State Of U.P. Thru. Addl. Chief ... vs Mohd. Zubair (In Serb :- 401 Of ...
2021 Latest Caselaw 4039 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 10
 
Case :- CIVIL MISC REVIEW APPLICATION DEFECTIVE No. - 7 of 2021
 
Applicant :- State Of U.P. Thru. Addl. Chief Secy. Tax & Registration&Anr
 
Opposite Party :- Mohd. Zubair (In Serb :- 401 Of 2005)
 
Counsel for Applicant :- C.S.C.
 
Hon'ble  Mr. Justice Ramesh Sinha, J.

Hon'ble Mr. Justice Virendra Kumar-II, J.

(C.M.A. No. 21063 of 2021-Application for Condonation of Delay)

1. Heard Shri Raghvendra Singh, learned Advocate General assisted by Sri Pankaj Srivastava, learned counsel for the review applicants and perused the record.

2. This is an application for condonation of delay in filing review application. The review application has been preferred with delay of 1402 days.

3. The contentions mentioned in affidavit filed in support of application for condonation of delay is sufficient and convincing.

4. The application for condonation of delay (C. M. Application No. 21063 of 2021) is allowed.

5. The delay in preferring review application is condoned.

(Virendra Kumar-II, J.)(Ramesh Sinha, J.)

Order Date: 19.03.2021

Virendra

Court No. -10

Case :- CIVIL MISC REVIEW APPLICATION DEFECTIVE No. - 7 of 2021

Applicant :- State Of U.P. Thru. Addl. Chief Secy. Tax & Registration&Anr

Opposite Party :- Mohd. Zubair (In Serb :- 401 Of 2005)

Counsel for Applicant :- C.S.C.

Hon'ble Mr. Justice Ramesh Sinha, J.

Hon'ble Mr. Justice Virendra Kumar-II, J.

1. The present application for review has been instituted assailing judgment and order dated 3.4.2017 passed in Writ Petition No. 401 (SB) of 2005 by a Coordinate Bench of this Court comprising Hon'ble Mr. Justice Sudhir Agarwal(now retired) and one of the members of present Division Bench, i.e., Justice Virendra Kumar-II.

2. Learned Advocate General for the State/applicant has argued on the basis of contentions mentioned in the grounds of review application that there is error apparent on the face of judgment and order dated 3.4.2017 passed by this Court. The Division Bench of this Court has not considered that in requisition as well as advertisement, pursuant to which, the petitioner/opposite party was appointed as member of U.P. Trade Tax Tribunal, it was categorically mentioned that the services of the petitioner are not pensionable. The petitioner/opposite party was fully aware from the date of initial appointment that the services are not pensionable. He did not challenge the condition of service during the period of his service as member of the U.P. Trade Tax Tribunal. It was open to him to raise claim for pensionary benefit.

3. It is further submitted that the Division Bench of this Court has not considered that the petitioner/opposite party was appointed as per provisions contained in Section 10 (1) of the U.P. Trade Tax Act, 1948, therefore, the petitioner's services are not governed by the rules framed under the proviso to Article 309 of the Constitution of India. The petitioner is not entitled for pensionary benefits as per paragraph 361 of the Civil Services Regulations. The State Government invoking power under Section 10 (1-A) has issued government order dated 5.5.2000 whereby the conditions of service had been prescribed, under which, it has been provided that the services are non-pensionable, as such, the said government order dated 5.5.2000 cannot be held to be without jurisdiction.

4. It is further submitted that while passing the judgment and order dated 03.04.2017 this Hon'ble Court did not consider that it is well settled proposition of law that an appointment for a fix term cannot be equated with a regular government servant and thereby he cannot be held to be entitled for pension.

5. It is further submitted that the conditions of appointment by such an administrative decision had been upheld by the Hon'ble Supreme Court in the case of Nagpur Improvement Trust Vs. Y. J. Kumbhare & others, 1999 8 SCC P.99, wherein it has been held that in absence of statutory rules governing service conditions, the executive instructions and or decision taken administratively operate and appointment/ promotion can be made in accordance with such executive instructions.

6. Learned Advocate General has further submitted that the provisions of Section 10 (1-B) of the Act of 1948 does not say anything about the tenure of service nor it say about the age of retirement. In its true prospected as in the said section, only this much had been provided that the provisions of fundamental rule 56 shall continue to apply to civil member of the tribunal but by the said application of fundamental rule 56, is in no way can be inferred as entitlement of the member for the pension.

7. It is also argued that the Division Bench of this Court has wrongly held invoking provisions of fundamental rule 56 (e) that the petitioner/opposite party is entitled for pensionary benefit. The provisions of fundamental rule 56 (e) are not applicable to the services of petitioner/opposite party. Therefore, it is prayed that the judgment and order dated 3.4.2017 be reviewed and set aside and the petition of opposite party is liable to be dismissed.

8. Learned Advocate General has relied upon the exposition of law of Hon'ble Apex Court in the case of B.N. Nagarajan Vs. State of Mysore reported in AIR 1966 Supreme Court 1942 (V 53 C 395) wherein Hon'ble Apex Court in paragraph no. 5 has held as under:-

"5. It would be convenient to deal with this argument at this stage. Mr. Nambiar contends that the words "shall be as set forth in the rules of recruitment of such service specially made in that behalf" clearly show that till the rules are made in that behalf no recruitment can be made to any service. We are unable to accept this contention. First it is not obligatory under proviso to Article 309 to make rules of recruitment, etc., before a service can be constituted or a post created or filled. This is not to say that it is not desirable that ordinarily rules should be made on all matters which are susceptible of being embodied in rules. Secondly, the State Government has executive power, in relation to all matters with respect to which the Legislature of the State has power, to make laws. It follows from this that the State Government will have executive power in respect of List II, Entry 41, State Public Services. It was settled by this Court in Ram Jawaya Kapur V. State of Punjab, 1955-2 SCR 225 : (AIR 1955 SC 549), that it is not necessary that there must be a law already in existence before the executive is enabled to function and that the powers of the executive are limited merely to the carrying out of these laws. We see nothing in the terms of Article 309 of the Constitution which abridges the power of the executive to act under Art. 162 of the Constitution without a law. It is hardly necessary to mention that if there is a statutory rule or an act on the matter, the executive must abide by that act or rule and it cannot in exercise of the executive power under Art. 162 of the Constitution ignore or act contrary to that rule or act."

9. Learned Advocate General has also relied upon the exposition of law in the case of Kusheshwar Prasad Singh Vs. State of Bihar and others reported in (2007) 11 Supreme Court Cases 447 in paragraph nos. 14 to 16 Hon'ble the Apex Court has held as under:-

"14. In this connection, our attention has been invited by the learned counsel for the appellant to a decision of this Court in Mrutunjay Pani & Another v. Narmada Bala Sasmal & Another, AIR 1961 SC 1353, wherein it was held by this Court that where an obligation is cast on a party and he commits a breach of such obligation, he cannot be permitted to take advantage of such situation. This is based on the Latin maxim 'Commodum ex injuria sua nemo habere debet' (No party can take undue advantage of his own wrong).

15. In Union of India & Ors. V. Major General Madan Lal Yadav (Retd.), (1996) 4 SCC 127, the accused-army personnel himself was responsible for delay as he escaped from detention. Then he raised an objection against initiation of proceedings on the ground that such proceedings ought to have been initiated within six months under the Army Act, 1950. Referring to the above maxim, this Court held that the accused could not take undue advantage of his own wrong. Considering the relevant provisions of the Act, the Court held that presence of the accused was an essential condition for the commencement of trial and when the accused did not make himself available, he could not be allowed to raise a contention that proceedings were time-barred. This Court referred to Broom's Legal Maxims (10th Edn.) p. 191 wherein it was stated;

"it is a maxim of law, recognised and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognised in Courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure".

16. It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently, "a wrong doer ought not to be permitted to make a profit out of his own wrong".

10. We have heard, learned Advocate General for the State/applicant and perused the record of Service Bench Petition No. 401 of 2005 (Mohd. Zubair Vs. U.P. State Public Service Tribunal).

11. The petitioner/opposite party Mohd. Zubair approached the U.P. State Public Service Tribunal by instituting Claim Petition No. 1444 of 2000, which was disposed of vide impugned judgment and order dated 3.5.2005 delivered by U.P. State Public Service Tribunal by which the claim petition of the petitioner was dismissed relying upon government order dated 5.5.2000 and held that the services of the petitioner was not pensionable as per provisions of the aforesaid government order.

12. The Division Bench of this Court considered the provisions of Section 10 (1-B) of Act 1948, which are reproduced as follows:-

"(1-B) The provisions of Rule 56 of the Uttar Pradesh Fundamental Rules shall continue to apply to every member of the Tribunal including the President, whether appointed before or after the commencement of the Uttar Pradesh Sales Tax (Second Amendment and Validation) Act, 1983, as they apply to any other Government servant:

Provided that a member of the Tribunal including the President appointed before the commencement of the Uttar Pradesh Sales Tax (Second Amendment and Validation) Act, 1983, may continue as such till he attains the age of sixty years."

13. The Coordinate Bench has held that fundamental rule 56 is made applicable to the members of the tribunal by virtue of Section 10 (1-B) of the Act, 1948 (U.P. Trade Tax Act, 1948) and in absence of any otherwise statutory amendment, by an executive order, statutory rules cannot be modified or amended.

14. The Coordinate Division Bench has also considered the provisions of fundamental rules 56 (e), which is reproduced as follows:-

"56(e). A retiring pension shall be payable and other retirement benefits, if any, shall be available in accordance with and subject to the provisions of the relevant rules to every Government servant who retires or is required or allowed to retire under this rule."

Provided ...

Explanation. (1) ...

(2) ...

(2-A) ...

(3) ...

(4). Every order of the appointing authority requiring a Government servant to retire forthwith under the first proviso to clause (d) of this rule shall have effect from the afternoon of the date of its issue, provided that, if after the date of its issue, the Government servant concerned, bona fide and in ignorance of that order, performs the duties of his office, his acts shall be deemed to be valid notwithstanding the fact of his having earlier retired."

It is held by co-ordinate Division Bench of this Court in paragraph no. 8 and 9 as follows:-

8. It is worthy to mention here that Fundamental Rule 56 in State of Uttar Pradesh is not a piece of subordinate legislation under proviso to enacted by Uttar Pradesh Fundamental Rule56 (Amendment and Validation) Act, 1976 (U.P. Act No. 33 of 1976). It clearly declares that a person who retired under Fundamental Rule 56 shall be entitled for "retiring pension" and other benefits shall be such as applicable in accordance with law.

9. Qualifying service is prescribed under CSR read with Rules, 1961 and therein if a person has continued to work for 10 years and more he is entitled for pension. In the present case, it was not open to respondents to declare through an executive order that service rendered by petitioner is not pensionable when statute itself declare that retiring pension shall be paid to petitioner or any other person who retire under Fundamental Rule 56 read with Section 10 (1) (b) of Act, 1948."

15. We have also considered the provisions of Section 10 (1)(b) of U.P. Trade Tax Act, 1948 and Fundamental Rule 56 of U.P. Fundamental Rules. There is no dispute that the petitioner/opposite party applied for the post of Member of Sales Tax Tribunal, against two posts reserved for eligible advocates. As per requisition letter dated 13.12.1991 (Annexure No. 5) and after examining his application, he was appointed as Member of the U.P. Trade Tax Tribunal, through, U.P. Public Service Commission, Allahabad.

16. It is not the case of the applicant/State of U.P. that his appointment was against any provisions of U.P. Trade Tax Act, 1948 or publication for the aforesaid post (Annexure No. 6). The publication issued by the U.P. Public Service Commission, Allahabad is available on record. Although it is mentioned in the publication that the petitioner/opposite party was initially appointed for three years and his services was liable to be renewed for next two years. It is not disputed that the petitioner/opposite party served in U.P. Trade Tax Tribunal as member. The qualifying service has already been completed by the petitioner as per provisions of Civil Service Regulations (hereinafter referred to as CSR read with U.P. Recruitment Benefit Rules, 1961 (hereinafter referred to as, ''Rules 1961').

17. The question, "whether in view of the government order dated 5.5.2000, it can be said that the petitioner/opposite party is not entitled for the pensionary benefit", was considered and decided by the Coordinate Division Bench of this Court vide order dated 03.04.2017 after considering the provisions of Section 10 (1)(b) of the U.P. Trade Tax Act, 1948 and Rule 56 (e) of the State of U.P.

18. It is pertinent to mention here that the applicant/State permitted the petitioner/opposite party to serve on the post of Member of U.P. Trade Tax Tribunal, during period from 27.01.1994 upto 31.12.2011, i.e., qualifying service for ten years for entitlement for getting pension. The Government Order dated 05.05.2000 cannot override the provisions of Rule 56 of fundamental rules framed by the State of U.P. The applicant/State on the basis of principles of estoppel and acquiescence, cannot raise objection on the basis of government order dated 05.05.2000 that now the petitioner/opposite party is not entitled for getting pension. The respondent/ opposite party joined on 27.01.1994, hence, government order cannot have retrospective effect, because, Rule 56 of Fundamental Rules has been made applicable by virtue of provisions of Section 10(1-B) of U.P. Trade Tax Act, to members of U.P. Trade Tax Tribunal, including members appointment in quota of Advocates also.

19. As far as learned Advocate General argued that applicant/ opposite party was appointed for fixed term, the State of U.P. has itself renewed service of opposite party/ respondent upto 31.12.2011, by permitting him to work as member of U.P. Trade Tax Tribunal by implication.

20. There is no apparent error on the face of judgment and order dated 03.04.2017. The exposition of law of Hon'ble Apex Court relied upon by the learned Advocate General does not extend any benefit to the applicant/State. The aforesaid exposition of law does not apply to the facts and circumstances of the present matter. Likewise, Annexure No. 2 and Annexure No. 3 exposition of law relied upon by the Advocate General does not apply to the facts and circumstances of present matter. The aforesaid exposition of law relied upon by the Advocate General are based on different facts.

21. For review of any judgment and order, the following exposition of law is relevant:-

22. In Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh AIR 1964 SC 1372 the Court said:

"A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error."

23. In Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma 1979 (4) SCC 389 the Court said:

"... there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres 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 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 the face 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. A power of review is not to be confused with appellate powers which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court."

24. Again, in Meera Bhanja v. Nirmala Kumari Choudhury AIR 1995 SC 455 while quoting with approval the above passage from Abhiram Taleshwar Sharma Vs. Abhiram Pishak Shartn (supra), the Court once again held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.

25. In Parsion Devi and others Vs. Sumitri Devi and others 1997 (8) SCC 715 it was held that an error, which is not self evident and has to be detected by process of reasoning, can hardly be said to be error apparent on the face of the record justifying the court to exercise powers of review in exercise of review jurisdiction.

26. In Rajendra Kumar Vs. Rambai, AIR 2003 SC 2095, the Apex Court has observed about limited scope of judicial intervention at the time of review of the judgment and said:

"The limitations on exercise of the power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgement/order cannot be disturbed."

27. Thus, Review is not an appeal in disguise. Rehearing of the matter is impermissible in the garb of review. It is an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. In Lily Thomas Vs. Union of India AIR 2000 SC 1650, the Court said that power of review can be exercised for correction of a mistake and not to substitute a new. Such powers can be exercised within limits of the statute dealing with the exercise of power. The aforesaid view is reiterated in Inderchand Jain Vs. Motilal (2009) 4 SCC 665.

28. In Kamlesh Verma Vs. Mayawati and others 2013 (8) SCC 320, the Court said:

"19. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 of CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction.

Summary of the Principles:

20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:

20.1. When the review will be maintainable:-

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason.

29. The words "any other sufficient reason" has been interpreted in Chhajju Ram vs. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius & Ors., AIR 1954 SC 526, to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India vs. Sandur Manganese & Iron Ores Ltd. & Ors., 2013 (8) SCC 337.

22.2. When the review will not be maintainable:-

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

(ii) Minor mistakes of inconsequential import.

(iii) Review proceedings cannot be equated with the original hearing of the case.

(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.

(vi) The mere possibility of two views on the subject cannot be a ground for review.

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived." (emphasis supplied).

30. On the basis of above discussions, and exposition of law regarding review of any judgment and order, the present application for review of judgment and order dated 3.4.2017 is devoid of merits and is liable to be dismissed.

31. Accordingly dismissed.

(Virendra Kumar-II, J.)(Ramesh Sinha, J.)

Order Date:19.03.2021

Virendra