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HIGH COURT OF DELHI
JUDGMENT
UNION OF INDIA & ANR. ..... Petitioners
Through: Mr Kirtiman Singh, CGSC with Mr Waize Ali Noor, Adv, M Madhav
Bajaj, Mr Varun Pratap and Mr Shreya Mehra, Mr Yash and Ms
Vidhi, Advocates
Through: Respondent-in-person.
HON'BLE MR. JUSTICE GIRISH KATHPALIA GIRISH KATHPALIA, J.:
PRELUDE
1. By way of this Review Petition, brought under Order XLVII Rule 1 of the Civil Procedure Code, the original respondent of the writ petition (hereinafter referred to as “the review applicant”) has sought review of final order dated 19.02.2020, whereby the writ petition was allowed by a coordinate bench of this court. Since one of the members of the said coordinate bench got elevated as Chief Justice of another High Court while the other member demitted office on attaining age of superannuation, by way of orders of the Chief Justice, this Review Petition was assigned to this bench. Although the Review Petition was drafted and filed by a counsel, the review applicant opted to address final arguments in person. We heard the review applicant in person as well as learned counsel for writ petitioners (hereinafter referred to as “the non-applicants”).
FACTUAL MATRIX
2. Briefly stated, the factual matrix relevant for the present purposes is as follows. 2.[1] The review applicant was appointed as Junior Draughtsman in the office of Directorate General of Employment and Training („DGET‟) on 18.02.1983 in the pay-scale of Rs. 330-560, which was revised to Rs. 425- 700 in compliance with an order dated 01.08.1991 passed by the Principal Bench of Central Administrative Tribunal (hereinafter referred to as “the Tribunal”) in OA No. 245/1987. At the time when order dated 01.08.1991 of the Tribunal was passed, the pay-scales of Draughtsmen Grades- I, II and III in Central Public Works Department (CPWD), which previously stood at Rs.425-700, Rs.330-560 and Rs.260-430 respectively, were revised to payscales of Rs.550-750, Rs.425-700 and Rs.330-560 by way of Office Memorandum dated 13.03.1984. On 09.04.1992, the review applicant got promoted as Senior Draughtsman in the pay-scale of Rs.1660-2660, which was later revised to Rs.5000-8000 in pursuance of the recommendations of the Vth Central Pay Commission. 2.[2] On 28.10.1993, one Shri G. Rajan joined DGET as Junior Draughtsman in the pay-scale of Rs.1200-2040, which was subsequently revised to Rs.1400-2300. Thereafter, on 14.10.1998, Shri Rajan was promoted to the post of Senior Draughtsman in the revised pay-scale of Rs.4000-6000. Shri Rajan filed OA No. 351/2003 before the Chennai Bench of the Tribunal praying therein for grant of pre-revision pay scale of Rs.1600-2660 from the date of his promotion with all consequential benefits. The said OA was allowed vide order dated 21.10.2003 of Chennai Bench of the Tribunal and the said order was upheld by the Madras High Court vide order dated 20.03.2008 in the writ challenge. Correspondingly, Shri Rajan was granted revised pay scale of Rs.5500-9000. 2.[3] In the present dispute, the review applicant claimed that although he was working as a Senior Draughtsman in the pay-scale of Rs.5000-8000 in terms with the recommendations of the Vth Central Pay Commission, his pay was lesser than his counter-parts in other government organizations. The review applicant claimed parity with Shri Rajan under the principle of equal pay for equal work and sought to be granted same pay-scale of Rs.5500-9000. This claim of the review applicant was rejected by the nonapplicants and instead he was granted the pay-scale of Rs.4500-7000. 2.[4] The review applicant filed representation dated 14.01.2004, seeking parity of pay-scales with Draughtsman Grade-I of CPWD i.e. Rs.5500-9000 from Rs.5000-8000 and subsequent revision of pay-scales with retrospective effect and cumulative financial benefits. But that representation of the review applicant was rejected vide order dated 31.01.2012, thereby denying the review applicant pay-scale of Rs.5500-9000 and instead granted him pay-scale of Rs.5000-8000. 2.[5] Aggrieved by order dated 31.01.2012 of the non-applicants, the review applicant filed OA No. 1053/2013 before the Tribunal, which was allowed by the Tribunal placing reliance on the decision of the Chennai Bench of the Tribunal as approved by the Madras High Court and directed the non-applicants to fix the pay of the review applicant in the pay-scale of Rs.5500-9000 with all consequential benefits. 2.[6] In the meanwhile, one Shri Mukesh Kumar, another Draughtsman of DGET, approached the Principal Bench of the Tribunal by way of OA NO. 4390/2011, seeking grant of pay-scale of Rs.5500-9000, which was dismissed by the Tribunal; and even the review application having met the same fate, Shri Mukesh Kumar approached this court by way of writ petition bearing No. WP(C) 4097/2014. The said writ petition filed by Shri Mukesh Kumar was disposed of remanding the matter to the Tribunal for fresh hearing for the reason that the Tribunal had expressed two different views on same facts in different Original Applications. 2.[7] Consequently, a Full Bench at the Principal Bench of the Tribunal was constituted for disposal of OA No. 4390/2011 of Shri Mukesh Kumar. The Full Bench of the Tribunal, placing reliance on the Office Memorandum dated 01.06.2001 disposed of the remanded OA No. 4390/2011 vide order dated 21.11.2017 holding that Shri Mukesh Kumar would be entitled to be placed in the pay-scale of Rs.5500-9000 only with effect from 12.06.2007 when he completed six years in the pay-scale of Rs.4500-7000. 2.[8] By way of order dated 31.07.2014, the Tribunal allowed OA NO. 1053/2013 of the review applicant, holding that decision of the Chennai Bench of the Tribunal in the case of Shri G. Rajan, approved by the Madras High Court would squarely apply to the facts of the case set up by the review applicant, and accordingly directed the non-applicants to fix pay of the review applicant in the pay-scale of Rs.5500-9000 with all consequential benefits. 2.[9] The non-applicants filed the writ petition W.P.(C) 8065/2015 before this court, assailing order dated 31.07.2014 of the Tribunal. The said writ petition was allowed by the way of the impugned order dated 19.02.2020, thereby setting aside the order dated 31.07.2014 of the Tribunal.
2.10 Hence, the present review petition.
IMPUGNED ORDER
3. In the backdrop of the limited scope carved out for Order XLVII in the Code, it would be apposite to quote the vital and reasoning part of the impugned order, which is as follows:
RIVAL ARGUMENTS
4. During his marathon arguments, the review applicant took us through the above described matrix and argued that the impugned order suffers the vice of error apparent on the face of record. It was argued by the review applicant that apart from a typographical error in its para 7, the impugned order was passed on the basis of “tampered record”. The alleged tampered record according to the review applicant is at page 297 of the paperbook, which is a copy of Government Resolution bearing No. G.I., M.F., No. 50 (1)/IC/97 dated 30.09.1997. According to the review applicant, the tampering in the said resolution was in the sense that the annexure thereto (placed at pages 297-298) showed only Part-A. According to the review applicant, the said annexure had Part-B as well, which was concealed by the non-applicants. Further, according to the review applicant, while passing the impugned order, the court wrongly relied upon Part-A, whereas the part applicable to the review applicant was Part-B. However, on being pointed out, the review applicant fairly admitted that the concerned complete notification dated 30.09.1997 whereby the Central Civil Services (Revised Pay) Rules 1997 were notified with the First Schedule bearing Part-A and Part-B were already placed at page 414 of the paperbook before the court, so admittedly it is not a situation where the court passed the impugned order on the basis of incomplete record. Taking us through Part-A and Part-B of the said notification, the review applicant claimed that the Draughtsman Grade-I are covered under item No. (x)(b) (page 414 of the paperbook). According to the item No. (x)(b) of Part-B of the said notification, Draughtsman of Grade-I would fall under the revised pay-scale of Rs.5500-175-9000. That being so, according to the review applicant, the error apparent on the face of record which crept into the impugned order is that the court by wrongly placing reliance on Part A of the notification dated 30.09.1997 erred in holding the pay-scale of the non-applicant to be Rs.5000-8000. In nutshell, the review applicant claims that the court ought to have applied Part-B and not Part-A of the said notification, so the impugned order is liable to be reviewed.
5. On the other hand, learned counsel for the non-applicants, taking us through the above described matrix as well as the judicial proceedings that took place in the case of Shri Mukesh Kumar and Shri G. Rajan pointed out that the decision of the Full Bench of the Tribunal having not being challenged has attained finality. Learned counsel for the non-applicants also took us through orders dated 02.04.2019 and 03.09.2019 of the court, whereby the issue crystallized in the writ proceedings was as to whether the review applicant was entitled to same benefit as had been awarded to Shri Mukesh Kumar. Learned counsel for non-applicants contended that the entire submissions before the court as well as the content of the impugned order remained confined to that crystalized question. Learned counsel for non-applicants, strongly objecting to the maintainability of this review petition, also went further to explain that the court had correctly placed reliance on Part-A of the said notification, since Part-B thereof is not applicable to the Draughtsman. It was pointed out that extreme right column in Part-B mentions the No.50.37 against item (x)(b), sought to be invoked by the review applicant. It was explained by learned counsel for non-applicants that the said No.50.37 does not correspond to the paragraph number of the report concerned with the DGET; and that qua the Draughtsman of DGET (which the review applicant is), the relevant paragraph number in the report is 74.12 (page 280 of the paper book).
QUESTION INVOLVED
6. Thence, the question before us is as to whether the impugned order is liable to be reviewed by us, holding that it is Part-B of the Gazette Notification dated 30.09.1997 and not Part-A thereof which should have been applied by the court while adjudicating upon the writ petition.
LEGAL POSITION
7. At this this stage, it would be apposite to briefly traverse through the legal position pertaining to the scope of review exercise. 7.[1] The power to review a judicial order is normally a creature of statute. There being no explicit legislative pronouncement dealing with the scope of review exercise in writ jurisdictions, it is trite that by necessary implication one has to bank upon analogous provisions under the Civil Procedure Code. In the case of Anil Kumar Jain &Anr vs Union of India & Ors., (2005) SCC OnLine Del 520: 122 (2005) DLT 431 (DB), a Division Bench of this court recapitulated the legal position with regard to scope of review under Order XLVII of the Code and held:“.... The limitation on the powers of the Court under Order 47 Rule 1 are similar and applicable to the jurisdiction available to the High Court under Article 226 of the Constitution of India”. Besides, as already mentioned above, even the review applicant has invoked the provisions under Order XLVII of the Code. 7.[2] In terms with the provisions laid down in Order XLVII Rule 1(1) of the Code, any person considering himself aggrieved by a decree or order from which an appeal is allowed, but not preferred, or by a decree or order from which no appeal is allowed, or by a decision on a reference from a Court of Small Causes, may apply for review of the judgment to the court which passed the decree or the order in a case where from 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 decree or the order was passed or on account of some mistake or error apparent on the face of the record or for any other sufficient reason. 7.[3] In order to exercise review, broadly speaking, either or both of the two pre-conditions are necessary to exist. Firstly, there should be some new and important matter or evidence which was not before the court prior to passing the impugned decree or order. Secondly, there should be some error apparent on the face of record. Present case being limited to the alleged error on the face of record, legal position related to the first condition is not being traversed through. A clear distinction between an error in the impugned judgment and an error apparent on the face of record has to be kept in mind. Where a case involves exercise of reasoning and fresh application of judicial mind, the error, even if it was so, cannot be treated as an error apparent on the face of record. It is no longer res integra that while exercising review jurisdiction, the court cannot tinker with the impugned order and practically sit in appeal in the guise of review. 7.[4] In the case of Thungabhadra Industries Ltd. v. Govt. of A.P. AIR 1964 SC 1372: (1964) 5 SCR 174, relied upon in the case of Parsion Devi vs Sumitri Devi, (1997) 8 SCC 715, the Hon‟ble Supreme Court held that even if the earlier order was wrong, it would not follow that it was an “error apparent on the face of record”, for there is a distinction between “an error” and “an error apparent on the face of record”, which distinction is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by “error apparent”. It was cautioned by the apex court that in the exercise of review jurisdiction, it is not permissible for an erroneous decision to be “reheard and corrected”; and a review petition, it must be remembered has a limited purpose and cannot be allowed to be “an appeal in disguise”. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of record justifying the court to exercise its power of review. 7.[5] In the case of Anil Kumar Jain (supra) also, a co-ordinate bench of this court cautioned that the court must ensure not to exercise review power under the guise of appeal, and that where two opinions are conceivable and the error in question has to be established by a long drawn process, it is not an error apparent on the face of record. An error which is not self evident and has to be dictated by a process of reasoning can hardly be said to be an error apparent on the face of record and in exercise of power of review the Court may correct the mistake but cannot substitute the view. The mere possibility of two views on the subject, is not a ground for review. 7.[6] The Hon‟ble Supreme Court, while dealing with the review powers of a Tribunal, established under the Administrative Tribunals Act in the case of State of West Bengal vs Kamal Sengupta, (2008) 8 SCC 612 held that the term “mistake or error apparent” by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of exercising the review jurisdiction. In other words, 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 court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision. In this regard, reference may also be drawn from the case of ACIT vs Saurashtra Kutch Stock Exchange Ltd., reported as (2008) 14 SCC 171. 7.[7] In the case of Perry Kansagra vs Smriti Madan Kansagra, (2019) 20 SCC 753, it was reiterated as follows:
7.[8] Most recently, in the case of Arun Dev Upadhyaya v. Integrated Sales Service Ltd., 2023 SCC OnLine SC 779, it was held thus:
ANALYSIS
8. Falling back to the present case, as described above, the review applicant has called upon this court to review and modify the impugned order of the coordinate bench and to hold that the relevant part of the notification applicable to this case was Part-B and not Part-A thereof, which was wrongly relied upon in the impugned order. According to the review applicant, the said wrong application of Part-A of the notification is an error apparent on the face of record, so the impugned order is liable to be reviewed. As further described above, the non-applicants have advanced cogent reasons to discard this contention of the review applicant and have explained as to why Part-B of the said notification is not applicable to this case; and have further contended that there is no error apparent on the face of record, so the present review is liable to be declined.
9. Admittedly, both Part-A as well as Part-B of Annexure to the notification of 1997 were already before the coordinate bench of this court and after reasoned analysis the coordinate bench in the impugned order placed reliance on Part-A, discarding Part-B. The question before this court is as to whether this court while exercising review jurisdiction under Order XLVII of the Code can substitute the decision of the coordinate bench of this court and hold that it is Part-B and not Part-A which would be applicable, that too ignoring the above described reasons advanced from the side of the non-applicants. We find force in the analytical explanation advanced from the side of non-applicants to the effect that paragraph No.50.37 mentioned in extreme right hand column against item (x)(b) of Part-B relied upon by the review applicant does not correspond to the paragraph number of the notification dealing with DGET, so Part-B is not applicable in this case.
10. Obviously, in order to test the comparative strength of rival contentions on this aspect, we would have to venture into a process of reasoning by fresh application of judicial mind since it is not an error (if at all it is held to be an error), which is self-evident or apparent on the face of record.
11. We also tested the possibility of power, if any, to scrutinize the impugned order, invoking the residual clause “for any other sufficient reason” appearing in Order XLVII Rule 1(1) of the Code, in the sense as to whether we can venture into examining the legality and/or correctness of the impugned order for any other sufficient reason, though on the face of it, we do not find it to be a case of an error apparent on the face of record. Of course, the expression “for any other sufficient reason” is too wide, but being a residual expression in the provision, it has to be read in restricted manner in the light of the preceding specific expressions, as to whether some new material, which earlier could not be placed on record despite due diligence, has been found or whether fresh exercise of reasoning is not required. Construing, in the name of equity and larger justice, the expression “for any other sufficient reason” in the provision untrammelled would render the exercise of Appeal under the Code redundant, so such a construction has to be eschewed.
12. As a significant manifestation of Rule of Law, the concept of finality of the judgment has to be enforced and placed at a high pedestal. It is a settled cannon of law that merely because a party is not satisfied with the judgment of the court or it is possible to take another view on reasonable interpretation of law and facts, that by itself would not be a ground for review of a judgment or order. Whatever be the nature of proceedings, it is trite that a review proceedings cannot be equated with the original hearing of the case and the finality of the judgment delivered by court shall not be reconsidered except where apparent on record, a glaring omission or patent mistake or grave error has crept in earlier by judicial fallibility. If the review petitions, like the present one, are encouraged, it would undermine the concept of finality as in every case the disgruntled and dissatisfied litigant would press for re-hearing of the matter under the guise of review.
DECISION
13. In view of above discussion, we have no hesitation to hold that what the review applicant has sought under the guise of review is an exercise in the nature of appeal over the impugned order passed by a coordinate bench of this court. Therefore, the Review Petition is dismissed.
(GIRISH KATHPALIA) JUDGE (RAJIV SHAKDHER)
JUDGE AUGUST 23, 2023