Judgment:
Hon'ble Mr. George Paracken, Judicial Member
The Review Applicants who are non-parties in O.A.452/2006 have sought to review the order dated 4.4.2008 therein. The operative part of the said order reads as under:
"10. It is an admitted fact that the merger of these two cadres of UDC and DEOs are part of the policy decision of the Government to rationalise the Tax administration and introduce modern technology. As pointed out by the respondents when different cadres have to be merged the Government has to take into consideration the interest of the various merging cadres as well as the larger interest of the Department. The merger of these two cadres was implemented in the respondent Department as well as in the Central Board of Excise and Customs; both wings come under the Ministry of Finance, Department of Revenue. The principle adopted for determining inter-se seniority between merging cadres have been challenged by the UDCs in both the wings of Customs and Excise and Income Tax. In respect of the Customs and Central Excise the decision of the Madras bench of the Tribunal in O.A.558/03 was the subject matter of a W.P. Before the Hon'ble High court of Madras. The respondents have stated in their reply that the judgment of the Madras Bench of the Tribunal has been upheld by the Madras High Court but the Central Board of Excise and Customs is contemplating to file an SLP in the Hon'ble Supreme Court. Since the merger is a part of the rationalisation/restructuring scheme implemented in the two sister organisations of Income Tax and Customs and Excise whatever policies adopted by the Central Board of Excise and customs should also become applicable to the Central Board of Direct Taxes. In the additional rejoinder filed by the applicant on 1.2.08 it has been submitted that "even though the merger of the two cadres of UDCs and DEOs into the new cadre of Tax Assistant has been held to be legal and just by different Tribunals the rule relating to the seniority has been held to be unfair and directed to review the matter. If the order of the Tribunal in an identical case pertaining to Department of Excise and Customs is to be implemented it is to be made applicable to the UDCs and DEOs in the Income Tax Department also." We appreciate this submission on behalf of the applicants and accordingly we consider it appropriate to direct the respondents that if and when it is decided to implement the decision of the Madras Bench of the Tribunal in O.A.558, 538 and 909 of 2003 by the Central Board of Excise and Customs, the same shall also be made applicable to the applicants herein. With the above direction, the O.A is disposed of. No costs."
2. The review applicants have also filed M.A.No.646/2000 in this Review Application to condone the delay of 117 days in filing the present Review Application. According to them, the applicants in the O.A have obtained the order dated 4.4.2008 behind their back and when they came to know about it, they applied for a certified copy and after obtaining a copy of the same took all further necessary steps to file the present review application. In the process a delay of 117 days has occurred and it was not as a result of any latches on their part but on account of reasons beyond their control.
3. On merits, they have submitted that the Annexure RA-1 order suffers from errors of law and facts apparent on the face of the records and, therefore, it is liable to be reviewed by this Tribunal. Further they have submitted that the Annexure RA1 proceeds on the assumption that the rules relating to the Senior Tax Assistants and Tax Assistants of the Central Board of Excise and Customs and that of Income Tax Department are identical which is not factually correct. In this regard, they have produced Annexure RA-2 notification of the Central Board of Excise and Customs Department Senior Tax Assistant (Group 'C' posts) Recruitment Rules, 2003 dated 16.1.2003 and Annexure RA-3 notification of the Central Board of Excise and Customs Department Tax Assistant (Group 'C' posts) Recruitment Rules, 2003 dated 2.5.2003. They have submitted that the said Recruitment Rules are entirely different. For example, in the Central Excise Department, the Data Entry Operators were considered in the interse seniority along with all the clerical cadres in the restructuring process and it was completed in a single year i.e. in 2003 and there was no subsequent merging exercise. But in the Income Tax Department, the actual reconsideration tookplace in 2000-2001 wherein only clerical cadres viz, Head Clerks, Tax Assistants, LDCs and UDCs to which respondents 1 to 4 belong were considered. But the equally qualified DEOs were not at all in the picture. In the second year again, the left over UDCs who were not eligible to be considered in the restructures were merged with the DEOs. Review applicants have therefore, argued that the question of benefit in restructuring in the case of DEOs did not arise. They have also submitted that none of the erstwhile Data Entry Operators were considered, despite they were having same qualification and eligibility conditions. When it came to the recruitment year of 2001-02, again the pre-structured cadre of Data Entry Operators Gr.B and pre-structured cadre of Tax Assistants in the same grade, pre-structured cadre of UDCs with minimum 3 years of service who have qualified in the Ministerial Staff Examination and pre-structured cadre of Data Entry Operators Gr.A with minimum 3 years of service and qualified Ministerial Staff Examination were considered. They have also submitted that the policy decision of the Government of India as regards restructuring of the Ministerial Cadre and that of the Data Entry Operators were not implemented in a uniform manner in the Income Tax Department and also in the Central Board of Excise and Customs as the Recruitment Rules were not identical.
4. We have considered the arguments of the learned counsel for the parties.
5. As regards the merit of the case is concerned, it is seen that the review applicants have not pointed out any glaring omission or patent mistake or grave error crept in the order under review. The scope of an application for review is very limited. In the case of Ajith Kumar Rath Vs. State of Orissa and others, (2000 (1) SLR 622) wherein it has been held as under:
"29. 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 is to say, the power of review can be exercised only for correction or a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing. 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."
6. Further, it is seen that the order under view has already been challenged before the Hon'ble High Court of Kerala in a Writ Petition as stated by the review applicants themselves. When matter is already under the consideration of the Hon'ble High Court, it is improper on the part of this Tribunal to entertain this R.A.
7. The review applicants have not established that there was any error apparent on the face of the records. In our considered opinion, the review applicants are only trying to re-argue the matter afresh.
8. Moreover, these applicants were not parties in the O.A. The Apex Court in Gopabandhu Biswal v. Krishna Chandra Mohanty and others [(1998) 4 SCC 447 ] has held that the remedy available to the non-parties in a proceeding is to file another Original Applications/Petitions before the Tribunal/Court and not to file a review of the order already passed. In para 10 of the said judgment, it was held as under:
"10. 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 applicants, 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 TA No. 1 of 1989 in the case of Gopabandhu Biswal. If this is so, can a third party by 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 is wholly impermissible. It will lead to reopening 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. "
9. Secondly, this application has been filed after a delay of 117 days. The only reason given by the review applicants for condonation of delay that they were not aware of the order of this Tribunal. We do not consider that this is a sufficient submission for the condonation of delay.
10. In view of the above position, we are of the view that this Review Application deserves to dismissed both on the ground of delay and on merits. Accordingly, the same is dismissed. No order as to costs.