Smt. Suman Lata Agrawal vs State Of U.P.And 4 Ors.
2021 Latest Caselaw 316 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on: 7.12.2020
 
Delivered on:7.1.2021
 
Court No. - 40
 
Case :- WRIT - A No. - 19092 of 2013
 
Petitioner :- Smt. Suman Lata Agrawal
 
Respondent :- State Of U.P.And 4 Ors.
 
Counsel for Petitioner :- Amit Kumar Singh,Ashok Khare
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Munishwar Nath Bhandari,J.

Hon'ble Rajeev Misra,J.

(Delivered by Hon'ble Rajeev Misra, J.)

Ref: Delay Condonation Application No. 5 of 2020

1. Heard Mr. Raghvendra Singh, learned Advocate General assisted by Mrs. Archana Singh, Additional Chief Standing Counsel for applicant-respondent and Mr. Ashok Khare, learned Senior Counsel assisted by Mr. Amit Kumar Singh, learned Counsel for petitioner/opposite party.

2. Feeling aggrieved by judgement and order dated 20.11.2019, whereby present writ petition was allowed, respondents have filed a review application seeking review of aforesaid judgement and order dated 20.11.1019. Since the review application has been filed beyond the period of limitation, accordingly above mentioned application under Section 5 of Limitation Act, duly supported by an affidavit has also been filed, seeking condonation of delay in filing the review application.

3. Mr. Ashok Khare, learned Senior Counsel on behalf of petitioner/opposite party, upon instructions submits that petitioner opposite party does not wish to file a counter affidavit to the delay condonation application. Delay condonation application may be allowed and matter be heard on merits of the review application itself.

4. We have perused the affidavit filed in support of delay condonation application.

5. Record reveal that against judgement and order dated 20.11.2019, applicant respondents preferred Special Leave Petition (Civil) Diary No. 8126 of 2020 (The State of Uttar Pradesh and Ors. Vs. Suman Lata Agrawal and Another) before Apex Court. Aforesaid Special leave petition was filed with delay. However, the Apex Court vide order dated 3.9.2020 condoned the delay in filing the special leave petition and simultaneously dismissed the appeal. For ready reference order dated 03.09.2020 is reproduced herein under:

"Delay condoned.

The Special Leave Petition is dismissed

Pending application stands disposed of"

6. Thus the delay in filing present review application has primarily occurred on account of the fact that against judgement and order dated 20.11.2019, passed by this Court, Special Leave Petition was filed before Apex Court, which came to be dismissed only on 3.9.2020. It is thereafter that present review application has been filed in light of judgement of Apex Court in (Khoday Distilleries Ltd. (now known as Khoday India Limited and Others Vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd Kollegal (under liquidation) represented by liquidator), 2019 (4) SCC 376. Delay for the period 20.11.2019 to 3.9.2020 stands condoned by Apex Court itself. Moreover, review application has been filed just after 25 days from the date of order passed by Apex Court in Special Leave Petition filed by applicants respondents.

7. It is thus apparent that delay in filing the review application has been sufficiently explained. There is no deliberate negligence or laches on part of applicants-respondents in filing the review application with delay. Consequently, we condone the delay in filing the review application.

8. Accordingly, Delay Condonation Application is allowed.

Order Date :- 7.1.2021

Arshad/YK/HSM

Reserved on: 7.12.2020

Delivered on:07.01.2021

Case :- WRIT - A No. - 19092 of 2013

Petitioner :- Smt. Suman Lata Agrawal

Respondent :- State Of U.P.And 4 Ors.

Counsel for Petitioner :- Amit Kumar Singh,Ashok Khare

Counsel for Respondent :- C.S.C.

Hon'ble Munishwar Nath Bhandari,J.

Hon'ble Rajeev Misra,J.

(Delivered by Hon'ble Rajeev Misra, J.)

Ref: Review Application No. 6 of 2020

1. Heard Mr. Raghvendra Singh, learned Advocate General assisted by Mrs. Archana Singh, Additional Chief Standing Counsel for applicants/respondents and Mr. Ashok Khare, learned Senior Counsel assisted by Mr. Amit Kumar Singh, learned Counsel for petitioner/opposite party.

2. Instant writ petition was allowed vide judgement and order dated 20.11.2019, passed by a Division Bench of this Court comprising one of us (Hon'ble Rajeev Misra,J). As His Lordship Hon'ble Mr. Justice Sudhir Agarwal is no longer available, matter was placed before Hon'ble the Chief Justice for nomination of a Bench. Hon'ble the Chief Justice vide order dated 7.11.2020 has nominated present review petition to this Bench. That is how present review petition has come up before this Bench.

3. Above mentioned review application on behalf of applicants-respondents seeking review of judgement and order dated 20.11.2019, has been filed with delay. By a separate order of date, we have condoned the delay in filing the review petition.

4. We wish to bring on record that against judgement and order dated 20.11.2019, applicant respondents filed Special Leave Petition (Civil) Diary No. 8126 of 2020 (The State of Uttar Pradesh and Ors. Vs. Suman Lata Agrawal and Another). Same was dismissed vide order dated 003.09.2020, which reads as under:

"Delay condoned.

The Special Leave Petition is dismissed.

Pending application stands disposed of"

5. Subsequent to dismissal of above mentioned special leave petition filed by applicants-respondents, present review petition seeking review of judgement and order dated 20.11.2019 has been filed in the light of judgement of Apex Court in (Khoday Distilleries Ltd. (now known as Khoday India Limited and Others Vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd Kollegal (under liquidation) represented by liquidator), 2019 (4) SCC 376.

6. Present review petition was heard on 25.11.2020. On aforesaid date, it was discovered that grounds on which review of judgement and order dated 20.11.2019 is being prayed for have not specifically been raised in the grounds of review mentioned in review petition.

7. In the light of above, a supplementary affidavit has been filed on behalf of applicants-respondents whereby additional grounds of review have been pleaded.

8. Arguments were concluded on 7.12.2020, with liberty to applicants-respondents to file written submissions, if any, within a week. Same has been filed and is on record.

9. Review of judgement and order dated 20.11.2019 is being sought on as many as nine grounds. Since most of the grounds, on the basis of which review of judgement and order dated 20.11.2019 is sought, travel beyond the scope of order impugned in writ petition i.e. order dated 28.02.2013, we deem it necessary to state in brief the history of litigation preceding impugned order dated 28.02.2013 only to demonstrate that most of the grounds on the basis of which review of judgement and order dated 20.11.2019 is sought do not fall within the parameters of review.

10. Record reveals that Kishori Raman Teachers Training College Mathura (hereinafter referred to as the institution) is a duly recognized Teachers Training College receiving grant-in-aid from State Government and under administrative control of Director State Council for Educational Research and Training U.P., Lucknow (hereinafter referred to as SCERT).

11. The Management of the Institution issued an advertisement dated 18.08.1995 (Annexure-2 to the writ petition) whereby five posts of lecturer each in Science, Biology, English, Hindi and Economics were advertised. Upon completion of selection proceedings, petitioner-opposite party was appointed as Lecturer Hindi vide appointment letter dated 27.11.1995.

12. Papers regarding approval of selected candidates were sent to Director SCERT, U.P., Lucknow for approval. However, Director SCERT refused to accord his approval to the appointment of petitioner on the post of Lecturer Hindi and four others in the Institution vide order dated 17.01.1997 on the ground that Rules of Reservation have not been followed at the time of making appointments.

13. Feeling aggrieved by above order dated 17.01.1997, petitioner-opposite party represented her grievance vide representation dated 22.04.1997 addressed to Minister of Education Government of U.P. Lucknow. The said representation was marked to Director SCERT for disposal.

14. Joint Director of Education (Training) for the Director SCERT vide his order dated 28.08.1997 rejected representation dated 22.04.1997 filed by petitioner-opposite party on the grounds that (a) no prior permission was obtained before making appointment and (b) while making appointment on the posts of lecturers, Rules of Reservation have not been followed. It was thus concluded that appointment so made are irregular. Consequently, no review of order dated 17.1.1997 is possible on the representation dated 22.04.1997.

15. Feeling aggrieved by order dated 28.08.1997 petitioner-opposite party filed C.M.W.P. (SB) No. 1195 of 1997 (Smt. Suman Lata Agrawal Vs. State Council for Educational Research and Training) before Lucknow Bench of this Court. The writ petition came for admission on 24.10.1997 before a Division Bench and Court passed following interim order:

"Connect with writ petition no. 1048 (SB) of 1997. Standing counsel prays for and is allowed 4 weeks' time to file counter affidavit. The petitioner will also got the benefit of the said stay order and the petitioner will continue to work and be paid salary provisionally till further orders of the Court."

16. Ultimately, above mentioned writ petition filed by petitioner-opposite party came to be allowed by Lucknow Bench of this Court vide judgement and order dated 29.08.2012, whereby impugned order dated 29.08.1997 was quashed and a direction was issued to consider claim of petitioner-opposite party for regularisation of her services. For ready reference, operative portion of judgement and order dated 29.08.2012, which is relevant at this stage is, accordingly, reproduced herein-under

" Learned counsel for the petitioner submits that the post of Lecturer in Hindi subject is a single post and it is well settled that there can be no reservation if the post is single. In support of his submission, learned counsel for the petitioner has relied upon the judgeent of this Court rendered in the case of Heera Lal Versus State of U.P. (FB) reported in [2011(29) LCD1], wherein, it has been held that the rule of reservation as contained in U.P. Act No. 4 of 1994 will be applied if the posts are more that five posts.

Under these circumstances, the writ petition is allowed. The impugned order dated 28.08.1997 is hereby quashed and opposite parties are directed to consider the case of the petitioner for regularisation expeditiously."

17. Subsequently, State Government issued a Government Order dated 23.06.1999 whereby, fresh admission to L. T. Training Courses from ensuing session were prohibited. It was further directed that in future admissions would be made in such college for imparting instructions of studies in Bachelor of Education Training Course. As a consequence of such conversion the institution fell under the administrative control of Department of Higher Education of State Government. On 30.03.2000 the State Government also issued an office order constituting a five member committee for resolving the controversy, which may arise as a consequence of conversion of such college.

18. In compliance of order dated 29.08.1997 passed by Lucknow Bench of this Court, Principal Secretary, Department of Higher Education Government of U.P. Lucknow examined the claim of petitioner regarding regularisation of her services and ultimately passed an order dated 28.02.2013/04.03.2013, whereby claim of petitioner-opposite party regarding regularization of her services was negated on the findings that since (a) appointment of petitioner-opposite party is not according to Rules and (b) Rules of Reservation have not been followed at the time of making appointments, therefore, there is no occasion to regularise the services of petitioner/opposite party.

19. Aforesaid conclusion was drawn on the basis of three concluded facts, which emerged upon due consideration of the facts and circumstances relating to selection and appointment of petitioner-opposite party The same have also been specifically mentioned in the order dated 28.02.2013 and accordingly reproduced herein under:

(i) Age of Dr. Sumanlata Agrawal in the year of appointment (1 July 1995) was 37 years, 5 months, 16 days, which was more than prescribed 32 years as per Rule 10 of Uttar Pradesh Subordinate Educational (Trained Graduates Grade) First Amendment Rules, 1992 amended by Notification No. 2761/15-2-92-27 (246)/77 dated 6-11-1992 issued by Education Section-2, thus, Dr. Agrawal was not found eligible on account of having crossed the prescribed age limit.

(ii) At the time of appointment, reservation rules were in effect but Smt. Sumanlata Agarwal (General Category) was appointed by Management of Degree College without following reservation Rules. On account of not following the reservation Rules, recommendation for her appointment was not made by the then Director, State Council of Educational Research & Training.

(iii) Appointment of Smt. Sumanlata, Lecturer (Hindi) was made by the management of Degree College. As per aforementioned circumstances, Dr. Sumanlata was not eligible for appointment. But in compliance of interim orders passed by Hon'ble High Court in concerned writ petitions, she has been continuing in service and getting salary.

iv. In view of above facts, Smt. Sumanlata Agrawal was not appointed as per Rules. Therefore, there is not justifiable ground available to regularize her services. Thus, representation stands disposed of accordingly rejecting the claim of applicant made therein."

20. Feeling aggrieved by above noted order dated 28.02.2013 petitioner-opposite party filed instant writ petition i.e. Writ-A No 19092 of 2013 (Smt. Suman Lata Agarwal Vs. State of U.P and 4 Others) before this Court claiming following relief:

(1) a writ order or direction in the nature of certiorari quashing the order dated 28.2.2019/4.3.2013 passed by the State Government (Annexure No. 11 to the writ petition).

(2) a writ, order or direction of suitable nature commanding the respondents not to interfere in the functioning of the petitioner as lecturer in Hindi in Kishori Raman Teachers Training College, Mathura and to pay the petitioner her regular monthly salary regularly every month.

(3) a writ/writs and/or to pass such other and further order as this Hon'ble Court may deem fit and proper.

21. Present writ petition came up for admission on 25.04.2013 and this Court passed following interim order dated 25.04.2013:-

"The case of the petitioner is that she was selected and appointed as Lecturer in Training College in Hindi subject in the year 1995. Her appointment was not approved in the year 1997. However, in Writ Petition No. 1195 of 1997 filed by the petitioner an interim order was granted on the basis of which the petitioner continued and ultimately on 29.8.2012 the writ petition was allowed and the matter was remitted back for fresh consideration. Pursuant thereto, the impugned order dated 28.2.2013/4.3.2013 has been passed by the respondent no. 1 again disapproving the appointment of the petitioner.

Learned counsel for the petitioner has submitted that the reason for not granting approval is that the reservation policy was not followed. It is contended that since it was an appointment on a single post, the said reservation policy was not to be followed as had also been held by the Division Bench while allowing the earlier Writ Petition No. 1195 of 1997 filed by the petitioner. It is further submitted that the other ground for not approving the appointment is that the petitioner was over 32 years of age which was in contravention of Rule 10 of the U.P. Subordinate Educational (Trained Graduates Grade) Service Rules, 1983. Learned counsel for the petitioner submits that the said Rules were applicable only to the recruitment and conditions of service of persons appointed to the U.P. Subordinate Educational (Trained Graduates Grade) Service and not to Lecturers in training colleges and as such Rule 10 of the said Rules would also not be applicable whereby the age bar has been provided. It is thus contended that the impugned order is liable to be quashed.

In our view, the matter requires consideration.

Learned Standing Counsel has accepted notice for the respondents no. 1 to 4.

Issue notice to the respondent no. 5 fixing a date immediately after six weeks.

All the respondents may file counter affidavit by the next date.

Considering the facts and circumstances of this case and keeping in view the submissions made by the learned counsel for the petitioner, it is provided that the operation of the impugned order dated 28.2.2013/4.3.2013 shall remain stayed, till the next date of listing."

22. Present writ petition filed by petitioner-opposite party came to be allowed by this Court vide order dated 20.11.2019, by recording following findings:

(a) The finding recorded in impugned order that since Rules of reservation were not followed and therefore, appointment of petitioner is not only illegal but perverse as the said findings is contrary to law as laid down in Dr. Archana Mishra and Others Vs. State of U.P. and Others, 2018 (10) ADJ 487, wherein it has been held by the Full Bench of this Court that Rules of Reservation shall not apply to a single post.

(b) The provisions of Uttar Pradesh Subordinate Educational (Trained Graduates Grade) Service Rules, 1983 are not applicable.

23. It may be noted here that petitioner-opposite party has been paid her salary throughout as lecturer Hindi in the Institution and has ultimately superannuated from her services.

24. Applicants-respondents have sought review of judgement and order dated 20.11.2019 on the following grounds as crystalized in written submission submitted by applicants-respondents:

(i) The "Rules of Teaching Training College (Government Aided)" was not produced before this Hon'ble Court at the time of passing of impugned judgement.

(ii) Since the appointment of petitioner has never been approved as per rule, therefore the appointment letter was without jurisdiction and her appointment is illegal and void-ab-initio.

(iii) No mandamus can be issued if the petitioner fails to establish the fact that he has no legal right and thus falls under the category of "person aggrieved"

(iv) The relief of regularization cannot be granted to the petitioner dehors the rules.

(v) The writ of Certiorari cannot be issued to revive an illegality in the present case despite of some defect in the impugned order

(vi) Judgement under review is unsustainable as it is obtained by fraud.

(vii) The lecturer (LT Grade) posts in the Teacher Training College (present case) is a single cadre and without subject and therefore, roster of reservation is applicable on the entire strength of the cadre. While the judgement under review treated the posts being created subject wise and decided the case on the basis of inapplicable judgments passed in the case of Vishwajeet Singh and Archana Mishra's case.

(viii) Petitioner is not entitled to salary as being not duly appointed and therefore could not be absorbed at the time of the transfer of control of the institution from the SCERT to Higher Education Department under UP State University Act, 1973.

(ix) The liability to pay salary to the petitioner is of the management of the college.

(x) Re-advertisement of the vacancy on which the petitioner claims to be appointed by the college indicates the admission of mistake in earlier advertisement by the college and the same has not been challenged till date.

25. Before proceeding to consider the grounds of review on basis of which, review of judgement and order dated 20.11.2019 is prayed for, we wish to reiterate that review of an order does not amount to re-hearing. Secondly a ground not taken in the original proceedings cannot be taken as a ground of review. Thirdly even an erroneous judgement is not a ground of review. Lastly scope of review is very limited and is confined only to an error apparent on face of record.

26. Except for ground no. 8 of the grounds (quoted in paragraph 24 of this order) on which review of judgement and order dated 20.11.2019 is sought, all other grounds urged on behalf of applicants-respondents are conspicuous by their absence in the order impugned in writ petition. It is well settled that validity of an order is to be judged on the basis of reasons contained in the order itself. Same cannot be supplemented by reasons brought on record through affidavit. Reference in this regard be made to Mohinder Singh Gill Vs. Chief Election Commissioner, AIR (1978) 1 SCC 405, wherein following has been observed in paragraph 8:

"The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought ,out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (1) "Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in Ms mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."

Orders are not like old wine becoming better as they grow older."

27. We have already narrated history of litigation preceding the impugned order dated 28.02.2013 only to highlight that throughout it has never been the case of applicants-respondents that appointment of petitioner-opposite party is illegal as it was never approved. To the contrary, approval to the appointment of petitioner-opposite party was not accorded on the ground that at the time of appointment of petitioner-opposite party Rules of Reservation were not followed.

28. The issue as to whether Rules of Reservation were required to be followed at the time of appointment of petitioner-opposite party as Lecturer Hindi in the Institution has already been settled vide Judgement dated 29.08.2012 delivered by a Division Bench of this Court at Lucknow in C.M.W.P. (S/B) No. 1195 of 1997 (Smt. Suman Lata Agrawal Vs. State Council for Educational Research and Training), which judgement has been allowed to become final for want of challenge. Therefore, the issue that Rules of Reservation were applicable at the time of appointment of petitioner-opposite party but were not followed could not and cannot be re-opened as the same is barred by principles of res-judicata.

29. The Advertisement, which is on record as Annexure-2 pursuant to which petitioner-opposite party applied for the post of lecturer Hindi in the Institution, itself contains a recital that candidates should possess degree of MA/MSc. in concerned subject. Thus the post of Lecturer (Hindi)/so advertised was a single post. In view of aforesaid stipulation in the advertisement itself, reliance placed upon judgement in Vishwajeet Singh Vs. State of U.P. and other 2009 (4) ADJ 373 (DB) i.e. paragraphs 56, 57, 60 and 64 while deciding the writ petition in support of the proposition that that there can be no reservation for a single post, cannot be said to be erroneous or an error apparent on face of record. Therefore, ground no. 8 of grounds of review as quoted above does not fall in the category of an error apparent on the face of record.

30. Similarly, in respect of the finding that Uttar Pradesh Subordinate Educational (Trained Graduates Grade) Service Rules, 1983, are not applicable, we do not find any illegality or perversity in the same. It would not be out of place to mention here that recital contained in order dated 28.10.2013, which refers to Uttar Pradesh Subordinate Educational (Trained Graduates Grade) First Amendment Rules, 1992 relates to the amendment made in above mentioned 1983 Rules. We may mention here that perusal of counter affidavit filed by State Respondents in the writ petition clearly reflects that no pleadings have been raised that 1983 Rules are applicable nor an attempt has been made therein to explain as to how the aforesaid Rules are applicable even when it has been specifically pleaded in paragraphs 33, 34, 35, 36, 37 and 38 of the writ petition that 1983 Rules are not applicable. In fact when Learned Advocate General was confronted with aforesaid at the time of hearing of present review application on 25.11.2020, he submitted that a supplementary affidavit shall be filed explaining the same. It is in this context that supplementary affidavit has been filed by applicants-respondents. Along with the supplementary affidavit, the administrative instructions issued by State Government regarding appointment in Teachers Training College have been appended. Learned Advocate General on the basis of aforesaid, admitted that 1983 Rules are not applicable. Therefore, the finding recorded in the judgement and order dated 20.11.2019 that 1983 Rules are not applicable cannot be said to be illegal, perverse or erroneous.

31. Thus, we find neither of the two findings recorded in the judgement and order dated 29.11.2019 can be held to be illegal, perverse or erroneous. It is well settled that if the finding cannot be dislodged the conclusion also cannot be reviewed. Consequently, there is no error apparent on the face of record warranting review of judgement and order dated 29.11.2019.

32. For the reasons stated above, no ground for review of judgement and order dated 29.11.2019 is made out. Review application fails and is, therefore, liable to be dismissed.

33. It is accordingly dismissed.

Order Date :- 7.1.2021

Arshad/YK/HSM