Union Of India (Uoi) vs Karnail Chand
2007 Latest Caselaw 798 Del

JUDGMENT

P.K. Bhasin, J.

1. The applicant Union of India has sought review of our order dated 11.05.2006 whereby its writ petition No. 228/2004 filed against an order dated 05.08.2003 of the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as 'The Tribunal') in OA No. 2014/2002 came to be dismissed.

2. The facts which are relevant for the disposal of this review petition may first be noticed. The respondent was appointed as an Inspector under the Delhi Government w.e.f. 20.11.1965 and w.e.f. 11.04.1975 he was promoted to Grade-I (Executive). The respondent was promoted to Grade-II of DANICS on ad- hoc basis w.e.f. 29-02-1980 and subsequently he was appointed in grade II of DANICS w.e.f. 03.09.1990 vide notification dated 04.09.1990 and put on probation for two years. The respondent along with some other persons who had also been given ad-hoc promotions in Grade-II of DANICS approached the Tribunal seeking regular appointment alleging that there were regular vacancies available and had also claimed seniority from the date of their ad-hoc appointments to Grade-II of DANICS. During the pendency of those petitions the applicants before the Tribunal including the respondent herein were given regular appointment in Grade-II of DANICS w.e.f. 03-09-1990 vide notification dated 04-09-1990. Those petitions were finally dismissed by the Tribunal vide order dated 03-06-1998. The respondent being a scheduled caste candidate felt that Government had not followed the reservation policy while making promotions to the Grade-II of DANICS vide notification dated 04-09-1990 and resultantly he had been denied promotion and seniority from 1984 which he deserved. Feeling aggrieved he filed OA No. 1476/1998 which came to be disposed of by the Tribunal vide its order dated 04.11.2000 with a direction to the Government to refix the seniority of the petitioner in Grade-II of DANICS w.e.f. 1985 and also to give him further promotion, notionally, if he was entitled to the same, on the basis of re-fixation of his seniority. The Government was given three months time to comply with the said direction. Since the Government did not comply with the direction of the Tribunal within the stipulated period, the respondent filed a contempt petition before the Tribunal. During the pendency of that contempt petition the government passed an order dated 06.08.2001 appointing the respondent to Grade-II of DANICS from 1985 in compliance of the Tribunal's directions dated 04-11-2000. The respondent was, however, still not satisfied. The Tribunal then dismissed the contempt petition of the respondent but gave liberty to him to file a fresh OA challenging the order dated 06.08.2001. Accordingly, he filed OA No. 2014/2002 arising out of which is the present review petition. That OA was contested by the Government on the ground that it was not maintainable after the dismissal of the contempt petition by the Tribunal in the earlier OA and also because the Government had complied with the directions of the Tribunal given vide its order dated 04-11- 2000 in OA No. 1476/1998. The Tribunal vide its order dated 05-08-2003 quashed the afore-said order dated 06-08-2001 and directed the Government to re-fix the seniority of the respondent herein as per the earlier directions dated 04-11- 2000 observing that the Government had not complied with the same and that the order dated 06-08-2001 was not in accordance with the directions of the Tribunal.

3. Against the order dated 05-08-2003 the applicant herein had filed a writ petition. In the writ petition the applicant had claimed that the respondent was in consideration zone for the vacancies of 1984 as well as 1985 but he was recommended for promotion against the vacancy pertaining to the year 1985 vide notification dated 04.09.1990 and that the said promotion was made in terms of DOPT OM No. 22011/5/86-Estt.D dated 10.03.1989 which stipulated that "while promotions will be made in the order of the consolidated Select list, such promotions will have only prospective effect even in cases where the vacancies relate to earlier years." It was further claimed in the writ petition that the directions of the Tribunal given vide its order dated 04.11.2000 in OA No. 1476/1998 were academic in nature as the respondent herein had been given correct seniority in terms of Rule 29 of DANICS Rules, 1971. It was also pleaded in the writ petition that the Tribunal's order dated 05.08.2003 passed in OA No. 2014/2002 was not correct and while passing that order the Tribunal failed to appreciate that the seniority of the respondent had been correctly fixed under the rota-quota principle so it was not possible to refix the same again.

4. This Court dismissed the writ petition of the review petitioner vide order dated 11.05.2006. During the pendency of the writ petition an additional affidavit was filed by the applicant justifying the reasons for non- grant of the promotion to the petitioner from 1985 as directed by the Tribunal vide its order dated 04.11.2000. In the main writ petition, however, the stand of the Government was that the order of the Tribunal dated 04.11.2000 had been complied with. This Court taking note of the averments made in the additional affidavit to the effect that the grant of promotion to the respondent herein w.e.f. 03.09.1990 was justified dismissed the writ petition observing that with this stand taken by the Government in its additional affidavit the very basis of the writ petition to the effect that the order dated 04.11.2000 of the Tribunal stood complied with disappeared.

5. Now the applicant has filed this application under order XLVII Rule 1 read with Section 151 CPC for review of the order dated 11-05-2006. The grounds for review taken in the application and also urged by the learned Counsel for the applicant before us are that there is an error apparent on the face of record inasmuch as the order dated 06-08-2001 which was impugned by the respondent before the Tribunal clearly stated that he had been given appointment from the year 1985 as well as seniority from the same year as per the order dated 04-11-2001 of the Tribunal in OA No. 1476/1998 but it appeared that the afore said facts could not be brought to the notice of this Court inadvertently on behalf of the applicant " petitioner and that resulted in the passing of the order sought to be reviewed. Another ground taken is that the Tribunal's order dated 04-11-2000 had already been complied with and, therefore, no further direction in a subsequent petition could be passed by the Tribunal for the compliance of its earlier order. It is also claimed in the review petition that the order dated 11-05-2006 is contrary to the afore-said facts and also is based on mis-conception of facts and in case the same is not reviewed the applicant shall suffer tremendous hardship inasmuch as it would be required to repeat the entire process which has already been completed in compliance of the directions of the Tribunal in letter and spirit.

6. We have given our due consideration to the submissions made by the learned Counsel for the applicant and we have come to the conclusion that there is no merit in this review petition. While dismissing the writ petition we had also observed that the stand of the Government that it had complied with the Tribunal's directions was not correct. There is no error apparent on the face of record justifying review of the order dated 11-05-2006. As noticed already, it is the contention of the review petitioner that the order dated 11-05-2006 is contrary to the facts and based on mis-conception of facts and so it needs to be set right. In our view, if the order dated 11-05-2006 dismissing the writ petition of the applicant is considered to be contrary to facts and based on mis-conception of facts the remedy available to the applicant was to challenge it before the Appellate Forum and this Court cannot recall the same in exercise of review jurisdiction. Consequently, we dismiss this review petition.