# THE STATE OF WEST BENGAL & ORS v. KAMAL

- **Citation:** [2008] 10 S.C.R. 4
- **Court:** Supreme Court of India
- **Decided:** 2008-06-16
- **Case number:** Civil Appeal No. 1694 of 2006
- **Bench:** B.N. Agrawal, G.S. Singhvi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-west-bengal-ors-v-kamal-23473
- **Pages:** 44

## Headnote

· · Administrative Tribunals Act, 1985 - s. 22 (3) (f) - Power
of Administrative Tribunal"- To review its decision - Scope of
c ...:. Held: 1Tribunal's power to review its· order since is akin to that
of civ/I court, triblfnal is entitled to review its decision only on
the groun'tls-G;vailable under 0. 47 r. 1 CPC - Tribunal cannot
review its decision on the basi$ of subsequent deci~ion of a
coordinate or larger bench of the Tribunal or of a superior Court
D ::- In the facts of the case, none of the grounds set outinreview
petition warranted .exercise of power of review by .the Tribunal
...,. Code of Civil_Procedure,-1908- s. 14, o. 47-r. 1(as amended ·
in 1976).
:.
..
.
. 1'
<
"
'
•
•
•
'~-,, · ·:The q\jesti9,i;i for ,considerati.on, in the present case,
· E . was whether a Tribunal established under s. 4 of the Administrative Tribunals Act, 1985 can review its decision
on the baSiS ·Of subsequent order/decision/judgment rendered_-by' a co-ordinate. or larger bench or any superior
F
court or on the basis. of subseq·uent event/development,
Allotring the appeal, the Court
·.
. HELO.: 1.1 A decision/order cannot' be reviewed under Section 22(3)(f) of Administrative Tribunals Act, 1985
on the basis. of subsequent decision/judgment of a coor;.
·
dinat~ or larger bench of the Tribunal or of a superior
CJ
co.urt. [P~ra,28] [37~~ & o]
·
· · 1.2 ·r.he po_wer of th~ Tribunal to review .its order/de•.
'-cision under ·Section 22(3j{f) of ·the .Act is akin/analogous
~ to~the power of :a Civil Court undei"Section 114·read witli
H
-.
.4
..
,_
THE STATE OF WEST BENGAL & ORS. v. KAMAL
5
SENGUPTA & ANR.
Order 47 Rule 1 CPC. The Tribunal can review its decision A
on either of the grounds enumerated in Order 47 Rule 1 and
not otherwise. The expression "any.other sufficient reason"·
appearing in Order 47 Rule 1 has to be interpreted in. the
light of other specified grounds. [Para 28] [36; G 37-A & BJ
~
1.3 While considering an application for review, the
8
-· -. 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 An erroneC
ous order/decision cannot be corrected in ~he guise of
exercise of power of review. [Para 28] [37-C, D & E]
1.4 An error which is not self-evident and which can
be discovered by a long process of reasoning, ea,n~ot be 0
treated as an error apparent on the face of record justify-.
ing exercise of power under Section 22(3)(f). Mere discov- ·
ery 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,
E
the same could not be produced before the Court/Tribunal earlier. [Para 28] [37-8,C,F & G]
Rajah Kotagiri Venkata S_ubamma Rao vs. Rajah
Vellanki Venkatrama Rao 1990 (27) Indian Appeals 197; Sir F
Hari Shankat Pal and another vs. Anath Nath Mitter and Ors.
1949· FCR 36; Moran Mar Ba_sselios Cath.olicos and Anr vs.
The Most Rev. Mar Pou lose Athanasius ·and Ors. 1995 (1)
, SCR 520; Par_sion Devi and Ors. vs. Sumitfi Devi and Ors. . .
. . 1997 (8) SCC 715; Haridas Oas vs. Usha Rani Banik and G
. Ors. 2006 (4) sec 78; Aribam Tuleshwar Sharma VS. Aribam
Pishak Sharma ; K. Ajit Babu and Ors. vs. Union of India and
Ors.1997 (6) SCC 473; Ajit Kumar Rath vs. State of Orissa
and Ors. 1999 (9) sec 596; State of Haryana and Ors. VS.
M.P Moh/a 2007 (1) SCC 457; Gopa/ Singh vs. State Cadre
H
6
SUPREME COURT REPORTS
[2008] 10. S.C.R.
A
Forest Officers'Assn . .and Ors. 2007 (9) SCC 369 - relied on.
B
Indian Charge Chrome Ltd. vs. Union of India 2005 (4)
SCC 67; Board of Control for Cricket in India vs. Netaji Cricket
Clvb 2005 (4) SCC 741; K. T Veerappa vs. State of Karnataka
2006 (9) sec 406 - distinguished.
Gopabandhu Biswal vs. Krishna Chandra Mohanty and
Ors. 19

## Text

_Characters 0–39,869 of 83,486. This is a partial read: ask again with offset=39869 for what follows._

[2008] 10 S,_C.R. 4
..
~.
A
,THE STATE. OF WEST BENGAL AND OTHERS
B
II.
KAMAL SENGUPTA AND ANOTHER
(Civil Appeal No. 1694 of 2006)
JUNE 16, 2008
[B.N. AGRAWAL AND G.S. SINGHVI, JJ.]
· · Administrative Tribunals Act, 1985 - s. 22 (3) (f) - Power
of Administrative Tribunal"- To review its decision - Scope of
c ...:. Held: 1Tribunal's power to review its· order since is akin to that
of civ/I court, triblfnal is entitled to review its decision only on
the groun'tls-G;vailable under 0. 47 r. 1 CPC - Tribunal cannot
review its decision on the basi$ of subsequent deci~ion of a
coordinate or larger bench of the Tribunal or of a superior Court
D ::- In the facts of the case, none of the grounds set outinreview
petition warranted .exercise of power of review by .the Tribunal
...,. Code of Civil_Procedure,-1908- s. 14, o. 47-r. 1(as amended ·
in 1976).
:.
..
.
. 1'
<
"
'
•
•
•
'~-,, · ·:The q\jesti9,i;i for ,considerati.on, in the present case,
· E . was whether a Tribunal established under s. 4 of the Administrative Tribunals Act, 1985 can review its decision
on the baSiS ·Of subsequent order/decision/judgment rendered_-by' a co-ordinate. or larger bench or any superior
F
court or on the basis. of subseq·uent event/development,
Allotring the appeal, the Court
·.
. HELO.: 1.1 A decision/order cannot' be reviewed under Section 22(3)(f) of Administrative Tribunals Act, 1985
on the basis. of subsequent decision/judgment of a coor;.
·
dinat~ or larger bench of the Tribunal or of a superior
CJ
co.urt. [P~ra,28] [37~~ & o]
·
· · 1.2 ·r.he po_wer of th~ Tribunal to review .its order/de•.
'-cision under ·Section 22(3j{f) of ·the .Act is akin/analogous
~ to~the power of :a Civil Court undei"Section 114·read witli
H
-.
.4
..
,_
THE STATE OF WEST BENGAL & ORS. v. KAMAL
5
SENGUPTA & ANR.
Order 47 Rule 1 CPC. The Tribunal can review its decision A
on either of the grounds enumerated in Order 47 Rule 1 and
not otherwise. The expression "any.other sufficient reason"·
appearing in Order 47 Rule 1 has to be interpreted in. the
light of other specified grounds. [Para 28] [36; G 37-A & BJ
~
1.3 While considering an application for review, the
8
-· -. 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 An erroneC
ous order/decision cannot be corrected in ~he guise of
exercise of power of review. [Para 28] [37-C, D & E]
1.4 An error which is not self-evident and which can
be discovered by a long process of reasoning, ea,n~ot be 0
treated as an error apparent on the face of record justify-.
ing exercise of power under Section 22(3)(f). Mere discov- ·
ery 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,
E
the same could not be produced before the Court/Tribunal earlier. [Para 28] [37-8,C,F & G]
Rajah Kotagiri Venkata S_ubamma Rao vs. Rajah
Vellanki Venkatrama Rao 1990 (27) Indian Appeals 197; Sir F
Hari Shankat Pal and another vs. Anath Nath Mitter and Ors.
1949· FCR 36; Moran Mar Ba_sselios Cath.olicos and Anr vs.
The Most Rev. Mar Pou lose Athanasius ·and Ors. 1995 (1)
, SCR 520; Par_sion Devi and Ors. vs. Sumitfi Devi and Ors. . .
. . 1997 (8) SCC 715; Haridas Oas vs. Usha Rani Banik and G
. Ors. 2006 (4) sec 78; Aribam Tuleshwar Sharma VS. Aribam
Pishak Sharma ; K. Ajit Babu and Ors. vs. Union of India and
Ors.1997 (6) SCC 473; Ajit Kumar Rath vs. State of Orissa
and Ors. 1999 (9) sec 596; State of Haryana and Ors. VS.
M.P Moh/a 2007 (1) SCC 457; Gopa/ Singh vs. State Cadre
H
6
SUPREME COURT REPORTS
[2008] 10. S.C.R.
A
Forest Officers'Assn . .and Ors. 2007 (9) SCC 369 - relied on.
B
Indian Charge Chrome Ltd. vs. Union of India 2005 (4)
SCC 67; Board of Control for Cricket in India vs. Netaji Cricket
Clvb 2005 (4) SCC 741; K. T Veerappa vs. State of Karnataka
2006 (9) sec 406 - distinguished.
Gopabandhu Biswal vs. Krishna Chandra Mohanty and
Ors. 1998 (4) SCC 447; State of UP vs. J.P Chaurasia 1989
, (1) sec· 121; State of Maharashtra and Anr. vs Prabhakar
Bhikaji Ingle .1996 (3) SCC 463; Union of India vs. Pradip
c Kumar Dey 2000 (8) SCC 580; Sankar Deb Acharya vs.
Biswanath Chakraborty 2007 (1 )· SCC 309; Union of India _vs.
Arun Jyoti Kundu and Ors. 2007 (7) SCC 472; Lachhmi Narain
Batu vs. Ghisa Bihari and Anr. AIR 1960 Punjab_ 43; PN.
Jinabhai vs. PG Venidas AIR 1972 Gujarat 229; Thadikula_ngara
0 ' Pylee's son Pathrose vs. Ayyazhiveettll Lakshmi Amma's son
Kuttan and Ors. AIR 1969 Kerala 186; Nalagarh Dehati Cooperative Transport Society Ltd., Nalagarh vs. Beli Ram etc.
AIR 1.981 HP 1; Gyan Chandra Dwivedi vs. 2n~ Additional District Judge, Kanpur and Ors. AIR 1987 Allahabad. 40 - referred to.
E
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1694
of 2006
From the final Judgment and dated 10.12.2004 of the High
Court of Calcutta in W.P.S.T. No. 1 of 2002 and W.P.S.T. No. 2
)..
F
of 2001
Bhaskar P. Gupta, Jaideep Kar, Rana Mukherjee, Neelam
Sharma and Tara Chandra Sharma for the Appellants.
Dhruv Mehta, Kumar Gupta, Ramanand "Agarwal, B.P.
G Yadav and Sarla Chandra for the Respondents.
H
The Judgment of the Court was delivered by
G.S. SINGHVI, J;-4-:-Whether a Tribunal established under Section 4 of the Administrative Tribunals Act (for short 'the
;,.-:;...,
.. --.:::- ·"'
THE STATE OF WEST BENGAL & ORS. v. KAMAL.
7
SENGUPTA & ANR. [G.S. SINGHVI, J.]
Act') can review its decision on the basis of subsequent order/deci- ·A '
sion/judgment rendered by a coordinate or larger bench or any su-
. ·perior 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 Be.ngal and others against the judgment of the High
Court of Calcutta, whereby the said High Court declined to interfere
B
with order dated 25.9.2001 passed by the West Bengal Administrative Tribunal (for short 'the Tribunal') in R.A. No.26of1998.
2. The facts necessary for. deciding the aforemenfi<Yried
questi'on are as under:-
(i)
Respondents Kamal Sengupta and Narayan \C
Chandra Ghosh appeared in the competitive
examination conducted by the West Bengal Public
Service Commission in 1973 for recruitment to West
I. --.,I
Bengal Civil Services (Executive) and other Allied~": ..
Services. They were· declared successful and w~e ~ ..
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
E
Director and their pay w~s fixed in the~cales
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
F
Bengal (Revisfon of Pay and Allowance) Rules, 1990
(hereinafter referred to as 'ROPA 1990').
(ii)
After 20 years of joining the service, the respondents
filed -Writ Petition No.154 7 of 1995 for quashing letter G
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 H
8
SUPREME COURT REPORTS
[2008] 10 S.C.R.
A
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 S~cretary, Food 'and-Supplies Department vide his.
DO No. G-5250/FC dated 5.10.1992, G-5302/FC
B:
dated 16.10.1992 and Con-223/FS dated 27.4.-1994.
They further prayed for issue of direction· to the nonpetitioners (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
·c
Secretary· respe~tively and sanction those posts for
members of the service in the same ratio as was done
if'l the case of West Bengal Civil Services Officers.
(iii) . In the affidavit filed by him in support of the writ
petition, Narayan Chandra G.hosh (respondent no.2
D
herein) .. refer:red to the factum of sanction of Pay Sc;;ale
Nos.17, 18 and 19 to members of the service under
ROPA 1981, recommendations made by the Third
.-;:-_;_-,.
Pay Commission, the Scheme and averred that they
have been subjected to hostile discrimination.in the
E
matter of grant of Scale No~.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 thi:; year of. 1974/75 after
>--
F
successfully passing the West Bengal Civil
Service (Executive) and certain allied service
--:-·--::~
examination held in 1973 were first posted in
the basic grade pos~s .of Sub-Divisional
.. Controller of Food and Supplies and thereafter
G
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
"•'.-H
and 19.92 respectively.
THE STATE OF \/VEST BENGAL & ORS. v. KAMAL
9
SENGUPTA & ANR. [G.S. SINGHVI, J.]
.
9.- That the petitioners were awarded Scale
A.
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
pe fixed ·notionally in terms of the provision of
B
West Bengal Services (ROPA) Rules, 1990,
the petitioners were drawing pay Rs.18401- and
Rs.1780/- respectively.
13. That the petitioners state that under RO.PA, 1990
the members of W.B.F. & S.S., have been
C
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.5·700/
-) inasmuch as these scales co~respond to
Scale No.17 (Rs.660/- to Rs.1600/-), Scale
D
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)
1s given hereunder:
Name of Service
Grade
Scales
Eligibility condition
Strength 19
21
for Scale No.19 &
F
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 reG
vised soale no.18.
H
10
B
D
E
F
SUPREME COURT REPORTS
[2008] 10 S.C.R
2. W.B. Commercial
566
8 -
Tax Service
1 Same as for
W.B.C.S
3. W.B. Co-opera-
-tive Service
162
2
4. W.B. Excise Serv.
190
1
Nil
Nil
5. W.B. National
Employment serv.
170
1 -
Nil
6. W.B. LabourServ.
- 132
1
Nil
7. W.B.F. & S.S.
280
Nil
Nil
8. W. B. Police Serv
279
2
- '(Group B Service.)
9. W.. B. General
Service not known
3
Nil
Nil
- do -
- do -
- do -
- do -
- do -
- do -
- do -
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 F9od 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 c;tnd career
G
- 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
H
in the scales prescribed for those posts. As regards
THE STATE OF WEST BENGAL & ORS. v. KAMAL
11
SENGUPTA & ANR. [G.S. SINGHVI, J.]
the recommendations made by Secretary, Food & A
Supplies D~partment, 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:-
B
"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 pc;>st in the service as
admitted by the.r:n. They have also reached the C
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
~~-
D
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
E
cadre strength has anything to do with the __
Career Advancement Scheme or that there is
any arbitrary act or agt which is violative of the
principles of equity and the principles of natural
justice as wrongfully alleged or at all. In this
F
context, I repeat and reiterate that the Career
Advancement Scheme for the Government
employees is guicfed by the Finance
Department Memo dated June 21, 1990. In
order to allow the benefit of higher pay scale to G ·
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 entitletl ·tcr H-
12
c
D
E
F
G
SUPREME COURT REPORTS
[2008.J 10 S.C.R.
.. ·
promotion in the higher scale of pay being scale
nos.16, 17 and 18. In addition to· the above
be.nefit, as per ·promotion policy of the
·Government, the members of some of the State
services have been allowed.the benefit of scale
nos.19and.21 as per GareerAdvancement
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
s"cale of pay depends on a variety of
consideration. r:-iamely ratio of higher post to
base le\(el post in the feeder grade, hierarchical
stru.cture of the department, the level of work
and nature of responsibilities,. the proportion of
di_rect recruitment, the pace of growth of normal
activities of a department, the avenue of normal
promotion etc. On considera'tion ,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 ~n 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
Commis-sion at the hearing.
13. With reference to the allegations contained _
in paragraphs 21 to 25(b) of the writ petifion, 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
"'"!·
.•
THE STATE OF WEST.BENGAL & ORS. v. KAMAL
13
SENGUPTA & ANR. [G.S. SINGHVI, J.]
. departmental head as is usual practice for all A
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
B
are totally different. The incumbents who are
holding the post of Commerdal 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 c
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 0
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 199·5_ By an order
dated 25.2.1997, the Tribunal dismissed the same.
E
,
·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 Gqvernment. was free to frame
F
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 .G
scales to the applicants.
(vi)
The respondents challenged the order of the Tribunal
in WPST No.59of1997, which was di.$missed by the
High Court with an observation that the only remedy
available to the petitioners was -to file petition for -H
SUPREME COURT REPORTS
[2008] 10 S.C.R.
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.
g
.J''
';1
c
~ , ..
0
E
F
(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 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
y
THE STATE OF WEST BENGAL & ORS. v. KAMAL
15
SENGUPTA & ANR. [G.S. SINGHVI, J.]
rationale which attracted the decisions in the case of A
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
B
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 c
person to decide about the cadre strength, the
promotional prospect and the distribution of the
promotional scales of pay, and going through his .
Ord.er we do not find any unreasonableness or
arbitrariness in his judgment.
0
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 cas·e the point is concluded
against the applicants. We do not agree for the simple
E
reason_ that in Kamal Sengupta's case the question
wa§> 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
1to how the scale nos.17, 18 and
F
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 G
ofscalenos.17, 18and 19intheratioof6:3:1. Atthe
risk of repetition we may say that the decision of the
respondent no.2 as indicated in Annexure 'G' is
concrusive: The question. whether the Secretary,
- Finance Department will issue necessary Government
H
A
.B
.c
D
E
F
-_G
H
·15
SUPREME COURT REPORTS
[2008] 10 S.C.R
· orders or whether such ·order will involve additional
·financial burden upon the State exchequer is of no
: . consequence to. us. When the admini.strative head
. of a particular department has taken a well reasoned
decision on the· representation of the applicant anci
pursuant to our direction in the earlier writ petition,
the respondent no.1 cannot be allowed. not to
impleme.nt the same on any plea, whatsoever."
[Emp~asis added]
.
· (x)
After dismissal of .the· Special ~eave 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 respqntjen~s pleaded that iri
.°" ., view of the recommendations mad~ bY.. Secretary of
Food and Supplies Department, which are binding
-
.
.
.
•
I
: . .
on the State Government, they are entitled to Scale
..... Nos.19 and 2·1. In suppor_t of this plea, the
resp.ondents-reli~d on order -<fated· 2sj_ 1· 998 passed
. in O.A. No.14f! ·of 1997 Joydeb Biswas and others
vs. State· of·West13engal and others. The precise
·grounds on.· which. review was sou-ght by the
respondents· are reproduced· below::-
·."I. · For that:this le~rned 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 a·pplicants, while allowing that of the
·,
•,
-
.
,.
other applicants .. -.
·
, IL
For· that the ordetas in Annexure "C'.' therefore suffers.
from this grav~ incol'.lsistency and ·irregularity on the
,fa_ce·of the record when compared to the Order as in
- Annexure "D".
. y
~·
•'
THE STATE OF WEST BENGAL & ORS. v. KAMAL
17
SENGUPTA & ANR [GS. SINGHVI, J.]
Ill.
For that this learned Tribunal was pleased to hold
A
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, \Vhich this learned Tribunal was pleased
B
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 inAnnexures "C" and "D" make C
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 0
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 India, and it is fit and proper that this
E
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. f 999, the Tribunal
F
dismissed the review application on the premise that
'
·power of review cannot be exercised after disrnissal
of the SLP.
(Xii) The legality and correctness of the aforementioned
order was challenged by the respondents in WPST G
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 a.ffect t~e Tribunal's_. '
power of review. Accordingly, a direction-was given
to the Tribunal to decide the review application afresh.
H
18
SUPREME COURT REPORTS
[2008] 10 S.C.R.
A
(xiii) ln compliance of the direction given by the High Court,
'
jl._
' rthe Tribunal heard the review application on merits
and allowecf the same vide order dated 25.9.2001.
The Tribunal made deta.iled reference to the
pleading~ of the parties and arguments. of their
l
B
advocates, recom!:l"lendations- made by Secretary,
Food and Supplies Department and rejection thereof
'f-
'
by the Finance Department as also Memo dated
-~t
'..!\
13.3.2001 issued by the State. Government for
creation of additional posts in Scale No.19 for various
c
State Services including the service of which the
respondents were members and held :~
' •
"B.e that as it may, it now appears from the
~
Supplementary Affidavit filed by the applicants
~
that the respon'C:lent authorities.concerned have
0
come forward and issued necessary Govt.
~ I
orders extending the benefit of Scale No.19 to
tthe 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
E
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,
t
the instant case stood disposed of in their favour
~
F
but in part. In our view, the extension of the
-~
benefit of Seal~· No. 19 pointed out only to a
. -
glaring fact that the Office(s ofFo'od & Supplies
Department were also entitled to such a Scale,
but they were deprived of the same for a long
G
time for,,reasons best ·known to the authorities
concerned. lrwas indeed a clear case of hostile
discrirnination."
The Tribunal .then referred fo order dated 25.3. 1998
.,...._
"
passed in O.A. No.148 of 1991 Joydeb_ Biswas's case, and
H.
held_.:,,.·
\.
I
~
THE STATE OF WEST BENGAL &oR§~"v. KAMAL
19
SENGUPTA & ANR. [GS. SINGHVI, J.]
),;-
"Switching now ov.er to the other aspect of the A
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 <?Jthe Food
B ..
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 c
was btnding on the Secretary, Finance
Department and hence the State respcndent
authorities concerned could not refuse to
implement the said recommend!ition· of the
-\
Administrative Head on "any plea what-so-
~ver". In that view of the matter, it appears that D
~ .. ,,. . :~~:~·.if.:lt)•~:-':r. .. -~:~~:.· .
bythe 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 E
scale nos.17, 18 and 19 to the applicants of the
said case. The contention of the Ld. Counsel
for the applicants of this case was that this
judgment and order was not within their
4-
~-
knowledge and hence documents in that regard
could not be produced by the applicants before
F
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 nol within their knowledge,
they were ·not praying for review, which was G
admissible under the provisions of Section 21
~-
of the ~dministrative Tribunals Act, t9S5 and ·
. also under Section 14 of the. Limitation Act,
1963. In our view this was certainly a "sufficient
cause" for belated filing .Pf the· application for H
-
~
l
.
A
20
SUPREME COURT. REPORTS
[2008] 10 S.C.R.
review."
' .
'/t. ~--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 s.aid scale to them.
This is evident from 'the· operative part of the· Tribunal's order,
B which is extracted below:
··
c
D
.''In the .facts and circumstances. of tne case, we are,
. therefore, inclined to allow the instaritprayer for review put
in by the applicants .. We, thus ~llow the Review application
. and direct thEl respondent aut.horlties concerned,
: ·particularly respondent Nb.2 (Le. Secretary, Finance Deptt.)
'
''
to take n~cessary steps for extending the benefits of Scale
No: 19, if not.already extended to the applicants and also
to extend the benefits of Sca)e No.21 to the applicants ici
accordance ,with the Rules and law and provisions
contained in Notification No~6075~F dated 21.6.90 meant
fotW.B . .G.S. (Executive) and ~therAllied Services officers
within, a period of four months· from the date of
cqmmuni.catlon o::th.is order."
· E
3. The appellants 'diallenged the aforementioned orde~ in
. WPST Nc>:1 of 2001 by asserting that the Tribunal did not have
the jμrisdiction to review order dated 25.2.1997 on the basis of
~~ubsequent· order-'}:J°assed in 'Joydeb Biswas's case. Another
~plea taken 'by' the appellants wa·s that the recommendations
F
rr1ade py the Secretary of the Administr,ative Department are
.not ~ir:idlng. ¢n'~the State Government.· The Division Bench of
the High Court tieldthatthe Tribunal could nnt have entertained
an~:faHowed the ·review application on the ·basis of a decision
w:hi,th was not in existenC'e 'at the .time of inl'tial order, but c;le-
;G
dine'cftointerfere withorder"'dat~d 25.9''.2001 by observing that
denial of higher~cpay'Scale fo members of the service had re-
•
f', '
'
'
' '
'
,.
suited in violation of their fundamental rights;under Articles 14,
~ ... ·
.. ',,·.
. '•,
.... ~
.. '
16 an'CJ
121 oHhe G6hstitution.
.._.
·
·
j.
~.
J.'
~
'
"
.. · ;- A. Shri Bhaskar P: Gupta, Senior Advocate appearing for
H _)he petitioners extensively referred to the pleadings of Writ Per-
THE STATE OF WEST BENGAL & ORS. v. KAMAL
21
SENGUPTA & ANR. [G.S. SINGHVI, J.]
titio.n No.154 7 of 1995, which. was later .on converted into TransA
ferred 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 arid order dated 4.9~1998 passed by this Court in
B
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 Government to act on the recommendations made by the Secretary of the Administrative c
Departmerit 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 ~imilar to that of the Civil Court and the same D
can be exercised o·nly- or the grounds specified in Order 47 · ·
Rule 1 of CPC. Learned counsel emphas·ized that any subsequenf decision on an.tdentical or similar p.oint 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 sufE
fers 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 pas~ed in
Joydeb Biswas's Case, because that order did n.ot contain any
determination on the issue ofSanction of posts ii) Scale Nos.19
F ·
and 2:1 under the Sch~me circutated vide M~morandum dateg
21.6.1990. He further argue~ 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 mad~ by ·the-
. Secretary of the Administrative D~partrnent a~e binding on the
G .
Government, a mandat<?ry direction could not nave been given ·
for extension of the benefit of Scale Nos.19 and 21 to the re~
spondenls ignoring the fact that t~ose.s~ales had not been given ·
to members of-ether services as well. Learned counsel invited
our attention to the annexure appended to the Scheme t<? show
H
.,
22
SUPREME ·COURT REPORTS
"[2008]··1o·s:v~R
A
that the State Government had ,not sanctioned posts .in Scale
· No.19 for .three services including tl)e one of which the re·spondents were members and.posts in ScaleNo.21 were sanctioned
only for 2 out of 17 State Services and argued th·at the plea of
discri'mination raised by the respondents wa§_ __ [i.ghtly rejected
B by th,e 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 19.90. Learned counselpointed out that.while dfsmissing the SLP as withdrawn; this .Court did not give liberty to the
c 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 presumin.g that such liberty had, in fact, been given.
Another argument of the learned senior counsel ·is that the plea
of stagnation was not r,aised by the respondents till the filing· of
review application and, therefore, the same could not"have been
D. considered by the Tribunal in conjunction with-the decision contained in Memorandum ~ated 13 .. 3.2001 for recording a find~
ing 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
E aside thetorder impugned 'in the writ petition ignoring the stark
· fact that -posts in Scale 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 (Ex-·
ecutive) and West Bengal Commercial Ser\tice and the TribuF
nal had not struck down the Scheme as a whole on the ground
of vi.olation of Articles 14 and 16 of the Constitution. In support
of his arguments/submissions, Shri Bhaskar Gupta relied on
judgments .of this Court- State ofU. P vs. J. P Chaurasia [1989
(1) SCC 121], State of Maharashtra and another vs. Prabhakar
G Bhikaji Ingle [199_6 (3) SCC 463], K. Ajit Babu and others vs.
Union of India and others [1997 .(6) SCC 473], Gopatandhu
Biswal vs. Krishna Chandra Mohanty and others [1998 (4) SCC
447]; Ajit Kumar,.Ratlrvs. State of Orissa and others [1999 (9)
SCC 596}:- Ufl_{on of India vs. Pradip Kumar Dey [2000 (8)
H SCC 580], Sa.o.kar Deb Acharya vs. Biswanath Chakraborfy
THE STATE OF WEST BENGAL & ORS. v. KA/AL
SENGUPTA & ANR. [G.S. SINGHVI, J.]
.
.
I
23
[2007 (1) SCC 309) and Union of India vs. Arun Jyoti Kundu
A
and others [2007 {7) sec 472).
5. Shr_i Dhruv Mehta, learned cour)_sel 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 7 41 ],
B
and K. T Veerappa vs. S,.tate of Kamataka [2006 (9) SCC 406).
and argued that th~ Tribunal. did· not con_imit ahy 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
C
discrimination between similarly situated persons and, therefore, the Tribunal ri@htly 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
D
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 ofreview enumerated in Order 47 Rule 1
E
CPC. Shri Mehta emphasized that the respondents were stagnating on the same posts and were drawing salary in the same
pay scale sirice 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 con-· F
sider the same and dismissed the trans~erred 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 saneG
tioned posts in Scale No.19 for different services including the .
one to which the respondents belonged and 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
.
;H
'
24
SUPREME COURT REPQ.RTS
[2008] 10 S. C.R.
Ahigher pay scaies to similarly situated persons.
6. We have given serious thought to the entire matter and
scrutinized the record. Articles 323A and 3238 were inserted
in the Constitution by Section 46 of the·Constitution (Forty-second Amendme.nt) Act, 1976 in the backdrop of pendency of large
B
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 Cpurts throughout the
country and long delays in the disposal or such cases which
C adV'ersely 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 de-
. D cide the disputes and complaints with respect to recruitment
and conditions of service of persons appointed to public ser- · -
vices and posts in connection with the affairs of the Union or of
E
· any State or of any local or ottier authority etc. and other matters enumerated in Clause 2 of Article 3238.
7. In exercise of the power vested in 'it under Article 323A,
Parliament enacted th.e Act. Chapter II of the Act contains provision for establishment of tribunals and Benches thereof, qualifications of Chairman and Members, term of their off~ce etc.
Chapter Ill comprises of five sections relating lo jurisdiction,
F -powers and authority of the Central, State and Joint Administrative Triburials,-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
td-f14nstltiili6n· ·ana' adjudication of applications relating to serg . .vl~e1ais·~utes. C~apterV·conta~ns mis.cellaneous provisions in-
.
e10cffngtlrahsfer oflfle cases pending beforethe Civil Courts
. and ¥H~h~Gbuns.LTne'-Orlgihal format of the Act exduqed juris-
. ·. Clic~ion:dfia\ttfie'.B;ourts·including the Hi.gh Courts and Supreme
.