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2018 DIGILAW 176 (ALL)

SURYA PRAKASH v. STATE OF U. P.

2018-01-19

DEVENDA KUMAR ARORA, VIRENDRA KUMAR II

body2018
JUDGMENT & ORDER : VIRENDRA KUMAR, J. 1. This application for review has been instituted on behalf of petitioner assailing order dated 09. 08. 2017 delivered in Writ Petition No. 10378 (S/B) of 2013 by Division Bench of this Court. 2. It is pleaded in application for review that "Uttar Pradesh Vittiya Adhishthanon men Jamakarta Hit Sanrakshan Adhiniyam 2016" (U. P. Act No. 16 of 2016) was promulgated and after receiving assent of Hon'ble President of India it was published and enforced on 14.12.2016 in pursuance of provisions of Article 348 (3) of the Constitution of India. Thereafter "The Uttar Pradesh Protection of Interests of Depositors in Financial Establishments Rule, 2016" were also framed and published (hereinafter referred to as Rules, 2016). 3. It is further pleaded that the aims and objects of the aforesaid Act is to provide for protecting the interest of depositors in Financial Establishments and for matters connected therewith or incidental thereto. It is mentioned that Act No. 16 of 2016 as well as Rules, 2016 and aims and objects therein are still exist and the post created for such purposes i. e. post of applicant is also exists and continued. It is further pleaded that as such services of review applicant/petitioner cannot be terminated/ come to an end in such an arbitrary and illegal manner and that too in absolute disregard of orders dated 25. 03. 2017 and 30. 03. 2017, which nullify/ supersede earlier order contrary to it. 4. It is further contended that there was need of a post of Officer on Special Duty in the department of Institutional Finance, which was to be filled by a person having experience of working in the field. Hence, vide order dated 19.08.2016 a temporary post of Officer on Special Duty an ex-cadre post was initially created for period of 01.08.2016 to 28.02.2017. 5. The review applicant/petitioner was eligible and having experience of such work, hence he was considered and appointed on ex-cadre temporary post of O. S. D. in Pay Scale of Rs. 37,400- 67,000 Grade pay Rs. 8700/- in department of Institutional Finance. This appointment of review applicant/petitioner was termed as re-appointment on the post, as he has attained the age of 60 years on 31.07.2016, while he was working in the capacity of Joint Secretary, Sansthagat Vitt, Government of U. P. 6. 37,400- 67,000 Grade pay Rs. 8700/- in department of Institutional Finance. This appointment of review applicant/petitioner was termed as re-appointment on the post, as he has attained the age of 60 years on 31.07.2016, while he was working in the capacity of Joint Secretary, Sansthagat Vitt, Government of U. P. 6. It is also contended that other similarly appointed persons working under Opposite Party No. 1, i. e. Department of Finance/Institutional Finance/Tax & Registration viz. Sri Mukesh Mittal OSD (Secretary) Department of Finance, Sri Ajai Agrawal OSD (Secretary) Department of Finance, Sri Ram Asharey Diwedi OSD (Advisor) Department of Finance, Sri Shanker Singh OSD (Advisor) Department of Finance, Ms. Shahila Parveen OSD Department of Commercial Tax and Sri Lahiri Yadav etc are still allowed to continue, whereas services of review applicant/petitioner has been terminated in an arbitrary and illegal manner vide impugned order dated 01. 05. 2017 without any notice and without providing opportunity of hearing. While as per terms and conditions of review applicant/petitioner's appointment/re-appointment vide order dated 19. 08. 2016, 04. 01. 2017 and 30. 03. 2017, he was appointed on the ex-cadre temporary post of O. S. D. with status of temporary employee/officer and continued on the post. 7. It is further contended that vide order dated 15. 05. 2017 passed in Writ petition No. 10378 (SB) of 2017 this Court was pleased to pass following order requiring the Standing Counsel to provide names of all the persons who are to be disengaged and retained by the Government in the Government departments, "Though learned Additional Chief Standing Counsel has received instructions but he seeks a weeks time to file necessary affidavit before the court indicating the names of the officers who are to be disengaged as well as the officers who are to be retained in service under the impugned orders. Time prayed for is allowed. List on 23.05.2017 fresh. " 8. It is further contended that pleadings contained in Paragraph 3 of Rejoinder Affidavit have escaped attention of this Court which is as follows: "In compliance of order dated 15.05.2017 the opposite parties were required to file specific affidavit indicating names as per order and direction issued by this Court. But the opposite parties filed counter affidavit dated 22.05.2017 which is absolutely vague and no name of officers as directed by this Court, have been given nor specific reply could be given. " 9. But the opposite parties filed counter affidavit dated 22.05.2017 which is absolutely vague and no name of officers as directed by this Court, have been given nor specific reply could be given. " 9. It is further mentioned that Government Order dated 20.07.1968 and 07.11.1992 provide that term of temporary post should be extended till last day of February in the financial year or for one year/ two years/ three years. In view of this Government Order review applicant/petitioner's post ought to have continued till February, 2018 at least. 10. It is further pleaded in application for review that it is abundantly clear that the post has been created, though temporary, to achieve aims and objects of the Scheme and Act No. 16 of 2016. The review applicant/petitioner was given appointment/ re-appointment after due consideration on this post. 11. On the basis of the above mentioned grounds following relief has been sought on behalf of the review applicant/petitioner: ". . . Hon'ble Court may kindly be pleased to review its judgment and order dated 09. 08. 2017, dismissing Writ Petition No. 10378 (S/B) of 2017 and to kindly allow the aforesaid Writ Petition. " 12. We have perused record of Writ Petition No. 10378 (S/B) of 2017: Dr. Surya Prakash Vs. State of U. P. and others and order dated 09. 08. 2017 passed by Division Bench, in which one of us (Virendra Kumar-II, J. ) was a member and delivered the judgment dated 09. 08. 2017. 13. On the very outset, it is pointed out that all the grounds taken by review applicant/ petitioner, in the application for review, were also taken by him in the grounds of writ. The review applicant/petitioner was initially appointed after his attaining age of superannuation on 31.07.2016 on the ex-cadre temporary post of O. S. D. during the period 01.08.2016 up to 28.02.2017. The appointment of the review applicant/petitioner was extended vide order dated 04.01.2017 during the period 01.03.2017 up to 31.08.2017. 14. Initially vide order dated 19.08.2016 ex- cadre temporary post of O. S. D. in Pay Scale of Rs. 37,400- 67,000 Grade pay Rs. 8700/- was created during the period 01.08.2016 up to 28.02.2017. The appointment of the review applicant/petitioner was extended vide order dated 04.01.2017 during the period 01.03.2017 up to 31.08.2017. 14. Initially vide order dated 19.08.2016 ex- cadre temporary post of O. S. D. in Pay Scale of Rs. 37,400- 67,000 Grade pay Rs. 8700/- was created during the period 01.08.2016 up to 28.02.2017. This post of O. S. D. was discontinued vide order dated 27.03.2017 passed by Government of Uttar Pradesh, on the basis of order dated 22.03.2017 and 25.03.2017 passed by Government of U. P. to relieve such offices/ employees appointment after their attending age of superannuation. 15. It is pertinent to smention here that this ex-cadre temporary post of O. S. D. (Sansthagat Vitt) earlier discontinued vide order dated 27.03.2017 was revived vide order dated 30. 03. 2017. Government of Uttar Pradesh vide impugned order dated 01. 05. 2017 again on the basis of order dated 25. 03. 2017 passed by Chief Secretary, Government of U. P. , has terminated appointment of the review applicant/petitioner on this post, which was challenged by him in Writ Petition No. 10378 (SB) of 2017. 16. The above mentioned writ was decided vide judgment dated 09. 08. 2017 delivered by Division Bench. The grounds pleaded by the review applicant/ petitioner and contentions of respondents taken in counter affidavit were considered at length and it was found that regular Secretary senior IAS officer and regular Deputy Secretary has been appointed in the Nodal Department (Institutional Finance), who would fulfill or accomplish the requirement of Public Investment in Financial Establishment Protection Act, 2016 (Act No. 16 of 2016). 17. Finding has been recorded by the Division Bench that there is no substance in the argument of learned Counsel for the review applicant/petitioner that ex-cadre post has not been abolished and requirement for accomplishment of the aims and objects of timely enforcement of schemes viz. "Kisan Evam Sarv Hit Beema Yojna" and "1520 Mukhyamantri Beema Helpline" as well as "Public Investment in Financial Establishment Protection Act, 2016" (Act No. 16 of 2016) are still exist. Therefore, his service should be continued during this financial year 2017-18 up to February, 2018. 18. In Para 17 of judgment dated 09. 08. "Kisan Evam Sarv Hit Beema Yojna" and "1520 Mukhyamantri Beema Helpline" as well as "Public Investment in Financial Establishment Protection Act, 2016" (Act No. 16 of 2016) are still exist. Therefore, his service should be continued during this financial year 2017-18 up to February, 2018. 18. In Para 17 of judgment dated 09. 08. 2017 finding has been specifically recorded that it is prerogative of the State Government for keeping vacant ex-cadre post or to abolish it and to appoint regular Secretary or employees in the department in place of retired employees, who were given re-appointment or re-assignment. 19. The creation of ex-cadre temporary post of O. S. D. in department of Sansthagat Vitt does not in any way give any enforceable right to the review applicant/petitioner for his reappointment. The review applicant/petitioner cannot claim as of right after attaining age of superannuation to be reappointed on this ex-cadre post. 20. Likewise, because no enforceable right is created in favour of review applicant/petitioner, therefore, existence of aims and objects of Act No. 16 of 2016 or continuance of reappointment of other officers, details of which has been mentioned in grounds of writ petition in Para-C, does not entitle him to claim his re-appointment on this ex-cadre temporary post of O. S. D. After attaining age of superannuation, the review applicant/petitioner cannot claim opportunity of hearing as of right. The action of Government of State of U. P. by passing impugned order dated 01. 05. 2017 is not violative of provisions of Article 14, 15, 16 and 21 of the Constitution of India or natural justice. 21. As far as learned Counsel for applicant relied upon order dated 15. 05. 2017 passed in Writ Petition No. 10378 (SB) of 2017 that Additional Chief Standing Counsel was directed to provide information indicating the names of officers who are to be disengaged as well as officers who are to be retained in service under the impugned orders and time sought by Additional Chief Standing Counsel was granted by the Court and writ petition was listed on 23. 05. 2017 as fresh. 22. It is relevant to mention here that Learned Counsel for the applicant on 23. 05. 2017 or date of listing or at point of time of final hearing on 19. 07. 05. 2017 as fresh. 22. It is relevant to mention here that Learned Counsel for the applicant on 23. 05. 2017 or date of listing or at point of time of final hearing on 19. 07. 2017 when Writ Petition No. 10378 (SB) 2017 was reserved for judgment, after hearing arguments of learned Counsel for the parties, wherein he has not argued that order dated 15. 05. 2017 was not complied with by the respondents. Now by way of application for review compliance of order dated 15. 05. 2017 cannot be pressed by learned Counsel giving any benefit to the writ petitioner. This writ petition was taken up on 06. 07. 2017 and 13. 07. 2017, but learned Counsel for writ petitioner/applicant sought adjournments on these two dates and conducted final arguments on 19. 07. 2017. Therefore, applicant had not pressed earlier, before or during final arguments that compliance of order dated 15. 05. 2017 passed by a Bench comprising Hon'ble Mr. Justice Shri Narayan Shukla and Hon'ble Mr. Justice Sheo Kumar Singh-I should be made by the respondents. There is no substance in the argument of learned Counsel for the review applicant/petitioner in this regard. 23. We have also perused Government Order dated 20. 07. 1968 and 07. 11. 1992, which provide continuation of temporary post during the financial year up to last working day of February or for one year or two years or three years. It is relevant to mention here that since regular IAS officer, rank secretary and Deputy Secretary have been appointed by Government considering the importance of this ex-cadre temporary post of O. S. D. of Sansthagat Vitt department, to implement the Schemes above mentioned. Therefore, this post of O. S. D. has not been abolished, only reappointment of review applicant/ petitioner has been terminated, hence, these Government orders dated 20. 07. 1968 and 07. 11. 1992 does not extend any benefit to the review petitioner. It is further pointed out that review applicant/petitioner is claiming his re-appointment on ex-cadre post of O. S. D. after his retirement on 31. 07. 2016 without getting any enforceable right created in his favour legally. 24. Vide judgment dated 09.08.2017 all the contentions of the review applicant/petitioner were considered and no error apparent on the face of record is apparent, therefore, there is no occasion to review judgment dated 09. 08. 2017 in favour of review petitioner. 07. 2016 without getting any enforceable right created in his favour legally. 24. Vide judgment dated 09.08.2017 all the contentions of the review applicant/petitioner were considered and no error apparent on the face of record is apparent, therefore, there is no occasion to review judgment dated 09. 08. 2017 in favour of review petitioner. 25. Moreover, the scope of review is very limited as propounded by Hon'ble Apex Court in the following decisions:- 26. In Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh, (1964) AIR 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.” 27. 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. " 28. Again, in Meera Bhanja v. Nirmala Kumari Choudhury, (1995) AIR SC 455 while quoting with approval the above passage from Abhiram Taleshwar Sharma Vs. Abhiram Pishak Shartn , 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. 29. In Parsion Devi and others Vs. Abhiram Pishak Shartn , 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. 29. 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. 30. In Rajendra Kumar Vs. Rambai, (2003) AIR 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 judgment/order cannot be disturbed. " 31. 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, (2000) AIR 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. 32. 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. 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. 33. The words "any other sufficient reason" has been interpreted in Chhajju Ram vs. Neki, (1922) AIR PC 112 and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius & Ors., (1954) AIR 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. " 34. (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. " 34. In view of the discussion made above and exposition of law propounded by Hon'ble Apex Court, we do not find any ground to review the order dated 09. 08. 2017 delivered in Writ Petition No. 10378 (S/B) of 2013 (Dr. Surya Prakash Vs. State of U. P. and others). Accordingly, application for review is hereby rejected.