1 wp5230-10 sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5230 OF 2010 Dr. Sanjay Atmaram Gaikwad, Adult ] Occupation Service as Medical ] Superintendent (Lower Grade) ] Employees State Insurance Scheme, ] Solapur. ] ..Petitioner. V/s. 1. The State of Maharashtra ] through the Additional Chief ] Secretary, Public Health ] Department, Mantralaya, ] Mumbai – 400 032. ] 2. The Commissioner, ] Employees State Insurance Scheme ] Lower Parel, Mumbai-400 013. ] 3. Dr. Ganesh Shankarrao Jadhav, ] R/o. Plot No.255, Shivaji Park, ] Sector 18, Lane 6, Pune-411 019. ] ..Respondents. Mr. Y.S. Jahagirdar, Senior Advocate with N.V. Bhandiwadekar for petitioner. Mr. V.S. Gokhale, A.G.P. for respondent No.1. Mr. M.S. Karnik for respondent No.3. 2 wp5230-10 CORAM : B.H. MARLAPALLE AND U.D. SALVI, JJ. JUDGMENT RESERVED ON : 19TH OCTOBER, 2010 JUDGMENT PRONOUNCED ON : 29TH OCTOBER, 2010 JUDGMENT (PER B.H. MARLAPALLE, J.) 1. Heard Mr. Jahagirdar, the learned senior Advocate with Mr. Bandiwadekar for the petitioner. 2. Rule. Respondents waive service. 3. The petition has been finally heard with the consent of the parties. 4. This petition has been filed under Article 226 of the Constitution of India to challenge the order dated 2/12/2009 passed by the Division Bench of the Maharashtra Administrative Tribunal, Mumbai in Original Application No.1421 of 2009, filed by the respondent No.3 (referred to as the applicant). The applicant came to be appointed as Class-I, Group 'A" officer in the Maharashtra Medical Insurance Services in the pay scale of Rs.10,000/- - 15,000/- as per the Government Resolution dated 18/06/2007 and he joined the said post on 01/09/2007. On the representation dated 19/06/2007 submitted by the petitioner, the 3 wp5230-10 State Government posted him as Administrative Medical Officer ESIS, Pune vide its Resolution dated 27/08/2007 and posted the applicant in his place. On 16/09/2009 the applicant submitted a representation to the Commissioner, Employees State Insurance Scheme and recorded his objections to the Government Circular (Exhibit-A to the O.A.) wherein the present petitioner was shown at serial No.2. The said representation was forwarded to the Commissioner, Employees State Insurance Scheme on the same day to the Secretary, General Health Department. On 23/10/2009 the State Government through the Department of Public Health circulated a seniority list of Group-A Medical Superintendents / Medical Administrative Officers as on 01/01/2009 in the Maharashtra Medical Insurance Services and in the said list, the name of the applicant did not appear, as he was not on the rolls as on that date. The present petitioner was at serial No.2 and below him was one Dr. A.M. Shrikande. 5. The applicant, therefore, approached the Tribunal in O.A. No.1421 of 2009 for the following reliefs :- " The Hon'ble Tribunal be pleased to hold and declare that the impugned orders issued by Respondent No.1 at Exhibits 'A' and 'B' to the present Original Application, as illegal and bad in law and the same be quashed and set aside. 4 wp5230-10 Exhibit-A to the application, as noted earlier was the circular dated 23/10/2009 and Exhibit-B is the Government Resolution dated 20/02/2006 by which the present petitioner came to be absorbed under the Maharashtra Medical Insurance Service, Group-A in the post of Medical Superintendent (lower grade) and in the pay scale of Rs. 10,000/- -- 15,000/- 6. The present petitioner as well as the State Government by filing their respective replies opposed the application. It was submitted that the legality and validity of the Government Resolution dated 10/02/2006 was no more res integra in view of the Co-ordinate Bench judgment of the Tribunal, (Aurangabad Bench) rendered on 14/2/2007 in O.A. No.180 of 2006. It was also pointed out that the applicant was not on the rolls of the Maharashtra Medical Insurance Service as on 08/02/2006 or on the date when the Tribunal (Aurangabad Bench) had rendered its judgment on 14/02/2007 and consequently, he did not have the locus standi to challenge the said order. It was also submitted that unless the absorption order of the petitioner was set aside by a higher competent forum, the applicant could not pray for reopening the said issue. Finally, it was urged that the application was not within limitation. 7. The Tribunal was required to consider, at the first instance, the legality of the Government Resolution dated 10/02/2006 by which the 5 wp5230-10 present petitioner came to be absorbed under the Maharashtra Medical Insurance Services, Class-I Group-A (Exhibit D) and challenge to seniority solely depended upon the findings on the absorption of the petitioner which issue was in fact concluded in view of the Co-ordinate Bench judgment of the Tribunal (O.A. No.180/2006). The Tribunal proceeded to record a finding after hearing both the parties that the order dated 10/02/2006 regarding absorption of the petitioner was arbitrary, illegal and invalid. However, the Tribunal proceeded to note further that though it had reached to the above conclusion, it was not inclined to pass such final order in view of the Co-ordinate Bench decision in O.A. No.180/2006. It also recorded an opinion that the issue as to whether there is a provision with regard to absorption in the relevant Recruitment Rules and if there is no such provision, then what should be the approach, was not considered by the Co-ordinate Bench in O.A. No.180/2006 and it also felt that perhaps certain issues were not raised and argued before the earlier Bench. It also held that the findings recorded in O.A. No.180/2006 were not binding on the present respondent (applicant) as well as the Tribunal and the said judgment was is ‘per incuriam’. On these grounds, the Tribunal by the impugned order proceeded to direct the Registrar to place the papers before the Chairman of the Tribunal for consideration of referring the issue, namely, the validity of the order of absorption of the present petitioner vide G.R. dated 10/02/2006 to a larger Bench. 6 wp5230-10 8. It was submitted by Mr. Jahagirdar, the learned senior counsel that the Tribunal had no jurisdiction to sit in appeal over the decision rendered by the Co-ordinate Bench. The petitioner could not be said to be an aggrieved person because he was not appointed when O.A. No.180/2006 was decided on 15/02/2007 and even if he was aggrieved by the said decision, his remedy was not by filing an application under Section 19 of the Administrative Tribunals Act ('the Act' for short) and the only remedy available to him was to approach this Court by filing a Writ Petition so as to impugn the said decision. As per Mr. Jahagirdar, Original Application No.1421/2009 filed by the applicant was not maintainable so far as it related to the challenge of the petitioner's absorption vide G.R. dated 10/02/2006. He also emphasised that the said G.R. was issued on 10/02/2006 and the applicant sought to challenge it in O.A. No.1421/2009 i.e. after three years and, therefore, solely on the ground of limitation, the said application filed by the applicant ought to have been dismissed by the Tribunal. Even if the applicant wanted to agitate on the issue of seniority, his remedy was not before the Tribunal and unless he was successful in his challenge to the G.R. dated 10/02/2006 under which the petitioner was absorbed, he could not have approached the Tribunal and as such, it was contended that the impugned order declaring the absorption of the petitioner as illegal, was without jurisdiction. 7 wp5230-10 9. Mr. Karnik, the learned counsel for the applicant (respondent No.3) on the other hand supported the impugned order contending that the said order ought to be treated as only an order of reference to a larger Bench of the Tribunal and not an order setting aside the absorption of the petitioner. It was contended by Mr. Karnik that the Tribunal was justified in recording a finding over the decision in O.A. No. 180/2006 as illegal and invalid and once the order goes the seniority list has to be set aside. In support of this argument, he relied upon the observations recorded in para 93 of the judgment of the Constitution Bench of 7 Judges in the case of L. Chandra Kumar V/s. Union of India & Ors. [ (1997) 3 Supreme Court Cases, 261]. 10. Section 26 of the Act reads as under:- 26. Decision to be by majority - If the Members of a Bench differ in opinion on any point, the point shall be decided according to the opinion of the majority. If there is a majority, but if the members are equally divided, they shall state the point or points on which they differ, and make a reference to the Chairman who shall either hear the point or points himself or refer the case for hearing on such point of points by one or more of the Members of the Tribunal and such point or points shall be decided according to the opinion of the majority of the Members of the Tribunal who have heard the case, including those who first heard it. " 8 wp5230-10 Under Section 32 of the Act, the Central Government has framed the rules known as Central Administrative Tribunals (Procedure), Rules, 1987. Similarly, under Section 22 of the said Act, the Central Administrative Tribunals Rules, 1993 have been framed. Chapter X of the said Rules of 1993, which consists of Sections 50 to 55, deals with the formation of the Full Bench on a reference made by the Division Bench of the Tribunal and the Scheme of Rule 50 emphasises that the Full Bench could be of 3 or 5 members. Though the Maharashtra Administrative Tribunal has framed the Administrative Tribunal (Procedure) Rules, 1988 under Section 37(2) of the Act, the said Rules do not provide for the formation of the Full Bench. However, the source of power of the Maharashtra Administrative Tribunal for formation of the Full Bench of either 3 members of 5 members could be safely read into the scheme of Section 26 of the Act and Chapter X of the Central Administrative Tribunal (Procedure) Rules, 1987. 11. Having considered the provisions of formation of the Full Bench, the following questions arise for our decision in this petition:- a) Whether O.A. No.421/2009 was maintainable in view of the Co- ordinate Bench decision dated 14/02/2007 in O.A No.180/2006 ? b) What is the remedy available to the applicant against the order of 9 wp5230-10 absorption passed in favour of the petitioner on 10/02/2006 if O.A. No.1421/2009 was not maintainable ? c) Whether the impugned order calls for interference ? 12. Undoubtedly, the absorption of the petitioner as per G.R. dated 10/02/2006 had attained its finality as the order dated 14/02/2007 in O.A. No.180/2006 was not set aside by any higher forum. At the same time, based on the said order of absorption, the impugned seniority list (Exhibit 'A' to the application) was published on 23/10/2009 and the applicant was affected by the said seniority list in as much as, the petitioner would be senior to him and thus undoubtedly, the applicant would be an aggrieved person. It is well settled that the issue of seniority gives a continuous cause of action, as has been held by the Supreme Court in the case of Kuldip Chand V/s. Union of India [1996 Supreme Court, 706) and hence the claim for correction of seniority cannot be rejected on the ground of limitation. 13. The issues which are framed by us for consideration are not res integra in view of the Full Bench judgment of the Central Administrative Tribunal in the case of John Locus and Anr. V/s. Additional Chief Mechanical Engineer, S.C. Railways & Ors. [(1987) 3 ATC) 328] and in the case of Ajit Babu & Ors. V/s. Union of India & Ors. 10 wp5230-10 [(1997) 6 Supreme Court Cases, 473]. In the case of John Lucas and Anr. (supra), the Full Bench of the Tribunal had framed the following two issues for its consideration:- (1) Whether the application under Section 19 of the Administrative Tribunal Act can lie to set aside the final judgment or order rendered by the Tribunal upon an earlier application under Section 19, is maintainable ? (2) Whether a person who is not a party to an earlier application is aggrieved by the decision rendered therein is entitled to seek a review of that decision ? 14. After referring to a catena of decisions, the Full Bench had answered the first issue in the negative and second issue in the affirmative while dealing with the power to entertain a review application under Section 22(3) (f) of the Act, the Full Bench of the Tribunal held as under:- “ Hence, the power conferred on the Tribunal under sub-section (3)(f) of Section 22 to review its decision cannot be restricted by any provisions of the Code of Civil Procedure which lays a down that a decision may be reviewed only upon the petition of the party to the earlier application. There is nothing in the Administrative Tribunals Act or the Code of Civil Procedure which prevents a Tribunal from entertaining the application by an affected party to review its judgment. In our opinion, this Tribunal may review its 11 wp5230-10 judgment even suo motu. And if it can review suo motu it can certainly entertain a petition by an aggrieved party bringing to its notice any error in its earlier judgment by way of review petition and seeking redressal of his own grievance. But on thing must be emphasised, though perhaps obvious, that a review petition may be filed only by a person who is aggrieved and has a grievance to be redressed when he is filing the petition. " The Tribunal further held, “ ... a person feeling himself aggrieved by any final judgment or order of the Tribunal is not entitled to file an original application under Section 19 to set aside the earlier judgment of the Tribunal; but may for the redressal of his grievance file a petition for review under clause (f) of sub-section (3) of Section 22 read with sub- section (1) of Section 22 of the Act....." 15. The abovesaid decision of the Full Bench of CAT fell for consideration before the Supreme Court in the case of Ajit Babu (supra) and the view taken by the Full Bench on its powers to review was not approved. The Supreme Court held:- "....Often in service matters the judgments rendered either by the Tribunal or by the Court also affect other persons, who are not parties to the cases. It may help one class of employees and at the same time adversely affect another class of employees. In such circumstances the judgments of the courts or the tribunals may not be strictly judgments in personam affecting only the 12 wp5230-10 parties to the cases, they would be judgments in rem. In such a situation, the question arises: What remedy is available to such affected persons who are not parties to a case, yet the decision in such a case adversely affects their rights in the matter of their seniority. In the present case, the view taken by the Tribunal is that the only remedy available to the affected persons is to file a review of the judgment which affects them and not to file a fresh application under Section 19 of the Act. Section 22(3)(f) of the Act empowers the Tribunal to review its decisions. Rule 17 of the Central Administrative Tribunal (Procedure) Rules (hereinafter referred to as the "Rules") provides that no application for review shall be entertained unless it is filed within 30 days from the date of receipt of the copy of the order sought to be reviewed. Ordinarily, right of review is available only to those who are party to a case. However, even if we give wider meaning to the expression "a person feeling aggrieved" occurring in Section 22 of the Act whether such person aggrieved can seek review by opening the whole case has to be decided by the Tribunal. The right of review is not a right of appeal where all questions decided are open to challenge. The right of review is possible only on limited grounds, mentioned in Order 47 of the Code of Civil Procedure. Although strictly speaking Order 47 of the Code of Civil Procedure may not be applicable to the tribunals but the principals contained therein surely have to be extended. Otherwise there being no limitation on the power of review it would be an appeal and there would be no certainty of finality of a decision. Besides that, the right of review is available if such an application is filed within the period of limitation. The decision given by the Tribunal, unless reviewed or appealed against, attains finality. If such a power to review is permitted, no decision in final, as the decision would be subject to review at any time at 13 wp5230-10 the instance of the party feeling adversely affected by the said decision. A party in whose favour a decision has been given cannot monitor the case for all times to come. Public policy demands that there should be an end to law suits and if the view of the Tribunal is accepted the proceedings in a case will never come to an end. We, therefore, find that a right to review is available to the aggrieved persons on restricted ground mentioned in Order 47 of the Code of Civil Procedure if filed within the period of limitation. " 16. So far as the maintainability of the application under Section 19 of the Act, questioning the legality of the earlier judgment rendered by a Co-ordinate Bench is concerned, the Supreme Court did not agree with the view taken by the Full Bench of the CAT. The Supreme Court stated as under:- " Consistency, certainty and uniformity in the field of judicial decisions are considered to be the benefits arising out of the "Doctrine of Precedent". The precedent sets a pattern upon which a future conduct may be based. One of the basic principles of administration of justice is, that the cases should be decided alike. Thus the doctrine of precedent is applicable to the Central Administrative Tribunal also. Whenever an application under Section 19 of the Act is filed and the question involved in the said application stands concluded by some earlier decision of the Tribunal, the Tribunal necessarily has to take into account the judgment rendered in the earlier case, as a precedent and decide the application accordingly. The Tribunal may either agree with the view taken in the earlier judgment or it may dissent. If it 14 wp5230-10 dissents, then the matter can be referred to a larger Bench / Full Bench and place the matter before the Chairman for constituting a larger Bench so that there may be no conflict upon the two Benches. The larger Bench, then, has to consider the correctness of the earlier decision in disposing of the later application. The larger Bench can overrule the view taken in the earlier judgment and declare the law, which would be binding on all the benches (see John Lucas). 17. Thus, following the law laid down in Ajit Babu's case, the applicant could not have filed a review petition against the judgment dated 14/02/2007 rendered in O.A. No.180/06 as he was not a party to the same and, was not a member of the service on that date. O.A. No. 1421/2009 filed by the applicant could not be said to be not maintainable. However, the Supreme Court unambiguously clarified that on the threshold, the Tribunal has to necessarily take into account the judgment rendered by the earlier Bench as a precedent and decide the application accordingly. The Tribunal can either agree with the view taken in the earlier judgment or it may dissent and if it dissents, the matter has to be referred to a larger Bench / Full Bench and place before the Chairman for constituting such a Bench so that there may not be any conflict between the two Benches. The larger Bench then has to consider the correctness of the earlier decision while disposing off the subsequent O.A. and it can overrule the view taken in the earlier judgment and declare the law which would be binding on all the 15 wp5230-10 Benches. In the instant case, the Tribunal would be justified in disagreeing with the judgment date 14/02/2007 in O.A. No.180/2006 rendered by the former Bench, but it could not have given a declaration that the said earlier judgment was illegal. Some of the observations made in the impugned judgment would go to show that the Tribunal while dealing with O.A. No.1421/2009 assumed to itself the appellate powers over the judgment dated 14/02/2007 rendered by its Co-ordinate Bench. If the Tribunal could not persuade itself to agree with its earlier view, it ought to have stopped there itself and by recording that it did not agree with the earlier view, recommended the matter to be referred to a larger Bench so as to resolve the issue in controversy. But surely, it could not go to the extent of setting aside the earlier view of the Co- ordinate Bench and we, therefore, find fault with the impugned order to that extent and without disturbing the later part of the order for making a reference. 18. In the result, we allow the petition partly and quash and set aside the following observations made in the impugned order:- " ...So, considering all the facts and circumstances of the case as well as the position of law, we have no hesitation to hold that the order regarding absorption of Respondent No.3 dated 10-2-2006 is arbitrary, illegal and invalid and as such, the same has to be set aside. Once the said order goes, then naturally, the seniority list dated 23-10-2009 showing the name of Respondent No.3 at Serial 16 wp5230-10 No.2 in the cadre of Maharashtra Medical Insurance Services, Class-I also has to be set aside. " We uphold the impugned order to the extent of making a reference to a larger Bench and directing the Registrar to place the papers before the Chairman for further orders. 19. We make it clear that the issue of validity of the absorption of the present petitioner will remain wide open before the Full Bench so as to decide the legality of the seniority list by which the applicant is aggrieved. 20. Rule is made absolute accordingly, but with no order as to costs. (U.D.SALVI, J.) (B.H. MARLAPALLE, J.) A