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2016 DIGILAW 230 (PAT)

Mohan Kumar v. Union Of India

2016-03-03

HEMANT GUPTA, NAVANITI PRASAD SINGH

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JUDGMENT : Hemant Gupta, J. The challenge in the present writ petition is to an order dated 11th May, 2012, passed by the Central Administrative Tribunal, Patna Bench, Patna (for short Tribunal) in a Review Application, whereby the earlier order dated 17th August, 2009 was recalled. The respondents 2nd set in this writ petition were the Applicants before the Tribunal, who sought review or recall of an earlier order passed by the Tribunal on 17th August, 2009. 2. In the first order, the Tribunal has dismissed the Original Application holding that the pay-scale for promotees in the feeder cadre is the determining factor for seniority, and the guidelines framed by the Department of Personnel and Training had to be strictly followed. However, a review application was filed after none of the members of the Bench who decided the Original Application were available. Such review application had been allowed on 11th May, 2012. The operative part of the order reads as under: “The applicant, apart from referring to, and filing, the seniority/gradation lists of Income Tax Inspectors in other Regions in the country which are said to have been prepared on the ratio of 3:1, the OM dated 07.02.1990 of DOPT which gives an illustration on how the inter-se seniority of promotees from more than one feeder category would be determined, has filed a copy of the letter of the CBDT dated 06.04.2009[which incidentally is anterior to the order of this Tribunal in OA No. 45 of 2007] giving instructions to CCIT[CCA], Bhubaneshwar to file a reply in OA Nos. 10 to 14 of 2009 in Cuttack Bench of the Tribunal indicating the position in the Rules in regard to determination of inter-se seniority. In view of the fact that some new matter relevant to the case which could not be produced at the time of initial decision and was, therefore, not taken into account by this Tribunal, has surfaced and has now been produced by the applicant in the RA, the RA is allowed. Consequently, the order dated 17.08.2009 passed in O.A. bearing No.45 of 2007 is hereby recalled, and it directed that the OA be listed in the first week of July for rehearing.” 3. Consequently, the order dated 17.08.2009 passed in O.A. bearing No.45 of 2007 is hereby recalled, and it directed that the OA be listed in the first week of July for rehearing.” 3. The sole basis of recall of the order is that the applicants had filed a copy of the letter of the Central Board of Direct Taxes dated 06.04.2009 i.e., prior to the decision of the Tribunal, indicating the position in the rules in regard to determination of inter-se seniority. Since such letter was not produced, therefore, the Tribunal has recalled the earlier order. 4. We do not find that such reason is available with the Tribunal to recall the order. All documents were to be produced by the parties before or at the time of hearing of the Original Application. Since such a Circular was not produced, which admittedly was prior to the decision of the Tribunal, the same cannot be made the basis to recall the order. 5. The provisions of Section 22 of the Administrative Tribunal Act, 1985 confer power on the Tribunal to review its decision, but such power can be exercised in terms of sub-section (3) of section 22 of the Act in the manner as vested under the Code of Civil Procedure 1908. Therefore, the review is permissible only on the grounds which are available under Order 47 Rule 1 of the Code of Civil Procedure. The ground is “apparent error on record”. The Tribunal has not found any error apparent on record, but recalled order only on the basis of a circular issued prior to the decision of the Tribunal. The document was not produced at the time of hearing of the Original Application. A reading of the impugned order shows that the Tribunal has taken a different view on the same facts and that too by another set of members of the Tribunal. Such action is not warranted in law. 6. Consequently, we allow the writ petition, and quash the order dated 11.05.2012 passed by the Central Administrative Tribunal, Patna Bench, Patna. It shall be open to the parties to take recourse to the remedies available against the order dated 17-8-2009 in accordance with law.