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PETITIONER: SRI GOPABANDHU BISWAL

       Vs.

RESPONDENT: KRISHNA CHANDRA MOHANTY & ORS.

DATE OF JUDGMENT:       21/04/1998

BENCH: SUJATA V. MANOHAR, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT: [With C.A. Nos. 3456-3457 of 1996 and C.A. Nos. 3458-3460 of 1996]                       J U D G M E N T Mrs. Sujata V. Manohar, J.      The appellant  in Civil  Appeal Nos. 3451-3455 of 1995, Gopabandhu Biswal, was in military service prior to November 1972. After  his release  from military  service, he applied for the  post of Assistant Commandant in the Orissa Military Police pursuant  to an advertisement published by the Orissa Public Service  Commission inviting  applications  from  ex- military  officers.   He  was   selected  and  appointed  as Assistant Commandant  in the Orissa Military Police pursuant to  the   advertisement.  The  appellant  qualified  in  the departmental examinations  and was  confirmed  as  Assistant Commandant  with   effect   from   15.11.1975.   Thereafter, according to  the appellant,  though  he  was  eligible  for consideration for  promotion to  the Indian  Police  Service cadre, he  was not  considered for  promotion to  the Indian Police Service  (I.P.S.) cadre.  Because  according  to  the respondents, only  Deputy Superintendents  of Police  in the Orissa Police  force were  eligible  for  promotion  to  the I.P.S. cadre.  The appellant  filed a  writ petition  in the Orissa High  Court in 1982 praying for a writ of mandamus to consider him  for promotion to the I.P.S. cadre. The Central Administrative  Tribunal,   Cuttack  Bench,   to  which  his petition was  transferred after  coming into  force  of  the Administrative Tribunals  Act, 1985,  held that  the post of Deputy Superintendent  of Police and Assistant Commandant of the Orissa  Military Police constituted a single cadre prior to 5th  of November,  1980. His  application was, therefore, allowed  by  the  Central  Administrative  Tribunal  by  its judgment and  order dated  24.12.1991. The  Tribunal gave  a direction that  his case  should be considered for promotion with effect  from 1.1.1997 in respect of each year beginning therefrom till  January 1980.  After 4th  of November, 1980, the appellant,  if the  is not  promoted earlier,  does  not deserve further  consideration because the post of Assistant Commandant was  bifurcated into a separate cadre with effect from 5.11.1980.      In the appellant’s said application before the Tribunal

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which was  re-numbered as  T.A.No. 1 of 1989 the respondents were the  Union of  India, the  State of Orissa and 25 other respondents who  had superseded  the appellant for promotion to the Indian Police Service.      The State  of Orissa  and two  other respondents  filed S.L.P (C)  No. 7479  of 7479  of 1992  for  the  purpose  of challenging the decision of the Tribunal dated 24.12.1991 in the appellant’s  T.A.No. 1  of  1989.  By  its  order  dated 3.8.1992, the  special leave  petition was dismissed by this Court.      In July 1993, one and a half years after the Tribunal’s decision of  24th of  December, 1991  in T.A. No. 1 of 1989, respondents 1  and 2, Krishna Chandra Mohanty and Rajkishore Dash, who  were in  the Orissa State Police Service filed an application before  the Central  Administrative Tribunal  at Cuttack which  was subsequently  Converted in  to  a  review petition and  numbered as  R.A.No. 16  of 1993.   These  two respondents contended  that the  decision of the Tribunal in T.A.No. 1  of 1989  to the  effect that the cadres of Deputy Superintendents of  Police and  Assistant Commandants in the State Military  Police constituted  a single  cadre  in  the Orissa police  Service till 4.11.1980 was incorrect and that on a  proper examination  and interpretation of all relevant documents and  Governments  Orders  in  this  connection  it should be  held that  Deputy Superintendents  of Police  and Assistant  Commandants   in  Orissa  Military  Police  never constituted a  single cadre at any time. They contended that the two  cadres have always been separate and that Assistant Commandants in  the Orissa  Military Police are not eligible for promotion  to Indian  Police Service.  A similar  Review Application No.  18 of  1993 was  filed by Manmohan Praharaj and Anup Kumar Patnaik who were direct recruits to the cadre of Indian Police Service. At around the same time, O.A. Nos. 276, 277  and 278 of 1993 were filed by three applicants who were, at  the material  time, Assistant  Commandants in  the Orissa Military Police praying for granting them the benefit of the  decision of  the Tribunal  in T.A.  No. 1/89 for the purpose of promotion to the Indian Police Service.      These review  petitions as  well as  applications  were considered together  by the Central Administrative Tribunal, Cuttack. The Tribunal by its impugned judgment dated 24th of June,  1994,   has  reviewed   its  earlier  judgment  dated 24.12.1991 in  T.A.No. 1/89  on the  ground of  there  being error apparent  on the  face of the record. The Tribunal has held that  the two cadres of Deputy Superintendent of Police and Assistant  Commandant  of  Orissa  Military  Police  are separate  cadres   from   inception   and   that   Assistant Commandants are  not eligible  for promotion  to the  Indian Police Service,  The Tribunal  has thereupon  dismissed  the application of  the appellant, Gopabandhu Biswal, in T.A.No. 1/89. It  has also  dismissed the three pending applications bearing O.A.  Nos. 276,  277 and  278 of  1993. The  present appeals are filed from the impugned judgment of the Tribunal in the two review petitions as well as the three O.As.      Was  the   Tribunal  entitled  to  review  its  earlier judgment dated  24.12.1991 in T.A.No. 1/89? Section 22(3) of the  Administrative   tribunals  Act,  1985  confers  on  an Administrative Tribunal  discharging its functions under the Act, the  same powers  as are  vested in a civil court under the Code  of Civil Procedure while trying a suit in respect, inter alia, of reviewing its decisions. Section 22(3) (f) is as follows:      "Section 22(3) (f):      A  Tribunal  shall  have,  for  the      purpose    of    discharging    its

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    functions under  this Act, the same      powers as  are vested  in  a  civil      court  under   the  Code  of  Civil      Procedure, 1908 ( 5 of 1908), while      trying a  suit, in  respect of  the      following matters, namely, -      (a)to(e) ..........................      (f) reviewing its decisions;      (g) to (i)....................... "      A civil court’s power to review its won decisions under the Code of Civil Procedure is contained in Order 47 Rule 1. Order 47 Rule 1 provides as follows:      "Order 47 Rule 1;      Application for review of judgment.      (1)  Any person considering himself           aggrieved,-           (a)  by a decree or order from                which   an    appeal   is                allowed, but  from  which                no   appeal    has   been                preferred,           (b)  by a decree or order from                which   no    appeal   is                allowed, or           (c)  by   a  decision   on   a                reference from a court of                Small Causes,      and who,  from the discovery of new      and important  matter  or  evidence      which not  within his  knowledge or      could not be produced by him at the      time when  the decree  as passed or      order made,  or on  account of some      mistake or  error apparent  on  the      face of  the  record,  or  for  any      other sufficient reason, desires to      obtain  a   review  of  the  decree      passed or  order made against him ,      may apply  a review  of judgment to      the Court  which passed  the decree      or made the order.      (2) ........................... "      The  power   of  review   which  is   granted   to   an Administrative Tribunal is similar to power given to a civil court under  Order 47 Rule 1 of the Code of Civil procedure. Therefore, any  person (inter  alia) who  considers  himself aggrieved by  a decree  or order  from which  an  appeal  is allowed, but  from which  no appeal  has been  preferred can apply for  review under  Order 47  Rule 1(1) (a) . An appeal lies to  this Court  from a  decision of  the Administrative Tribunal. If  an appeal  is preferred,  the power  to review cannot be  exercised. In  the present  case, a special leave petition to  file an  appeal was preferred from the judgment of the  Tribunal in T.A.No. 1 of 1989 to this Court, and the special leave  petition was  rejected. As a result the order of the  Tribunal in  T.A.No. 1  of  1989  became  final  and binding. The  rejection of  a petition  for leave  to appeal under Article  136 of the petition for leave to appeal under Article 136  of the  Constitution,  in  effect,  amounts  to declining to  entertain an  appeal, thus making the judgment and order appealed against final and binding. Once a special leave petition  is filed  and rejected,  the party cannot go back to  the Tribunal  to apply  for review.  In the case of State of  Maharashtra &  Anr.  v.  Prabhakar  Bhikaji  Ingle ([1993] 3  S.C.C. 463)  this Court  held that when a special

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leave petition  from the order of the Tribunal was dismissed by a non-speaking order, the main order was confirmed by the Supreme Court.  Thereafter the  power of  review  cannot  be exercised by  the tribunal. The Court said that the exercise of power  of review  by the  Tribunal in  such circumstances would be  "deleterious to  judicial  discipline".  Once  the Supreme Court has confirmed the order passed by the Tribunal , that  becomes final.  In Sree Narayana Dharmasanghom Trust v. Swami Prakasananda & Ors. ([1997] 6. S.C.C. 78) the above decision was reaffirmed. This Court held that after an order of this  Court  dismissing  the  S.L.P.  in  limine  from  a judgment of the High Court, the High Court cannot review it. The  Court   followed  the  earlier  judgment  in  State  of Maharashtra & Anr. v. Prabhakar Bhikaji Ingle (supra).      In the  case of K. Ajit Babu & Ors. v. Union of India & Ors. ([1997] 6 S.C.C. 47) to which one of us was party, this Court examined  Section  22(3)  (f)  of  the  Administrative Tribunals Act,  1985 and held that an application for review under that  section attracts the principles contain in Order 47 Rule  1 of the Code of Civil Procedure. Therefore once an S.L.P is preferred and dismissed, review is not permissible. The same  view has  been taken  by this  Court in  Raj Kumar Sharma &  Ors. etc.  etc. v. Union of India Y Ors. etc. etc. (1995 (2)  SCALE 23).  The Court  observed in that case that the Tribunal  was in error in entertaining a review petition and allowing it after the special leave petition against its main judgment  had been  dismissed by  this  Court  and  the review petition filed in this Court against the dismissal of the special  leave petition  had also been dismissed. It was undisputed that  the grounds  on which the review was sought before the  Tribunal was a ground taken in the special leave petition as  well as  in the  review petition  filed in this Court. In  such a situation, to say the least, it was wholly inappropriate for  the Tribunal  to sit  in judgment  on the merits of  this Court’s  order dismissing  the special leave petition giving  finality to  the Tribunal’s  main order. In the present case, therefore, on the dismissal of the special leave petition  by this  Court, the judgment of the Tribunal in T.A.  No. 1  of 1989  became final and binding as between the parties  and the  Tribunal had  no power  to review that Judgment thereafter.      In the present case, however, it is urged that the four applicants who  filed the  two review  petitions before  the Tribunal were  not parties  to the  main petition. They were also not  parties to the special leave petition filed before this Court  which was  dismissed. However  they are  parties aggrieved and  hence are  entitled to  apply for a review of the main  judgment of  the Tribunal. It is contended by them that the  judgment of  the Tribunal  holding  that  the  two cadres of  Deputy Superintendent  of  Police  and  Assistant Commandant were  a single cadre till 5.11.1980, has affected the chances  of promotion  of the applicants and, therefore, the appellants,  being persons  aggrieved, are  entitled  to maintain such  review  petitions  when  they  had  not  been parties to  the earlier  judgment as  well  as  the  earlier special leave  petition. We  will assume  for the time being that the  applicants are  persons aggrieved.  Even  so,  the question is  whether they  can have  a  judgment  which  has attained finality  by virtue  of an order of this Court, set aside in  review. There  is no  doubt that  as  between  the parties to  the main  judgment, the  judgment is  final  and binding. The  respondents, State  of  Orissa  and  Union  of India, are,  therefore, bound to give effect to the judgment of the  Tribunal in  T.A.No.  1  of  1989  in  the  case  of Gopabandhu Biswal.  If this  is so,  can a  third  party  by

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filing a review petition get that same judgment reviewed and obtain an  order that  Gopabandhu Biswal  is not entitled to the  benefits  of  the  directions  contained  in  the  main judgment since  that judgment  is now set aside? In our view this wi  wholly impermissible.  It will lead to re-opening a matter which  has attained finality by virtue of an order of this  Court.  The  applicants,  even  if  they  are  persons aggrieved, do  not have,  in the  present case,  a right  of review under  any part  of Order 47 Rule 1. Even under Order 47 Rule 1(2), the party not appealing from a decree or order can apply  for review only on grounds other than the grounds of appeal  which were before the appellate court, and during the pendency  of the  appeal. In  the present  case all  the grounds which  were urged  in review  were, in  fact,  urged before the  Tribunal at  the time  when the Tribunal decided the main  application  and  they  were  also  urged  by  the petitioner in  the special  leave petition  which was  filed before this  Court. The  special  leave  petition  has  been dismissed. The  same grounds cannot be again urged by way of a review  petition by  another party  who was not a party in the main petition.      According to  the applicants  certain documents  though produced  before  the  Tribunal  were  not  noticed  by  the Tribunal in  deciding the  main  matter.  Even  so,  once  a judgment of  a Tribunal  has attained finality, it cannot be reopened after  the  special  leave  petition  against  that judgment has  been dismissed.  The only  remedy for a person who wants  to challenge  that judgment is to file a separate application before  the Tribunal in his own case an persuade the Tribunal  either to refer the question to a larger Bench or, if the Tribunal prefers to follow its early decision, to file an  appeal from  the Tribunal’s  judgment and  have the Tribunal’s judgement  set aside  in appeal  review is not an available remedy.      Undoubtedly when  the Tribunal interprets Service Rules and Regulations,  the interpretation  so  given  may  affect other members  of that  Service -  past, present  or future. Once can  understand a  wider meaning  in this context being given to  the phase  "person aggrieved",  thus enlarging the right of persons to intervene either at the hearing before the Tribunal, or in appeal, or for filing a review petition. Nevertheless,  this   right  must   be  exercised   at   the appropriate time  and in  accordance   with  law.  A  review petition must  be within  the scope  of Section 22(3) (f) of the Administrative  Tribunals Act  read with Order 47 Rule 1 and  must   comply  with   the  Rules   framed   under   the Administrative   Tribunals    Act.   They    preset   review applications are  not within  the principles  laid  down  in Order 47  Rule 1.  They also do not comply with the relevant Rules.  Rule  17  of  the  Central  Administrative  Tribunal (procedure) Rules,  1987 prescribes,  inter  ALIA,  that  no application for review shall be entertained unless it  is filed within thirty days from the dated of the receipt of a copy of the order sought to be reviewed. In the present case  the review petitions were filed one and a half years after  the main  judgment was  delivered and  one year after the  special leave  petition was  dismissed. We do not find any explanation of this delay.      It is difficult to include the applicants in the review applications in  the category  of "persons  aggrieved".  The main applicant  i.e. the present appellant-Biswal had joined as party  respondents all  those persons  who had superseded him for  selection to  the Indian  Police Service Since they would be  persons affected  in  case  he  succeeded  in  his application.  The  Tribunal  had  directed  that  Biswal  be

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considered for  promotion between  1977  and  1980  and  not thereafter. During this period, the two applicants in review application No.  16 of  1993 were nowhere within the zone of consideration for  promotion to I.P.S. One of the applicants joined the  police service only in 1974 and was not eligible for further promotion till 1982. The other applicant, though eligible for  promotion, was  on account  of his rank in the seniority list,  not within the zone of consideration at any time prior  to 5.11.1980.  As  a  matter  of  fact  the  two applicants  in  review  application  No.  16  of  1993  were selected for promotion to I.P.S. only in 1993 when they were included in  the select  list of 1993. Therefore, they could not have  been made  parties in  T.A. No. 1 of 1989. At that point of  time,  these  applicants  had  only  a  chance  of promotion in future. This does not confer and legal right on these applicants  and they  cannot be  considered as parties aggrieved by  the impugned  judgment. however, leniently one may construe  the  term  ’party  aggrieved’,  a  person  not directly affected  cannot be  so considered.  Otherwise  for years  to  come,  every  person  who  becomes  eligible  for promotion will  be considered  a party  aggrieved’ when  the Tribunal interprets  any Service Rule such as in the present case. Only persons who are directly and immediately affected by  the   impugned  order  can  be  considered  as  ’parties aggrieved’ under  Section 22(3)  (f) read with Order 47 Rule 1.      The same  is the  case with  the applicants  in  Review Application No.  18 of  1993. These  two applicants  in  the Review Application  No. 18  of 1993  were direct recruits to the Indian  Police Service  of 1975  and 1976  batches.  The quota for  direct recruits is different and these applicants were not  concerned with  the appointments  made within  the quota of  promotes from the State Police Service. Therefore, it is  difficult to  look upon them as persons aggrieved. If at all  they would be affected by the promotion given to the original applicant-Biswal, that would be in respect of their chance for  promotion to the next higher post. This does not confer any  legal right  on these  applicants. They  cannot, therefore, be  considered as  persons aggrieved. In our view the Tribunal  was not  entitled to,  and ought  not to  have entertained the  review applications  once the special leave petition from he main judgment and order had been dismissed.      The  Tribunal   also  had   before  it,   three   other applications which  were  filed  under  Section  19  of  the Administrative  Tribunals   Act  1985.   The  Tribunal   had dismissed these  applications in  view of having allowed the review petitions and set aside its earlier order in T.A. No. 1 of  1988. In view of the fact that the Tribunal’s judgment in review  applications cannot  be sustained,  the  Tribunal will be  required to  examine these three applications filed before it  on merit  and dispose  them of in accordance with law.      In deciding  these applications,  the  Tribunal  cannot ignore its  earlier judgment.  "The use  of precedent  is an indispensable foundation  upon which  to decide  what is the law and  its application the individual case; it provides at least some  degree of  certainty upon  which individuals can rely in  the conduct  of their affairs, as well as provide a basis of  orderly development  of  legal  rules".  (Halsubry Fourth Edn.  Vol. 26  para 573).  If the Tribunal decides to follow  its   earlier  judgment  the  respondents  in  these applications can  file petitions for leave to appeal if they so desire; and any other person aggrieved may also, with the leave of  the Court,  apply for  special leave  to  file  an appeal. In  the event of the Tribunal coming to a conclusion

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that its  earlier  judgment  requires  reconsideration,  the Tribunal can refer the question to a larger Bench. In either case the  persons aggrieved  can apply  and intervene to put forward their point of view.      We, therefore, allow these appeals, set aside the order of the  Tribunal  in  review  applications  and  remand  the Original Applications   Nos.  276, 277  and 278  of 1993 for fresh consideration  by the Tribunal in accordance with law. There will, however, be no order as to costs.