Uma Shanker vs State of U.P.and Others

Ran Vijai Singh, J.—The petitioner who happened to be a Class IV employee in the Secretariat of Food and Civil Supply, U.P. Lucknow and retired from service on 31.3.2003 has filed the writ petition with the following prayers:

�I. To issue a writ, order or direction in the nature of certiorari to quash the impugned order dated 27.4.2005 passed by opposite party No.3.

II. To issue a writ, order or direction in the nature of mandamus commanding the opposite parties to provide all the pensionary benefits to the petitioner without any delay.

III. To issue any other writ, order or direction, which this Hon''ble Court may deem fit and proper in the circumstances of the case.

IV. To allow the writ petition with costs.�

The facts giving rise to this case are that the petitioner was initially engaged as Class IV employee in the year 1961 to be more specific on 22.2.1961 and with certain breaks, he has continued in service upto year 1972 in different departments. Thereafter, the petitioner has fallen ill and proceeded for medical leave and remained on medical leave for one year & 19 days. After resuming good health, he has submitted his joining report in the year 1973 but has not been permitted to join the duty. Although, as per version of the petitioner, he had been approaching the respondents continuously for permiting him to join but he has not been permitted to join.

The respondents have admitted the letters of the petitioner for permitting him to join for the years 1973, 1978, 1982 and 1983 but for the best reasons known to the respondents, the petitioner was not permitted to join (respondents have not disclosed in the counter affidavit the reasons). However, finding his efforts futile, he filed claim petition No.19/F/V/HM/1993 before the U.P. State Public Service Tribunal for payment of his salary. Pending the aforesaid claim petition, the respondents have terminated the services of the petitioner on 3.8.1993 and this order was challenged by the petitioner through Claim Petition No.738 of 1993 and both the claim petitions were clubbed together and decided by the common judgment by the Tribunal on 3.2.1997. Through order dated 3.2.1997, the Tribunal has set aside the termination order dated 3.8.1993 and directed the respondents to reinstate the petitioner on his original post and a direction was also issued to this effect that the petitioner shall be entitled for his regular salary from the date of reinstatement. However, for the intervening period from the year 1973 to the date of reinstatement, the liberty was given to the respondents to take decision on the leave applications of the petitioner. The Tribunal has further held that the claimant/petitioner would not get the back wages from the date of termination till reinstatement. This order was challenged by the State Government through Writ petition Nos.1112 (SB) of 1997 and 1113 (SB) of 1997. These writ petitions were initially entertained by this Court but no interim order was granted in favour of the Staterespondents. Consequently, since there was no interim stay order staying the operation of the order dated 3.2.1997 passed by the Tribunal, therefore, the respondents have allowed the petitioner to join the service with effect from 29.9.1998 and the salary was also paid to him thereafter.

It is noticeable that pending the above writ petitions, the petitioner has filed a Review Application before the Tribunal which was disposed of on 20.12.2002 with the following observations:

� ��� ������ ����..

Hence considering the facts and circumstances of the case, the review application is allowed to the extent only that the back service of the petitioner will be treated as continuous and counted only for retiral benefit, if available in the service rules.�

It is also worthwhile to mention that being aggrieved from the above order, the Staterespondent has filed Writ Petition No.1200 (S/B) of 2003, State of U.P. and Others v. Uma Shanker and another which was dismissed on 11.9.2003 by the Division Bench of this Court with the following observations:

�Once the Tribunal has set aside the order of termination from service and directed reinstatement of the respondent No.1 in service, the natural lawful consequence would be that the petitioner shall be deemed to be in continuous service even for the period during which he remained out of job. The order of reinstatement means that the claimant has been reinstated in service, which cannot be taken as fresh appointment, but would mean joining the service in continuation of his previous service. It would be the discretion of the Tribunal to allow salary for the period for which he remained out of service from the date of termination till the date of reinstatement, which discretion has been exercised by disallowing the salary for the aforesaid period. Merely not allowing, the back wages for the aforesaid period would not mean that the service stands discontinued. In no case reinstatement would mean a fresh service or a fresh appointment of the claimant. This being the legal position, if the department thought it fit not to give such benefit to the claimant, the claimant was perfectly justified in approaching the Tribunal and the Tribunal did not commit any error in clarifying the aforesaid order in the review petition, which is under challenge before this Court. The Tribunal has done substantial justice in this matter. We do not, therefore, find any merit in this petition.

The writ petition is dismissed.�

Before the dismissal of the above writ petition on 11.9.2003, the petitioner has attained the age of superannuation and retired on 31.3.2003. It is also noticeable that the order of this Court dated 11.9.2003 was challenged by the State Government before the Hon''ble Apex Court through SLP No.7982 of 2004 which was dismissed on 16.4.2004 with the following order:

�Heard learned counsel for the petitioners.

Delay condoned.

No merits.

The special leave petition is dismissed.�

After dismissal of the SLP by the Hon''ble Apex Court, the State Government has passed an order on 24.5.2004, a copy of which has been brought on record through Annexure No.6 to the writ petition where the Secretary, Food and Civil Supply has held that the period from 20.4.1973 to 3.8.1993 shall be treated as continuous service for the purpose of calculation of the period for computing pension. The exact lines are being quoted below:

It is noticeable that the pending writ petition before this Court as well as SLP before the Hon''ble Apex Court, the petitioner has filed a contempt petition No.41 of 2003 before the Tribunal and during the pendency of the contempt petition, the respondents have filed a compliance report in which they have calculated the petitioner''s service for the purpose of pension only seven years 6 months 17 days. Prima facie, it appears that while filing the computation chart before the Tribunal treating it compliance report, the order passed by the Secretary, Food and Civil Supply dated 24.5.2004 have not been taken into consideration but the Tribunal has dismissed the contempt petition on 16.10.2006. However, nothing has been brought to the notice of the Court with regard to the challenge of the dismissal order of the contempt application by the Tribunal but that will not affect the legal position. The dismissal of contempt petition has nothing to do with further consequences on merit.

The opposite parties while challenging the order of Review passed by the Tribunal before this Court never prayed the Court to not decide the writ petition finally unless the main writ petition challenging the order of the Tribunal reinstating the petitioner is pending. The order passed in Review was consequential to the main order which was dependent on the fate of first order of reinstatement.

It is also noticeable that in the contempt proceedings an affidavit was filed by the Staterespondents stating therein that the petitioner''s actual period of working for the purpose of payment of pension happens to be seven years six months and 17 days, meaning thereby the respondents have accepted the judgment of Tribunal and rendered the pending writ petition challenging Tribunal''s judgment infructuous.

However, after everything was over, the Principal Secretary, Food and Civil Supply has passed the impugned order on 27.4.2005 holding that in view of Regulation 361 of Civil Services Regulations, the petitioner is not entitled for the pension as he was not paid salary w.e.f. 20.4.1973 to 3.8.1993, the date of termination to the date of reinstatement.

Now question would arise whether after the order of 24.5.2004 passed by the Secretary, Food and Civil Supply for counting intervening period between 20.4.1973 to 3.8.1993 for computing the period for the purpose of pension and observation made by the Division Bench in the Judgment dated 11.9.2003 passed by this Court in Writ Petition No.1200 (S/B) of 2003, State of U.P. and Others v. Uma Shanker and another, was it open to the respondents (the Principal Secretary, Food and Civil Supply) to take a contrary view taking shelter of Regulation 361 of the Civil Service Regulations holding that only that period will be counted for the purpose of pension for which the salary has been paid by the State Exchequer through order dated 27.4.2005 which is impugned in the writ petition.

For deciding the above question, following ancillary questions will also arise:

�I. Under which provision the Principal Secretary has passed the order dated 27.4.2005? Whether he had exercised Appellate or Revisional or Power of Review under any Statute?

II. For the sake of argument even if it is presumed that the plea of applicability of Regulation 361 of Civil Service Regulation was available to be raised whether the Principal Secretary, Food and Civil Supply has understood the correct meaning of �service must be paid by the Government�. What will be the meaning of word ''service'' used in Regulation 361 of Civil Service Regulation?�

POINT No.I

Learned counsel for the petitioner has submitted before the Court that the order passed by the Principal Secretary (Food and Civil Supplies) is illegal and liable to be quashed as he has not got power of Review further the order impugned has been passed without affording any opportunity of hearing. In his submissions once the order of tribunal passed in Review Petition has attained finality upto Apex Court and thereafter power of State Government has been exercised by the Secretary, Food and Civil Supply on first occasion. It was not open to the Principal Secretary (Food and Civil Supplies) to pass fresh order in absence of power of Review, Revision or Appeal.

Learned Addl. Chief Standing Counsel Shri Harsh Vardhan appearing for the Staterespondents has not been able to show any provision which empowers the Principal Secretary to Review the order passed by the Secretary of the said Department or exercise of Appellate or Revisional power under any Statute.

He has submitted that the subsequent order dated 27.4.2005 passed by the Principal Secretary (Food and Civil Supplies) is a clarificatory one and it will not amount review of the earlier order dated 24.5.2004. The submission of the learned Addl. Chief Standing Counsel is misconceived as the Division Bench order passed by this Court has attained finality upto the Apex Court and thereafter the decision has been taken by the competent authority i.e. Secretary (Food and Civil Supplies) on 24.5.2004 and observing that the period between 20.4.1973 to 3.8.1993 (from the date of termination to the date of reinstatement) shall be computed for the purpose of determination of pension. Therefore, by any stretch of imagination, it can be inferred that the subsequent order dated 27.4.2005 passed by the Principal Secretary (Food and Civil Supplies) is clarificatory one. In fact, this is contrary to the earlier order dated 25.4.2005 and the Principal Secretary (Food and Civil Supplies) has reviewed the order earlier passed by the Secretary (Food and Civil Supplies) on 24.5.2004.

The power of Review has been considered time and again by the Hon''ble Apex Court as well as by this Court in numerous cases. It is settled position of law that in absence of power of Review under any Statute, the Administrative authority cannot review its/own order unless the same has been obtained by playing fraud or misrepresentation. In the case of fraud and misrepresentation also the order cannot be reviewed unless an opportunity of hearing is provided to the affected party. Here in the present case learned counsel for the petitioner has submitted before this Court that after passing of the order by the Secretary of the Department on first occasion i.e. 24.5.2004 no opportunity has been given by the Principal Secretary while passing the order dated 27.4.2005. Moreover, on both the occasions viz. while passing the first order by the Secretary and on second occasion by the Principal Secretary, the power of the State Government has been exercised and once the Secretary has exercised this power, it was not open to Principal Secretary to take different view and ignore the order of this Court as well as of Hon''ble Apex Court.

Hon''ble Apex Court in the case of Dr. (Smt.) Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) and other, reported in (1987) 4 Supreme Court Cases 525, has held that unless power of Review is expressly conferred on the authority by any statute under it derives its'' jurisdiction, the authority concerned has no power to Review its'' earlier order. In Para11 of the aforesaid judgment following observation has been made:

�A quasijudicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction. The ViceChancellor in considering the question of approval of an order of dismissal of the Principal, acts as a quasijudicial authority. The provisions of the U.P. State Universities Act, 1973 or of the Statutes of the University do not confer any power of review on the ViceChancellor. In the circumstances, it must be held that the Vice Chancellor acted wholly without jurisdiction in reviewing, his/her earlier order. The review order of the ViceChancellor was, therefore, a nullity.�

In the case of D. Ganesh Rao Patnaik and Others v. State of Jharkhand and Others, reported in (2005) 8 Supreme Court Cases 454, Hon''ble Apex Court has made following observations:

�There is no legal bar or prohibition against an administrative body in seeking to review its earlier decision provided the parties likely to be affected by such a decision are afforded an opportunity of hearing.�

The power of review of the administrative body has further been considered by the Hon''ble Apex Court in the case of G. Srinivas v. Govt. of A.P. and Others, reported in (2005) 13 Supreme Court Cases 712, Hon''ble Apex Court has observed:

�An order passed by mistake and ignorance of the relevant facts indisputably can be reviewed, if inter alia it is found that a fraud was practiced or there was willful suppression on the part of the appellant.�

Review by the Administrative authorities in absence of any power under the statute has been considered by this Court also time and again.In 1980 a Division Bench of this Court in the case of Jaswant Singh and another v. District Inspector of Schools and Others, reported in 1980 UPLBEC 43, has held that the District Inspector of Schools has no power to Review his own order unless the same has been obtained by misrepresentation or plying fraud and even on these allegations the order cannot be reviewed without affording an opportunity to the other party.

In the case of Mohan Lal Sharma v. The District Inspector of Schools Muzaffarnagar and Others, reported in 1982 UPLBEC 213, another Division Bench of this Court has held:

�There is no provision in the Intermediate Education Act or in the regulations framed thereunder conferring power on the District Inspector of Schools to review an order according approval under Section 16E of the Act. The Distrcit Inspector of Schools, like any other statutory authority, has however power to recall or revoke its order if it is obtained by mistake, misrepresentation or fraud. Even assuming that the order of approval was passed under some mistake, the Inspector had no jurisdiction to revoke the same unless some opportunity of explanation of hearing was given to the petitioner because once an approval is granted to the appointment of a teacher and if orders of his appointment are issued, vested rights are created in his favour.�

In view of the above settled position of law under the facts and circumstances of the present case the order passed by Principal Secretary (Food and Civil Supplies) is not sustainable in the eyes of law being without jurisdiction. It is well settled that the order passed without jurisdiction is nullity and no legal consequences flow from that.

POINT No.II

For considering the meaning of word ''service'' used in Regulation 361 of Civil Service Regulations, first of all Regulation 361 is necessary to be seen which is reproduced below:

�361. The service of an officer does not qualify for pension unless it conforms to the following three conditions:

First The service must be under Government.

Second The employment must be substantive and permanent.

Third The service must be paid by Government.�

No Rule regulating the condition of service of the petitioner has been brought on record or placed before the Court by counsel of either party; therefore, the word ''service'' used in the Service Ruels governing the petitioner''s service cannot be properly understood without taking help of the word ''service'' defined under other Service Ruels e.g.;

(1) The word ''service'' has been defined in Section 3(e) of Office Inspection Service Rules, 1966 and expression �Member of the Service� has been defined in subsection (d) of Section 3 which are reproduced below:

�(d). Member of the Service'' means a person appointed in a substantive capacity under the provisions of these rules, or of any rules in force prior to the promulgation of these rules, to a post in the cadre of the service.

(e) Service means the Office Inspection Service, Uttar Pradesh and;�

(2) Further the word �Service� and the expression �Member of the service� has again been defined in Rule 3(a) of the U.P. Agriculture Service Class 1 Rule, 1954 which is reproduced below:

�3. (a): �the Service� means the �United Provinces Agricultural Service, Class II�.

(b) �Membe�!of Service� means a Government se�want appointed in a subs�`ntive capacity unde�!the provisions of these rules to a post in the cadre of the Service.�

(3) In the U.P. Nyayik Sewa Niyamavali, 1951, expression �Member of the service� and word service has been defined in Section 4 (e) and (f) which are reproduced below:

�4. (e) �Member of the Service� means �!person appointed in a �tbstantive capacity under the provisions of these rules or of the rules in force previous to the introduction of these rules, to a post in the cadre of the service.

(f) �The service� means the Uttar Pradesh [Nyayik Sewa]�

(4) The expression �Member of Service� and the word �service� has again been defined in Section 3(d) and (e) of the United Provinces Civil Service (Executive Branch) Rules, 1941 which are reproduced below:

�3. (d) �Member of the Service� means a servant of the Crown appointed in substantive capacity under the provision of these rules or of rules in force previous to the introduction of these rules, to a post in the cadre of the Service;

(e) �the Service� means the United Provinces Civil Service (Executive Branch).�

(5) That again expression �Member of the service� and the word �service� has been defined in subsection (g) and (h) of Section 3 of the U.P. Cane Development Department Ministerial Service Rules, 1978 which are reproduced herebelow:

�3. (g) ''Member of the Service'' means a person appointed in a substantive capacity, under the provisions of these rules or the rules and orders in force prior to the commencement of these rules, to a post in the cadre of the Service.

(h) ''Service'' means the Cane Development Department Ministerial Service;

From the perusal of word ''Service'' used in different Service Rules, it is apparently clear that the word ''service'' under the different Service Rules is meant for employees governed under that very Service Rules. This further finds support from the expression �member of Service� which means a person appointed in a substantive capacity under a particular service rules. Therefore, the expression used in Regulation 361 i.e. service must be paid by the Government means, the members of service governed under particular Service must be paid their salary from the State Exchequer and it will not mean that the service rendered for a particular period is paid by the State Exchequer, as has been understood and held by the Principal Secretary (Food and Civil Supplies). Therefore, I am of the considered opinion that the view taken by the Principal Secretary is illegal and without application of mind.

In this case, it is not in dispute that the petitioner is serving under the State Government and the salary is being paid from the State Exchequer, therefore, it is immaterial whether for a particular period he has been paid his salary or not? Nonpayment of salary for a particular period will not amount discontinuation in case of reinstatement and for the purpose of computation of pension, it will be treated continuous in service throughout. More over, the Tribunal in its'' judgment has also observed that the respondents may consider the period of absence by granting leave under any category of leave (medical leave, earned leave, leave without pay etc.). However, the category of leave has not been specified in Tribunal''s judgment.

On both counts the order dated 27.4.2005 passed by the Principal Secretary (Food and Civil Supplies) do not stand on merit, hence the writ petition succeeds and is allowed. The impugned order dated 27.4.2005 is quashed.

It is also directed that the respondents shall immediately take up the petitioner''s case for computing the pension, pursuant to the order of the Secretary (Food and Civil Supplies) dated 24.5.2004 and the observations made in this judgment and pay the arrears of the pension with 8% interest and the current pension also within a period of two months from the date of receipt of certified copy of this order.

(Petition allowed)