State of U.P. Thru. the Prin. Secy. Secondary Education Dept. and Others Vs Dinesh Kumar Yadav and 2 Others

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Neutral Citation No. - 2025:AHC-LKO:2931-DB

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Reserved

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Chief Justice's Court

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Case :- SPECIAL APPEAL No. - 83 of 2022

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Appellant :- State of U.P. Through the Principal Secretary, Secondary Education Department and others. Respondent :- Dinesh Kumar Yadav and 2 others Counsel for Appellant :- Mohit Jauhari, C.S.C. Counsel for Respondent :- Amrendra Nath Tripathi, Alok Kumar Tripathi

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Hon'ble Arun Bhansali, Chief Justice Hon'ble Jaspreet Singh, J.

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(Per : Arun Bhansali, CJ)

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This appeal is directed against order dated 05.02.2021 passed by learned Single Judge in Service Single No.24261 of 2020 whereby the writ petition filed by respondent nos. 1 and 2 has been allowed and order dated 30.06.2020 passed by appellant no. 3 has been quashed.

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Respondent no.3 is a recognized institution under the U.P. Intermediate Education Act, 1921, receiving grant in aid from the State and is inter alia governed by the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971.

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Two substantive vacancies occurred in the Primary Section of the College and, therefore, the Manager sought permission from appellant no.3 for filling up the said vacancies which permission was granted. Pursuant to the permission, advertisement dated 04.03.2013 was published in two leading Newspapers i.e. ‘Indian Express’ and ‘Swatantra Bharat’. The respondent nos. 1 and 2 being eligible for appointment on the post of Assistant Teacher submitted their applications and thereafter appeared for the interview along with other candidates on the date fixed before the duly constituted Selection Committee and on the basis of the quality point marks, Selection Committee prepared two separate select lists one for the candidates of general category and another for the candidates of scheduled caste category for the two posts.

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Against the general category vacancy, name of respondent no.1 was recommended and against the vacancy of scheduled caste category, name of respondent no.2 was recommended. On 18.04.2013, appellant no.3 granted approval to the selection made whereby selection of respondent nos. 1 and 2 on the post of Assistant Teacher was approved. Pursuant to the approval granted, the respondents joined on the post and received salary of the months of April, 2013 till October, 2013.

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Suddenly, the payment of salary to the respondent nos. 1 and 2 was stopped. When despite representation, nothing happened, the respondent no.1 filed Writ Petition No. 299 (S/S) of 2015 for directions to the appellants for payment of salary wherein directions were issued to decide the representation within four weeks.

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Appellant no. 3 while deciding the representation dated 03.07.2015, declared the appointment of respondent nos. 1 and 2 as illegal, however, order granting approval dated 18.04.2013 was neither cancelled nor revoked.

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The respondent nos. 1 and 2 assailed the order dated 03.07.2015 by filing two separate writ petitions. During the pendency of the writ petitions, a three member inquiry Committee, constituted by appellant no.2, gave its report dated 08.03.2016, which found the selection and appointment of respondent nos. 1 and 2 valid and legal. The appellant no.3 on the basis of the inquiry report and audit report and the fact that the order of approval dated 18.04.2013 was in existence, passed order for payment of salary of the respondents and the arrears were also directed to be released by order dated 28.05.2016.

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On account of passing of the order dated 28.05.2016, writ petitions filed by respondent nos. 1 and 2 were withdrawn on 11.07.2016.

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The appellants continued to pay the regular salary to respondent nos. 1 and 2 till December, 2019. Suddenly, thereafter again, the salary was stopped. The respondent nos. 1 and 2 again represented to appellant no. 3 for payment of salary and whereafter the impugned order dated 30.06.2020 was passed by which grant of approval of selection of respondent nos. 1 and

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2 dated 18.04.2013 and order of releasing the salary dated 28.05.2016 were recalled holding that no salary was liable to be paid to respondent nos. 1 and 2. Feeling aggrieved, the present writ petition was filed.

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The learned Single Judge, after hearing the parties, came to the conclusion that various grounds taken by the appellant no. 3 for passing the order impugned were not in existence. The learned Single Judge was also of the opinion that once orders dated 18.04.2013 and 28.05.2016 were passed by appellant no.3, it had no authority to review its orders and consequently allowed the writ petition.

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Learned counsel for the appellants made vehement submissions that the learned Single Judge was not justified in setting aside the order dated 30.06.2020. Submissions have been made that the appointment of respondent nos. 1 and 2 were ex facie illegal and as such the order recalling the order granting approval and releasing the salary did not call for any interference. Submissions have been made that the advertisement issued did not indicate the requisite qualifications and marks awarded to the respondents were beyond the experience and certificate itself was doubtful and, therefore, the appellants were justified in recalling the order granting approval and no fault can be found.

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Learned counsel for the respondents supported the order impugned. Submissions have been made that the approval to the selection was granted on 18.04.2013 and pursuant to the approval, order of payment of salary was passed. Suddenly, the payment of salary to the respondent nos. 1 and 2 was stopped. However, after the report of the Committee constituted for the purpose, found the selection and appointment as valid and legal, again order dated 28.05.2016 was passed permitting payment of salary and arrears. However, again after passage of four years, the salary was sought to be stopped and thereafter, order was passed seeking to recall the earlier orders.

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It was emphasised that the appellants had no power of review as is clearly laid down in Naresh Kumar & others vs. Government (NCT of Delhi) : (2019) 9 SCC 416 and in Dr. (Smt.) Kuntesh Gupta vs. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) & others :

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AIR 1987 SC 2186 and therefore, the order passed by the learned Single Judge does not call for any interference.

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We have considered the submissions made by learned counsel for the parties and have perused the material available on record.

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The undisputed facts are that after the selection of the respondent nos. 1 and 2 took place based on the advertisement issued by respondent no.3institution, apparently after consideration of all relevant parameters, approval was granted on 18.04.2013. Whereafter, apparently on certain allegations when doubts were raised pertaining to the legality of selection, the salary was stopped. The same was challenged by filing writ petitions and during the pendency of the writ petitions, specific order was passed by appellant no.3 on 28.05.2016 ordering for payment of salary to respondents, which was duly complied and salary was paid till December, 2019. Thereafter again the same was stopped and order dated 30.06.2020 was passed inter alia indicating certain deficiencies in the selection process and seeking to recall the orders dated 18.04.2013 and 28.05.2016.

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On the aspect of purported deficiencies pointed out in the selection and the power to review the orders dated 18.04.2013 and 28.05.2016, the learned Single Judge inter alia observed as under:

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“On being confronted on the point as to whether the Administrative Authority can review/ recall its own order, learned Standing Counsel could not demonstrate any provisions of law permitting the same authority to review/ recall its own order. On being further confronted as to whether there may be other qualification except those qualifications as indicated in the Act, 1921, the learned Standing Counsel has submitted that it is true that there are no other qualifications except such qualification which has been indicated under the Act, 1921 but instead of indicating the qualification as per the Act, 1921, specific qualifications should have been indicated in the advertisement. On being further confronted as to whether the petitioners are not having requisite qualifications, learned Standing Counsel has submitted that the petitioners are having requisite qualifications as prescribed under the law. Further, as to whether the candidate belonging to OBC category candidate may not compete with the candidate of General Category or he may not be selected on the vacancy earmarked for General Category candidate, learned Standing Counsel has submitted that in view of the settled proposition of law of

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Hon'ble Apex Court, the candidate of the reserved category may compete for the vacancy earmarked for the General Category.”

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It would be seen that the purported deficiencies pointed out in the selection, apparently had no substance. Further, the aspect of power to review the order passed under a statutory power, in absence of said statute conferring any power of review, stands concluded by various pronouncements of Hon’ble Supreme Court. In the case of Naresh Kumar (supra), Hon’ble Supreme Court inter alia has laid down as under:

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“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 (2010) 9 SCC 437, has held as under: (SCC pp. 445-46, paras 12-14).

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“......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 [AIR 1965 SC 1457] and Harbhajan Singh v. Karam Singh [AIR 1966 SC 641]

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In Patel Narshi Thakershi v. Pradyuman Singhji Arjunsinghji [(1971) 3 SCC 844], Chandra Bhan Singh v. Latafat Ullah Khan [(1979) 1 SCC 321], Kuntesh Gupta (Dr.) v. Hindu Kanya Mahavidyalaya [(1987) 4 SCC 525 : 1987 SCC (L&S) 491], State of Orissa v. Commr. of Land Records and Settlement [(1998) 7 SCC 162] and Sunita Jain v. Pawan Kumar Jain [(2008) 2 SCC 705 : (2008) 1 SCC (Cri) 537], 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.

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Therefore, in view of the above, the law on the point can be summarized to the effect that in the absence of any statutory provision providing for review, entertaining an application for

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review or under the garb of clarification/modification/correction is not permissible.”

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In view of above factual and legal position and the fact that there are no allegations of fraud or misrepresentation on part of respondents, the respondents have the requisite qualifications prescribed under the law and once after inquiry and audit, the respondents were paid salary from their date of appointment, i.e. April, 2013 till December, 2019, and suddenly again orders being passed in the years 2013 and 2016 were sought to be reviewed beyond statutory power, we do not find any reason to interfere with the judgement passed by the learned Single Judge.

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Consequently, there is no substance in the appeal and the same is, therefore, dismissed.

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Order Date :- 17.01.2025 RK

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(Jaspreet Singh, J) (Arun Bhansali, CJ)

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Digitally signed by :- RAJESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench

State of U.P. Thru. the Prin. Secy. Secondary Education Dept. and Others v. Dinesh Kumar Yadav and 2 Others

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State of U.P. Thru. the Prin. Secy. Secondary Education Dept. and Others v. Dinesh Kumar Yadav and 2 Others

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