Uttarakhand High Court
SPA/141/2011 on 26 March, 2021
CLMA No. 6868 of 2021 (Delay Condonation Appl.)
MCC No. 6865 of 2021 (Review Application)
In
SPA No. 141 of 2011
Hon'ble Manoj K. Tiwari, J.
Hon'ble Alok Kumar Verma, J.
Mr. Chetan Joshi, Advocate for the
appellant.
Mr. Avtar Singh Rawat, Senior Advocate
(Special Counsel), Mr. C.S. Rawat, Chief
Standing Counsel, Mr. Pradeep Hariya and
Mr. J.S. Bisht, Standing Counsel for the State
of Uttarakhand/review applicant.
Heard learned counsel for the parties.
There is delay of 824 days in filing the
review application.
Reasons furnished in the affidavit filed in
support of delay condonation application are
sufficient to condone the delay.
Consequently, the delay condonation
application is allowed and the delay in filing
review application is condoned.
Also heard learned counsel for the
parties on the review application.
This application has been filed seeking
review of the judgment dated 26.09.2018,
whereby Special Appeal No. 141 of 2011 filed
by the writ petitioner was allowed and order
dated 02.01.1990 passed by District
Inspector of Schools (Annexure No.1 to the
writ petition) was quashed.
Mr. A.S. Rawat, learned Senior Advocate
(Special Counsel for State of Uttarakhand/
review applicant) has made submissions,
which cannot be entertained under review
jurisdiction.
It is settled position in law that review
cannot be treated as an Appeal in disguise
and re-hearing of Writ Petition/Appeal is not
permissible under review jurisdiction.
Even otherwise, on merits also, review
applicant has no case. The writ petitioner/
appellant participated in a selection process
for appointment to the post of Lecturer
(Commerce) in a Government Aided
Intermediate College. At the relevant point of
time educational qualification required for the
said post, as per statutory regulations framed
under U.P. Intermediate Act, 1921, was
Master of Commerce only and there was no
requirement of having diploma of shorthand
& typing. The writ petitioner was duly
recommended by the Selection Committee;
but, approval was denied to his appointment
on the ground that he does not possess
diploma in shorthand/typing. The reason
assigned for refusal to grant approval to
appointment of the writ petitioner was,
therefore, unsustainable.
Executive instruction cannot override
statutory regulations, however, this aspect
was overlooked by learned Single Judge
which resulted in dismissal of the writ
petition.
In such view of the matter, this Court
does not find any reason to review the
judgment dated 26.09.2018.
Accordingly, review application is
rejected.
After dismissal of review application, Mr.
A.S. Rawat, learned Senior Advocate
appearing for the review applicant has
apprised the Court that the writ
petitioner/appellant has been appointed on
09.01.2021 in terms of the judgment under
review and he is now serving in the
concerned institution. He, however, submits
that in view of the huge financial burden,
which would fall upon the State Government
in paying arrears of salary/monetary benefits
to the writ petitioner, it would be in the
fitness of things that the judgment dated
26.09.2018 be modified and, in place of "all
consequential benefits", it may be provided
that the writ petitioner would be entitled to
60% of the amount payable to him as arrears
of salary/other monetary benefits.
Mr. A.S. Rawat, learned Senior Advocate
further submits that the liability of State of
Uttarakhand towards salary/monetary
benefits would commence from 09.11.2000
when new State of Uttarakhand came into
being till 09.01.2021 when the appellant was
actually appointed and State of Uttarakhand
would pay 60% of the amount payable to the
writ petitioner for the aforesaid period within
two months. He further submits that State of
Uttar Pradesh was a party to Writ Petition No.
6092 of 1990 which was filed by writ
petitioner before Hon'ble Allahabad High
Court, which came on transfer to this Court
under Section 35 of U.P. Reorganization Act,
of 2001; the liability to pay salary/monetary
dues before 09.11.2000 is that of State of
Uttar Pradesh, therefore, the Competent
Authority in State of Uttarakhand will forward
the salary bills of the writ petitioner for the
period preceding 09.11.2000 to State of Uttar
Pradesh within three weeks from today to
ensure that the amount due to the writ
petitioner from State of U.P. is also released
at the earliest.
Mr. Chetan Joshi, learned counsel for
the appellant/writ petitioner, on instructions,
submits that, after litigating for nearly three
decades, his client now wants quietus of the
dispute and proposal made by Mr. A.S.
Rawat, learned Senior Advocate appearing
for the review applicant is acceptable to his
client.
Ordered accordingly.
(Alok Kumar Verma, J.) (Manoj K. Tiwari, J.)
26.03.2021
Arpan
