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2019 DIGILAW 508 (KER)

Pramod Kumar Savita v. Union of India

2019-07-01

V.G.ARUN

body2019
ORDER : V.G. Arun, J. 1. The review petitioners, who are the respondents in O. P. (CAT) Nos. 176 and 190 of 2018 seek review of the judgment on the following grounds: "A. The judgment dated 10/04/2019 in O. P. (CAT) No. 176 of 2018 of this Hon'ble Court is vitiated by manifest errors of law and facts on the face of the record and if not corrected in review, would result in great injustice and inequitable consequences and hence is liable to be reviewed and recalled to prevent irremediable injustice. B. In the judgment under review, this Hon'ble Court proceeded on an erroneous assumption of fact and law and arrived at a conclusion which is rendered on wrong appreciation of law laid down by the Apex Court which amounts to an error apparent on the face of the record and it is a valid ground for review. C. In the judgment under review this Hon'ble Court found that 'transfer' falls within the expression 'conditions of service'. The decision in Varadha Rao v. State of Karnataka reported in AIR 1986 SC 1955 : 1986 KHC 655 was cited only in support of the proposition that the ratio of the above decision is that 'transfer' is an implied condition of service and falls outside the Recruitment Rules which ends with the completion of selection. Annexure R-3 Recruitment Rules, 2002 and in Annexure R-4 Recruitment Rules, 2016 there is an express recital that "The President hereby makes the following Rules for regulating the method of recruitment to the post of Inspector (Central Excise), Inspector (Preventive Officer) and Inspector (Examiner) in the Commissionerates under the control of the Central Board of Excise and Customs, Department of Revenue, Ministry of Finance". Therefore, Annexure R-3 Recruitment Rules, 2002 and Annexure R-4 Recruitment Rules, 2016 were issued for regulating the method of recruitment to the posts mentioned therein and they do not govern the terms and conditions of service after appointments to those posts. Necessarily, the power of transfer is not traceable to the Recruitment Rules. The power of transfer falls within the expression 'conditions of service' which are post appointment terms and conditions. Necessarily, R.4(ii) of Annexure R-3 Recruitment Rules, 2002 do not relate to Inter-Commissionerate transfer which is a condition of service after appointment. Necessarily, the power of transfer is not traceable to the Recruitment Rules. The power of transfer falls within the expression 'conditions of service' which are post appointment terms and conditions. Necessarily, R.4(ii) of Annexure R-3 Recruitment Rules, 2002 do not relate to Inter-Commissionerate transfer which is a condition of service after appointment. R.4(ii) provides for 'absorption' of person holding the same or comparable posts in another Commissionerate who came on deputation to be made on regular basis. The holding of this Hon'ble Tribunal in the judgment under review that "It is not in dispute that Annexure R-3 Recruitment Rules, 2002 contained a provision enabling ICT" is an erroneous assumption of the specific averment and pleading made in the Counter Affidavit in OP(CAT) No. 176 of 1018 and the arguments made at the time of final hearing. The specific stand taken in the counter affidavit in OP(CAT) No. 176 of 1018 (which was heard along with OP(CAT) No. 190 of 1018) and the averment and pleading made therein is that Annexure R-3 Recruitment Rules, 2002 only enabled 'absorption' of persons who came on deputation to another Commissionerate which falls within the gamut of 'recruitment' and R.4(ii) of Annexure A-3 does not at all relate to or govern Inter-Commissionerate Transfer. Therefore, the holding that "It is not in dispute that Annexure R3 Recruitment Rules, 2002 contained a provision enabling ICT" runs counter to the specific pleading and arguments addressed and is an error apparent on the face of the record which needs to be reviewed and re-called. The further holding that "It is an admitted fact that no such provision is included in the Recruitment Rules, 2016 and on the other hand, R.5 of Annexure R-4 specifically stipulate that each cadre controlling authority (CCA) shall have its own separate cadre, unless otherwise directed by the Central Board of Excise and Customs. Any Inter-Commissionerate Transfer will violate unique identity of each cadre envisaged under R.5 of Annexure R-4 Recruitment Rules, 2016" is totally misconceived and is erroneous assumption of facts and law. Inter-commissionerate Transfer would not violate the unique identity of each cadre envisaged under R.5 of Annexure R-4 as wrongly assumed and proceeded in the judgment under review and no such pleading was made by the respondents either. Inter-commissionerate Transfer would not violate the unique identity of each cadre envisaged under R.5 of Annexure R-4 as wrongly assumed and proceeded in the judgment under review and no such pleading was made by the respondents either. It is an error apparent on the face of the record for the obvious reason that no provision enabling Inter-commissionerate Transfer can be provided in the Recruitment Rules and absence of a provision in the Recruitment Rules regarding Inter-Commissionerate transfer cannot be construed to mean that it would operate prohibiting inter Commissionerate transfer. Besides, only issues pleaded or in question are to be considered and decided. The absence of provision regarding transfer in the Recruitment Rule is on account of the reason that 'transfer' falls outside and is not comprehended by the expression 'Recruitment'. The holding in the judgment under Review that Annexure R-3 Board's Letter dated 27/10/2011 lifting the ban on ICT would definitely be a transgression into the field occupied by Annexure R-4 Rules, 2016 which come into force long after the date of issuance of Annexure A3 Notification dated 27/11/2011 is one decided on unpleaded facts and is illogical and unsound falling within the expression 'error apparent on the face of the record'. The fact that the ban on Inter-Commissionerate Transfer was imposed as per Ext.R1(h) letter dated 19/02/2004 issued by the Under Secretary to Government of India, Ministry of Finance, Department of Revenue which was later lifted by Annexure A-3 Letter dated 27/10/2011 issued by the Deputy Secretary to Government of India, Ministry of Finance, Department of Revenue, Central Board of Excise and Customs was unnoticed in the judgment under Review while holding that Annexure A-3 letter dated 27/10/2011 lifting the ban on ICT would definitely be a transgression into the field occupied by Annexure R-4 Recruitment Rules. Whether Annexure A-3 letter dated 27/10/2011 lifting the ban would constitute transgression into the field occupied by Annexure R-4 Recruitment Rules, 2016 was not an issue in question before the Tribunal and the Tribunal as the court of first instance did not have occasion to consider that question and to enter a decision thereon. Whether Annexure A-3 letter dated 27/10/2011 lifting the ban would constitute transgression into the field occupied by Annexure R-4 Recruitment Rules, 2016 was not an issue in question before the Tribunal and the Tribunal as the court of first instance did not have occasion to consider that question and to enter a decision thereon. Therefore, in the judgment under review this Hon'ble Court exceeded jurisdiction in exercising the power of judicial review in entering a primary decision in respect of a non-issue in the O.A and thus the above finding in the judgment under review is outside the scope of judicial review and is a glaring error on the face of the record which needs to be rectified in exercise of the power of review. D. In the judgment under review this Hon'ble Court wrongly proceeded that Annexure A-1 having been issued without authority and in violation of Recruitment Rules, 2016 was invalid. Annexure A-1 was issued pursuant to Annexure A-3 in Ext.P-1 O.A issued by the Ministry of Finance, Department of Revenue, Central Board of Excise and Customs which was not cancelled or recalled by the Government at the time of issuance of Annexure A-1 Order of transfer made pursuant thereto. Annexure A-3 Board's letter dated 27/10/2011 was not attacked by the official respondents in the O.A or in the OP(CAT) and it is a settled legal position that respondents cannot attack their own order as respondents. Furthermore, Annexure A-3 Government letter dated 27/10/2011 is not superseded by Annexure R-4 Recruitment Rules, 2016. Therefore Annexure A-1 issued pursuant to Annexure A-3 in Ext P-1 OA cannot be said to be one issued without authority, and the holding to the contrary goes far beyond the scope of judicial review. Besides, in Annexure R-4 Recruitment Rules, 2016 there is no restraint clause against Inter-Commissionerate Transfer. Therefore, Annexure A-1 cannot be taken to be invalid on the ground that it is violative of the Recruitment Rules, 2016. It is an erroneous assumption of fact leading to erroneous decision and is an error of inadvertence. It is an error apparent on the face of the record which is liable to be rectified in exercise of the power of review vested with this Hon'ble Court. E. In the judgment under review, the ratio of the decisions in Prem Praveen v. Union of India and others, 1973 SCC online Del. It is an error apparent on the face of the record which is liable to be rectified in exercise of the power of review vested with this Hon'ble Court. E. In the judgment under review, the ratio of the decisions in Prem Praveen v. Union of India and others, 1973 SCC online Del. 194 and Bhagawathi Prasad Gordhandas Bhatt v. The State of Gujarat and others, 1976 SCC online Guj. 51 have been wrongly relied on as lending credence to the contention that Annexure A1 having been issued without authority and in violation of Recruitment Rules, 2016 is invalid. In the reply statement filed in paragraph 4 it has been clearly stated "It is submitted that the Annexure A-1 the Inter-Commissionerate Transfer Order was issued on 19/01/2018 by the Cadre Controlling Authority (CCA), Lucknow zone in terms of Annexure A-3 Board's Letter F.No.A22015/23/2011-Ad.III dated 27/10/2011". Annexure A-3 has not been cancelled or recalled and is not superseded by Annexure R-4 Recruitment Rules, 2016. Any decision rendered erroneously due to inadvertence is a ground for review of judgment and the judgment under review is liable to be reviewed and recalled to rectify the mistakes inadvertently crept in the judgment. F. In the judgment under Review this Hon'ble Court proceeded on a wrong appreciation of the issue involved, the clear and definite pleadings made and arguments addressed at the time of hearing to hold that "The question as to whether Annexure A3 or Annexure R4 would govern the ICT of the respondents is no longer doubtful in view of Ext.R-1(0) Circular dated 20/09/2018." Ext. R1(o) Circular dated 20/09/2018 in OP(CAT) No. 176 of 2018 was set aside by the Bangalore Bench of the Central Administrative Tribunal as per its Order dated 15/11/2018 in O.A No.170/00101 of 2018. Respondent Nos. 1 and 2 herein namely, the Union of India and the Chairman, Central Board of Indirect Tax and Customs were parties to the above O.A. and they are bound by the Order in OA No. 170/00101 of 2018. The above Order of the Bangalore Bench has been followed by the Jaipur Bench of the Central Administrative Tribunal in its Order dated 07/01/2019 in O.A No.291/542/2018 and as on date, the same has not been overruled by any superior court. The above Order of the Bangalore Bench has been followed by the Jaipur Bench of the Central Administrative Tribunal in its Order dated 07/01/2019 in O.A No.291/542/2018 and as on date, the same has not been overruled by any superior court. Order of the Bangalore Bench in O.A No.170/00101 of 2018 was brought to the notice of this Hon'ble Court at the time of hearing and it escaped the notice of this Hon'ble Court at the time of drawing the judgment. It is submitted that Ext. R-1(0) Circular dated 20/09/2018 in OP(CAT) No.176 of 2018 on being quashed by the Bangalore Bench of the Central Administrative Tribunal is non-est in the eye of law and Ext.R1(0) in OP(CAT)No. 176 of 2018 having been set aside, it ought not have been taken into account and thereby placing reliance on Ext. R-1(0), the judgment under review is flawed by misconstruction of the law relevant to the issue. The holding of this Hon'ble Court in the judgment under review that in the light of Ext. R-1(0) in OP(CAT) No. 176 of 2018, no reliance can be placed on Exts.R-1(p) and R-1(q) in OP(CAT) No. 176 of 2018 is a palpable 'error apparent on the face of the record. G. In the judgment under Review this Hon'ble Court wrongly proceeded that there cannot be a judicial review and interference on policy decisions which was not an issue in question in the OP(CAT). No policy decision relating to Inter-Commissionerate Transfer (ICT) was under challenge in the O.A and interference with the Policy decision was not prayed for in the O.A. As a matter of fact 'transfer' is a condition of service and is governed by the Executive Orders issued by the Government of India in exercise of its powers under Art.73 read with Art.77(1) of the Constitution of India and the Orders issued by the Central Board of Excise and Customs. The decision reached in the judgment under review is based on unpleaded facts and on issues not in question and is outside the scope or judicial review and is not an error on the merit of the case. Hence, it is a reviewable error of law. The decision reached in the judgment under review is based on unpleaded facts and on issues not in question and is outside the scope or judicial review and is not an error on the merit of the case. Hence, it is a reviewable error of law. H. In the judgment under review this Hon'ble Court proceeds on the wrong premise that the Recruitment Rules, 2016 do not have any provision for recruitment by absorption and accordingly, no ICT application can be considered after coming into force of the Recruitment Rules, 2016 is a non-sequiter which amounts to error apparent on the face of the record. Absence of any provision for Recruitment by absorption do not logically follow that no ICT application can be considered after coming into force of Recruitment Rules, 2016. Recruitment by absorption and Inter Commissionerate Transfer are different and distinct service conditions, the former falls within the gamut of 'recruitment' and the latter relates to 'conditions of service' which is totally outside the sweep of Recruitment Rules. I. In the judgment under review, the holding of this Hon'ble Court that in the light of Ext.R1(o) in O.P.(CAT) No.176 of 2018 no reliance can be placed on Exts. R-1(p) and R1(q) in OP(CAT) No. 176 of 2018 which are only Office Notes and related correspondences is a manifest error of law and facts. While holding so, this Hon'ble Court lost sight of the aspect that Ext. R-1(0) in OP(CAT) No. 176 of 2018 is non-existent factor having been quashed/set aside by the Bangalore Bench of the Central Administrative Tribunal which has not been set aside by any superior court. Furthermore, this Hon'ble Court brushed aside R-1(p) and R-1(q) in OP(CAT) No.176 of 2018 as mere Office Notes and related correspondences which are relevant and material documents to understand the true purport of R.4(ii) of Annexure R-3 Recruitment Rules, 2002. Ext. R-1(p) Note of the Department of Personnel and Training, Establishment (RR), the deletion of the provision in R.4(ii) prescribing for Inter-Commissionerate Deputation without deputation allowance was suggested for deletion as such provision is generally not made in the Recruitment Rules which clearly indicates that R.4 of the Recruitment Rules, 2002 was a provision enabling Inter-Commissionerate deputation and not Inter-Commissionerate Transfer. When Inter-Commissionerate deputation was suggested to be deleted, there is no need to retain the provision contained in R.4(ii) of the Recruitment Rules, 2002. Ext. When Inter-Commissionerate deputation was suggested to be deleted, there is no need to retain the provision contained in R.4(ii) of the Recruitment Rules, 2002. Ext. R-1 (q) File Notes states that recent decision of the Board banned the deputation after withdrawal of the ban on Inter-commissionerate transfer as per Annexure A-3 and Notification dated 29/11/2011, so the criteria for deputation in the cadre of Inspector under the CBEC has been withdrawn. For that reason, clause 4(ii) i.e, Special Provision is not now required to be retained and was recommended to delete that provision from the draft Recruitment Rules. Ext. R-1(p) and (q) in OP(CAT) No. 176 of 2018 make it abundantly clear that R.4(ii) of Recruitment Rules, 2002 related to 'Inter-Commissionerate deputation' and when the ban on Inter-Commissionerate transfer was lifted as per Annexure A-3 there is no necessity for providing Inter-Commissionerate deputation. It is indisputable that the Inter-Commissionerate deputation and Inter-Commissionerate transfer are distinct and different conditions of service. Inter-Commissionerate deputation leading to 'absorption' into the borrower Commissionerate is covered by Recruitment Rules and Inter-Commissionerate transfer is regulated by executive orders issued by the Government of India in exercise of the powers under Art.73 and Art.77(1) of the Constitution in the absence of Statutory Rules made under the proviso to Art.309 of the Constitution governing the 'terms and conditions of service including transfer. The decision in A. B. Krishna Vs. State of Karnataka reported in 1998 (3) SCC 495 : 1998 KHC 866 was relied on at the time of final arguments on behalf of the Review Petitioners wherein it has been held that "It is primarily the legislature, namely, Parliament or the State Legislative Assembly in whom power to make law regulating recruitment and conditions of service of persons appointed to public services and posts, in connection with the affairs of the Union or the State is vested." It has been further held that "As a matter of fact, under the Scheme of Art.309 of the Constitution, once a legislature intervenes to enact a law regulating the conditions of service, the power of the Executive including the power of the Governor, as the case may be, is totally displaced on the principle of doctrine of 'occupied field'. If, however, any matter is not touched by that enactment, it will be competent for the Executive to either issue executive instructions or to make a rule under Art.309 in respect of that matter." (emphasis supplied). Annexure R-3 Recruitment Rules, 2002 or for that matter, Annexure R-4 Recruitment Rules, 2016 do not contain any provision regulating the terms and conditions of service including transfer and is confined to recruitment alone. Therefore, it is within the power and province of the Executive to lay down executive instructions and orders in exercise of the power under Art.73 read with Art.77(1) of the Constitution of India. Inter-Commissionerate Transfers were all along been governed by Executive Orders covered by Exhibit R1(f) Order dated 12/02/1958 to Ext. R-1(m) letter dated 28/05/2014 in OP(CAT) 176 of 2018 and the Inter-Commissionerate transfer was banned as per Ext.R1(h) order dated 19/02/2004 in OP(CAT) No.176 of 2018 and was lifted as per Annexure A-3 Order dated 27/10/2011 and at no point of time, Inter-Commissionerate Transfer was ordered or power to grant Inter-Commissionerate was exercised in terms of Recruitment Rules which do not contain provisions governing conditions of service including transfer. Therefore, the holding that no ICT application can be considered after coming into force of Recruitment Rules, 2016 is not correct and not a possible view having regard to what the records state, and is an error in the application of the law. It is a clear instance of error apparent on the face of the record. It is a valid ground for reviewing and recalling the judgment under review." 2. Though the grounds are elaborate, crux of the contentions is that the judgment was rendered based on erroneous appreciation of the pleadings and wrong assumption with respect to the contentions. The Honourable Supreme Court in M/s. Thungabhadra Industries Limited v. The Government of Andra Pradesh, 1964 KHC 570 has succinctly stated the distinction between a mere erroneous decision and a decision which could be characterised as vitiated by "error apparent". The relevant portion of the judgment reads as follows: "There is a distinction which 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". A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. Where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out." The dictum in Thungabhadra Industries is reiterated in Parsion Devi v. Sumitri Devi, 1997 KHC 1435 wherein the Apex Court held that 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 the record, justifying the court to exercise its power of review under Order XLVII R.1 of the Code. It is also held that it is not permissible for an erroneous decision to be reheard and corrected in exercise of the jurisdiction under Order XLVII R.1 and that, a review petition cannot be allowed to be an appeal in disguise. Later, in Lily Thomas v. Union of India, 2000 KHC 536 the Apex Court held that the power of review can be exercised for correction of the mistake, but not to substitute a view. Recently in Perry Kansagra v Smriti Madan Kansagra, 2019 (3) SCALE 573 the Apex Court made the following exposition on exercise of review jurisdiction: "We have gone through both the judgments of the High Court in the instant case and considered rival submissions on the point. It is well settled that an error which is required to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record. To justify exercise of review jurisdiction, the error must be self-evident. Tested on this parameter, the exercise of jurisdiction in the present case was not correct. The exercise undertaken in the present case, in our considered view, was as if the High Court was sitting in appeal over the earlier decision dated 17/02/2017. Even assuming that there was no correct appreciation of facts and law in the earlier judgment, the parties could be left to challenge the decision in an appeal. But the review was not a proper remedy at all. Even assuming that there was no correct appreciation of facts and law in the earlier judgment, the parties could be left to challenge the decision in an appeal. But the review was not a proper remedy at all. In our view, the High Court erred in entertaining the review petition and setting aside the earlier view dated 17/02/2017." A conspectus of the decisions rendered by the Apex Court, on the limited scope for exercise of review jurisdiction, makes it abundantly clear that an alleged erroneous appreciation of the pleadings or wrong assumption of the contentions cannot be a ground for review. The grounds raised in the review petitions are grounds that ought to be raised in an appeal. The review petitions are nothing, but an appeal in disguise. We also take note of the fact that though the common judgment sought to be reviewed was rendered in O.P.(CAT) Nos.173, 176 and 190 of 2018, review petitions have been filed only in O.P.(CAT) Nos.176 & 190 of 2018. We find no merit in the review petitions and accordingly, the review petitions are dismissed.