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2021 DIGILAW 1014 (ALL)

Prem Chandra Soni v. State of U. P.

2021-09-06

DINESH KUMAR SINGH

body2021
JUDGMENT : Dinesh Kumar Singh, J. Notice on behalf of opposite parties No. 1 to 6 has been accepted by the learned Standing Counsel, while Mr. R.K. Upadhyaya appears for opposite party No. 7. 2. The present writ petition under Article 226 of the Constitution of India has been filed impugning the order dated 31.12.2020 passed by the Joint Secretary, Department of Technical Education, whereby it has been said that the petitioner shall be treated to be in regular service w.e.f. 10.2.2010 and, therefore, he would not be entitled for ACP etc. and direction has been issued for effecting the recovery of the amount paid to the petitioner giving the benefit of ACP treating him in regular service w.e.f. 1.4.2004. 3. In pursuance of the advertisement issued in the year 1987 for filing up the posts of Lecturers (Mechanical Engineering) in the Government Polytechnics, the petitioner applied and was selected for the post of Lecturer (Mechanical Engineering) after facing the selection process and interview. Initial appointment of the petitioner was on ad hoc basis as per the order dated 24.9.1987. It was made clear in the aforesaid order that appointment of the petitioner was for a period of one year or till regularly selected candidates would be available from Uttar Pradesh Public Service Commission, whichever was earlier. 4. In the year 1991-92, Uttar Pradesh Public Service Commission advertised the post of Lecturer. The petitioner filed Writ Petition No. 1437 (SS) of 1992 seeking regularisation on the post of Lecturer (Mechanical Engineering). This Court vide order dated 7.8.1995 disposed of the said writ petition directing the State Government to consider the case of the petitioner for regularisation within a period of six weeks from the date of the order in accordance with law. The petitioner was given revision in pay-scale w.e.f. 1.1.1996. The State Government had promulgated Uttar Pradesh Regularisation of Ad hoc Appointments (On posts within the purview of Public Service Commission) Rules, 1979, which were amended from time to time and 3rd Amendment Rules, 2001 were notified vide notification dated 20.12.2001. The petitioner's services were regularised vide order dated 10.2.2010. 5. Learned counsel for the petitioner submits that similarly situated Lectures had filed claim petition before the Uttar Pradesh Public Service Tribunal claiming regularisation from the date of their initial appointment, which was allowed by the Tribunal. The petitioner's services were regularised vide order dated 10.2.2010. 5. Learned counsel for the petitioner submits that similarly situated Lectures had filed claim petition before the Uttar Pradesh Public Service Tribunal claiming regularisation from the date of their initial appointment, which was allowed by the Tribunal. In pursuance thereof, order dated 15.10.1988 was passed by the State Government regularising the services of the petitioners in the claim petition w.e.f. 5.1.1981. However, the petitioner was regularised w.e.f. 10.2.2010. The petitioner represented the Government for regularising his services from the date of his initial appointment. To consider the representation of the petitioner, a review committee was constituted, which considered the case of the petitioner and recommended that the petitioner's services should be treated to be regularised w.e.f. 1.4.2004. Accordingly, vide office memorandum dated 11.12.2018, the Secretary, Uttar Pradesh Technical Education issued a fresh order amending the earlier regularisation order dated 10.2.2010 and, it was said that the petitioner would be treated to have been regularised on the post of Lecturer (Mechanical Engineering) w.e.f. 1.4.2004. Suddenly, vide impugned order dated 31.12.2020, the Joint Secretary has reviewed the order dated 11.12.2018 passed by the Secretary and has said that the petitioner's services shall be treated to have been regularised w.e.f. 10.2.2010 and not w.e.f. 1.4.2004. 6. Learned counsel for the petitioner further submits that the Joint Secretary has no power/authority under law to review the earlier order passed by the Secretary dated 11.12.2018. It is well-settled that unless the administrative authority is vested with the express power to review its decision under the law, the administrative authority cannot review its earlier decision. 7. On the other hand, Sri S.K. Khare, learned Standing Counsel does not dispute the above legal proposition that unless the administrative authority is expressly vested with the power of review under law, it is not empowered to review its earlier decision. 8. I have considered the submissions advanced on behalf of the learned counsel for the petitioner as well as by the learned Standing Counsel and gone through the record. 9. The earlier order dated 11.12.2018 was taken on the recommendation of the review committee, which reviewed the case of the petitioner and decided to treat the petitioner in regular service w.e.f. 1.4.2004. After the review committee recommended, the case of the petitioner for treating him in regular service w.e.f. 1.4.2004, the Secretary issued the order dated 11.12.2018. 9. The earlier order dated 11.12.2018 was taken on the recommendation of the review committee, which reviewed the case of the petitioner and decided to treat the petitioner in regular service w.e.f. 1.4.2004. After the review committee recommended, the case of the petitioner for treating him in regular service w.e.f. 1.4.2004, the Secretary issued the order dated 11.12.2018. The impugned order has been passed by the Joint Secretary ignoring the settled legal proposition of law. It is well-settled that the administrative authority is not empowered to review its earlier decision unless and until it is empowered to do so under law. There is no such rule or statute, which empowers the Joint Secretary to review the earlier order passed by the Secretary treating the petitioner in regular service w.e.f. 1.4.2004. 10. It is well-settled that an executive or quasi judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute, under which it derives its power. (Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalay, Sitapur (U.P.) and others, (1987) 4 SCC 525 .) 11. Further, recently in the case of Naresh Kumar and others v. Government (NCT of Delhi), (2019) 9 SCC 416 , it has been held that the power of review can be exercised only when the statute provides for the same. In the absence of any such provisions in the statute concerned, such power of review cannot be exercised by the authority concerned. Paragraph 13 of the aforesaid judgement reads as under : ''13. It is settled law that the power of Review can be exercised only when the statute provides for the same. In the absence of any such provision in the statute concerned, such power of review cannot be exercised by the authority concerned. This Court in Kalabharati Advertising v. Hemant Vimalnath Narichania, has held as under: (SCC pp. 445-46, paras 12-14) ''... 12. It is settled legal proposition that unless the statute/rules so permit, the review application is not maintainable in case of judicial/quasi judicial orders. In the absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed, is ultra vires, illegal and without jurisdiction. (Vide Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar and Harbhajan Singh v. Karam Singh.) 13. In the absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed, is ultra vires, illegal and without jurisdiction. (Vide Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar and Harbhajan Singh v. Karam Singh.) 13. In Patel Narshi Thakershi v. Pradyuman Singhji Arjunsinghji, Chandra Bhan Singh v. Latafat Ullah Khan, Kuntesh Gupta v. Hindu Kanya Mahavidyalaya, State of Orissa v. Commr. of Land Records & Settlement and Sunita Jain v. Pawan Kumar Jain, this Court held that the power to review is not an inherent power. It must be conferred by law either expressly/specifically or by necessary implication and in the absence of any provision in the Act/Rules, review of an earlier order is impermissible as review is a creation of statute. Jurisdiction of review can be derived only from the statute and thus, any order of review in the absence of any statutory provision for the same is a nullity, being without jurisdiction. 14. Therefore, in view of the above, the law on the point can be summarised to the effect that in the absence of any statutory provision providing for review, entertaining an application for review or under the garb of clarification/modification/correction is not permissible.'' (Emphasis supplied) 12. There is nothing in the Regularization (Third Amendment) Rules, 2001, which confers the power on the Joint Secretary to review the earlier decision taken by the Secretary and thus, the decision of the Joint Secretary taken in the impugned order is bad in law and is liable to be set aside. 13. In view of the aforesaid, the writ petition is allowed and the impugned order dated 31.12.2020 passed by the Joint Secretary is hereby set aside.