Allahabad High Court
Dr. Rajendra Bahadur Singh & 2 Ors. vs State Of U.P. Through Prin. Secy. Deptt. ... on 12 July, 2021
Equivalent citations: AIRONLINE 2021 ALL 1398
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on: 17.03.2021 Delivered on: 12.07.2021 Court No. - 08 Case :- SERVICE BENCH No. - 1432 of 2015 Petitioner :- Dr. Rajendra Bahadur Singh & 2 Ors. Respondent :- State Of U.P. Through Prin. Secy. Deptt. Of Higher Edu. Lko. Counsel for Petitioner :- Vidhu Bhushan Kalia Counsel for Respondent :- C.S.C.,Savitra Vardhan Singh with Case :- SERVICE BENCH No. - 1431 of 2015 Petitioner :- Dr. Mahendra Kumar & Another Respondent :- State Of U.P. Through Prin. Secy. Deptt. Of Higher Edu. Lko. Counsel for Petitioner :- Dhruv Mathur Counsel for Respondent :- C.S.C.,Savitra Vardhan Singh Hon'ble Irshad Ali,J.
1. Heard Sri S.K. Kalia, learned Senior Counsel assisted by Sri Vidhu Bhushan Kalia and Sri Jaideep Mathur, learned Senior Counsel assisted by Sri Dhruv Mathur, learned counsel for the petitioners, Sri Alok Sharma, learned Additional Chief Standing Counsel for the respondents-State and Sri Savitra Vardhan Singh, learned counsel for the respondent-University.
2. This bunch of writ petitions is being decided by means of a common order treating Writ Petition; SERVICE BENCH No. - 1432 of 2015 to be leading writ petition and the judgment passed therein shall be applicable to the connected matter also.
3. By means of the present writ petition, the petitioners have prayed as under:
"(i) to issue a writ, order or direction in the nature of Certiorari quashing the impugned decision of the Executive Council of the respondent-University dated 26.8.2015 as contained in Annexure-1 to the writ petition.
(ii) to issue a writ, order or direction in the nature of Mandamus commanding not to give effect to the impugned decision of the Executive Council of the respondent-University dated 26.8.2015, as is contained in Annexure No.1 to the writ petition;
(iii) to issue a writ, order or direction in the nature of Mandamus commanding the respondents/ Committee constituted by the impugned decision dated 26.8.2015 not to proceed any further;
(iv) to issue any other writ, order or direction which this Hon'ble Court may deem just and proper in circumstances of the case;
(v) to allow this writ petition with all costs in favour of the petitioners."
4. Brief fact of the case is that the petitioners are working on the post of Assistant Professor in various departments of Lucknow University in the pay scale of Rs.15600-39100/- with grade-pay of Rs.7000/- and Rs.8000/-.
5. For the purpose of giving substantive appointment to part-time Lecturers working in various departments in the State Universities in the State of U.P., Section 31(3)(c) of the U.P. State Universities Act, 1973 was amended vide U.P. Ordinance No.3/2004 and U.P. Ordinance No.6/2004.
6. Subsequently, U.P. Ordinance No.3 of 2004 and U.P. Ordinance No.6 of 2004 were converted into an Act of the State Legislature namely; U.P. Act No.23 of 2004. U.P. Ordinance No.3 & 6 of 2004 were prmulgated by His Excellency the Governor on 20.03.2004 and 7.6.2004, respectively. U.P. Act No.23 of 2004 i.e. the Uttar Pradesh State Universities (Amendment) Act, 2004 received the assent of the Hon'ble Governor on 13.08.2004.
7. On 10.06.2004, under the provisions of the amended Section 31(3)(c) of the Act, the case of the petitioners for giving them substantive appointment was considered by the competent authority namely; the Executive Council in its meeting held and in the said meeting, finding the petitioners suitable for being given substantive appointment under the aforesaid statutory provision contained in Section 31(3)(c) of the Act, resolved to give substantive appointment to the petitioners.
8. The Executive Council vide resolution dated 09.02.1991 resolved to constitute a Committee under the Chairmanship of Prof. Heera Lal Nigam to examine the matter of giving regularization / substantive appointment and the committee submitted its report on 25.02.2000, wherein the committee strongly felt need of regularization of part time lecturers.
9. The State Legislature in its wisdom while enacting U.P. Act No.23 of 2004 (which was preceded by U.P. Ordinance No.3 of 2004 and 6 of 2004) provided for regularization of part-time lecturers under certain conditions which was fulfilled by the petitioners and after consideration of their cases by the Executive Council, they were given substantive appointment on 10.06.2004.
10. The decision of the Executive Council dated 10.06.2004 whereby the petitioners were given substantive appointment as Lecturer was challenged by certain persons by way of filing a bunch of writ petitions with leading Writ Petition No.964 (S/B) of 2004 before this Court. In the said bunch of writ petitions, this Court was pleased to pass an interim order vide order dated 28.07.2004.
11. The aforesaid interim order dated 28.07.2004 passed by this Court was challenged by way of filing Special Leave Petition before the Hon'ble Supreme Court which was initially stayed by the Hon'ble Supreme Court vide its interim order dated 27.08.2004. In the aforesaid Special Leave Petition, Leave to Appeal was granted and the matter was finally decided by the Hon'ble Supreme Court whereby the appeal filed by the petitioners was allowed and while allowing the appeal, the Hon'ble Supreme Court observed that order of the Hon'ble Supreme Court will not affect the case of the parties before the Executive Council or before the High Court.
12. On the strength of the order passed by the Hon'ble Supreme Court dated 03.10.2005, all the petitioners have continuously been working in the substantive capacity ever since the appointments of some of the petitioners were made substantive by the Executive Council and some of the petitioners were granted regular pay-scale in its meeting held on 10.06.2004. The petitioners have also been given further service benefits like further promotion on the post of Senior Lecturer and on the post of Reader as well. The petitioners since then have been discharging their functions without any blemish and to the utmost satisfaction of all the authorities concerned.
13. In compliance of the order passed by the Hon'ble Supreme Court on 03.10.2005, the Executive Council in its meeting dated 20.08.2007 decided to constitute a sub-committee headed by Prof. Roop Rekha Verma, Ex-Vice Chancellor of the Lucknow University to examine the matter.
14. The said Committee constituted by the Executive Council in its decision dated 21.08.2007 under the chairmanship of Prof. Roop Rekha Verma considered the cases of some of the part-time teachers and decided the cases of 24 those part-time teachers who have been given the benefit of pay scale and in respect of whom it was also decided by the Executive Council in its meeting held on 20.08.2007 that their cases for substantive appointment shall be considered as and when a substantive vacancy in the same cadre and category is available or newly created.
15. On 23.02.2008, the matter relating to 26 leftover part-time teachers was considered by the said committee headed by Prof. Roop Rekha Verma in its meeting and it was found by the said committee that except one Sri B.N. Mishra, all other part-time teachers amongst these 26 teachers fulfill the statutory qualification for regularization/ substantive appointment. Thus, the matter relating to these 26 part-time teachers was also considered in its meeting dated 23.02.2008 by the said committee headed by Prof. Roop Rekha Verma in tune with the decision taken by the Executive Council in its meeting held on 20.08.2007.
16. The entire exercise was done by the Executive Council in its meeting dated 20.08.2007 and by the sub-committee headed by Prof. Roop Rekha Verma in its meetings dated 21.08.2007 and 23.02.2008 in compliance of the judgment of the Hon'ble Supreme Court.
17. On 30.4.2008, the Executive Council, however, in its meeting considered the decision taken by the sub-committee headed by Prof. Roop Rekha Verma in its meeting held on 20.08.2007 and categorically approved the recommendations made and decision taken by the said sub-committee in its meetings held on 21.08.2007 and 23.02.2008.
18. The stand taken by the University before taking the impugned decision on 26.08.2015 have all along been that in pursuance of the orders passed by this Court and the Hon'ble Supreme Court, the matter has been reconsidered and finally decided in its meeting held on 30.04.2008 that appointment of all the petitioners on substantive posts is valid.
19. By the impugned decision dated 26.08.2015, the Executive Council has constituted a committee to re-examine the matter relating to substantive appointment of the petitioners/ teachers. Being aggrieved, the present writ petition has been filed before this Court.
20. Submission of Sri S.K. Kalia, learned Senior Counsel for the petitioners is that the impugned meeting of the Executive Council was held with respect to grant of Lecturer pay scale and with respect to the appointment of 24 part-time teachers appointed in decision of the Executive Council dated 10.06.2004 and 09.07.2004 in terms of the directions of this Hon'ble Court in Writ Petitions No.964(S/B) of 2004 and 1184 (S/B) of 2004.
21. He further submitted that the decision to enter into a review exercise by the Executive Council is completely without jurisdiction and in fact is null and void for the simple reason that U.P. State Universities Act, 1973 does not permit or vest any power in the Executive Council to review its earlier decision. Thus, the exercise being conducted under the decision of the Executive Council dated 26.08.2015 is nothing but an exercise in futility.
22. He next submitted that the impugned decision has been taken in absolutely illegal and arbitrary manner and by the impugned decision, the Executive Council is attempting to review the earlier decision which is impermissible under the law.
23. His further submission is that the stand taken by the University before taking the impugned decision dated 26.08.2015 have all along been that in pursuance of the orders passed by this Court and Hon'ble Supreme Court the matter has been reconsidered and finally decided in its meeting held on 30.04.2008 that appointment of all the petitioners on substantive posts is valid.
24. He next submitted that the agenda for the meeting of the Executive council, whereon the impugned decision has been taken was absolutely not related to the reviewing the cases of the petitioners and as such, the Executive Council vide its impugned decision has acted arbitrarily.
25. He further submitted that vide impugned decision dated 26.08.2015, the Executive Council has appointed a committee to re-examine the matter relating to substantive appointment of the petitioners/ Teachers unlawfully and without there being any occasion for the same.
26. He next submitted that once the decision is taken by the Executive Council on a particular issue or matter, the same becomes final and in absence of any statutory authority or power vested in the Executive Council, it is not open to them to review the matter.
27. He further submitted that the impugned decision of the Executive Committee could not have been taken as the aforesaid committee of Prof. Roop Rekha Verma was already constituted under the directions of this Court as well as the Hon'ble Supreme Court.
28. He next submitted that in case any decision was to be taken by the Executive Committee, the same should have been taken only after seeking kind permission of this Court in pending Writ Petition Nos.964 (S/B) of 2004 and 1184 (S/B) of 2004.
29. He further submitted that the impugned decision of the Executive Committee is in violation of the directions of this Hon'ble Court dated 28.07.2004 and the Hon'ble Supreme Court dated 30.10.2005.
30. He next submitted that it is settled law as propounded by the Hon'ble Supreme Court in the case reported in 2011(9) SCC Page 541: Rajeev Hitendra v. Achyut Kashinath that in absence of any specific power vested in an authority to review its decision, the authority concerned is not empowered to exercise the power of review.
31. He further submitted that ignoring the aforesaid settled propositions of law, the Executive Council by means of its impugned decision taken in its meeting dated 26.08.2015 is attempting to re-open and re-consider the matter relating to substantive appointment of the petitioners.
32. He next submitted that even otherwise, the entire exercise being undertaken by the Executive Council for reviewing its earlier decision taken in its meeting held on 30.04.2008 cannot be justified and cannot withstand the scrutiny of reasonableness or any rationality for the reason that the Executive Council in its meeting held on 20.08.2007 had constituted the sub-committee delegating all its authority under Section 21(8) of the Act to ensure compliance of the orders passed by the Hon'ble Supreme Court wherein the Executive Council was mandated to take a decision afresh acting with expedition.
33. He further submitted that there being no occasion to review the decision, the attempt of the Executive Council to review and reopen the entire issue is causing not only prejudice to the petitioners but is also legally not permissible in view of the law laid down by the Hon'ble Supreme Court as well as this Court. In support of his submissions, he placed reliance upon following judgments:
a) S. Nagaraj and others Vs. State of Karnataka and another; 1993 Supp (4) SCC 595.
b) Lily Thomas and others Vs. Union of India and others;(2000) 6 SCC 224.
c) Ram Deo Chauhan vs. State of State of Assam; 2001 AIR SCW 2159.
d) Rajeev Hitendra Pathak and others Vs. Achyut Kashinath Karekar and another; (2011) 9 SCC 541.
34. Sri Jaideep Mathur, learned Senior Counsel assisted by Sri Dhruv Mathur, learned counsel for the petitioners in connected matter also adopted the arguments advanced by Sri S.K. Kalia, learned Senior Counsel for the petitioners.
35. Per contra, learned counsel for the respondents-University submits that the case of part-time Lecturers, who were regularized in 2004 by the University pursuant to the Ordinance of the State Government, which has now become part of U.P. State Universities Act, 1973 was challenged in the present writ petition wherein this Court passed the order dated 28.07.2004 and stayed and kept in abeyance the regularization of all such teachers and directed the University / Executive Council to reconsider the cases of part time teachers under the existing Ordinance, as per norms and parameters laid down by this Court in its order as under:
(i) There should have existed a provision for appointment of part-time Lecturer at the time of making such appointment of the incumbent because if there was no such power to make any such appointment of part-time Lecturers then no appointment could have been made at all under the Act or Statute;
(ii) Such appointment should have been made by the authority competent to make such appointment at the relevant time;
(iii) Such candidate should be possessed of the qualification prescribed for the post under the provisions in force at that time, namely, as given in the Statute at the time of initial appointment as part-time Lecturer. The Act and the Statute do not make any distinction in the qualifications for the two posts except that the part-time Lecturer would get lesser salary in terms of Statute 10.2;
(iv) He should have been appointed prior to the cut of date and should be continuously working on the date of the issuance of the Ordinance;
(v) The Ordinance does not say that break in service can be condoned;
(vi) On the date of consideration, there should be substantive vacancy in the same cadre and grade in the same Department in which the incumbent was appointed as part time Lecturer;
(vii) On the date of consideration of regularization/ substantive appointment, such part-time Lecturer should possess requisite prescribed qualification for the post on the date when he is being considered for substantive appointment, This provision appears to have been made in Ordinance being conscious of the fact that there may be cases where at the time of initial appointment, the qualification prescribed for the particular post may be different as against the qualification which have undergone frequent change (may be on the recommendation of the University Grands Commission or Otherwise), may be different at the time of consideration of substantive appointment and therefore, such an incumbent should be possessed of the prescribed qualification both i.e. at the time of entry into the Department as part time Lecturer and also such qualification which are in force at the time of consideration of his substantive appointment.
(viii) Reservation applicable in the recruitment to the University has also to be followed as neither ad-hoc nor appointment of part time Lecturers could have been made against reserved category posts/ vacancies nor any such substantive appointment could be made against reserved posts/ vacancies from amongest the general category candidates or the candidates who do not belong to the category specified therein. Reservation is undisputedly applicable in the University, which has to be given effect to as per the provisions of the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994.
(ix) The regularization shall be considered only after existing substantive vacancies, as in the absence of a substantive vacancy neither the candidate can be considered for regularization for giving substantive appointment nor regular pay scale can be given unless the incumbent is regularized. The only protection which has been given to such Lecturers/part time Lecturers in the Ordinance is that such a teacher who does not get a substantive appointment may be allowed to continue for such period till the Executive Council specifies a date for cessation of his office.
36. He next submitted that the petitioner (Shri Rajendra Bahadur Singh) preferred a Special Leave Petition before the Hon'ble Supreme Court against the interim order dated 28.07.2004 wherein the Hon'ble Supreme Court allowed the appeal in part and set aside only that portion of interim order, whereby it was directed by the High Court that the orders regularizing private respondents or allowing them regular pay scale pending availability of substantive vacancies shall remain in abeyance. Operative part of this Judgement reads as under:
"The appeals are allowed in part accordingly. This order however will not in any manner affect cases of any of the parties either before the Executive Council or the High Court in the writ petition. We may, however, clarify that this order shall be subject to decision of the Executive Council and consequently by the High Court in the pending writ petitions. The Executive Council will dispose of the matter with utmost expedition. It is further clarified that we have not examined correctness of observations or findings in the impugned order passed by the High Court."
37. He next submitted that in view of the aforesaid order passed by this Court and the Hon'ble Supreme Court, it is incumbent upon the University to consider the cases of regularization of part time teachers within the parameters fixed by this Court, which has not been interfered by the Hon'ble Supreme Court, much less the Hon'ble Supreme Court directed that the Executive Council will dispose of the matter with utmost expedition.
38. He further submitted that Prof. Roop Rekha Verma committee was constituted by the Executive Council to consider the regularization of part time teachers in view of the order passed by this Court and by the Hon'ble Supreme Court. The Prof. Roop Rekha Verma Committee submitted its report, which was placed before the Executive Council in its meeting dated 30.04.2008, wherein the Council considered the report and resolved to place the matter before this Court. The Executive Council further in its next meeting dated 30.08.2008 while confirming the minutes of last meeting dated 30.04.2008 again resolved to place entire facts before this Court.
39. He further submitted that the matter was pending since long and no decision with regard to the regularization of part time teachers was pending and as such, the Lucknow University reconsidered the matter in its meeting dated 26.08.2015 and it was decided to consider the regularization of all the part time teachers in accordance with the order passed by this Court and a new committee was constituted. However, the said decision of Executive Council was challenged before this Court in Writ Petition No.1432 (SB) of 2015 and this Court passed the following order:
"......................................
Regard being had to the aforesaid submission, we are, prima facie of the view that once the committee constituted by the Executive Council in terms of the order passed by this Court had examined the petitioners matter and shown his satisfaction over their eligibility and further recommended for regularization which has also been given effect to, there may not be any reason to reopen the matter by the Executive Council, nevertheless we feel it appropriate to call upon the University to place the material before the Court as to what are the evidences before the authorities concerned which had created doubt in their mind to question the petitioners eligibility."
40. He next submitted that in view of the aforesaid circumstances, the record of all teachers appointed on part time basis have been scrutinized and it has been found that the part time teachers have been appointed on different dates from year 1991 onward.
41. He further submitted that under the Ist Statute of Lucknow University, Statute 10.2 provides for appointment of part time Lecturers in the subjects in which the opinion of Academic Council to appoint such part time lecturers is required in the interest of teaching or for other reasons. Statute 10.02 of Ist Statute of Lucknow University is being reproduced as under:
"Statute 10.02. Teachers of the University shall be appointed in the subjects on the whole time basis in the scales of pay approved by the State Government.
Provided that part time lecturers may be appointed in subjects in which, in the opinion of Academic Council, such lecturers are required in the interest of teaching or for other reasons. Such part time lecturers may receive salary ordinarily not exceeding one half of the initial salary of the scale for the post to which they are appointed. Persons working as Research fellows or as Research Assistants may be called upon to act as part time lecturers.
42. He next submitted that none of the appointments have been made from year 1991 onward as part-time Lecturers made on the basis of recommendation / opinion of Academic Council. Moreover, under Section 13 (6) of U.P. State Universities Act, 1973, the Vice Chancellor was competent to make appointment of a teacher of a University. However, vide U.P. Act No.1/1992, the principal Act was amended wherein "other than the appointment of teacher of the University" was inserted and as such the powers of Vice Chancellor also seized in the matter of appointment of a teacher of the University w.e.f. 22.11.1991.
43. He next submitted that the factual position and details of each and every part time teacher has been scrutinized, as per observation made by this Court.
44. Sri Alok Sharma, learned ACSC also adopted the arguments advanced by learned counsel for the respondent - University.
45. I have considered the submissions advanced by learned counsel for the parties and perused the material on record as well as the law reports cited by learned counsel for the petitioners.
46. To resolve the controversy involved in the present writ petition, the judgments relied upon by learned Senior Counsel for the petitioners are being quoted below:
a) S. Nagaraj and others Vs. State of Karnataka and another (Supra) :
"19. Review literally and even judicially means re-examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. In Raja Prithvi Chand Lal Choudhury v. Sukhraj Rai and others, AIR 1941 Federal Court 1, the Court observed that even though no rules had been framed permitting the highest court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Singh, 1 Moo PC 117 that an order made by the Court was final and could not be altered.
"nevertheless, if by misprision in embodying the judgments, by errors have been introduced, these Courts possess, by Common law, the same power which the Courts of record and statute have of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies."
Basis for exercise of the power was stated in the same decision as under:
"It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard."
Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed and substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution- makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order 40 had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order 47 Rule 1 of the Civil Procedure Code. The expression, 'for any other sufficient reason' in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order 40 Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse the process of court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice."
b) Lily Thomas and others Vs. Union of India and others (Supra):
"52. The dictionary meaning of the word "review" is "the act of looking; offer something again with a view to correction or improvement. It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakersh and Ors. v. Pradyunman singh ji Arjun singh ji held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. If cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of Justice. Law has to bend before Justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error. This Court in S. Nagaraj and Ors etc. v. State of Karnataka and Anr. etc. 1993 Supp.(4) SCC 595 held:
"19. Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. In Raja Prithwi Chand Law Choudhury v. Sukhraj Rai the Court observed that even though no rules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Singh (1836) 1 Moo PC 117 that an order made by the Court was final and could not be altered:
...neverthless, if by misprision in embodying the judgments, by errors have been introduced, these Courts possess, by Common Law, the same power which the Courts of record and statute have of rectifying the mistakes which have crept in....The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.
Basis for exercise of the power was stated in the same decision as under:
'It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard.' Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And Clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order XL VII Rule 1 of the Civil Procedure Code. The expression, 'for any other sufficient reason' in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of Court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice.
The mere fact that two views on the same subject are possible is no ground to review the earlier judgment passed by a Bench of the same strength."
c) Ram Deo Chauhan Vs. State of Assam (Supra):
""28. This Court considered the scope of review and the limitations imposed on its exercise under Article 137 of the Constitution of India in Lily Thomas Vs. Union of India and others(2000) 5 JT (SC) 617 : (2000 AIR SCW 1760 : AIR 2000 SC 1650 : 2000 Cir LJ 2433) and held (paras 52, 53, 54, 55):
"The dictionary meaning of the word "review" is the act of looking, offer something again with a view to correction or improvement. It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi & Ors. Vs. Pradyunmansinghji Arjunsinghji [AIR (1970) SC 1273 held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error. This Court in S.Nagaraj & Ors.etc. Vs. State of Karnataka & Anr.etc. [1993 Supp. (4) SCC 595] held:
"Review literally and even judicially means re- examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. In Raja Prithwi Chand Law Choudhury v. Sukhraj Rai [AIR 1941 FC 1] the Court observed that even though no rules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Singh (1836) 1 Moo PC 117 that an order made by the Court was final and could not be altered:
'...nevertheless, if by misprision in embodying the judgments, by errors have been introduced, these Courts possess, by Common Law, the same power which the Courts of record and statute have of rectifying the mistakes which have crept in.... The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.' Basis for exercise of the power was stated in the same decision as under:
'It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard.' Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution.
Our Constitution-makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause (c) of Article 137 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order XLVII Rule 1 of the Civil Procedure Code. The expression, for any other sufficient reason in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of Court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice."
The mere fact that two views on the same subject are possible is no ground to review the earlier judgment passed by a Bench of the same strength.
This Court in M/s.Northern India Caterers (India) Ltd. Vs. Lt.Governor of Delhi [AIR 1980 SC 674] considered the powers of this Court under Article 137 of the Constitution read with Order 47 Rule 1 CPC and Order 40 Rule 1 of the Supreme Court Rules and held (para 8):
"It is well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. Sajjan Singh Vs. State of Rajasthan, (1965) 1 SCR 933 at p.948. For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing. G.L. Gupta v. D.N. Mehta, (1971) 3 SCR 748 at p.760. The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice. ON Mohindroo v. Dist. Judge, Delhi, (1971) 2 SCR 11 at p.27. Power to review its judgments has been conferred on the Supreme Court by Article 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Article 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in O. XLVII, Rule 1 of the Code of Civil Procedure and in a criminal proceeding on the ground of an error apparent on the face of the record. (Order XL, R.1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. Chandra Kanta v. Sheikh Habib, (1975) 3 SCR 935 : AIR 1975 SC 1500.
Article 137 empowers this Court to review its judgments subject to the provisions of any law made by Parliament or any rules made under Article 145 of the Constitution. The Supreme Court Rules made in exercise of the powers under Article 145 of the Constitution prescribe that in civil cases, review lies on any of the ground specified in Order 47 Rule 1 of the code of Civil Procedure which provides:
"Application for review of judgment -(1) Any person considering himself aggrieved -
(a) by a decree or order from which an appeal is allowed, but from which, no appeal has been preferred.
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order."
Under Order 40 Rule 1 of the Supreme Court Rules no review lies except on the ground of error apparent on the face of the record in criminal cases. Order 40 Rule 5 of the Supreme Court Rules provides that after an application for review has been disposed of no further application shall be entertained in the same matter.
In A.R. Antulays case (supra) this Court held that the principle of English Law that the size of the Bench did not matter has not been accepted in this country. In this country there is a hierarchy within the Court itself where larger Benches overrule smaller Benches. This practice followed by the Court was declared to have been crystalised as a rule of law. Reference in that behalf was made to the judgments in Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra [1985 (2) SCR 8], State of Orissa v. Titaghur Paper Mills [AIR 1985 SC 1293], Union of India v. Godfrey Philips India Ltd. [1985 Supp. (3) SCR 123. In that case the Bench comprising seven judges was called upon to decide as to whether the directions given by the Bench of this Court comprising five judges in the case of R.S. Nayak v. A.R. Antulay [AIR 1984 SC 684] were legally proper or not and whether the action and the trial proceedings pursuant to those directions were legal and valid. In that behalf reference was made to the hierarchy of Benches and practice prevalent in the country. It was observed that Court was not debarred from reopening the question of giving proper directions and correcting the error in appeal if the direction issued in the earlier case on 16th February, 1984 were found to be violative of limits of jurisdiction and that those directions had resulted in deprivation of fundamental rights of a citizen granted by Articles 14 and 21 of the Constitution of India. The Court referred to its earlier judgment in Prem Chand Garg vs. Excise Commissioner U.P., Allahabad [AIR 1963 SC 996], Naresh Shridhar Mirajkar v. State of Maharashtra [1966 (3) SCR 744 = AIR 1967 SC 1], Smt. Ujjam Bai v. State of U.P. [1963 (1) SCR 778 = AIR 1962 SC 1621] and concluded that the citizens should not suffer on account of directions of the Court based upon error leading to conferment of jurisdiction. The directions issued by the Court were found on facts to be violative of the limits of jurisdiction resulting in the deprivation of the fundamental rights guaranteed to the appellant therein. It was further found that the impugned directions had been issued without observing the principle of audi alteram partem.
It follows, therefore, that the power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment."
In the instant case, the review is sought on the ground that the petitioner was juvenile on the date of commission of the offence. According to the learned counsel appearing for the petitioner it is contended that as per school records the date of birth of the petitioner was 1.2.1977. He was 15 years 1 month and 7 days old on the date of occurrence. According to him the medical examination conducted on 23rd December, 1997 revealed that the accused was 15 years two months and 15 days old on the relevant date. It is contended that the petitioner could not have been tried by a court other than the juvenile court as per Sections 23 and 24 of the Juvenile Justice Act, 1986 (hereinafter referred to as "the Act"). As the trial was concededly not conducted by a juvenile court, the whole proceedings were liable to be quashed. It is further contended that the trial court wrongly held the petitioner to be more than 20 years of age and the High Court erred in not deciding the question of age despite concession made by the counsel appearing for the petitioner. It is submitted that the counsel of the accused could not have sacrificed the interest of the accused and should have insisted for a finding from the court regarding his being a child or a juvenile. It is further submitted that the evidence on record requires re-examination as allegedly there are numerous inconsistencies and contradictions, the benefit of which is to go to the accused. Though not pleaded, yet the learned counsel argued that as the judgment was pronounced on the same day when the conviction was recorded, the mandate of Section 235 of the Code of Criminal Procedure (hereinafter referred to as "the Code") stood violated."
d) Rajeev Hitendra Pathak and others Vs. Achyut Kashinath Karekar and another (Supra):
"28. According to the counsel for the appellants, in New India Assurance Co. Ltd., this Court did not notice the earlier decision in Jyotsana's case. He submitted that the Tribunals constituted under the Consumer Protection Act, 1986 exercise only such powers as are expressly conferred by the provisions of the said Act and Rules framed thereunder. Since no power of review and recall was conferred on the District Forums and the State Commissions, they can exercise no such power.
33. We have carefully scrutinized the provisions of the Consumer Protection Act, 1986. We have also carefully analyzed the submissions and the cases cited by the learned counsel for the parties.
34. On careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the Statute and derive their power from the express provisions of the Statute. The District Forums and the State Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.
47) On perusal of aforesaid judgments, it is evident that review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice.
48) On perusal, it is further transpired that rectification of an order stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed, the substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed.
49) In the present case, the petitioners were granted substantive appointment on 10.06.2004 by the Executive Council in its meeting by finding them suitable, which was challenged in Writ Petition No.964 (S/B) of 2004 before this Court, wherein an interim order was passed, which was stayed by way of special leave petition filed before Hon'ble Supreme Court in its interim order dated 27.08.2004 and leave to appeal was granted and matter was finally decided by Hon'ble Apex Court, whereby the appeal filed by the petitioners was allowed with the observation that the order of Hon'ble Supreme Court will not affect the case of the parties before the Executive Council or before the High Court.
50) Subsequently, the Executive Council in its meeting dated 20.08.2007 decided to constitute a sub-committee headed by Prof. Roop Rekha Verma to consider the case of part time teachers and decided the case of 24 part time teachers, who have been given benefit of pay scale and their case has been considered by the Executive Council for substantive appointment. On 23.02.2008, the matter pertaining to 26 left over part time teachers was considered by Prof. Roop Rekha Verma Committee and it was found that except one; Sri B.N. Mishra, all other part time teachers fulfill the statutory qualification and on 30.04.2008, the Executive Council considered the decision taken by Prof. Roop Rekha Verma Committee and categorically approved the recommendations made and decision taken by the said committee in its meetings dated 21.08.2007 and 23.02.2008, however, vide impugned decision dated 26.08.2015, the Executive Council appointed another committee to re-examine the matter relating to substantive appointment of the petitioners.
51) In the opinion of this Court, the power, which has not been expressly given by the Statute, cannot be exercised. After granting substantive appointment to the petitioners, the Executive Committee again proceeded to constitute another committee to re-examine the matter regarding substantive appointment to the petitioners, therefore, two views on the same subject are not possible to review the earlier decision taken by the committee in its meeting dated 30.04.2008.
52) The Executive Council as per provisions contained under the Act enacted with the signature of Hon'ble Governor considered the claim of the petitioners and thereafter approval was granted by the Executive Council as well as by the Academic Council. The objection from the side of respondent - University to re-examine the act done in accordance with Act and Statute of the University is not permissible in the eyes of law.
53) In view of the above, the submission advanced by learned Senior Counsel for the petitioners appears to have substance in the matter and the submissions advanced by learned counsel for the respondents in this regard are not acceptable in the eyes of law.
54) On over all consideration of submissions advanced by learned counsel for the parties, material available on record as well as the judgments relied upon by learned counsel for the petitioners and in view of the fact that U.P. State Universities Act, 1973 does not permit or vest any power in the Executive Council to review its earlier decision, the impugned order passed by the respondent dated 26.08.2015 being illegal and un-reasoned cannot be sustained and is hereby set aside.
55) The bunch of writ petitions succeeds and is allowed.
56) The respondents are directed to treat the petitioners to be substantively appointed Assistant Professors / Lecturers and to pay all consequential benefits as admissible to their post within a period of three months from the date of production of a certified copy of this order.
Order Date :- 12.07.2021.
Adarsh K Singh