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I. Refus v/s M.B. Rao, Director of Personel/CSCC, Military Engineer Services Engineer-in-Chief's Branch & Others

    REVIEW APPLICATION NO.9 OF 2012 (In Contempt Application No.9 of 2011) (In Original Application No.638 of 2009)
    Decided On, 20 March 2012
    At, Central Administrative Tribunal Madras Bench
    For the Applicant: M/s R.S. Anandan, Advocate. For the Respondents : S. Muthusamy, Advocate.

Judgment Text
(In Circulation)

(Pronounced by The Hon'ble Mr. R. Satapathy, Administrative Member)

The applicant in the R.A. seeks to review the order dated 19.7.2011 passed in C.A.9 of 2012 in O.A.638 of 2009. This Tribunal by an order dated 18.1.2010 has passed the following order:

"Heard both Advocates. 2. The applicant has fild this OA questioning one of the clause in the Notification dated 18.4.2008(Annexure A IX) and also Advertisement dated 04.05.2009 (Annexure A X) for recruitment of Junior Engineer(Civil & E/M) through Departmental Candidates for the year 2000-01 & 2005-06 stating in column 4 of the Notice for advertisement, restriction of the age of 32 years to the employees is not based on SRO 78 of 2001. It is also the case of the respondents that the notification dated 18.04.09 has been issued for the vacancies for the year 2000-2001and 2005-2006 in pursuance of SRO 78 of 2001 but not based on SRO 45 dated 6.5.08.

3. In view of the above circumstances, the OA is disposed of with a direction to the respondents to consider the candidature of the applicant on age limit basing on SRO 78 of 2001 for selection for the post of JE(Civil & E/M) through departmental candidates."

2. Thereafter, the respondents have passed a speaking order on 28.7.2010 which is based on merits of the case. The relevant portion said order is extracted as hereunder:

"It is intimated that though column 6 of SRO 78 of 2001 which prescribes age limit for recruitment through direct entry to the post of JE E/M is silent in the aspect of departmental employees, Govt. of India DOP&T Notification No.15012/6/98-Est.(D) dt.21 Dec.1998 clarifies the same issue. As per para 3 of the ibid DOPT notification, the age relaxation admissible to the departmental candidates applying for Gp. "C" and "D" post against outsider quota is specified as follows:

"The departmental candidate who possess the prescribed qualification may be allowed to compete with relaxed age limit with open market candidate for higher post which are to be filled by direct recruitment in any office in the same dept. Further, it prescribes that departmental candidate can compete with outsider upto the age of 40 yrs (45 for SC&ST). Point (Xxi) of schedule categories of pers further specifies that for Other Backward Classes (OBC), the extent of age concession is 03 yrs of age."

Such being the case, the applicant has filed Contempt Application No.9 of 2011 wherein he has again raised the merits of the orders. While passing the order in the CA, this Tribunal has taken into account all relevant facts and also the speaking order dated 28.7.2010 of the respondents. The respondents have filed a reply in the CA in which they have specifically stated in paragrapgh 10 as follows:

"The respondents most respectfully submit that the direction of the Hon'ble CAT Madras Bench Order dated 18 Jan 2010 has been respected, honoured and accordingly complied with by issuing the reasoned speaking order dated 28 Jul 2010 by taking into consideration of the aspect of age criteria under the provision of SRO 78 of 2001 and GOI DOP&T Notification No.15012/6/98-Estt.(D) dated 21 Dec.1998. Therefore the contention of the applicant that the respondents have wilfully disobeyed the ibid the Hon'ble CAT Madras order is infructuous and frivolous."

In the said circumstances, the Division Bench of this Tribunal which heard the matter finally on 23.6.2011and after hearing both sides did not find that there is any wilful disobedience of the order of this Tribunal dated 18.1.2010 by the respondents and hence come to the conclusion that there is no need to invoke contempt proceedings against them. Accordingly,an order has been passed by the Tribunal on 19.7.2011 in the CA on merits closing the said CA.

3. We have perused the Review Application and we do not find any error apparent in the order dated 19.7.2011 for reviewing the order in the CA as claimed by the applicant. We have passed the said order on merits based on the decision renderned by the Hon'ble Supreme Court in P.U. Joshi and others Vs. Accountant General, Ahmedabad and others(2003 SCC (L&S) 191. In the Contempt Application, it is for the Court to decide whether there is any wilful disobedience on the part of the proposed contemnor. It is between the Court and the contemnor to decide the issue raised in the CA. The applicant in the CA only provides information and it is for the Tribunal to decide whether any of the directions given in the order of this Tribunal has been violated. In the instant case, the Division Bench has decided the issue on merits and come to the conclusion that there is no wilful violation of the order passed by this Tribunal. Hence, the CA has been closed.

4. It is settled legal position that review proceedings ought to be strictly confined within the ambit and scope of Order 47 Rule 1 of Code of Civil Procedure, which does not cover an erroneous decision to be reheard and corrected. Review Petitions are filed for a very specific purpose of correcting an apparent error. The same cannot be allowed to be an appeal in disguise.

5. In this connection, the Hon'ble Supreme Court in State of West Bengal Vs . Kamal Sengupta 2008 2 SCC (L&S) 735 held as follows:

"Since the Tribunal's power to review its order/decision is akin to that of the civil court, statutorily enumerated and judicially recognised limitations on the civil court's power to review its judgment/decision would also apply to the Tribunal's power under Section 22(3) (f) of the Act. A Tribunal established under the Act is entitled to review its order/decision only if either of the grounds enumerated in Order 47 Rule 1 are 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 the 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."

6. Further in para 22 of the above judgment the Hon'ble Supreme Court has observed that,

"That term 'mistake or error apparent' by its very connotation signified 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 Order 47 Rule 1 CPC and/or Section 22(3)(f) of the 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 court/tribunal on a point of fact of or law. In any case,

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while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision. 7. The Hon'ble Apex Court in the case of K. Ajit Kumar Rath V. State of Orissa (1999 (9) SCC 596 has held as follows: "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 judgment." 8. In view of the fact that there is no error apparent in the order passed by the Tribunal and the law laid down by the Hon'ble Supreme Court in the matter of review of the order passed by the court/tribunal cited supra, we see no merit in the Review Application and the same is dismissed accordingly.