REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1694 OF 2006

The State of West Bengal  and others … Appellants  

Versus

Kamal Sengupta and another … Respondents

  J U D G M E N T                                                

G.S. Singhvi, J.

1. Whether a Tribunal established under Section 4 of the Administrative

Tribunals Act (for short ‘the Act’) can review its decision on the basis of

subsequent  order/decision/judgment  rendered  by  a  coordinate  or  larger

bench  or  any  superior  Court  or  on  the  basis  of  subsequent

event/development  is  the question  which  arises  for  determination  of  this

appeal filed by the State of West Bengal and others against the judgment of

the  High  Court  of  Calcutta,  whereby  the  said  High  Court  declined  to

interfere  with  order  dated  25.9.2001  passed  by  the  West  Bengal

Administrative Tribunal (for short ‘the Tribunal’) in R.A. No.26 of 1998.    

2. The facts necessary for deciding the aforementioned question are as

under:-

(i) Respondents Kamal Sengupta and Narayan Chandra Ghosh appeared

in the competitive examination conducted by the West Bengal Public

Service Commission  in  1973 for  recruitment  to  West  Bengal  Civil

Services (Executive) and other Allied Services.  They were declared

successful  and  were  allotted  to  West  Bengal  Food  and  Supplies

Service (hereinafter  described  as  ‘the  service’).  Initially,  they were

posted  as  Sub-Divisional  Controller  of  Food and  Supplies.  In  due

course,  they were  promoted as Assistant  Director,  Deputy Director

and finally as Director and their pay was fixed in the scales prescribed

for those posts.  They were also given the benefit  of revised scales

under the West Bengal (Revision of Pay and Allowance) Rules, 1981

(hereinafter  referred  to  as  ‘ROPA  1981’)  and  the  West  Bengal

(Revision of Pay and Allowance) Rules, 1990 (hereinafter referred to

as ‘ROPA 1990’).

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(ii) After  20  years  of  joining  the  service,  the  respondents  filed  Writ

Petition  No.1547  of  1995  for  quashing  letter  dated  6.1.1995  vide

which the Finance Department of the State Government rejected their

claim for grant of Pay Scale Nos.19 and 21 in terms of the Career

Advancement  Scheme  (for  short  ‘the  Scheme’)  framed  by  the

Government  of  West  Bengal,  which  was  circulated  vide

Memorandum dated 21.6.1990 and for issue of a mandamus to the

State  Government  to  take  action  in  accordance  with  the

recommendations made by Secretary, Food and Supplies Department

vide  his  DO  No.G-5250/FC  dated  5.10.1992,  G-5302/FC  dated

16.10.1992 and Con-223/FS dated 27.4.1994.  They further  prayed

for issue of direction to the non-petitioners (the appellants herein) to

declare the posts in Scale Nos.19 and 21 under Rule 2(b) of  ROPA

1990  to  be  in  the  ranks  of  Joint  Secretary  and  Special  Secretary

respectively and sanction those posts for members of the service in

the same ratio as was done in the case of West Bengal Civil Services

Officers.   

(iii) In the affidavit filed by him in support of the writ petition, Narayan

Chandra  Ghosh  (respondent  no.2  herein)  referred  to  the  factum of

sanction of Pay Scale Nos.17, 18 and 19 to members of the service

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under  ROPA  1981,  recommendations  made  by  the  Third  Pay

Commission, the Scheme and averred that they have been subjected

to hostile discrimination in the matter of grant of Scale Nos.19 and

21.  For the sake of reference, paragraphs 5, 9, 13, 17 and 18 of the

affidavit of respondent no.2 are reproduced below :-

“5. That the petitioners having entered in to W.B.F.& S.S., in  the  year  of  1974/75  after  successfully  passing  the  West Bengal  Civil  Service  (Executive)  and  certain  allied  service examination held in 1973 were first posted in the basic grade posts of Sub-Divisional  Controller of Food and Supplies  and thereafter in recognition to meritorious service since rendered by them were posted in different senior posts  and posts with higher responsibilities like Assistant Director, Deputy Director and lastly were posted as Director in the year of 1991 and 1992 respectively.  

9. That  the  petitioners  were  awarded  Scale  No.19, (Rs.1600/-  to  2250/-)  according  to  their  respective  seniority cum merit  w.e.f. 01.03.1982 and 01.11.1982 respectively and on 1st January, 1986 when the pay of the petitioners were to be fixed  notionally  in  terms  of  the  provision  of  West  Bengal Services  (ROPA)  Rules,  1990,  the  petitioners  were  drawing pay Rs.1840/- and Rs.1780/- respectively.  

13. That  the  petitioners  state  that  under  ROPA,  1990  the members of W.B.F. & S.S., have been awarded three scales of pay  namely  scale  Nos.16  (Rs.2200/-  to  Rs.4000/-)  17 (Rs.3000/-  to  Rs.4750/-)  and  18  (Rs.3700/-  to  Rs.5700/-) inasmuch as these scales correspond to Scale No.17 (Rs.660/- to Rs.1600/-), Scale No.18 Rs.1100/- to Rs.1900/-) and No.19 (Rs.1600/- to Rs.2250/-) under ROPA, 1981.

17. That the distribution of posts in revised Scale Nos.19 and 21 for the services shown in Annexure to the Memo No.6075-F dated 21.06.1990 (Annexure “C” to this Writ Petition) is given hereunder :

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Name of Service Grade     _Scales__        Eligibility condition Strength  19       21   for Scale No.19 &

21 (Revised) 1     2              3                          4

--------------------- ------------  -------------- ----------------------- 1. W.B.S.C. (Exe)   1767      64 4 20  years  of

total  service on Revised Scales Nos.16, 17, 18  and  their unrevised  counter parts  and  3  years in  unrevised  scale no.19  or  revised scale no.18.

2. W.B. Commercial    566    8           1 Same as for          

   Tax Service W.B.C.S.

3.  W.B. Co-operative  162    2          Nil       - do -      Service.

4.  W.B. Excise            190   1          Nil       - do -      Service.

5.  W.B. National Emp- 170   1          Nil       - do -      loyment Service.

6.  W.B. Labour Service 132  1          Nil       - do -

7.  W.B.F. & S.S.          280  Nil        Nil       - do -

8.  W.B. Police Service  279    2          Nil       - do -      (Group B Service)

9.  W.B. General Service         3          Nil       - do –

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    not known.

18.     It  is  evident  from the foregoing paragraph that  all  the State Services constituted under Art. 309 of the Constitution of India and having same method of recruitment have been given the benefit of Scale No.19 under Career Advancement Scheme save and except  the West Bengal  Food and Supplies  Service which is a duly constituted State Service and belongs to Group “A” State Services along with other, under West Bengal Civil Services (Exe) and Certain allied Services.”

(iv) In the counter-affidavit filed on behalf of the appellants herein, it was

averred  that  the  Scheme  was  framed  to  improve  the  standard  of

administration and career  prospects  of the employees,  who did not

have adequate promotional opportunities. It was further averred that

benefit  of  the  Scheme  was  not  extended  to  the  writ  petitioners

because they had been promoted to the higher posts and were paid

salary  in  the  scales  prescribed  for  those  posts.   As  regards  the

recommendations made by Secretary, Food & Supplies Department, it

was averred that the same are not binding on the State Government.

Paragraphs 7, 12 and 13 of the counter affidavit which are reflective

of the stand taken by the appellants read as under :-

“7. With reference to  the said  paragraph,  it  is  pertinent  to point  out  that  so  far  as  the  service  of  writ  petitioners  is concerned, they have reached their highest post in the service as admitted by them.  They have also reached the highest scale of  pay as  are  admissible  to  the  highest  post.    They are  no longer  eligible  for  any scale  under  the  Career  Advancement Scheme as the said Scheme is not meant for them.   

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12. With reference to the allegations contained in paragraphs 18  to  20  of  the  writ  petition,  it  is  denied  that  all  the  State services have been given the benefit  of scale no.19 save and except  West  Bengal  Food  & Supplies  service  or  that  cadre strength  has  anything  to  do  with  the  Career  Advancement Scheme  or  that  there  is  any  arbitrary  act  or  act  which  is violative  of  the  principles  of  equity  and  the  principles  of natural justice as wrongfully alleged or at all.  In this context, I repeat and reiterate that the Career Advancement Scheme for the  Government  employees  is  guided  by  the  Finance Department Memo dated June 21, 1990.  In order to allow the benefit of higher pay scale to the incumbents of the respective services  subject  to  fulfillment  of  certain  conditions,  the  said Scheme was  introduced.   The  members  of  the  State  Service including  the  West  Bengal  Food  &  Supplies  Service  are entitled  to  promotion  in  the  higher  scale  of  pay being  scale nos.16,  17 and 18.    In addition to the above benefit, as per promotion policy of the Government, the members of some of the State services have been allowed the benefit of scale nos.19 and 21 as per Career Advancement Scheme referred to above. The  said  benefit  of  higher  scale  nos.19  to  21  as  per  Career Advancement Scheme referred to above has not been allowed to the State Services in general since the prospect of promotion to the higher scale of pay depends on a variety of consideration namely ratio  of  higher  post  to  base  level  post  in  the  feeder grade,  hierarchical  structure  of  the  department,  the  level  of work  and  nature  of  responsibilities,  the  proportion  of  direct recruitment,  the  pace  of  growth  of  normal  activities  of  a department,  the  avenue  of  normal  promotion  etc.   On consideration  of  the  above  factors,  there  is  hardly  any justification to bring all State Services on the same footing in respect of extension of the benefit of higher scale of pay as per promotion policy of Career Advancement Scheme.   In fact, the Third  Pay Commission  as  an  expert  body held  that  it  is  not possible to grant equal opportunities of promotion to the higher post to the employees in general on account of the said various factors.   If necessary, I shall crave leave to refer to a copy of the  recommendation  of  the  Third  Pay  Commission  at  the hearing.

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13. With reference to the allegations contained in paragraphs 21 to 25(b) of the writ petition, it  is denied that there is any discrimination  as  alleged  or  at  all.   The  D.O.  letter  dated October 5, 1992 is a mere recommendation by the departmental head  as  is  usual  practice  for  all  the  departmental  heads  to forward  representations  which  were  received  from  their employees.  As already stated above,  the consideration  which are  relevant  for  the  purpose  of  extending  the  Career Advancement  Scheme  are  totally  different.  The  incumbents who are holding the post of Commercial Tax Services are not obviously at par with the post held by the petitioners.  In this context,  it  is  also  pertinent  to  mention  that  the  matter  of extending  the  Career  Advancement  Scheme  is  a  matter  of policy decision.   As already stated  and  admitted by the writ petitioners that they have reached the scale no.19, under ROPA Rules,  1990  and  as  such  their  getting  further  career advancement does not and/or cannot arise.”

(v) On establishment of the Tribunal, the writ petition was transferred to

it and was registered as Transferred Application No.826 of 1996.  By

an order dated 25.2.1997, the Tribunal dismissed the same.   It held

that  the  pay  structure  has  been  worked  out  by  the  Third  Pay

Commission  after  proper  job  evaluation  of  different  services  and

posts;  that  there  cannot  be  any  equality  among  the  members  of

different  services;  that  the  State  Government  was  free  to  frame

appropriate scheme for grant of higher pay scales to the members of

some services who did not have adequate promotional opportunities

and  that  in  the  absence  of  any  evidence  of  parity,  a  mandatory

direction  cannot  be  issued  for  grant  of  higher  pay  scales  to  the

applicants.

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(vi) The respondents challenged the order of the Tribunal in WPST No.59

of 1997, which was dismissed by the High Court with an observation

that the only remedy available to the petitioners was to file petition

for  special  leave  to  appeal.  Thereafter,  the  respondents  filed  SLP

No…. of 1998 (CC 5925/1998), which was dismissed on 4.9.1998 as

withdrawn in terms of the prayer made by their counsel.  

(vii) In the  meanwhile,  Joydeb Biswas and others  filed  O.A. No.148 of

1997 for grant of Scale Nos.17, 18 and 19 to members of the service

under  ROPA 1981  in  the  ratio  of  6:3:1.   They  relied  on  Finance

Department Memorandum No.9425-F dated 9.8.1983, whereby posts

in different services were distributed in the ratio of 6:3:1 and orders

passed by the High Court of Calcutta for grant of Scale Nos.17, 18

and 19 to the members of State Audit and Accounts Service and West

Bengal Judicial Service in the ratio of 6:3:1 and pleaded that they are

entitled to similar treatment.  

(viii) The appellants contested the application of Joydeb Biswas and others

by asserting that their claim of parity with members of other  

State Services was untenable.  In support of this plea, the appellants

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relied on the order passed in Transferred Application No.826 of 1996

(Kamal  Sengupta  and  another  vs.  State  of  West  Bengal  and

others).   

(ix) The Tribunal  distinguished the order  passed in  Kamal Sengupta’s

case  by observing that the question of distribution of Scale Nos.17,

18  and  19  was  not  considered  in  that  case  and  directed  the  State

Government to implement the recommendations made by Secretary,

Food and Civil Supplies Department.  The relevant portions of order

dated 25.3.1998 passed by the Tribunal in O.A. No.148 of 1997 are

extracted below:-

“That takes us to the question whether the distribution of scales of  pay  in  the  ratio  of  6:3:1  should  be  extended  to  the applicants.  It may be true that the rationale which attracted the decisions in the case of Audit  and Accounts Service and the West Bengal Judicial Service may not be fully applicable to the case  of  the  applicants  employed  in  Food  and  Civil  Supply Department,  but  the  broad  fact  remains  that  the  authority competent to decide this question is the Departmental Secretary being the respondent no.2, who by his elaborate and reasoned order  in  Annexure  ‘G’,  has  fully  upheld  the  case  of  the applicants.   Being  the  administrative  head  of  the  concerned Department he is the most competent person to decide about the  cadre  strength,  the  promotional  prospect  and  the distribution  of  the  promotional  scales  of  pay,  and  going through  his  order  we  do  not  find  any  unreasonableness  or arbitrariness in his judgment.  

In view of the conclusion reached on the second point above, we  may dispose  of  the  third  contention  raised  by  the  State respondents that due to the decision in Kamal Sengupta’s case

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the point is concluded against the applicants.  We do not agree for  the  simple  reason  that  in  Kamal  Sengupta’s  case the question was whether scale nos.20 and 21 of ROPA Rules of 1990  should  be  extended  to  the  officers  of  the  Food Department  and  in  that  judgment  there  was  no  point  for consideration as to how the scale nos.17, 18 and 19 are to be distributed  amongst  the  officers  of  the  Food  &  Supply Department.  So the third point taken by the State respondents also fails.

That takes us to the irresistible conclusion that there is no valid ground to refuse the applicants the benefit of scale nos.17, 18 and 19 in the ratio of 6:3:1.  At the risk of repetition we may say that  the  decision  of  the  respondent  no.2  as  indicated  in Annexure  ‘G’  is  conclusive.  The  question  whether  the Secretary,  Finance  Department  will  issue  necessary Government  orders  or  whether  such  order  will  involve additional financial burden upon the State exchequer is of no consequence  to  us.  When  the  administrative  head  of  a particular department has taken a well reasoned decision on the representation of the applicant and pursuant to our direction in the earlier writ petition, the respondent no.1 cannot be allowed not to implement the same on any plea, whatsoever.”

[Emphasis added]

(x) After dismissal of the Special Leave Petition, the respondents filed

R.A.  No.26  of  1998  for  review  of  order  dated  25.2.1997  by

asserting that they were stagnating in the same scale of  pay since

1982 and the non-applicants arbitrarily denied them benefit of the

higher scales which were given to the members of other services.

The  respondents  pleaded  that  in  view  of  the  recommendations

made by Secretary of  Food and Supplies Department, which are

binding on the State Government, they are entitled to Scale Nos.19

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and 21.  In support of this plea, the respondents relied on order

dated 25.3.1998 passed in O.A. No.148 of 1997  Joydeb Biswas

and others vs.  State of West Bengal and others.  The precise

grounds  on  which  review  was  sought  by  the  respondents  are

reproduced below:-

“I. For that this learned Tribunal was pleased to reach two opposite  conclusions  on  the  same  point  of  law  as  in Annexures “C” and “D” and thereby dismissing the case of  your  applicants,  while  allowing  that  of  the  other applicants.

II. For that the order as in Annexure “C” therefore suffers from this grave inconsistency and irregularity on the face of  the  record  when  compared  to  the  Order  as  in Annexure “D”.

III. For  that  this  learned Tribunal  was  pleased  to  hold  the recommendation  mainly  the  Administrative  Head  of Department  of  your  applicants  as  a  mere recommendation  and  allowed  the  objection  of  the Finance Secretary to prevail.  In the matter of granting the benefit,  which this learned Tribunal was pleased to grant  to the said other  petitioners merely because their Administrative  Head  of  Department  had  made  such recommendation,  and  despite  the  objections  of  the Finance Secretary in that case.

IV. For that the Orders as in Annexures “C” and “D” make for judicial anarchy and scuttle the belief in the judicial system.  

V. For that even otherwise, the said orders as in Annexure “C” and  “D” cannot  both  stand,  without  violating  the principles of natural justice not only enshrined in Article 14 of the Constitution of India, but also in Section 22 of the Act of 1985, being the parent Statute of this learned Tribunal read with Article 323-A of the Constitution of

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India, and it is fit and proper that this learned Tribunal be pleased  to  review its  order  as  in  Annexure “C” in  the light of the later judgment as in Annexure “D”, on the principle that the later judgment shall prevail.”  

(xi) By an  Order  dated  30.11.1999,  the  Tribunal  dismissed  the  review

application on the premise that power of review cannot be exercised

after dismissal of the SLP.

(xii) The  legality  and  correctness  of  the  aforementioned  order  was

challenged by the respondents in WPST No.37 of 2000, which was

allowed by the Division Bench of the High Court on the premise that

dismissal of the SLP as withdrawn did not affect the Tribunal’s power

of  review.  Accordingly,  a  direction  was  given  to  the  Tribunal  to

decide the review application afresh.   

(xiii) In compliance of the direction given by the High Court, the Tribunal

heard the review application  on merits  and allowed the  same vide

order dated 25.9.2001.  The Tribunal made detailed reference to the

pleadings  of  the  parties  and  arguments  of  their  advocates,

recommendations made by Secretary, Food and Supplies Department

and rejection thereof by the Finance Department as also Memo dated

13.3.2001 issued by the State Government for creation of additional

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posts in Scale No.19 for various State Services including the service

of which the respondents were members and held :-

“Be  that  as  it  may,  it  now appears  from the  Supplementary Affidavit filed by the applicants that the respondent authorities concerned  have  come  forward  and  issued  necessary  Govt. orders extending the benefit of Scale No.19 to the Officers of Food  &  Supplies  Department  w.e.f.  1.1.2001  vide  Memo No.3015-F  dated  13.3.2001  being  annexure  ‘C’  to Supplementary Affidavit.  It was argued before us by the Ld. Senior Counsel for the applicants that because of the extension of  such  benefit  of  Scale  No.19  to  the  Officers  of  Food  & Supplies Department, the instant case stood disposed of in their favour but in part.  In our view, the extension of the benefit of Scale No. 19 pointed out only to a glaring fact that the Officers of Food & Supplies Department were also entitled to such a Scale, but they were deprived of the same for a long time for reasons best known to the authorities concerned.  It was indeed a clear case of hostile discrimination.”  

The Tribunal then referred to order dated 25.3.1998 passed in

O.A. No.148 of 1997, Joydeb Biswas’s case, and held :-  

“Switching now over to the other aspect of the case, we find from Annexure ‘D’ to the application for review that the Ld. Division Bench of this  Tribunal  delivered a judgment in OA 148/97 on 25.3.98 in which 13 applicants of the said case being employees of the Food and Supplies Department claimed the benefits of scale nos.17, 18 and 19.  It appears that in that case this Bench held inter alia that the recommendation made by the Food Secretary, being Head of the Administrative Department was binding on the Secretary, Finance Department and hence the State respondent authorities concerned could not refuse to implement  the  said  recommendation  of  the  Administrative Head on “any plea what-so-ever”.   In that view of the matter, it appears that by the said judgment and order dated 25.3.98, the Division  Bench  of  this  Tribunal  directed  the  concerned respondent authorities to issue necessary Govt. order extending the benefit of scale nos.17, 18 and 19 to the applicants of the

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said case.   The contention of the Ld. Counsel for the applicants of this case was that this  judgment and order was not within their knowledge and hence documents in that regard could not be produced by the applicants before the Ld. Tribunal  at  the appropriate time and that upon discovery of new and important material,  viz.,  judgment and order,  dated 23.5.98,  which was not within their knowledge, they were not praying for review, which was admissible under the provisions of Section 21 of the Administrative Tribunals Act, 1985 and also under Section 14 of the Limitation Act, 1963.  In our view this was certainly a “sufficient  cause”  for  belated  filing  of  the  application  for review.”  

Though  the  Tribunal  did  not  deal  with  the  issue  relating  to

entitlement  of  the  respondents  to  Scale  No.21,  but  directed  the

appellants herein to extend the benefit of the said scale to them. This

is evident from the operative part of the Tribunal’s order, which is

extracted below:

“In the facts and circumstances of the case, we are, therefore, inclined to allow the instant  prayer for  review put  in  by the applicants.  We, thus allow the Review application and direct the  respondent  authorities  concerned,  particularly  respondent No.2 (i.e. Secretary, Finance Deptt.)  to take necessary steps for extending the benefits of Scale No.19, if not already extended to the applicants and also to extend the benefits of Scale No.21 to  the  applicants  in  accordance  with  the  Rules  and  law and provisions contained in Notification No.6075-F dated 21.6.90 meant  for  W.B.C.S.  (Executive)  and  other  Allied  Services officers  within  a  period  of  four  months  from  the  date  of communication of this order.”

3. The appellants challenged the aforementioned order in WPST No.1 of

2001 by asserting that the Tribunal did not have the jurisdiction to review

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order dated 25.2.1997 on the basis of subsequent order passed in  Joydeb

Biswas’s  case.   Another  plea  taken  by  the  appellants  was  that  the

recommendations made by the Secretary of the Administrative Department

are not binding on the State Government.  The Division Bench of the High

Court  held  that  the Tribunal  could  not  have entertained  and allowed the

review application on the basis of a decision which was not in existence at

the time of initial order, but declined to interfere with order dated 25.9.2001

by observing that denial of higher pay scale to members of the service had

resulted in violation of their fundamental rights under Articles 14, 16 and 21

of the Constitution.  

4. Shri Bhaskar P. Gupta, Senior Advocate appearing for the petitioners

extensively  referred  to  the  pleadings  of  Writ  Petition  No.1547  of  1995,

which was later on converted into Transferred Application No.826 of 1996,

R.A.  No.26  of  1998,  orders  dated  25.2.1997,  25.3.1998  and  25.9.2001

passed by the Tribunal, orders dated 8.1.2001 and 21.8.2003 passed by the

High  Court  in  WPST No.37  of  2000  and  WPST Nos.1  and  2  of  2001

respectively and order dated 4.9.1998 passed by this Court in SLP No…. of

1998  (CC  5925/1998)  and  argued  that  the  Tribunal  committed  a

jurisdictional error by entertaining the review application on the ground that

in  Joydeb  Biswas’s  case a  direction  had  been  given  to  the  State

16

Government to act on the recommendations made by the Secretary of the

Administrative Department for grant of relief to the applicants of that case

and while  dismissing the  SLP, the Supreme Court  had observed that  the

petitioners  can  seek  review  of  the  order  passed  in  the  transferred

application.  Shri Gupta submitted that power vested in the Tribunal under

Section 22(3)(f) of the Act to review its order/decision is similar to that of

the Civil Court and the same can be exercised only on the grounds specified

in  Order  47  Rule  1  of  CPC.  Learned  counsel  emphasized  that  any

subsequent  decision  on  an  identical  or  similar  point  by  a  coordinate  or

larger bench or even change of law cannot be made basis for recording a

finding that the order sought to be reviewed suffers from an error apparent

on the face of the record.  Shri Gupta argued that the Tribunal could not

have reviewed order dated 25.2.1997 by relying on order dated 25.3.1998

passed in  Joydeb Biswas’s  case, because that  order  did not  contain  any

determination on the issue of sanction of posts in Scale Nos.19 and 21 under

the  Scheme  circulated  vide  Memorandum  dated  21.6.1990.   He  further

argued that even if the order passed by the Tribunal in  Joydeb Biswas’s

case could be relied upon for the purpose of holding that recommendations

made by the Secretary of the Administrative Department are binding on the

Government, a mandatory direction could not have been given for extension

of the benefit of Scale Nos.19 and 21 to the respondents ignoring the fact

17

that those scales had not been given to members of other services as well.

Learned  counsel  invited  our  attention  to  the  annexure  appended  to  the

Scheme to  show that  the  State  Government  had  not  sanctioned  posts  in

Scale No.19 for three services including the one of which the respondents

were members and posts in Scale No.21 were sanctioned only for 2 out of

17 State Services and argued that the plea of discrimination raised by the

respondents was rightly rejected by the Tribunal in the first instance because

the respondents had already reached the highest positions in the service and

were being paid salary in the revised scales introduced under ROPA 1990.

Learned counsel pointed out that while dismissing the SLP as withdrawn,

this Court did not give liberty to the respondents herein to apply for review

of order dated 25.2.1997 and argued that letter written by the counsel could

not be made basis for presuming that such liberty had, in fact, been given.

Another argument of the learned senior counsel is that the plea of stagnation

was not raised by the respondents till the filing of review application and,

therefore,  the  same  could  not  have  been  considered  by  the  Tribunal  in

conjunction with the decision contained in Memorandum dated 13.3.2001

for recording a finding that the State had discriminated the respondents in

the matter of grant of higher pay scales.   Shri Gupta lastly argued that the

High  Court  committed  serious  error  by  refusing  to  set  aside  the  order

impugned  in  the  writ  petition  ignoring  the  stark  fact  that  posts  in  Scale

18

No.19 had not been sanctioned for 3 out of 17 State Services and posts in

Scale No.21 were sanctioned only for two services viz., West Bengal Civil

Service (Executive) and West Bengal Commercial Service and the Tribunal

had not struck down the Scheme as a whole on the ground of violation of

Articles  14  and  16  of  the  Constitution.   In  support  of  his

arguments/submissions,  Shri  Bhaskar  Gupta  relied  on  judgments  of  this

Court  –  State of  U.P. vs. J.P. Chaurasia  [1989 (1) SCC 121],  State of

Maharashtra and another vs. Prabhakar Bhikaji Ingle  [1996 (3) SCC

463],  K. Ajit Babu and others vs. Union of India and others  [1997 (6)

SCC  473],  Gopabandhu  Biswal  vs.  Krishna  Chandra  Mohanty  and

others  [1998 (4) SCC 447],  Ajit  Kumar Rath vs.  State of  Orissa  and

others [1999 (9) SCC 596], Union of India vs. Pradip Kumar Dey [2000

(8) SCC 580],  Sankar Deb Acharya vs. Biswanath Chakraborty  [2007

(1) SCC 309] and Union of India vs. Arun Jyoti Kundu and others [2007

(7) SCC 472].  

5. Shri Dhruv Mehta, learned counsel for the respondents referred to the

judgments of this Court in Indian Charge Chrome Ltd. vs. Union of India

[2005  (4)  SCC 67],  Board of  Control  for  Cricket  in  India  vs.  Netaji

Cricket  Club [2005  (4)  SCC  741],  and   K.T.  Veerappa  vs.  State  of

Karnataka  [2006  (9)  SCC  406]  and  argued  that  the  Tribunal  did  not

19

commit any illegality by reviewing order dated 25.2.1997. Learned counsel

further  argued  that  failure  of  the  appellants  to  sanction  posts  in  Scale

Nos.19 and 21 for members of the service resulted in hostile discrimination

between  similarly  situated  persons  and,  therefore,  the  Tribunal  rightly

directed them to extend the benefit of those scales to the respondents.  Shri

Mehta pointed out that order passed in  Joydeb Biswas’s  case  was relied

upon by the Tribunal for the limited purpose of reiterating the settled legal

position  that  the  recommendations  made  by  the  Secretary  of  the

Administrative Department are binding on the State Government and argued

that  this  Court  may not  interfere  with  the  orders  under  challenge  on the

ground that the Tribunal did not advert to the grounds of review enumerated

in Order 47 Rule 1 CPC.  Shri Mehta emphasized that the respondents were

stagnating on the same posts and were drawing salary in the same pay scale

since 1982 and argued even though this fact was clearly discernible from

the averments contained in the affidavit filed in support of the writ petition,

the  Tribunal  failed  to  consider  the  same  and  dismissed  the  transferred

application  on  the  specious  ground  that  the  State  Government  had  the

discretion to prescribe different pay scales for different posts and services.

Learned counsel  then  referred  to  Memorandum dated  13.3.2001  to  show

that  the  State Government  suo moto sanctioned posts  in Scale No.19 for

different services including the one to which the respondents belonged and

20

argued that the Tribunal did not commit any illegality by taking cognizance

of the said Memorandum for the purpose of recording a positive finding on

the issue of  discrimination in  the matter  of grant  of higher pay scales  to

similarly situated persons.  

6. We have given serious thought to the entire matter and scrutinized the

record.   Articles  323A  and  323B  were  inserted  in  the  Constitution  by

Section 46 of the Constitution (Forty-second Amendment) Act, 1976 in the

backdrop of pendency of large number of cases relating to recruitment and

conditions  of  service  of  the  employees  of  the  Central  and  State

Governments  and  their  agencies/instrumentalities  and  other  matters

concerning  the  public  at  large   before  the  Civil  Courts  throughout  the

country  and  long  delays  in  the  disposal  of  such  cases  which  adversely

affected administrative set up/structure at various levels of governance and

recovery of revenue etc.  These Articles enabled Parliament to make laws

for creation of alternative adjudicatory forums comprising of experts i.e. the

Tribunals with exclusive jurisdiction, power and authority to deal with and

decide  the  disputes  and  complaints  with  respect  to  recruitment  and

conditions of service of persons appointed to public services and posts in

connection with the affairs of the Union or of any State or of any local or

21

other authority etc.  and other matters  enumerated in Clause 2 of  Article

323B.

7. In exercise of the power vested in it under Article 323A, Parliament

enacted the Act.  Chapter II of the Act contains provision for establishment

of Tribunals and Benches thereof, qualifications of Chairman and Members,

term of their office etc.  Chapter III comprises of five sections relating to

jurisdiction,  powers  and  authority  of  the  Central,  State  and  Joint

Administrative Tribunals, power of such Tribunals to punish for contempt

and  distribution  of  business  among  the  Benches.   Chapter  IV  contains

various provisions relating to procedure to be followed for institution and

adjudication of applications relating to service disputes.  Chapter V contains

miscellaneous provisions including transfer of the cases pending before the

Civil  Courts  and  High  Courts.  The  original  format  of  the  Act  excluded

jurisdiction of all the Courts including the High Courts and Supreme Court

in relation to service matters.  Later on, the exclusion clause contained in

Section 28 was amended and jurisdiction of the Supreme Court to deal with

such matters was restored.  The jurisdiction of the High Courts in relation to

service matters was partially restored by the judgment of the larger Bench of

this Court in L. Chandra Kumar vs. Union of India and others (1997) 3

SCC 261.      

22

8. With a view to achieve the object underlying the enactment of Article

323A  i.e.  expeditious  adjudication  of  service  disputes/complaints,  the

Tribunals established under the Act have been freed from the shackles of

procedure enshrined in the CPC but, at the same time, they have been vested

with  the  powers  of  a  Civil  Court  in  respect  of  some  matters  including

review of their decisions. This is clearly evinced from the plain language of

Section 22 of the Act, which is reproduced below :-

“22. Procedure  and powers  of  Tribunals.–  (1)  A Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and subject to the other provisions of this Act and of any rules made by the Central Government, the Tribunal  shall  have  power  to  regulate  its  own procedure including  the  fixing  of  places  and  times  of  its  inquiry  and deciding whether to sit in public or in private.

(2)  A Tribunal  shall  decide  every  application  made  to  it  as expeditiously as possible and ordinarily every application shall be  decided  on  a  perusal  of  documents  and  written representations and after hearing such oral  arguments as may be advanced.

(3) A Tribunal shall have, for the purposes of discharging its 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) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents;

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(c) receiving evidence on affidavits;

(d) subject to the provisions of Sections 123 and 124 of the Indian  Evidence  Act,  1872  (1  of  1872),  requisitioning any public record or document or copy of such record or document from any office;

(e) issuing commissions for the examination of witnesses or, documents;

(f) reviewing its decisions;

(g) dismissing a representation for default or deciding it ex parte;

(h) setting aside any order of dismissal of any representation for default or any order passed by it ex parte; and  

(i) any other matter which may be prescribed by the Central Government.

9. A reading of the above reproduced section makes it  clear that even

though a Tribunal is not bound by the procedure laid down in the CPC, it

can exercise the powers of a Civil Court in relation to matters enumerated in

clauses  (a)  to  (i)  of sub-section (3)  including the power of  reviewing its

decision.   

10. The  power  of  a  Civil  Court  to  review  its  judgment/decision  is

traceable in Section 114 CPC.  The grounds on which review can be sought

are enumerated in Order 47 Rule 1 CPC, which reads as under :

Order 47 Rule 1

24

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,  after  the  exercise  of  due  diligence  was  not within his knowledge or could not be produced by him at the time when the decree was 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  for  a review of judgment to  the  Court  which passed the decree or made the order.

11. Since the Tribunal’s power to review its order/decision is akin to that

of  the  Civil  Court,  statutorily  enumerated  and  judicially  recognized

limitations on Civil Court’s power of review the judgment/decision would

also apply to the Tribunal’s power under Section 22(3)(f) of the Act.  In

other words, 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

is 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 his knowledge or if it

is shown that the order sought to be reviewed suffers from some mistake or

25

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.    

12. Before proceeding further, we consider it proper to mention that there

was divergence of opinion among the High Courts on the question whether

the subsequent contra judgment by the same or a superior Court on a point

of law can be treated as an error apparent on the face of the record for the

purpose of review of an earlier judgment.  In  Lachhmi Narain Balu vs.

Ghisa Bihari and another  [AIR 1960 Punjab 43], the learned Single Judge

of  the  then  Punjab  High  Court  held  that  the  Court  cannot  review  its

judgment  merely  because  in  a  subsequent  judgment  different  view  was

expressed on the same subject matter.  In P.N. Jinabhai vs. P.G. Venidas

[AIR 1972 Gujarat 229], the learned Single Judge of the Gujarat High Court

considered  the  question  whether  the  Court  can  revise  its  view  on  the

question  of  pecuniary  jurisdiction  simply  because  the  same  has  been

rendered doubtful in the light of subsequent decision of the High Court and

answered the same in negative.  However, a contrary view was expressed in

Thadikulangara  Pylee’s  son  Pathrose  vs.  Ayyazhiveettil  Lakshmi

Amma’s son Kuttan and others [AIR 1969 Kerala 186].   In that case, the

learned Single  Judge of the Kerala High Court  opined that  a subsequent

26

decision authoritatively declaring the law can be made basis for reviewing

an  earlier  judgment.  The  Law  Commission  took  cognizance  of  these

divergent  opinions  and  suggested  amendment  of  Order  47.   That  led  to

insertion of explanation below Rule 2 of Order 47 by Civil Procedure Code

(Amendment) Act, 1976.  The same reads as under:

Explanation.- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other  case,  shall  not  be  a  ground  for  the  review  of  such judgment.   

13. In  Nalagarh  Dehati  Co-operative  Transport  Society  Ltd.,

Nalagarh vs. Beli Ram etc.  [AIR 1981 HP 1] a Full Bench of Himachal

Pradesh High Court considered the above reproduced explanation and held

that a subsequent judgment of the Supreme Court or a larger bench of the

same Court taking a contrary view on the point covered by the judgment

does not amount to a mistake or error apparent on the face of the record. In

Gyan Chandra Dwivedi vs. 2nd Additional District Judge, Kanpur and

others  [AIR 1987 Allahabad 40], the  learned Single Judge of  Allahabad

High Court took cognizance of the explanation, referred to the judgment of

this Court in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma [AIR

1979 SC 1047] and held :

“9.  It  will  thus  be  seen  that  while  power  of  review may be inherent in the High Court to review its own order passed in a writ petition, the same has to be exercised on well recognised

27

and established grounds on which judicial orders are reviewed. For example the power may be exercised on the discovery of some new and  important  matter  or  evidence  which  was  not within the knowledge of the parties seeking review despite due exercise of  diligence  when the order  was made.  Review can also be sought when the order discloses some error apparent on the face of record or on grounds analogous thereto. These are all  grounds  which  find  mention  in  various  judicial pronouncements right from the earliest  time as well as in the Rules of Order XLVII of the Civil P.C. as permissible grounds of review.  

An  Explanation  was  added  to  Order  XLVII  Rule  1  by  the amendment of the Civil P.C. by Central Act No. 104 of 1976. It reads :

"The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment."  

10. This explanation was added on the recommendation of the law Commission to put  an end to the controversy which had arisen as regards whether a judgment could be reviewed merely on the ground that the decision on a question of law on which the same was founded has  been reversed or  modified by the subsequent decision of a superior Court.  Almost all the High Courts,  save for the solitary exception of Kerala High Court, were unanimous in their opinion that the fact that the view of law  taken  in  a  judgment  has  been  altered  by  a  subsequent decision of a superior Court in another case could not afford a valid ground for the review of the judgment.”

14. At this stage it is apposite to observe that where a review is sought on

the ground of discovery of new matter or evidence, such matter or evidence

must be relevant and must be of such a character that if the same had been

produced,  it  might  have  altered  the  judgment.  In  other  words,  mere

28

discovery of new or important matter or evidence is not sufficient ground

for review ex debito justiciae.   Not only this, the party seeking review has

also  to  show that  such  additional  matter  or  evidence  was not  within  its

knowledge and even after the exercise of due diligence, the same could not

be produced before the Court earlier.   

15. The term `mistake or error apparent’ by its very connotation signifies

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  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 or law. In any case, while exercising the

power of review, the concerned Court/Tribunal cannot sit in appeal over its

judgment/decision.          

16. We may now notice some of the judicial precedents in which Section

114  read with Order 47 Rule 1 CPC and/or Section 22 (3) (f) of the Act

29

have  been  interpreted  and  limitations  on  the  power  of  the  Civil

Court/Tribunal to review its judgment/decision have been identified.   

17. In  Rajah  Kotagiri  Venkata  Subamma  Rao  vs.  Rajah  Vellanki

Venkatrama  Rao  [1990  (27)  Indian  Appeals  197],  the  Privy  Council

interpreted Sections 206 and 623 of the Civil Procedure Code and observed:

“Section 623 enables any of the parties to apply for a review of any decree on the discovery of new and important matter and evidence, which was not within his knowledge, or could not be produced  by  him at  the  time  the  decree  was  passed,  or  on account of some mistake or error apparent on the face of the record, or for any other sufficient reason.  It is not necessary to decide in this case whether the latter words should be confined to reasons strictly ejusdem generic with those enumerated, as was held in  Roy Meghraj v. Beejoy Gobind Burral  [(1875) Ind. L.R. 1 Calc. 197].  In the opinion of their Lordships, the ground  of  amendment  must  at  any rate  be  something  which existed  at  the  date  of  the  decree,  and  the  section  does  not authorize the review of a decree which was right when it was made  on  the  ground  of  the  happening  of  some  subsequent event.”

[Emphasis added]

18. In Sir Hari Shankar Pal and another vs. Anath Nath Mitter and

others [1949 FCR 36],  a  Five Judges  Bench of  the  Federal  Court  while

considering the question whether the Calcutta High Court was justified in

not  granting relief  to non-appealing party,  whose position was similar  to

that of the successful appellant, held :

“That a decision is erroneous in law is certainly no ground for ordering review.  If the Court has decided a point and decided

30

it erroneously, the error could not be one apparent on the face of  the  record  or  even  analogous  to  it.   When,  however,  the court  disposes of a case without  adverting to or applying its mind to a provision of law which gives it jurisdiction to act in a particular way, that may amount to an error analogous to one apparent on the face of the record sufficient to bring the case within the purview of Order  XLVII, Rule 1, Civil  Procedure Code. ”

19. In  Moran Mar Basselios  Catholicos  and  another  vs.  The  Most

Rev. Mar Poulose Athanasius and others [1995 (1) SCR 520], this Court

interpreted the provisions contained in Travancore Code of Civil Procedure

which are analogous to Order 47 Rule 1 and observed :

“Under  the  provisions  in  the  Travancore  Code  of  Civil Procedure which is similar in terms to Order XLVII, Rule 1 of our  Code of  Civil  Procedure,  1908,  the Court  of  review has only  a  limited  jurisdiction  circumscribed  by  the  definitive limits fixed by the language used therein. It may allow a review on three specified grounds, namely, (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not  be  produced  by  him  at  the  time  when  the  decree  was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason.  It has been held by the Judicial Committee that the words “any other sufficient reason” must mean “a reason sufficient on grounds, or least analogous to those specified in the rule”.”

20. In Thungabhadra Industries Ltd. vs. Govt. of A.P. [AIR 1964 SC

1372]   it  was  held  that  a  review is  by no  means an  appeal  in  disguise

whereof an erroneous decision can be corrected.   

31

21. In Parsion Devi and Others vs. Sumitri Devi and Others [1997 (8)

SCC 715], it was held as under:-

“Under  Order  47  Rule  1  CPC  a  judgment  may be  open  to review inter alia if there is a mistake or an error apparent on the face of the record.  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 47, Rule 1 CPC.  In exercise of the jurisdiction under Order 47, Rule 1 CPC  it  is  not  permissible  for  an  erroneous  decision  to  be “reheard and corrected”.  There is a clear distinction between an erroneous decision and an error apparent on the face of the record.  While the first can be corrected by the higher forum, the  latter  only  can  be  corrected  by  exercise  of  the  review jurisdiction.   A  review  petition  has  a  limited  purpose  and cannot be allowed to be “an appeal in disguise”.”

[Emphasis added]

22. In Haridas Das vs. Usha Rani Banik and others [2006 (4) SCC 78],

this Court made a reference to explanation added  to Order 47 by the Code

of Civil Procedure (Amendment) Act, 1976 and held :

“In order to appreciate the scope of a review, Section 114 CPC has to be read, but this section does not  even adumbrate the ambit  of  interference  expected  of  the  court  since  it  merely states that it “may make such order thereon as it thinks fit”. The parameters  are  prescribed  in  Order  47  CPC  and  for  the purposes  of  this  lis,  permit  the  defendant  to  press  for  a rehearing “on account of some mistake or error apparent on the face  of  the  records  or  for  any  other  sufficient  reason”.  The former part of the rule deals with a situation attributable to the applicant,  and the latter to a jural action which is  manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not  highlighted  all  the  aspects  of  the  case  or  could  perhaps have  argued  them  more  forcefully  and/or  cited  binding

32

precedents  to  the  court  and  thereby  enjoyed  a  favourable verdict. This is amply evident from the Explanation to Rule 1 of Order 47 which states  that  the fact  that  the decision on a question of law on which the judgment of the court is based has been  reversed  or  modified  by  the  subsequent  decision  of  a superior court in any other case, shall not be a ground for the review  of  such  judgment.  Where  the  order  in  question  is appealable  the  aggrieved  party  has  adequate  and  efficacious remedy and the court should exercise the power to review its order with the greatest circumspection.”

23. In  Aribam  Tuleshwar  Sharma  vs.  Aribam  Pishak  Sharma

(supra),  this  Court  considered  the  scope  of  the  High  Courts’  power  to

review an order passed under Article 226 of the Constitution, referred to an

earlier decision in Shivdeo Singh vs. State of Punjab [AIR 1963 SC 1909]

and observed :

"It is true as observed by this Court in Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909, there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which is inherent in every  Court  of  plenary  jurisdiction  to  prevent miscarriage  of  justice or  to  correct  grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter  or  evidence  which,  after  the  exercise  of  due diligence  was  not  within  the  knowledge of  the  person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record  is  found;  it  may  also  be  exercised  on  any analogous ground. But,  it  may not  be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with appellate power which

33

may enable an Appellate Court to correct all matters or errors committed by the Subordinate Court."  

24. In K. Ajit Babu and others vs. Union of India and others [1997 (6)

SCC 473],  it  was  held  that  even though Order  47  Rule  1  is  strictly  not

applicable  to  the  Tribunals,  the  principles  contained  therein  have  to  be

extended to them, else there would be no limitation on the power of review

and there would be no certainty or finality of a decision.  A slightly different

view  was  expressed  in  Gopabandhu  Biswal  vs.  Krishna  Chandra

Mohanty and others [1998 (4) SCC 447].  In that case it was held that the

power of review granted to the Tribunals is similar to the power of a Civil

Court under Order 47 Rule 1.

25. In Ajit Kumar Rath vs. State of Orissa and Others [1999 (9) SCC

596], this Court reiterated that power of review vested in the Tribunal is

similar to the one conferred upon a Civil Court and held:-

“The  provisions  extracted  above  indicate  that  the  power  of review available to the Tribunal is the same as has been given to  a  court  under  Section  114  read  with  Order  47  CPC.  The power  is  not  absolute  and  is  hedged  in  by  the  restrictions indicated  in  Order  47.  The  power  can  be  exercised  on  the application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that

34

is  to  say,  the  power  of  review  can  be  exercised  only  for correction of a patent error of law or fact which stares in the face  without  any  elaborate  argument  being  needed  for establishing it.  It may be pointed out that the expression “any other  sufficient  reason”  used  in  Order  47  Rule  1  means  a reason sufficiently analogous to those specified in the rule. 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.”

[Emphasis added]

26. In  State of Haryana and Others vs.  M.P. Mohla  [2007 (1)  SCC

457], this Court held as under :-

“A  review  petition  filed  by  the  appellants  herein  was  not maintainable. There was no error apparent on the face of the record.  The effect  of  a judgment may have to  be considered afresh in a separate proceeding having regard to the subsequent cause of action which might have arisen but the same by itself may not be a ground for filing an application for review.”

27. In Gopal Singh vs. State Cadre Forest Officers’ Assn. and Others

[2007  (9)  SCC  369],  this  Court  held  that  after  rejecting  the  original

application filed by the appellant, there was no justification for the Tribunal

to review its  order and allow the revision of the appellant.   Some of the

observations made in that judgment are extracted below:

“The learned counsel for the State also pointed out that there was  no  necessity  whatsoever  on  the  part  of  the  Tribunal  to review  its  own  judgment.  Even  after  the  microscopic examination of the judgment of the Tribunal we could not find a single reason in the whole judgment as to how the review was justified and for what reasons. No apparent error on the face of the  record  was  pointed,  nor  was  it  discussed.  Thereby  the Tribunal sat as an appellate authority over its own judgment. This was completely impermissible and we agree with the High Court (Justice Sinha) that the Tribunal has traveled out of its

35

jurisdiction to write a second order in the name of reviewing its own judgment. In fact the learned counsel for the appellant did not address us on this very vital aspect.”

28. The  principles  which  can  be  culled  out  from  the  above  noted

judgments are :

(i) The power of the Tribunal to review its order/decision under Section

22(3)(f) of the Act is akin/analogous to the power of a Civil Court

under Section  114 read with Order 47 Rule 1 of CPC.

(ii) The  Tribunal  can  review  its  decision  on  either  of  the  grounds

enumerated in Order 47 Rule 1 and not otherwise.  

(iii) The expression “any other sufficient reason” appearing in Order 47

Rule 1 has to be interpreted in the light of other specified grounds.

(iv) An error which is not self-evident and which can be discovered by a

long process of reasoning, cannot be treated as an error apparent on

the face of record justifying exercise of power under Section 22(3)(f).

(v) An  erroneous  order/decision  cannot  be  corrected  in  the  guise  of

exercise of power of review.

(vi) A decision/order cannot be reviewed under Section 22(3)(f) on the

basis of subsequent decision/judgment of a coordinate or larger bench

of the Tribunal or of a superior Court.  

36

(vii)   While  considering  an  application  for  review,  the  Tribunal  must

confine  its  adjudication  with  reference  to  material  which  was

available  at  the  time  of  initial  decision.   The  happening  of  some

subsequent  event  or  development  cannot  be  taken  note  of  for

declaring the initial order/decision as vitiated by an error apparent.

(viii) Mere  discovery  of  new  or  important  matter  or  evidence  is  not

sufficient ground for review.  The party seeking review has also to

show that such matter or evidence was not within its knowledge and

even  after  the  exercise  of  due  diligence,  the  same  could  not  be

produced before the Court/Tribunal earlier.   

29. In the light of the above, we shall now consider whether order dated

25.2.1997  passed  by  the  Tribunal  in  Transferred  Application  No.826  of

1996 suffered from any patent mistake or an error apparent so as to warrant

its review under Section 22(3)(f) of the Act.  A recapitulation of the facts

would show that the respondents’ claim for grant of the benefit of higher

scales  in  terms  of  the  Scheme  was  entirely  founded  on  the  plea  of

discrimination.  In  the  affidavit  filed  by  him,  respondent  no.2  -  Narayan

Chandra Ghosh, briefly referred to his own service profile along with that of

respondent  no.1  –  Kamal  Sengupta  and  pleaded  that  in  view  of  the

recommendations made by the Secretary of the Administrative Department,

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the State Government was bound to extend the benefit of Scale Nos.19 and

21  to  them,  but  the  Finance  Department  arbitrarily  rejected  their  claim.

According  to  Shri  Ghosh,  members  of  all  the  State  Services  had  been

recruited by the same method and, therefore, there was no justification to

deny the benefit  of Scale Nos.19 and 21 to members of the service.  He

produced  a  chart  of  the  State  Services  whose  members  were  given  the

benefit of Scale Nos.19 and 21 and pleaded that denial thereof to members

of  the  service  was  ex-facie  arbitrary,  discriminatory  and  unjustified.

However, he did not plead stagnation as a ground for claiming benefit in

terms of the Scheme. Even after transfer of the case to  the Tribunal,  the

respondents  did not raise the plea of stagnation. A careful reading of the

averments contained in the affidavit of respondent no.2 shows that the same

did not contain even a trace of the plea of stagnation so as to enable the

Tribunal  to  read  the  same  as  an  implicit  ground  in  support  of  the

respondents’ claim for Scale Nos.19 and 21.  The reason for this omission is

not far to seek.  Within a short span of 15 to 16 years of service, both the

respondents got three promotions i.e. as Assistant Director, Deputy Director

and Director.  In their counter, the appellants categorically averred that the

Scheme was meant only for those employees who did not have adequate

promotional opportunities and that the writ petitioners were not entitled to

Scale  Nos.19  and  21  because  they  had  already received  promotions  and

38

were holding the highest post. According to the appellants, the Scheme was

framed  by  an  Expert  Committee  and  in  the  absence  of  any  patent

arbitrariness,  the  High  Court  did  not  have  the  jurisdiction  to  issue  a

mandamus to extend the benefit of higher scales to the petitioners. It was

also pleaded that recommendations made by the Secretary of Administrative

Department were not binding on the Government. The Tribunal elaborately

referred to the pleadings of the parties, considered the arguments of their

counsel  and  held  that  the  petitioners  (applicants)  are  not  entitled  to  the

benefit of the Scheme because they were holding highest post in the service

and  were  being  paid  salary  in  the  scale  prescribed  for  that  post.   The

Tribunal  further  held  that  the  Scheme  was  not  discriminatory  because

benefit of higher scales was given to different services keeping in view the

ratio  of higher posts  to base level  posts  in the  feeder grade,  hierarchical

structure of the department, the level of work and nature of responsibilities,

the proportion of direct recruitment, the pace of growth of normal activities

of a department and the avenues of promotion. The Tribunal then observed

that recommendations are usually made by all  departmental heads but the

same are not binding on the Government.  It is thus evident that the Tribunal

had considered all the points raised by the respondents and negatived their

claim by assigning cogent reasons.  The Tribunal did not consider the issue

39

of stagnation because neither any such plea was taken in the affidavit  of

respondent no.2 nor any argument was advanced on that score.   

30. In the review application, the respondents did assert that they were

stagnating on the same post and in the same pay scale since 1982, but no

material was placed before the Tribunal to substantiate the said assertion or

to  show that  members  of  other  State  Services  had  been given benefit  of

Scale Nos.19 and 21 despite the fact that they received promotions during

the course of service.   The respondents reiterated the plea of discrimination

by  alleging  that  benefit  of  Scale  Nos.19  and  21  had  been  extended  to

members  of  other  State  Services  but  the  same  was  denied  to  them

without any  rhyme or reason,  but  no  evidence  was  produced   by  them

to prime facie prove this allegation. The respondents also relied on order

dated 25.3.1998 passed in  Joydeb Biswas’s  case  in support  of their plea

that  recommendations  made  by  the  Secretary  of  the  Administrative

Department are binding on the Government and pleaded that in view of the

latter decision, the earlier order is liable to be reviewed.

31. The  Tribunal  made a  detailed  note  of  the  arguments  of  the  senior

counsel  appearing  for  the  respondents  and  held  that  they  have  been

discriminated  in  the  matter  of  grant  of  Scale  Nos.19  and  21.   For  this

40

purpose, the Tribunal relied on Memorandum dated 13.3.2001 issued by the

State Government for sanction of posts in Scale Nos.19 and 21 for different

State Services.  The Tribunal also relied on the ratio of  Joydeb Biswas’s

case  and held that the contra view expressed by it on the issue of binding

character  of  the  recommendations  made  by  Head  of  the  Administrative

Department was not correct.   

32. In our opinion, neither of the grounds set out in the Review Petition

warranted exercise of power by the Tribunal under Section 22(3)(f) of the

Act.  At the cost of repetition, we consider it necessary to mention that the

plea of stagnation was not raised in the affidavit filed in support of the writ

petition.  In the Memo of Review, the respondents made a bald assertion

that they were stagnating on the same post and in the same pay scale in 1982

but  the  said  assertion  was  ex-facie  farcical  because  as  per  their  own

showing  (para  5  of  the  affidavit  of  respondent  no.2  –  Narayan  Chandra

Ghosh), the respondents had joined service in the basic grade post i.e. Sub-

Divisional Controllers of Food and Supplies and within a short span of 15 to

16  years  they  got  three  promotions  and  were  also  granted  benefit  under

ROPA 1981 and ROPA 1990.  Therefore, the plea of stagnation could not

have been made basis for reviewing the finding recorded in the earlier order

that  the  respondents  had  not  been  discriminated.   Unfortunately,  the

41

Tribunal did not advert to the well recognized limitation on the exercise of

power of review under Section 22(3)(f) of the Act read with Order 47 Rule

1 CPC and straightaway recorded a  finding of  discrimination  by placing

reliance on Memorandum dated 13.3.2001, which, in our considered view,

did not advance the cause of the respondents.  For better appreciation of this

aspect of the case, the relevant portions of Memorandum dated 13.3.2001

are extracted below :

“Government of West Bengal Finance Deptt. Audit Br.

No.3015-F Kolkata 13th March, 2001

MEMORANDUM

“The  question  of  improving  the  existing  Career Advancement Scheme for the State Government employees as introduced in Finance Deptt. No.6075-F dated 21.6.90 has been under consideration of the Government for sometime past.  The recommendations of the Fourth Pay Commission on this aspect have  also  been  under  examination  of  the  State  Government. After  careful  consideration,  the  Governor  is  now pleased  to modify the existing Career Advancement Scheme of the State Government employees in the manner indicated below.

1 to 3.  xx xx xx xx

4. Over and above the existing posts in Scale Nos.19 and 21 in various State Services as mentioned in F.D. No.6075-F dated 21.6.90 the following additional posts shall be available to different State Services :

i) Forty  three  additional  posts  in  Scale  No.19  in  West Bengal Civil Service (Executive) are created and the eligibility

42

condition for Scale No.19 will  be the same as stated in F.D. No.6075-F dated 21.6.90.

Six additional posts of Special Secretary/Secretary in the revised Scale No.21 are sanctioned for W.B.C.S. (Ex) and such posts are to be filled up by selection from amongst W.B.C.S. (Ex) Officers  who have completed  twenty five years  of  total service in the cadre including three years as Joint Secretary.   

Govt. has also decided to fill up some of the posts of the District Magistrates by W.B.C.S. (Ex) Officers.  Detailed Govt. order in this respect will be issued later on.

ii) One  additional  post  of  Special  Commissioner, Commercial Taxes in the Scale No.21 is created and such post is  to  be  filled  up  by selection  from amongst  the  Additional Commissioners who have put in a total service of thirty years since  entry  into  West  Bengal  Commercial  Tax  Service including six  years in  Scale No.19 are also created for West Bengal  Commercial  Tax Service and the eligibility condition for  Scale  No.19  will  be  the  same  as  stated  in  Govt.  order No.6075-F dated 21.6.90.

iii) Fifty-five additional posts in Scale No.19 in West Bengal Health  Service  are  created  and  the  eligibility  condition  for Scale No.19 will be the same as stated in Govt. order No.6075- F dated 21.6.90.

iv) Ten posts in Scale No.19 in West Bengal E.S.I. Medical Service are created and the eligibility condition for Scale No.19 will be total service of 20 years on revised Scales No.16, 17 & 18 and their  unrevised  counterparts  and three  years  in  Scale No.18.   

v) The additional posts in Scale No.19 are created for West Bengal  Secretariat  Service  and  the  eligibility  conditions  for these two posts will remain the same as at present.  

vi) As regards other constituted State Services as mentioned in Finance Department Memo No.6075-F dated 21.6.90 which have not been mentioned in this Memo, two additional posts in Scale  No.19  are  created  for  each  of  those  constituted  State

43

Services and the eligibility condition for Scale No.19 will be same as stated in F.D. No.6075-F dated 21.6.90.

vii) The number of posts in the basic grade in various State Services  as  mentioned  above  will  stand  reduced  by  the equivalent number of posts created in Scale Nos.19 and 21.

5. Other  provisions  of  the  existing  Career  Advancement Scheme  as  contained  in  this  Department  No.6075-F,  dated 21.6.90 which are not inconsistent with the provisions of this memorandum shall continue to remain in force.  

6. This will come into effect from 1.1.2001.” [Emphasis added]  

The plain language of the above reproduced Memorandum shows that

the State  Government had,  after  considering the representations  made by

employees of different services, sanctioned additional number of posts in

Scale Nos.19 and 21.  For the Officers of Food and Supplies Department,

two posts  were sanctioned in Scale No.19.   This  development had taken

place  after  more than  four  years  of  dismissal  of  Transferred  Application

No.826 of 1996. A holistic reading of the Memorandum dated 13.3.2001

makes it clear that the same cannot, by any stretch of imagination, be read as

suo moto acceptance by the State Government of the respondents’ claim for

Scale Nos.19 and 21. Therefore, the Tribunal could not have considered the

same for granting relief to the respondents and that too by ignoring para 6 of

the Memorandum in terms of which the additional posts were to become

operative from 1.1.2001.  In any case, the Tribunal could not have, without

44

recording a reason based finding that order dated 25.2.1997 was vitiated by

a mistake or error apparent on the face of the record or there existed some

other reason analogous to an error apparent, reviewed that order simply on

the basis of the decision taken by the State Government to sanction posts in

Scale No.19 for members of the service apart from other State Services.  

33. The Tribunal’s reliance on the order passed in Joydeb Biswas’s case

was  clearly  misplaced  because  the  only  point  decided  in  that  case  was

whether members of the service are entitled to the benefit of Scale Nos.16,

17 and 18 under ROPA 1981 in the ratio of 6:3:1.  The Scheme notified on

21.6.1990 was not the subject matter of consideration in that case. In the

counter  filed in  Joydeb Biswas’s  case, the  appellants  herein  did  rely on

order dated 25.2.1997 passed in the case of the respondents to show that the

decision taken by the State Government not to distribute Scale Nos.16, 17

and 18 in the ratio 6:3:1 was not discriminatory, but the Tribunal refused to

consider the same by observing that the question relating to distribution of

posts  in  Scale  Nos.16,  17  and  18  under  ROPA  1981  had  not  been

considered in  that  case.   This  being the position,  the Tribunal  could not

have, by relying on the order passed in Joydeb Biswas’s case, declared that

the recommendations made by Secretary of Food and Supplies Department

are  binding  on  the  State  Government.   In  any  case,  in  view  of  the

45

explanation added to Order 47 by the 1976 amendment, the Tribunal could

not  have relied on the subsequent  order  for holding that  the contra view

expressed in the earlier order was erroneous.   

34. There is another reason for our conclusion that the Tribunal was not

entitled to rely on the order passed in Joydeb Biswas’s case for the purpose

of  reviewing  order  dated  25.2.1997.   Undisputedly,  that  order  is  under

challenge  in  the  writ  petitions  filed  before  the  High  Court  of  Calcutta.

Therefore, even though  prima facie we are inclined to agree with learned

senior  counsel  for  the  appellants  that  mere  recommendations  of  the

Secretary of  the  Administrative  Department  or  for  that  reason  any other

authority, are not binding on the Government –  Union of India vs. Arun

Jyoti Kundu and others (supra), we do not consider it necessary to finally

pronounce on this issue, because it will prejudice adjudication of the matter

pending before the High Court.  

35. The most astonishing feature of order dated 25.9.2001 is that without

making  any discussion  on  the  entitlement  of  the  respondents  to  get  the

benefit  of  Scale  No.21,  the  Tribunal  directed  the  State  Government  to

sanction that pay scales to them.  While doing so, the Tribunal conveniently

overlooked the fact that benefit of the Scheme (Scale No.19) had not been

46

given  to  members  of  three  State  Services  i.e.  West  Bengal  Agricultural

Income Tax Service, West Bengal Fisheries Service and West Bengal Food

& Civil Supplies Service and benefit of Scale No.21 had been extended to

the  members  of  only  2  out  of  17  State  Services  i.e.  West  Bengal  Civil

Services (Executive) and West Bengal Commercial Tax Services and that

any  direction  in  favour  of  the  respondents  would  result  in  huge

discrimination qua members of other State Services.   

36. For  the  reasons  mentioned  above,  we  hold  that  the  Tribunal

committed  a  jurisdictional  error  by entertaining  and  allowing the  review

application  filed  by  the  respondents  and  the  direction  given  by  it  for

extending  the  benefit  of  Scale  Nos.19  and  21  to  them  is  legally

unsustainable.   

37. The three judgments cited by Shri Dhruv Mehta, learned counsel for

the  respondents  are  clearly  distinguishable.   In  Indian Charge  Chrome

Ltd. vs.  Union of  India  (supra),  the Three  Judges  Bench made detailed

discussion on this Court’s power of review but the same was meant only for

the purpose of admission of the review application.  This is evident from the

last line of the order, which is extracted below :

“We make it clear that the observations made in this order are only  for  the  purpose  of  deciding  the  limited  aspect  of admission of the review petitions.”

47

38. That apart, a careful reading of the judgment shows that in paragraph

13  thereof,  this  Court  categorically  observed  that  an important  argument

regarding  the  alleged  illegality  of  the  approval  granted  by  the  Central

Government  to  the  proposal  of  the  State  Government  had  not  been

considered and copy of order dated 14.1.1999 passed by the Chief Minister

on which reliance was placed by the Court  had not  been supplied to the

party and the same was not even available on record and all this prima facie

constituted an error apparent on the face of the record.

39. In Board of Control for Cricket in India vs. Netaji Cricket Club

(supra), this Court considered whether the Division Bench of Madras High

Court  was  justified  in  admitting  the  review  petition.   After  making  an

elaborate reference to the factual matrix of the case and some judgments, the

Two Judges Bench concluded that the High Court did not commit any error

by entertaining the review petition.  In para 91 of the judgment, reference

has been made to an earlier judgment in Moran Mar Basselios Catholicos

and  another  vs.  The  Most  Rev.  Mar  Poulose  Athanasius  and  others

(supra) in which expression ‘any other sufficient reason’ was interprted and

it  has  been  observed  that  the  said  rule  is  not  universal.   However,  the

judgment of the Two Judges Bench is conspicuously silent as to why the

ratio of the earlier judgment warrants a deviation.  The one line observation

contained in para 93 that while exercising review jurisdiction the Court can

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take into consideration subsequent event has to be treated as confined to the

facts  of  the  case  involving  the  controversy  between  rival  Cricket

Associations.   

40. The  third  judgment  in  K.T.  Veerappa  vs.  State  of  Karnataka

(supra)  deals with the issue of discrimination in the matter of grant of pay

scales but does not contain any discussion on the issue of Tribunal’s power

to review its decision.

41. We may now advert  to the High Court’s order.   A perusal thereof

shows that even while accepting the contention of the appellants that the

Tribunal did not have the jurisdiction to review order dated 25.2.1997, the

High Court approved the direction given for extending the benefit of Scale

Nos.19 and 21 to the respondents, albeit without taking cognizance of the

stark  fact  that  they  had  received  promotions  on  the  posts  of  Assistant

Director, Deputy Director and Director; that they were holding highest posts

in the service; that they were given the benefit of higher pay scales under

ROPA 1981 and ROPA 1990 and no material had been placed before the

Court to show that members of other State Services to whom the benefit of

Scale Nos.19 and 21 had been given under the Scheme had also received

three promotions after joining the service.  The High Court also overlooked

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the fact  that  members of three out  17 State Services  had not  been given

benefit of Scale No.19 and posts in Scale No.21 had been sanctioned only

for 2 out of 17 State Services.  It is our considered view that in the absence

of   factual  foundation,  the  High  Court  was  not  justified  in  recording  a

conclusion that denial of Scale Nos.19 and 21 had resulted in violation of

the respondents’ fundamental rights guaranteed under Articles 14, 16 and 21

of the Constitution and that too by ignoring the fact that the respondents had

not produced any tangible evidence to prima facie prove that they had been

subjected  to  hostile  discrimination  or  that  the  decision  of  the  State

Government not to extend the benefit of Scale Nos.19 and 21 to members of

the service was irrational and arbitrary. It is trite to say that in such matters

the onus is always on the employee to prima facie substantiate the plea of

discrimination or arbitrary exercise of power and only then the State or its

instrumentality/agency or the public body (the employer) can be called upon

to show that  its  decision is  non-discriminatory, non-arbitrary,  fair  and in

public interest.  

42. In the result, the appeal is allowed.  The order of the High Court as

also the one passed by the Tribunal in R.A. No.26 of 1998 are set aside.

The parties are left to bear their own costs.   

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……………………. J. (B.N. Agrawal)

…………………….J. (G.S. Singhvi)

New Delhi June 16, 2008

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