Holding

A Tribunal’s power to review its own decision under Section 22(3)(f) of the Administrative Tribunals Act is limited to the grounds specified in Order 47 Rule 1 CPC and cannot be exercised on the basis of subsequent judgments, later governmental orders, or events occurring after the original decision.

Summary

The State of West Bengal appealed against a West Bengal Administrative Tribunal order that granted higher pay scales to two officers, Kamal Sengupta and another, after a review application was allowed. The respondents contended that the Tribunal had no jurisdiction to review its own order on the basis of a later decision in a related case (Joydeb Biswas) or subsequent governmental memoranda. The Supreme Court examined whether Section 22(3)(f) of the Administrative Tribunals Act, 1985 permits a Tribunal to revisit its decision on the ground of a subsequent judgment, new evidence, or a change in circumstances, and held that the power is analogous to a civil court’s review power under Section 114 CPC, thus confined to the grounds listed in Order 47 Rule 1. The Court found that none of those grounds were satisfied; the Tribunal improperly relied on a later decision and on a post‑hoc government memorandum, and it failed to demonstrate any error apparent on the face of the record. Consequently, the Tribunal’s review order was set aside. The appeal was allowed, overturning both the Tribunal’s and the High Court’s orders.

Issues considered

The scope of power conferred on an Administrative Tribunal under Section 22(3)(f) of the Administrative Tribunals Act, 1985 to review its own orders.
Whether a Tribunal can base a review on a subsequent decision of a coordinate or larger bench, or on subsequent events or developments.
Whether the Tribunal’s review power is limited to the grounds enumerated in Order 47 Rule 1 of the Code of Civil Procedure.

Legislation cited

Administrative Tribunals Act, 1985s. 22(3)(f)
Code of Civil Procedure, 1908s. Order 47 Rule 1, s. Section 114
Limitation Act, 1963s. Section 14

Subjects

Administrative TribunalReview powerSection 22(3)(f)Order 47 Rule 1Civil Procedure CodeSubsequent judgmentPay scale discriminationArticle 14Article 16Article 21Jurisdiction

Judgment

[2008] 10 S,_C.R. 4..
~.

A ,THE STATE. OF WEST BENGAL AND OTHERS
II.
KAMAL SENGUPTA AND ANOTHER
(Civil Appeal No. 1694 of 2006)
JUNE 16, 2008
B
[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 Ad-
ministrative Tribunals Act, 1985 can review its decision
on the baSiS ·Of subsequent order/decision/judgment ren-
dered_- by' a co-ordinate. or larger bench or any superior
court or on the basis. of subseq·uent event/development,
F Allotring the appeal, the Court
·. . HELO.: 1.1 A decision/order cannot' be reviewed un-
der 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 develop-
ment cannot be taken note of for declaring the initial or-
der/decision as vitiated by an error apparent An errone- C
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 suffi-
cient 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/Tribu-
nal 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
sec
and Ors. 1999 (9) 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.
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.
B
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
' Pylee's son Pathrose vs. Ayyazhiveettll Lakshmi Amma's son
0
Kuttan and Ors. AIR 1969 Kerala 186; Nalagarh Dehati Co-
operative Transport Society Ltd., Nalagarh vs. Beli Ram etc.
AIR 1.981 HP 1; Gyan Chandra Dwivedi vs. 2n~ Additional Dis-
trict Judge, Kanpur and Ors. AIR 1987 Allahabad. 40 - re-
ferred 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.
The Judgment of the Court was delivered by
G.S. SINGHVI, J;-4-:-Whether a Tribunal established un-
der Section 4 of the Administrative Tribunals Act (for short 'the
H
.. --.:::- ·"'

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 Adminis-
trative Tribunal (for short 'the Tribunal') in R.A. No.26of1998.
2. The facts necessary for. deciding the aforemenfi<Yried
questi'on are as under:-
\C
(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 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 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
·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 20 years of total
4
service on Revised
Scales Nos.16, 17, G
18 and their unrevised
counter parts and 3
years in unrevised
scale no.19 or re-
vised soale no.18. H
10 SUPREME COURT REPORTS [2008] 10 S.C.R

2. W.B. Commercial 566 8- 1 Same as for
Tax Service W.B.C.S

3. W.B. Co-opera- 162 2 Nil - do -
-tive Service
4. W.B. Excise Serv. 190 1 Nil - do -
B
5. W.B. National 170 1- Nil - do -
Employment serv.

6. W.B. LabourServ. - 132 1 Nil - do -

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

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

9. W.. B. General 3 Nil - do -
Service not known
D
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
E 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,
F 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 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
c . 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
D
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
E 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

F
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.
G
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.
(vii) In the meanwhile, Joydeb Biswas and others filed y
g .J''
. O.A. No.148 of 1997 for grant of Scale Nos.17, 18
';1

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
c ,..
~
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
0 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
E 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
F 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
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
1
for consideration as to 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
·15 SUPREME COURT REPORTS [2008] 10 S.C.R

A · 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
.B pursuant to our direction in the earlier writ petition, . y
the respondent no.1 cannot be allowed. not to
impleme.nt the same on any plea, whatsoever."
[Emp~asis added]
.
.c · (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
D
· .. 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
E 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::-
F
·."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 .. -. ·
-_G
, 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".
H
•'

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._ 'r -
the 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
I
0 come forward and issued necessary Govt. ~
t-
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
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
time for,,reasons best ·known to the authorities
G
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-
D
~ver". In that view of the matter, it appears that
~. , . .:~~:~·.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
scale nos.17, 18 and 19 to the applicants of the E
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 .
20 SUPREME COURT. REPORTS [2008] 10 S.C.R.

A 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: ·
.''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
c . 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
D
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
f', ' ' ' ' ' '
fo members of
,.
the service had re-
suited in violation of their fundamental rights;under Articles 14,
... ·
~ .. ',,·.
1
. '•,

16 an'CJ 21 oHhe G6hstitution.
~ .... ' ..
.._. · ·
r-
j. ~. J.' ~ ' "

.. · ;- A. Shri Bhaskar P: Gupta, Senior Advocate appearing for
H _)he petitioners extensively referred to the pleadings of Writ Pe-
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 Trans- A
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 Tri-
bunal, 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 Tribu-
nal committed a jurisdictional error by entertaining the review
application on the ground that in Joydeb Biswas's case a direc-
tion had been given to the State Government to act on the rec-
ommendations 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 subse-
quenf 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 suf- E
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·spon-
dents 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 dfsmiss-
ing 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 con-
tained 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 sanc-
tioned only for tWo services viz., West Bengal Civil Service (Ex-·
ecutive) and West Bengal Commercial Ser\tice and the Tribu-
F 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 23
SENGUPTA & ANR. [G.S. SINGHVI, J.]
. .
I

[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 741 ], 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 ar-
gued 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, there-
fore, 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 Gov-
ernment 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 stag-
nating 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 discre-
tion 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 sane- G
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.

A- higher 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-sec-
ond Amendme.nt) Act, 1976 in the backdrop of pendency of large
B number of cases relating to recruitment and conditions of ser-
vice of the employees of the Central and State Governments
and their· agencies/instrumentalities and other matters concern-
ing 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 lev-
els of governance and recovery of revenue etc. These Articles
enabled Parliament to make laws for creation of alternative ad-
judicatory 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
· any State or of any local or ottier authority etc. and other mat-
ters enumerated in Clause 2 of Article 3238.
E 7. In exercise of the power vested in 'it under Article 323A,
Parliament enacted th.e Act. Chapter II of the Act contains pro-
vision for establishment of tribunals and Benches thereof, quali-
fications 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 Adminis-
trative 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
·ana'
td-f14nstltiili6n· adjudication of applications relating to ser-
g. .vl~e ais·~utes. C~apterV·conta~ns mis.cellaneous provisions in-
1
. 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
. ,Court in relation to service matters.·Later o.n, the exclusion clause
H .·d:nitained.in Sectiori 28 was amenced and jurisdictfon of the
THE STATE OF WEST BENGAL.& ORS. v. KAMAL 25
SENGUPTA & ANR. [GS. SINGHVI, J.]

.··supreme Court to deal with such matters was restored. The . A
jurisdiction of the High Courts in relation te 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 sec 261.
8. With a view to achieve the object underlying the enact- 8
ment of Article 323A i.~. 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 re_§pect of some matters including C
review of their decisions. This is clearly evinced from the piain
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
0
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. E
. (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 F
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 G
matters, namely,-
(a) summoning. and enforcing the attendarwe ·of any
person-and examining him on oath;.

(b) requiring the discovery and production of documents; H
26 SUPREME COURT .REPORTS [2008] 10 S.C.R.

A (c) . receiving evidence on affidavits;
(d) subject to the provisions of Sections 123 and 124 of
the Indian Evidence Act, 1872 (1 of 1·872),
requisitioning any public record or document or copy
of s.uch record or document from any office; 'Jf.-
B
{e) issuing commissions for the examination of
witnesses or, documents; .
(f) reviewing its. decisions;
c (g) dismissing a representation for default or deciding it
ex parte;
(h) setting aside any order of disrnissal of any
representation for default or any order pas~ed by it
ex parte; and
D
(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
E"- laid down in the CPC, it can exercise the powers
.. of a Civil Court.
1
, -· -. - 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/deci-
sion is traceable in Section 114 CPC. The grounds on which
F review can be sought are enumerated in Order 47 Rule 1 CPC,
which reads as under :
Order 47 Rule 1
1. App/icatioR·for review of judgment.- (1) Any person
G considering himself aggrieved·
(a) by a decree or order·from which an appeal is
allowed, but from which no appeal has been
preferred,
H (b) by a decree or order from which no appeal is
THE STATE OF WEST BENGAL & ORS. v. KAMAL 27
SEN:~UPTA & ANR. [G.S. SINGHVI, J.]

allowed, or .............
.; ~-::.··
A
(c) by a decision, on a reference from a Cburt of
Small· Causes,
and who, from the discovery of new and important .\
matter or evidence which, after the exercise of due B
diligence was not within his knowledge or could not
be produced by him at the time wh~n 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 c
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/deci-
sion is akin to that of the Civil Court, statutorily enumerated and D
judicially recognized limitations on Civil Court's power of re-
view the judgment/decision would also apply to the Tribunal's
power under.Section 22(3)(f) of the Act. In other words, a Tribu-
nal established under the Act is entitled to review its order/de-
cision only if either of the grounds enumerated in Order 4 7 Rule E
·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 e?<ercise of due diligence, or the
same was not within his knowledge or if it is shown that the F
order sought to be reviewed suffers from some mistake or er-
ror apparent on the face of the record or there exists some.o.t.her
reason, which, in the opinion of the Tribunal, is sufficient for re-
viewing the earlier order/decision.
12. Before proceeding further, we consid.er it proper to G
mention that there was divergence of opinion a·mong 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. H
28 SUPREME COURT REPORTS [2008] 10 S.C.R.

A 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 PN. Jinabhai vs. PG. Venidas [AIR 1972 Gujarat
B 229], the learned Single Judge of the Gujarat High Court con-
sidered the.questionwhetb,er the Court can revise its view on
the question of.pecuniary jurisdiction simply because the same
has been renaered doubtfU1 in the' light of subsequent decision
of the High: Court and answered·the·same in negative. How-
e ever, ·.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 Kera la High Court ·opined that a subse-
quent decision authoritatively declaring~the law can be made
basis for reviewing an earlier judgment. The Law Commission
0
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 (Amend-.
ment) Act, 1976. The same reads as under:
E 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. ''··

F 13. In Nalagarh ·Dehati Co-operative. Transport Society
Ltd., Nalagarh vs. Beli Ram etc. IAIR 19S1_HP1] a Full .Bench
of Himachal Pradesh High Court considered the above-repro~
duced explanation and held that a subsequent judgment.of the
Supreme Court or a larger bench of the same Court taking a
G · 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 Owivedi vs. 2nd Additional District Judge,
Kanpur and others [Al~ 1987 Allah~bad 40.], the ~~~ned Single
Judge of Allahabad High Court.took cognizance of the expla.:..
H nation, referred to the judgmenL.of thjs Co1.irt in Aribam ·
THE STATE OF WEST BENGAL & ORS. v. KAMAL 29
SENGUPTA & ANR. [G.S. SINGHVI, J.. ]

"" Tuleshwar Sharma v. Aribam Pishak Sharma [AIR 1979 SC A
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 t~ be exercised on ~ell
"'*· recognised and established grounds on which judicial B
orders are reviewetj. 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 c
sought when the order discloses some error appar~nt on
·the face of record or on grounds analogous thereto. These
are all grounds which find mention in various judicial
pronouncements right from the earlie$t time as well as in
-\
.. t~.e ,Rules of Order XLVll of the Civil P.C. as{)ermissible D
"' gfourias of review.
. . ' ~.-:'.:Hi r
.-
An Explanation was added to·Order XLVll Rule 1 by the
amendment of the Civil P.C. by Central A~t No. 104 of
1976. It reads :.
E
"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." F
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 G
reversed or modified by the subsequent decision of a
-
~ sup~rior 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 .H
30 SUPREME COURT REPORTS [2008] 10 S.C._R.

A superior Court in another case could not afford a valid
· ground for the review of the judgm~nt."
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
8 be of such a character that if the same had been produced, it~ *- I

mfg ht have altered the judgn',lent. In other words, mere discov-
ery of new or important matter' or evidence is not sufficient ground
for review ex debito justiciae. Not only this, Jhe party seeking
review has also to show that such additional tnatter or evidence
C. was not within its knowledge and even after the exercise of due
d1'Hgence.,,Jhe .~pme could not be produced before· the Court
earner. --.,,,, ,......_;, ''""·-"~ ..,,;~1 ,~~h.c·-:t:st;.~....~r:~.. '
-· . ~ '.':·: ";, ,. ,~

, .-.. .!.?.: The term 'mistake or error apparent' by its very conm:>_~----.
_.. Jation·s·itfmfies.ah-cerro"rwhich, is evidentper se from the record·
0
of the case.~nd does not require detailed examinatiorl, scrutiny
and elucidation either of the facts or the)~gal position. lf an
error is notself-evident and detection thereof rectufres iong de-
bate and process of reasoning, it cannot·be treated as an error
·~- ..apparent on the face of the reGord for the purpose of Order 47
E ·. 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 be-
cause it is erroneous in law or on the ground that a different
view could have been taken by the CourtrrribunaLon a point of
fact or law. In any case, while exercising the power of review,
F the concerned Courtrrribunal cannot sit in appeal over its judg-
ment/decision.
16. We may now notice some of the judicial precedent~ in· -
which Section 114 read with Order 47 Rule 1 CPC and/or Sec-
G tion 22
(3) (f) of the Act.have .been interpreted and limitations
on the power of the Civil CourtrrribunaHo review its judgment/
decision have been identified. , ·· }... '

.;;... _·:.. 1.7·. In Rajah Kotagiri Venkata Subamma Rao ys. Rajah
Vellanki Venkatrama Rao [1990 (27) Indian Appeals 197), the
H Privy Council .interpreted Sections 206 and 623 of the Civil.Pro-
THE STATE OF WEST BENGAL & ORS. v. KAMAL 31
SENGUPTA & ANR.fGS.~.§INGHVI, J.]

cedure Code and observed: A
"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 B
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 Megh.raj v. Beejoy Gobind Burral [(1875) Ind. L.R. 1 C
Calc.. 1~7]; /n-1heppinionpt their l!.ordship?/_ti].e. gr~nd
of amendment must qf any rate.· ~;;Something W.hich
....r:....... · ~
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 happeninf} of some D
'subsequent event." -----._
. . f-'.,,
[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· E
__ f_ederal .Court while considering the question whether the
Calcutta High Court was justified· in not granting relief to nof1-
appealing party, who.se position was similar to that of the suc-
cessful appellant, held :
;.. "That a decision is erroneous in law is certainly-no ground F
·for ordering review. If the Court has decided a point and
decided 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 G
jurisdiction to act in a particular way, that may amount to
an error analogous to one apparent on the face of the /::·('/c/.;•;..,,~f.
.;, record s~fficient to bring tne-case within the purview of
Order XLVll, Rule 1, Civil Procedure Code. " -
32 SUPREME COURT REPORTS [2008] 10 S. C.R.

A 19. In Moran Mar Basselios Catholicos and another vs. ,..
Thf; Most Rev. Mar Poulose Athanasius and others [1995 (1)
SCR 520]," this Court interpreted the provisions contained in
Travancore Code of Civil Procedure w~ich are analc:>_gous to
Order 4 7 Rule 1 and observed :
B "Lfrider the provisions in the Travancore Code of Civil . y.

Procedure which is similar in terms to Order XLVll, 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
c· review on three specified grounds, namely, (i) discovery l=
_ 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
D on the face of the record and (iii) for any other sufficient ;>-
~

reason. It has been held by the Judicial Committee that r
>--
the words "any oth·er sufficient reason" must mean "a
r
reason sufficient on grounds, or least analogous to those
specified in the rule"."
''-
E r
I
20. In Th.ungabhadra 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 cor- ·
rected., ·

F 21. In Parsion Devi and Others vs. Sumitri Devi and 0th- --\
ers [1997 (8) sec 715), it was held as under:-
i ~.... I
"Under Order 47 Rule 1 CPC. a judgment ·may be open to I
. ~
.t~i.
review inter alia if there is a mistake or an error apparent
'
'·on the face of the record. ·An. -error which is not self-
G evident and has.to be detected by a process of reasoning,
can hardfy,be said·to be an error apparent on the face of
the record justifying. the ·Court to exen::is~ its power of ,l
·review under
. Order 47, Rule ·1 CPC. · In exercise of the
jurisdiction under Order 47, Rule 1 C PC: it is not
'.H ..._permissible for an erroneous decision to be "reheard and
THE STATE OF WEST BENGAL & ORS. v. KAMAL 33
SENGUPTA & ANR. [G.S. SINGHVI, J.]
;..._

corrected". There is a clear distinction between an A
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"." B
[Emphasis added]
22. In Haridas Oas 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, c
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 D
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 E
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 F
have argued them more forcefully and/or. cited binding
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
G
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
H
34 SUPREME COURT REPORTS [2008] 10 S.C.R.

A exercise the power to review its order with. the greatest
circumspection."
23. In Aribam Tuleshwar Sharma vs. Aribam Pishak f
(
Sharma (supra), this Court considered the scope of the High
Courts' power to review an order passed under Article 226 of
8 the Constitution, referred to an earlier decision in Shivdeb
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
c 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
D
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 theface 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.
't : ·A power of review is not to be confused with appellate
power which 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 oth-
ers [1997 (6) sec 473], it was held that even though Order 47
G 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 f. I
certainty or finality of a decision. A slightly different view was ..
expressed in Gopabandhu Biswal vs. Krishna Chandra
-H Mohanty and others [1998 (4) sec 447]. In that case it was
THE STATE OF WEST BENGAL & O.RS. v. KAMAL 35
SENGUPTA& ANR. {G.S'. SINGHVI, J.]

held that the pow-er of review granted' to the Tribunals is similar A
to the power of a Civil Court unB'er Order 47 Rule 1 .
. 25.ln ,4,jit Kumar Rath vs. State.of Orissa ard Others [1999
(9). SCC 596), this Court reiterated thatpower Of revr.~w vested
in the Tribunal is similar to the one conferred upon a Civil Court
and held:- B
"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 i$ not absolute and is hedged .in by. c
the restrictions Indicated in Omer 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.
0
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 E
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
t expression "any other sufficient reason" used in Order
47 Rule 1 means a reason sufficiently analogous to F
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 G
liberty given to the Tribunal under the Act to review its
iudgment."
[Emphasis addedJ
26. In State of Haryana and Others vs. M.P Moh/a [2007 H
36 SUPREME COURT REPORTS [2008] 10 S.C.R.
,..
A (1) sec 457), this Court held as under:-
"A review petition filed by the appeilants 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 .,..
B 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.
c and Others [2007 (9) SCC 369], this Court held that after re-
jecting 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:
r
D "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
E 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 6f its jurisdiction
-\
F
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
G noted judgments are :
(i) The power of the Tribunal to review its order/decision · ;- JI
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.
H
THE STATE OF WEST BENGAL & ORS. v. KAMAL 37
SENGUPTA & ANR. [G.S. SINGHVI, J.]

(ii) The Tribunal can review its decision on either of the A
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. B

(iv) An error which i.s 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). c
(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
D
of a coordinate or larger bench of the Tribunal or of
a superior Court.
(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 E
decision. The happening of some subsequent event

- f-
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 F
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 G
~ ~
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
H
THE STATE OF WEST BENGAL ~ ORS. v. KAMAL 39
SENGUPTA & ANR. [G.S. SINGHVI, J.]

extend the benefit of higher scales to the petitioners. It was also A
pleaded that recommendations made by the Secretary of Ad-
ministrative Department were not binding on the Government.
The Tribunal elaborately referred to the pleadings of the par-
ties, considered the arguments of their counsel and held that
the petitioners (applicants) are not entitled to the benefit of the B
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 discrimina-
tory because benefit of higher scales was given to different
.. services keeping in view the ratio of higher posts to base level c
posts in the feeder grade, hierarchical structure of the depart-
~
ment, the level of work and nature of responsibilities, the pro-
portion of direct recruitment, the pace of growth of normal ac-
tivities of a department and the avenue$ of promotion. The Tri-
bunal then observed that recommendations are usually made
D
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 ~f stagnation because neither any such plea was taken
in the affidavit of respondent no.2 nor any argument was ad- E
vanced 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
F
Tribunal to substantiate the said assertion or to show that mem-
bers 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
G
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 waf) 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
H
40 SUPREME COURT REPORTS [2008] 10 S.C.R.
_.
A plea that recommendations made by the Secretary of the Ad-
ministrative 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 argument~ of ".'(
B 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 purpose, the Tribunal relied on Memo-
randum dated 13.3.2001 issued by the State Government for
sanction of posts in Scale Nos.19 and 21 for different State
c . Services. The Tribunal also relied on the ratio of Joydeb t·
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
D
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
E 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 --\
F Controllers of Food and Supplies and within a ~hort 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
G had not been discriminated. Unfortunately, the 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 /t;
Rule 1 CPC and straightaway recorded a finding of discrimina-
tion by placing reliance on Memorandum dated 1 ~.3.2001,
H which, in our considered view, did not advance the cause of the
THE STATE OF WEST BENGAL & ORS. v. KAMAL 41
SENGUPTA & ANR. [G.S. SINGHVI, J.]

respondents. For better appreciation of this aspect of the case, A
the relevant portions of Memorandum dated 13.3.2001 are ex-
tracted below :
"Government of West Bengal
Finance Deptt. Audit Br. B
No.3015-F Kolkata
131h March, 2001
MEMORANDUM
c
"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 0
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 E
below.
1to3. 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 F
available to different State Services :
i) Forty three additional posts in Scale No.19 ir:i West
Bengal Civil Service (Executive) are created a·nd the
eligibility condition for Scale No.19 will be the same as G
stated in F.D. No.6075-F dated 21.6.90. ·
Six additional posts of Special Secretary/Secreta,.Y in the
revised Scale No.21 are sanctioned for W.8.C.S. (Ex)
and such posts are to be filled up by selection from
amongst W.B.C.S. (Ex) Officers who have completed H
42 SUPREME COURT REPORTS [2008] 1'0 S.C.R.

A 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.
B
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 amon.gst the
Additional Commissioners who have put in a total service
c 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.
D 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.l.
E 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.

F v) The additional posts in Scale No.19 are created for
West Bengal Secretariat Service and the eligibility
conditfons for these two posts will remain the same as at
present.
vi) . As regards other constituted State Services as
G mentioned in. Finance Deparjment Memo No. 6075-F
dated 21. 6. 90 which have not been mentioned in this
Memo, two additional posts in Scaie No. 19 are created
for each of those constituted State Services and the
eligibility condition for Scale No. 19 will be same as stated
H in FD. No.6075-F dated 21.6.90.
THE STATE OF WEST BENGAL & ORS. v. KAMAL 43
SENGUPTA & ANR. [G.S. SINGHVI, J.]

vii) The number of posts in the basic grade in various A
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, 8
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] C
The plain language of the above reproduced Memoran-
dum shows that the State Government had, after considering
the· representations made by employees of different.services,
sanctioned addi.tional number of posts in Scale Nos.19 and 21.
0
For th~ Officers of Food and Supplies Department, two posts
were sanctioned in Scale No. 19. This development had taken
·place after more than four year& of dismissal of Transferred
Application. No.826 of 1996. A holistic reading of the Memo-
randum dated 13.3.2001 mE!kes it clear that the same cannot,
by any stretch of imagination,·be read as suo moto acceptance E
by the State Government of the respondents' claim for Scale
. Nos.19 and 21. Therefore, the Tribunal could not have consid-
ered the same for granting relief to the respondents and that
100 by ignoring para 6 of the Memorandum in terms of which
the additional posts were to become operative from 1.1.2001. -F
In any. case, the Tribunal could not have, without recording a
reason based finding that order dated 25.2.1997 was vitiated
~~ by a mista.ke or error apparent o.ri'·the face of the record or there
existed some other reason analogous to an error apparent, re-
viewed that order simply on the basis of the decision taken by G
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 H
44 SUPREME COURT REPORTS [2008] 10 S.C.R.

A 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
y
B rely on order dated 25.2.1997 passed in the case of the re-
spondents to show that the decision taken by the State Govern-
ment 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
c posts in Scale Nos.16, 17 and 18 under ROPA 1981 had not
been considered in that case. This being the position, the Tri-
bunal could not have, by relying on the order passed in Joydeb
Biswas's case, declared that the recommendations made by '1

Secretary of Food and Supplies Department are binding on
}-
the State Government. In any case, in view of the explanation
D
added to Order 4 7 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
E 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
F· senior counsel for the appellants that mere recommendations
ofthe 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 be-
G
fore 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 di-
H rected the State Government to sanction that pay scales to them.
THE STATE OF WEST BENGAL & ORS. v. .KAMAL 45
SENGUPTA & ANR. [G.S. SINGHVI, J.]
~

While doing so, the Tribunal conveniently overlooked the fact A
that benefit of the Scheme (Scale No .19) had not been 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 B
State Services i.e. West Bengal Civil Services (Executive) and
West Bengal Commercial Tax Services and that any drrection
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 c
--.4
~
Tribunal committed a jurisdictional error by entertaining and al-
lowing the review application filed by the respondents and the
direction-given by it for extending the benefit of Scale Nos.1 ~
-\ and 21 to them is legally unsustainable.
D
37. The three judgments cited by Shri Dhruv Mehta, learned
counsel for the respondents are clearly distinguishable. In In-
dian 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 ad-
mission of the review application. This is evident from the last E
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." F
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 G
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 constihited an error apparent on the face of the
record. H
46 SUPREME COURT REPORTS [2008J 10 S.C.R.

A 39. ln BoardofControlfotCricketin India.vs. NetajiCricket
Clup (supra); this Court considered whetherthe Division Bench
of Madras High Court· was justified in admitting the review peti-
tion. After making an elaborate reference to the factual matrix
of the case and -some judgments, the Two Judg.es Bench c.on·
s eluded that the High Cou.rt did not commit any error by enter-
taining the review petition. In para 91 of the judgment, refer-
ence has been niade to an earlier judgment in . Moran Mar .
Basselios Catholicos and another vs. The Most Rev. Mar
Poutose Athanasius and others (supra) in which expression
c ob..
'any other sufficient reason' was interprte.d. and it has been
served thatthe said rule is not universal. However, the judg ..
ment of the Two ju~ges Bench is conspicuously silent as to
why the ratio ofthe earlier judgment warrants a deviation. The
one line obse.rvation contained in para 93 that while exercising
review jurisdiction the Court·can take into consideration subse-
0
quent event has to be treated as confined to the fact.s of the
case involving the controversy between rivat Cricket AS$0Cia~
tions.
40. The third judgment in K. T Veerappa vs. State o;
E K.arnataka (supra) deals with the issue of discrimination in the
matter of grant of pay scales but does not contain any discus-
sion on the issue of Tribunal's power to review its decision.
41.We may now advert to the High Court's order. Ape-
rusal thereof shows that even while accepting the contention of -1
F the appellants that the Tribunal did .not have the jurisdiction to
review order dated 2fr2.1997, the High Court approved·the d~
rection 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 Assis-
G tant Director, Deputy Director and Director; that they were hold-
ing highest posts in the service; that they were given the benefit
of higher pay sca.les under ROPA 1981 and ROPA H~90 and
no material ·had been. placed before the Court to show that
members of other State Services to whom the benefit of Scale
H Nos.19 and 21 had been given under the Scheme had also
THE STATE OF WEST BENGAL & ORS. v. KAMAL 47 ..
SENGUPTA & ANR. [G.S. SINGHVI, J.J '.
received three promotions after jo.ining the service. The High A
Court also· overlooked the fact that members of three out 17 .
State Services had notbeen given benefit of Scale No.19 and
posts in Scale No.21 had been sanctioned onlyJor 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 recotc:fing B
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 ofth.e Constitution ~mdthat too by
ignoring the fact that the respondents had not produced any
tangible evidence to prima facie prove that they had .been sub- c
jected 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 arbi-
0
trary exercise of power and only then the State or its instrumen-
tality/agency or the public body (the employer) can be called
upon to show that its decision is non-discriminatory, non-arbi-
trary, fair and in public interest.
42. In the result, the appeal is c;1Uowed. The order of the E
High Court as also the one passed .by the Tribun~I in R.A No.26
of 1998 are set .aside. The parties· are left to bear their own
costs.
K.K.T. Appeal allowed.