(el post in the feeder grade, hierarchical .. · stru.

cture of the department, the level of work and nature of responsibilities,. the proportion of di_rect recruitment, the pace of growth of normal activities of a department, the avenue of normal promotion etc. On considera'tion ,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. In fact, the Third Pay Commission as ~n expert body held that it is not possible to grant equal opportunities of . • promotion to the higher post to the employees in general on account of the said various factors. If necessary, I shall crave leave to refer to a copy of the recommendation of the Third Pay Commis-sion at the hearing. 13. With reference to the allegations contained _ in paragraphs 21 to 25(b) of the writ petifion, it is denied that there is any discrimination as alleged or at all. The D. O.

letter dated October 5, 1992 is a mere recommendation by the . departmental head as is usual practice for all the · departmental heads to forward representations which were received from their employees. As already stated above, the· consideration which are relevant for the purpose of extending the Career Advancement Scheme are totally different. The incumbents who are holding the post of Commerdal Tax Services are not obviously at par with the post held by the petitioners. In this context, it is also pertinent to mention that the matter of extending the Career Advancement Scheme is a matter of policy decision. As already stated and admitted · ·by the writ petitioners that they have reached the scale no. 19, under ROPA Rules, 1990 and as such their getting further career advancement 0 does not and/or cannot arise. "· (v) On establishment of the Tribunal, the writ petition was transferred to it and was registered as ·Transferred Application No. 826 of 199·5_ By an order dated 25. 2.

1997, the Tribunal dismissed the same. , ·It held that the pay structure has been worked out by the Third Pay Commission after proper job evaluation of different services and posts; that there cannot be ( any equality among the members of different services; ·that the State Gqvernment. was free to frame appropriate scheme for grant of higher pay scales to the members of some services who did not have adequate promotional opportunities and that in the absence of any evidence of parity, a mandatory · direction cannot be issued for grant of higher pay . G scales to the applicants. (vi) The respondents challenged the order of the Tribunal in WPST No. 59of1997, which was di. $missed by the High Court with an observation that the only remedy available to the petitioners was -to file petition for -H special leave to appeal. Thereafter, the respondents filed SLP No.... of 1998 (CC 5925/1998), which was dismissed on 4. 9. 1998 as withdrawn in terms of the ·.

- case of the applicants employed in Food and Civil Supply Department, but the broad fact remains that the authority competent to decide this question is the Departmental Secretary being the respondent no. 2, who by his elaborate and reasoned order in Annexure 'G', has fully upheld'the case of the applicants. Being the administrative head of the concerned Department he is the most competent person to decide about the cadre strength, the promotional prospect and the distribution of the promotional scales of pay, and going through his . Ord. er we do not find any unreasonableness or arbitrariness in his judgment. 0 In view of the conclusion reached on the second point above, we may dispose of the third contention raised by the State respondents that due to the decision in . Kamal Sengupta's cas·e the point is concluded against the applicants. We do not agree for the simple reason_ that in Kamal Sengupta's case the question wa§> whether scale nos.

20 and 21 of ROPA Rules of 1990 should be extended to the officers of the Food Department and in that judgment there was no point 1 for consideration as to how the scale nos. 17, 18 and 19 are to be distributed amongst the officers of the Food & Supply Department. So the third point taken by the State respondents also fails. That takes us to the irresistible conclusion that there is no valid ground to refuse the applicants the benefit ofscalenos. 17, 18and 19intheratioof6:3:1. Atthe risk of repetition we may say that the decision of the respondent no. 2 as indicated in Annexure 'G' is concrusive: The question. whether the Secretary, - Finance Department will issue necessary Government [2008] 10 S. C. R · orders or whether such ·order will involve additional ·financial burden upon the State exchequer is of no :. consequence to. us. When the admini. strative head . of a particular department has taken a well reasoned decision on the· representation of the applicant anci . y .

B pursuant to our direction in the earlier writ petition, the respondent no. 1 cannot be allowed. not to impleme. nt the same on any plea, whatsoever. " [Emp~asis added] . ·(x) After dismissal of . the· Special ~eave Petition, the . c 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 respqntjen~s pleaded that iri . °" . , view of the recommendations mad~ bY.. Secretary of Food and Supplies Department, which are binding - . . . • I : . . on the State Government, they are entitled to Scale ..... Nos. 19 and 2·1. In suppor_t of this plea, the resp. ondents-reli~d on order- :1 of 2001 by asserting that the Tribunal did not have the jμrisdiction to review order dated 25. 2. 1997 on the basis of ~~ubsequent· order-'}:J°assed in 'Joydeb Biswas's case.

Another ~plea taken 'by' the appellants wa·s that the recommendations rr1ade py the Secretary of the Administr,ative Department are . not ~ir:idlng. ¢n'~the State Government. · The Division Bench of the High Court tieldthatthe Tribunal could nnt have entertained an~:faHowed the ·review application on the ·basis of a decision w:hi,th was not in existenC'e 'at the . time of inl'tial order, but c;le- ;G dine'cftointerfere withorder"'dat~d 25. 9''. 2001 by observing that denial of higher~cpay'Scale fo members of the service had re- • f', ' ' ' ' ' ' ,. suited in violation of their fundamental rights;under Articles 14, ~... · .. ',,·. . '•, .... ~ .. ' 1 r- 16 an'CJ 21 oHhe G6hstitution. .. _. · · j. ~. J. ' ~ ' " .. · ;- A. Shri Bhaskar P: Gupta, Senior Advocate appearing for _)he petitioners extensively referred to the pleadings of Writ Pe- titio. n No. 1547 of 1995, which. was later. on converted into Transferred Application No. 826 of 1996, R. A. No. 26 of 1998, orders dated 25. 2.

1997, 25. 3. 1998 and 25. 9. 2001 passed by the Tribunal, orders dated 8. 1. 2001 and 21. 8. 2003 passed by the High Court in WPST 'No. 37 of 2000 and -WPST Nos. 1 and 2 of 2001 respectively arid order dated 4. 9~1998 passed by this Court in SLP No .... of 1998 (CC 5925/1998) and argued that the Tribunal committed a jurisdictional error by entertaining the review application on the ground that in Joydeb Biswas's case a direction had been given to the State Government to act on the recommendations made by the Secretary of the Administrative Departmerit for grant of relief to the applicants of that case and while dismissing the SLP, the Supreme Court had observed that the petitioners can seek review of the order passed in the transferred application.

Shri Gupta submitted that power vested in the Tribunal under Section 22(3)(f) of the Act to review its order/decision is ~imilar to that of the Civil Court and the same can be exercised o·nly- or the grounds specified in Order 47 · · Rule 1 of CPC. Learned counsel emphas·ized that any subsequenf decision on an. tdentical or similar p. oint by a coordinate or larger bench or even change of law cannot be made basis fOr recording a finding that the order sought to be reviewed suffers from·an error apparent on the face of the record .. Shri Gupta argued that the Tribunal could not have reviewed order dated 25,2. 1997 by relying on order dated 25. 3'. 1998 pas~ed in Joydeb Biswas's Case, because that order did n. ot contain any determination on the issue ofSanction of posts ii) Scale Nos. 19 · and 2:1 under the Sch~me circutated vide M~morandum dateg 21. 6. 1990. He further argue~ that even if the order passed by .

the Tribunal in Joydeb Biswas's case could be relied upon for the purpose of holding that recommendations mad~ by ·the- . Secretary of the Administrative D~partrnent a~e binding on the G . Government, a mandat _~----. _.. Jation·s·itfmfies. ah-cerro"rwhich, is evidentper se from the record· 0 of the case. ~nd does not require detailed examinatiorl, scrutiny and elucidation either of the facts or the)~gal position. lf an error is notself-evident and detection thereof rectufres iong debate and process of reasoning, it cannot·be treated as an error ·~- .. apparent on the face of the reGord for the purpose of Order 47 ·. Rule 1 CPC or Section 22(3)(f) ofthe Act. To put it differently an . order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the CourtrrribunaLon a point of fact or law.

In any case, while exercising the power ofreview, the concerned Courtrrribunal cannot sit in appeal over its judgment/decision. 16. We may now notice some of the judicial precedent~ in· which Section 114 read with Order 47 Rule 1 CPC and/or Section 22 (3) (f) of the Act. have . been interpreted and limitations on the power of the Civil CourtrrribunaHo review its judgment/ decision have been identified. , ·· }... ' . ;;... _·:.. 1. 7·. In Rajah Kotagiri Venkata Subamma Rao ys. Rajah Vellanki Venkatrama Rao [1990 (27) Indian Appeals 197), the Privy Council . interpreted Sections 206 and 623 of the Civil. Pro- SENGUPTA & ANR. fGS. ~. §INGHVI, J. ] cedure Code and observed: "Section, 623 enables any of the parties to apply for" review of any decree on the discovery of new and important matter and evidence, which was not within his knowledge, .

or could not be produced 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 Megh. raj v. Beejoy Gobind Burral [(1875) Ind. L. R. 1 Calc.. 1~7]; /n-1heppinionpt their l!. ordship? /_ti]. e. gr~nd of amendment must qf any rate. · ~;;Something W. hich .... r:....... · ~ existed at the date of the decree, and the section does not authorize the review ofa decree which was right when· it was made on the ground of the happeninf} of some 'subsequent event. " -----. _ .. f-'. ,, [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· __f_ederal .

Court while considering the question whether the Calcutta High Court was justified· in not granting relief to nof1appealing party, who. se 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 face of the record or even analogous to it When, however, the court disposes of a case without adverting to or applying its mind to a provision of law which gives it jurisdiction to act in a particular way, that may amount to an error analogous to one apparent on the face of the /::·('/c/. ;•;.. ,,~f. . ;, record s~fficient to bring tne-case within the purview of Order XLVll, Rule 1, Civil Procedure Code. " - ,.. 19. In Moran Mar Basselios Catholicos and another vs. Thf; Most Rev.

Mar Poulose Athanasius and others [1995 (1) SCR 520]," this Court interpreted the provisions contained in Travancore Code of Civil Procedure w~ich are analc:>_gous to Order 47 Rule 1 and observed : "Lfrider the provisions in the Travancore Code of Civil . y. Procedure which is similar in terms to Order XLVll, Rule 1 of our Code of Civil Procedure, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits. fixed by the language used therein. It may allow a c· review on three specified grounds, namely, (i) discovery l= _ of new and important matter or evidence which, after the . -~ exercise of due diligence, was not Within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent ;>on the face of the record and (iii) for any other sufficient ~ r reason.

It has been held by the Judicial Committee that >-the words "any oth·er sufficient reason" must mean "a r reason sufficient on grounds, or least analogous to those specified in the rule". " ' '- I 20. In Th. ungabhadra Industries Ltd. vs. Govt. ofA. P [AIR r 1964 SC 1372) it was held that a review_is by no means. an appeal in disguise whereof an erroneous decision can be cor- · rected. , · 21. In Parsion Devi and Others vs. Sumitri Devi and 0th- --\ ers [1997 (8) sec 715), it was held as under:i ~.... I "Under Order 47 Rule 1 CPC. a judgment ·may be open to I . ~ . t~i. review inter alia if there is a mistake or an error apparent ' '·on the face of the record. ·An. -error which is not selfevident and has. to be detected by a process ofreasoning, can hardfy,be said·to be an error apparent on the face of the record justifying. the ·Court to exen::is~ its power of ,l ·review under. Order 47, Rule ·1 CPC. · In exercise of the jurisdiction under Order 47, Rule 1 C PC: it is not '. H ...

_permissible for an erroneous decision to be "reheard and ;... _ corrected". There is a clear distinction between an erroneous decision and an error apparent on the face of the record. 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 Oas 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 highlighted all the aspects of the case or could perhaps " have argued them more forcefully and/or. cited binding precedents to the court and thereby enjoyed a favourable verdict.

This is amply evident from the Explanation to Rule 1 of Order 47 which states that 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. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the court should exercise the power to review its order with. the greatest circumspection. " f 23. In Aribam Tuleshwar Sharma vs. Aribam Pishak ( Sharma (supra), this Court considered the scope of the High Courts' power to review an order passed under Article 226 of 8 the Constitution, referred to an earlier decision in Shivdeb Singh vs. State of Punjab [AIR 1963 SC 1909] and observed : "It is true as observed by this Court in Shivdeo Singh v.

State of Punjab, AIR 1963 SC 1909, there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the ·power of review which is inherent ·in every Court of plenary jurisdiction to prevent miscarriage ofjustice or to correct grave and palpable errors committed by it But, there are definitive limits to the exercise ofthe power of review. The power of review may be exercised on the discovery of newand important matter or evidence which, after the exercise of due diligence was not within the . knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on theface of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that'the decision was erroneous on merits. That would be the province of a Court of appeal.

't : ·A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all matters or errors committed by the Subordinate Court. " 24. In K Ajit Babu and others vs. Union of India and others [1997 (6) sec 473], it was held that even though Order 47 Rule 1 is strictly not applicable to the Tribunals, the principles contained therein have to be extended to them, else-there would be no limitation on the power of review and there would be no f. I certainty or finality of a decision. A slightly different view was .. expressed in Gopabandhu Biswal vs. Krishna Chandra -H Mohanty and others [1998 (4) sec 447]. In that case it was THE STATE OF WEST BENGAL & O. RS. v. KAMAL 35 held that the pow-er ofreview granted' to the Tribunals is similar to the power of a Civil Court unB'er Order 47 Rule 1. . 25. ln ,4,jitKumar Rath vs. State. of Orissa ard Others [1999 (9). SCC 596), this Court reiterated thatpower Ofrevr.

~w 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 i$ not absolute and is hedged . in by. the restrictions Indicated in Omer 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. 0 order was made. The power can also be exercised on account ofsome mistake or error apparent on the face of the record or for any other sufficient reason.

A review cannot be claimed or asked for merely for a fresh ·hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it. It may be pointed out that the t expression "any other sufficient reason" used in Order 47 Rule 1 means a reason sufficiently analogous to those specified in the rule. Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out in Order 47, would amount to an abuse of the liberty given to the Tribunal under the Act to review its iudgment. " [Emphasis addedJ 26. In State of Haryana and Others vs. M. P Moh/a [2007 ,.. (1) sec 457), this Court held as under:- "A review petition filed by the appeilants herein was not maintainable. There was no error apparent on the face of the record.

The effect of a judgment may have to be considered afresh in a separate proceeding having regard . ,.. to the subsequent cause of action which might have arisen but the same by itself may not be a ground for filing an application for review. " 27. In Gopal Singh vs. State Cadre Forest Officers' Assn. and Others [2007 (9) SCC 369], this Court held that after rejecting the original application filed by the appellant, there was no justification for the Tribunal to review its order and allow the revision of the appellant. Some of the observations made in that judgment are extracted below: r "The learned counsel for the State also pointed out that there was no necessity whatsoever on the part of the Tribunal to review its own judgment. Even after the microscopic examination of the judgment of the Tribunal we could not find a single reason in the whole judgment as to how the review was justified and for what reasons.

No apparent error on the face of the record was pointed, nor was it discussed. Thereby the Tribunal sat as an appellate authority over its own judgment. This was completely impermissible and we agree with the High Court (Justice -\ Sinha) that the Tribunal has traveled out 6f its jurisdiction to write a second order in the name of reviewing its own judgment. In fact the learned counsel for the appellant did not address us on this very vital aspect. " 28. The principles which can be culled out from the above noted judgments are : (i) The power of the Tribunal to review its order/decision · ;- JI 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 i. s 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. f- (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. ~ ~ 29. In the light of the above, we shall now consider whether order dated 25. 2. 1997 passed by the Tribunal in Transferred Application No. 826 of 1996 suffered from any patent mistake 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 posts to base level posts in the feeder grade, hierarchical structure of the depart- ~ ment, the level of work and nature of responsibilities, the proportion of direct recruitment, the pace of growth of normal activities of a department and the avenue$ of promotion. The Tribunal then observed that recommendations are usually made by all departmental heads but the same are not binding on the Government. It is thus evident that the Tribunal had considered allthe points raised by the respondents and negatived their claim by assigning cogent reasons. The Tribunal did not consider the issue ~f stagnation because neither any such plea was taken in the affidavit of respondent no. 2 nor any argument was advanced on that score. 30. In the review application, the respondents did assert !

-that they were stagnating on the same post and in the same pay scale since 1982, but no material was placed before the Tribunalto substantiate the said assertion or to show that members of other State Services had been given benefit of Scale Nos. 19 and 21 despite the fact that they received promotions during the course of service. The respondents reiterated the ·... plea of discrimination by alleging that benefit of Scale Nos. 19 and 21 had been extended to members ofother State Services ~ ~ but the same was denied to them without any rhyme or reason, but no evidence waf) produced by them to prime facie prove this allegation. The respondents also relied on order dated 25. 3. 1998 passed in Joydeb Biswas's case in support of their _. plea that recommendations made by the Secretary of the Administrative Department are binding on the Government and pleaded that in view of the latter decision, the earlier order is liable to be reviewed. 31.

The Tribunal made a detailed note of the argument~ of ". '( the senior counsel appearing for the respondents and held that they have been discriminated in the matter of grant of Scale Nos; 19 and 21. For this purpose, the Tribunal relied on Memorandum dated 13. 3. 2001 issued by the State Government for sanction of posts in Scale Nos. 19 and 21 for different State . Services. The Tribunal also relied on the ratio of Joydeb t· Biswas's case and held that the contra view expressed by it on the issue of binding character of the recommendations made by Head of the Administrative Department was not correct. ~- 32. In our opinion, neither of the grounds set out in the Review Petition 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 ~hort 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 thewell recognized limitation on the exercise of power ~ of review under Section 22(3)(f) of the Act read with Order 47 /t; Rule 1 CPC and straightaway recorded a finding of discrimination by placing reliance on Memorandum dated 1~. 3.

2001, which, in our considered view, did not advance the cause of the respondents. For better appreciation of this aspect of the case, the relevant portions of Memorandum dated 13. 3. 2001 are extracted below : "Government of West Bengal Finance Deptt. Audit Br. No. 3015-F Kolkata 1 13 h March, 2001 MEMORANDUM "The question of improving the existing Career Advancement Scheme for the State Government employees as introduced in Finance Deptt. No. 6075-F dated 21. 6. 90 has been under consideration of the Government for sometime past. The recommendations 0 of the Fourth Pay Commission on this aspect have also been under examination of the State Government. After -careful consideration, the Governor is now pleased to modify the existing Career Advancement Scheme of the State Government employees in the manner indicated below. 1to3. xx xx xx xx 4. Over and above the existing posts in Scale Nos. 19 and 21 in various State Services as mentioned in F. D. No. 6075- F dated 21. 6.

90 the following additional posts shall be available to different State Services : i) Forty three additional posts in Scale No. 19 ir:i West Bengal Civil Service (Executive) are created a·nd the eligibility condition for Scale No. 19 will be the same as stated in F. D. No. 6075-F dated 21. 6. 90. · Six additional posts of Special Secretary/Secreta,. Y in the revised Scale No. 21 are sanctioned for W. 8. C. S. (Ex) and such posts are to be filled up by selection from amongst W. B. C. S. (Ex) Officers who have completed twenty five years of total service in the cadre 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 amon.

gst 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. l. 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 posts in Scale No. 19 are created for West Bengal Secretariat Service and the eligibility conditfons for these two posts will remain the same as at present. vi) .

As regards other constituted State Services as mentioned in. Finance Deparjment Memo No. 6075-F dated 21. 6. 90 which have not been mentioned in this Memo, two additional posts in Scaie No. 19 are created for each of those constituted State Services and the eligibility condition for Scale No. 19 will be same as stated in FD. No. 6075-F dated 21. 6. 90. vii) The number of posts in the basic grade in various State Services as mentioned above will stand reduced by the equivalent number of posts created in Scale Nos. 19 and 21. 5. Other provisions of the existing Career Advancement 8 Scheme as contained in this Department No. 6075-F, dated 21. 6. 90 which are not inconsistent with the provisions of this memorandum shall continue to remain in force. 6. This will come into effect from 1. 1. 2001. " [Emphasis added] The plain language of the above reproduced Memorandum shows that the State Government had, after considering the· representations made by employees of different.

services, sanctioned addi. tional number of posts in Scale Nos. 19 and 21. 0 For th~ Officers of Food and Supplies Department, two posts were sanctioned in Scale No. 19. This development had taken ·place after more than four year& of dismissal of Transferred Application. No. 826 of 1996. A holistic reading of the Memorandum dated 13. 3. 2001 mE! kes it clear that the same cannot, by any stretch of imagination,·be read as suo moto acceptance by the State Government of the respondents' claim for Scale . Nos. 19 and 21. Therefore, the Tribunal could not have considered the same for granting relief to the respondents and that 100 by ignoring para 6 of the Memorandum in terms of which the additional posts were to become operative from 1. 1. 2001. - In any. case, the Tribunal could not have, without recording a reason based finding that order dated 25. 2. 1997 was vitiated ~~ by a mista. ke or error apparent o.

ri'·the face of the record or there existed some other reason analogous to an error apparent, reviewed that order simply on the basis of the decision taken by the State Government to sanction posts in Scale No. 19 for members of the service apart from other State Services. 33. The Tribunal's reliance on the order. passed in Joydeb Biswas's case was clearly misplaced 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 y 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 '1 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. 34. There is . another reason for our conclusion that the Tribunal was not entitled to rely on the order passed in Joydeb Biswas's case for the purpose of reviewing order dated 25. 2. 1997.

Undisputedly, that order is under challenge in the writ petitions filed before the High Court of Calcutta. Therefore, even though prima facie we are inclined to agree with learned senior counsel for the appellants that mere recommendations F· ofthe Secretary of the Administrative Department or for that reason any other authority, are not binding on the Government - Union of India vs. Arun Jyoti Kundu and others (supra), we do not consider it necessary to finally pronounce on this issue, because it will prejudice adjudication of the matter pending before the High Court. 35. The most astonishing feature of order dated 25. 9. 2001 is that without making any discussion on the entitlement of the respondents to get the benefit of Scale No. 21, the Tribunal directed the State Government to sanction that pay scales to them. ~ While doing so, the Tribunal conveniently overlooked the fact that benefit of the Scheme (Scale No . 19) had not been given to members of three State Services i. e.

West Bengal Agricultural Income Tax Service, West Bengal Fisheries Service and West Bengal Food & Civil Supplies Service and benefit of Scale " No. 21 had been extended to the members of only 2·out of 17 State Services i. e. West Bengal Civil Services (Executive) and West Bengal Commercial Tax Services and that any drrection in favour of the respondents would result in huge discrimination qua members of other State Services. 36. For the reasons mentioned above, we hold that the --. 4 Tribunal committed a jurisdictional error by entertaining and al- ~ lowing the review application filed by the respondents and the direction-given by it for extending the benefit of Scale Nos. 1 ~ and 21 to them is legally unsustainable. -\ 37. The three judgments cited by Shri Dhruv Mehta, learned counsel for the respondents are clearly distinguishable. In Indian Charge Chrome Ltd. vs.

Union of India (supra), the Three Judges Bench made detailed discussion on this Court's power of review but the same was meant only for the purpose of admission of the review application. This is evident from the last line of the order, which is extracted below : "We make it clear that the observations made in this order ,... are only for the purpose 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 constihited an error apparent on the face of the record. 39.

ln BoardofControlfotCricketin India. vs. NetajiCricket Clup (supra); this Court considered whetherthe 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 Judg. es Bench c. on· s eluded that the High Cou. rt did not commit any error by entertaining the review petition. In para 91 of the judgment, reference has been niade to an earlier judgment in . Moran Mar . Basselios Catholicos and another vs. The Most Rev. Mar Poutose Athanasius and others (supra) in which expression 'any other sufficient reason' was interprte. d. and it has been ob.. served thatthe said rule is not universal. However, the judg.. ment of the Two ju~ges Bench is conspicuously silent as to why the ratio ofthe earlier judgment warrants a deviation. The one line obse.

rvation contained in para 93 that while exercising review jurisdiction the Court·can take into consideration subse- 0 quent event has to be treated as confined to the fact. s of the case involving the controversy between rivat Cricket AS$0Cia~ tions. 40. The third judgment in K. T Veerappa vs. State o; K. arnataka (supra) deals with the issue of discrimination in the matter of grant of pay scales but does not contain any discussion on the issue of Tribunal's power to review its decision. 41. We may now advert to the High Court's order. Aperusal thereof shows that even while accepting the contention of -1 the appellants that the Tribunal did . not have the jurisdiction to review order dated 2fr2. 1997, the High Court approved·the d~ rection given for extending the benefit of Scale Nos.

19 and 21 to the respondents, albeit without taking cognizance of the stark fact that they had received promotions on the posts of Assistant Director, Deputy Director and Director; that they were holding highest posts in the service; that they were given the benefit of higher pay sca. les under ROPA 1981 and ROPA H~90 and no material ·had been. placed before the Court to show that members of other State Services to whom the benefit of Scale Nos. 19 and 21 had been given under the Scheme had also 47.. THE STATE OF WEST BENGAL & ORS. v. KAMAL SENGUPTA & ANR. [G. S. SINGHVI, J. J '. received three promotions after jo. ining the service. The High Court also· overlooked the fact that members of three out 17 . State Services had notbeen given benefit of Scale No. 19 and posts in Scale No. 21 had been sanctioned onlyJor 2 out of 17 State Services.

It is our considered view that in the absence of factual foundation, the High Court was not justified in recotc:fing a conclusion that denial of Scale Nos. 19 and 21 had resulted in violation of the respondents' fundamental rights guaranteed under Articles 14, 16 and 21 ofth. e Constitution ~mdthat too by ignoring the fact that the respondents had not produced any tangible evidence to prima facie prove that they had . been subjected to hostile discrimination or that the decision of the State Government not to extend the benefit of Scale Nos. 19 and 21 to members of the service was irrational and arbitrary. It is trite to say that in such matters the onus is always on the employee to prima facie substantiate the plea of discrimination or arbi- 0 trary exercise of power and only then the State or its instrumentality/agency or the public body (the employer) can be called upon to show that its decision is non-discriminatory, non-arbitrary, fair and in public interest. 42.

In the result, the appeal is c;1Uowed. The order of the High Court as also the one passed . by the Tribun~I in R. A No. 26 of 1998 are set . aside. The parties· are left to bear their own costs. K. K. T. Appeal allowed.