RP.No.226 of 2017 in OP.(CAT) No.262/2016

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY, THE 17TH DAY OF JANUARY 2018 / 27TH POUSHA, 1939 RP.No. 226 of 2017 IN OPCAT. 262/2016 AGAINST THE JUDGMENT IN OP (CAT) 262/2016 of HIGH COURT OF KERALA DATED 04-10-2016 REVIEW PETITIONERS/PETITIONER: 1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF CORPORATE AFFAIRS, SHASTRI BHAVAN, NEW DELHI 2 THE REGIONAL DIRECTOR, MINISTRY OF CORPORATE AFFAIRS, SHASTRI BHAVAN, NEW DELHI 3 THE REGISTRAR OF COMPANIES, COMPANY LAW BHAVAN, KAKKANAD, COCHIN-682021 (WRONTLY KNOWS AS KADAVANTHRA, COCHIN-20 IN THE OA) BY ADV.SRI.DINESH R.SHENOY, CGC ## RESPONDENT/RESPONDENT/RESPONDENT: B.AMBILI, AGED 49, W/O.SUBHASH A.P., COMPANY PROSECUTOR, OFFICE OF THE REGISTRAR OF COMPANIES, COMPANY LAW BHAVAN, KOCHI-682020, RESIDING AT FLAT NO.12-C, "OAK WOOD", SKY LINE CITY, PART APARTMENTS, JAWAHAR NAGAR, KADAVANTHRA, KOCHI-682020. R1 BY ADV. SRI.T.C.GOVINDA SWAMY R1 BY ADV. SMT.T.N.SREEKALA THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 17-01-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.P.No.226/2017 ## APPENDIX REVIEW PETITIONER'S ANNEXURES: ANN.A1 TRUE PHOTOCOPY OF THE JUDGMENT DATED 4.10.2016 IN O.P.(CAT) NO.262/2016, HIGH COURT OF KERALA. TRUE COPY P.S.TO JUDGE css/ ## P.R.Ramachandra Menon & Dama Seshadri Naidu, JJ. ------------------------------------------- R.P.No.226 of 2017 in OP.(CAT) No.262 of 2016 -------------------------------------------- Dated this the 17[th] day of January, 2018 ## ORDER ## Ramachandra Menon, J. This review petition has been filed by the petitioners in O.P. (CAT) No.262/2016 after virtually losing the case filed by them before the Supreme Court as the SLP was declined to be entertained as per Anexure-A1 order dated 17.2.2017, however, without prejudice to the right of the petitioners who moved the Apex Court, to file a review petition before this Court making it clear that if any such review petition is filed within two weeks, limitation will not come in the way of the High Court in considering the merit. The question is whether there is any merit to invoke the power of this Court in exercise of the review. 2. Heard Sri Dinesh R.Shenoy, the learned Standing Counsel for the review petitioners as well as Sri T.C.Govindaswamy, the learned counsel for the respondent. R.P.No.226 of 2017 2 3. The learned counsel for the review petitioners submits that this Court has not taken note of the mandate in Ext.P5 OM bearing No.20020/4/2010-ESTT(D) dated 13.9.2012 while declining interference with the order passed by the Tribunal. As per the said O.M., for deciding the issue of seniority pursuant to acceptance of recommendations of 6[th] CPC on 29.8.2008 causing merger of the pay scales with effect from 1.1.2006, the following norms have been prescribed. I. The status of a government servant as on 29.8.2008 including those who have earned promotion between 1.1.2006 to 29.8.2008 will be protected as are made as the appointment/promotions per provisions of statutory recruitment rules applicable to the post/grade. The merger of the pay scale(s) of the post(s) as recommended by 6[th] CPC have been made effective w.e.f. 1.1.2006; the seniority of government servant which existed on 29.8.2008 (date of acceptance of recommendation of 6[th] CPC) will be maintained i.e. the holder of post having higher pay scale or post which constituted promotion post for the posts in the feeder grade, will rank enblock senior to those holding post having lower pay scale or the posts in feeder grade. II. Where posts having different pay scales prior to 6[th] CPC recommendation and now after merger have come to lie in the same Pay Bank with same Grade Pay, the inter-se seniority of all the employees will be fully maintained with employee in a higher pre-revised pay scale being placed higher vis-à-vis an employee in a lower pay scale. Within the same pre-revised pay scale, R.P.No.226 of 2017 3 seniority which existed prior to revision would continue. III. Where recruitment for the posts in different prerevised pay scale(s) was initiated separately for each posts, prior to acceptance of recommendation of 6[th] CPC i.e. prior to 29.8.2008 but selected individual joined duty on or after 30.8.2008 in the revised pay scale(s) against the posts which have been granted same Grade pay, such officers will be assigned seniority enbloc below those officers who were in position as on 29.8.2008. IV. The availability of officers nominated on the basis of panel of promotion given by DPC or selection list given by selecting Authority will be decided as on 29.8.2008. In case a officer from the panel given by DPC or selection list given by selecting Authority has joined on or prior to 29.8.2008, then status of all the officers included in panel given by DPC or selection list will be protected and all officer will be considered available and their seniority determined by following the basic principle of seniority i.e. order of panel given by DPC or merit list given by selecting authority. In case all the officers included in the panel given by DPC or selection list given by selecting Authority joins after 29.8.2008, then the seniority of such officers within a grade, will be determined by placing them below all available officers as on 29.8.2008 but maintaining their interse seniority in order of panel of DPC or merit list given by selecting authority. 4. It has been stipulated therein that all the cases for determination of seniority except merged MTS posts will be decided accordingly and that the issue of determination of seniority of merged MTS (erstwhile Group D) posts will be taken R.P.No.226 of 2017 4 up separately. By virtue of the said OM., the seniority already approved was sought to be protected and it is contended that if the declaration made by the Tribunal is let to stand, it may adversely affect the rights and interest of several persons, whose seniority has already been settled in terms of Ext.P5. Hence this review petition. 5. The learned counsel points out that Ext.P5 was never challenged before the Tribunal and that it stands intact. It is added that, even if the mandate of Ext.P5 is given effect to, the right of promotion of the respondent herein will not be adversely affected in any manner. 6. The learned counsel appearing for the respondent submits that Ext.P5 was never produced before the Tribunal and that a new case has been set up before this Court with reference to Ext.P5. It is also pointed out that the challenge raised before the Tribunal was mainly against Ann.A1 dated 6.7.2011 in O.P. (CAT) No.262 of 2016, i.e. prior to the issuance of Ext.P5 and hence, it was not subjected to challenge. But the fact remains that the O.A. was filed only in the year 2013, by which time R.P.No.226 of 2017 5 Ext.P5 had already come into existence. That apart, the learned Standing Counsel for the petitioners points out that, though Ext.P5 was not produced by the review petitioners before the Tribunal along with the reply statement, their specific pleadings in this regard were based on the contents of Ext.P5, as given in paragraphs 4 and 8. 7. With regard to the scope of review, the only point to be considered is whether there is any 'error apparent on the face of the record'. The said power is very limited and is not to be exercised as a court of appeal, in view of the law declared by the Supreme Court in (Meera Bhanja v Nirmala Kumari Choudhury)[1] . As such, there is nothing to review, as no error apparent on the face of record is brought to the notice of this Court. However, it remains the fact that some norms have been specified in Ext.P5 with regard to the fixation of seniority with reference to the implementation of the 6[th] CPC with effect from 1.1.2006 and those stipulations stand intact, as it was never sought to be challenged by the applicants. In the said 1 AIR 1995 SC 455 R.P.No.226 of 2017 6 circumstances, in view of the submissions made by the learned counsel for the review petitioners that the applicant's chance for promotion will not be affected in any manner, as given in Ext.P5, we make it clear that we do not propose to examine the scope and applicability of Ext.P5, which was never produced before the Tribunal and that the declaration made by the Tribunal will stand confined to the right of the applicant alone, to get promoted to the next higher post. With the above observation, the review petition stands disposed of. Sd/- P.R.Ramachandra Menon Judge sd/- Dama Seshadri Naidu Judge css/ true copy P.S.TO JUDGE