# Amrit Lal v. State of U.P. and others

- **Citation:** (2011) 1 ILRA 231
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-02-03
- **Bench:** Rajiv Sharma, Vedpal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amrit-lal-v-state-of-u-p-and-others-41849
- **Pages:** 4

## Text

1 All] Amrit Lal V. State of U.P. and others
231
appointment substantive. In the entire
counter affidavit there is not even a
whisper or suggestion that appointment of
the petitioner on fixed pay was a part time
appointment. The only thing mentioned is
that he was appointed and paid salary on
fixed pay basis. Later on given time scale
of pay. This by itself would not mean that
the earlier appointment of petitioner was
not substantive, regular or full time.

This submission is thus deserved to
be rejected.

13. Moreover, the question whether
petitioner was a part time appointee or not
is a question of fact and unless
appropriate pleadings would have been
there and relevant material is placed on
record the counsel for respondents cannot
be permitted to create a doubt on the
nature of appointment of the petitioner by
mere oral submissions in respect of
factual aspect which is not pleaded as
such. The respondents had to adhere and
confine to their pleadings. In my view, the
entire
earlier
service
rendered
by
petitioner even though he was paid salary
on monthly fixed pay basis would qualify
for pension, in the absence of any
provision otherwise.

14. In the result the writ petition is
allowed. The respondents are allowed to
treat service of the petitioner as regular
and substantive from 8.10.1964 and
determine
his
retiral
benefits
in
accordance with law within two months
and pay arrears within one month
thereafter with interest of 10%.

15. Learned counsel for the
respondent has misled the Court and made
wrong factual argument going beyond the
pleadings. The manner in which the
learned counsel for the respondents
attempted to mislead the Court during
arguments
and
the
way
in
which
respondents have denied pension and
other retiral benefits to the petitioner, and
have harassed the petitioner, in my view,
entitle the petitioner cost which I quantify
to Rs.25,000/-. This shall also be paid
alongwith arrears as directed above.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.02.2011

BEFORE
THE HON'BLE RAJIV SHARMA, J.
THE HON'BLE VEDPAL, J.

Review Petition No. 498 of 2010.

Amrit Lal

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Constitution of India Article 226-Power
of Review-if Court by exercising power
as Writ Court-committed any mistakeplenary power of review based on equity
and fairness-scope of review under writ
jurisdiction
discussed-but
can
not
consider fresh ground and fresh hearing
in garb of review

Held: Para 5

In so far as the power of this court to
review its decision given under Article
226 of the Constitution of India is
concerned, it is now settled law that
High Court has inherent power to review
its decision given under Article 226 of
the Constitution of India to prevent
miscarriage of justice or to correct grave
and pulpable errors committed by it. It is
settled law that if the court in exercise of
its power, has committed any mistake, it
has the plenary power to correct its own
mistake. Neither rule of procedure nor
technicalities can stand in its way. The
entire
concept
of
writ
jurisdiction
232 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
exercised by High Court is founded on
equity and fairness. If court finds that
the order was passed under a mistake or
due to some erroneous assumption
which in fact did not exists then the
court
on
any
principle
cannot
be
precluded
from
rectifying
error
by
reviewing its judgment and order. The
same view has been expressed by the
Hon'ble Supreme Court in Shiv Deo Vs.
State of Punjab : AIR 1963 SC 1919, Hari
Das Vs. Smt. Usha Rani Banik and Others
(2006) 4 SCC 78, M. M. Thomas Vs. State
of Kerala and Another (2000) 1 SCC 666
and Food Corporation of India and
Another Vs. M. S. Shiel Ltd. and Others
AIR 2008 SC 1101.

(Delivered by Hon'ble Rajiv Sharma, J.)

1. This application has been filed by
Amrit Lal, applicant/petitioner for review
of the judgement and order dated
24.11.2010 passed by this Court in Writ
Petition No.11428 (M/B) of 2010 : Amrit
Lal Vs. State of U.P. and others whereby
the petition for quashing the F.I.R. was
dismissed.

2. The review of the judgment and
order dated 24.11.2010 has been sought
on the ground that subsequent to the date
of order dated 24.11.2010, certain new
and important facts were discovered
which were not within the knowledge of
the applicant and could not be argued
before the court when the judgment and
order dated 24.11.2010 was passed. That
the alleged abducted person Shri Prem
Shanker Pandey was himself involved in a
criminal case and non bailable warrant of
arrest and process under Section 82
Cr.P.C. was also issued against him by
C.J.M., Sultanpur and the petitioner was
falsely implicated in Case Crime No.443
of 2008. The police had failed to trace the
abducted persons and a final report was
submitted by the police but subsequently
in the garb of further investigation, the
petitioner
was
unnecessarily
being
harassed and as such the applicant has
moved the court for quashing the F.I.R.
Thus in the facts and circumstances of
the, it is necessary to review the judgment
and order dated 24.11.2010 passed by this
court.

3. Learned A.G.A. opposed the
review petition on two grounds firstly that
the review petition under Article 226 of
the
Constitution
of
India
is
not
maintainable as in the Code of Criminal
Procedure, there is no provision for
review of the judgment and order and ;
secondly that there appears no sufficient
ground to review the judgment and order
dated 24.11.2010 as the truthness or
falsity of the allegations made in the
F.I.R. against the petitioner cannot be
gone into in the proceedings for quashing
the F.I.R. under Article 226 of the
Constitution of India and as such the
application deserves rejection.

4. We have heard the learned
counsel for the parties at considerable
length
and
perused
the
impugned
judgment and order alongwith ruling cited
by the parties.

5. In so far as the power of this court
to review its decision given under Article
226 of the Constitution of India is
concerned, it is now settled law that High
Court has inherent power to review its
decision given under Article 226 of the
Constitution
of
India
to
prevent
miscarriage of justice or to correct grave
and pulpable errors committed by it. It is
settled law that if the court in exercise of
its power, has committed any mistake, it
has the plenary power to correct its own
mistake. Neither rule of procedure nor
1 All] Amrit Lal V. State of U.P. and others
233
technicalities can stand in its way. The
entire
concept
of
writ
jurisdiction
exercised by High Court is founded on
equity and fairness. If court finds that the
order was passed under a mistake or due
to some erroneous assumption which in
fact did not exists then the court on any
principle cannot be precluded from
rectifying error by reviewing its judgment
and order. The same view has been
expressed by the Hon'ble Supreme Court
in Shiv Deo Vs. State of Punjab : AIR
1963 SC 1919, Hari Das Vs. Smt. Usha
Rani Banik and Others (2006) 4 SCC 78,
M. M. Thomas Vs. State of Kerala and
Another (2000) 1 SCC 666 and Food
Corporation of India and Another Vs. M.
S. Shiel Ltd. and Others AIR 2008 SC
1101.

6. In view of the above, we are of
the opinion that the review of an order
passed
under
Article
226
of
the
Constitution of India, is permissible
provided the ground for doing so exists.

7. Now the next question that
remains for consideration is whether there
exists any ground to review the impugned
judgment and order dated 24.11.2010
passed in Writ Petition No.11428 (M/B)
of 2010.

8. It has been stated in the
application for review that the allegations
made in the F.I.R. are false and frivolous
and even the police had submitted final
report in the matter and it is being further
investigated by the police and the police
is harassing the petitioner. It reveals from
the perusal of the impugned order that the
allegations
contained
in
the
F.I.R.
discloses
commission
of
cognizable
offence. It is not within the dominance of
this court in the proceedings under
Section 226 of the Constitution to
comment on the truthness or falsity of the
allegations made in the F.I.R. It is a
matter to be dealt with by the court at the
time of the trial. At the stage, when F.I.R.
has been sought, to be quashed, the court
has to see whether the allegations
discloses
the
commission
of
the
cognizable offence or not. The court
cannot enter into the truthness of falsity of
the allegations. Thus the ground that the
allegations are false against the applicant
is not available to the petitioner at this
stage.
Further
more,
the
Review
Application has a very narrow compass .
The Court cannot consider fresh grounds
and fresh arguments in review. It has been
laid down by the Honourable Apex Court
in Ajit Kumar Rath Vs. State of Orissa
and others, (1999) SCC 596 as under;-

"A review cannot be claimed or
asked for merely for a fresh hearing or
arguments or correction of an erroneous
view taken earlier, that is to say, the
power of review can be exercised only for
correction of a patent error of law or fact
which stares in the face without any
elaborate argument being needed for
establishing it",

9. In view of the above, there exists
no sufficient ground to review the
judgment and order dated 24.11.2010
passed in Writ Petition No.11428 (M/B)
of 2010. In the result, the application has
no force and is liable to be rejected. It is
accordingly rejected.
---------
234 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.02.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 3385 of 2007

Khushi Lal And others ...Petitioners
Versus
F.C.I. and others

 ...Respondents

Counsel for the Petitioners:
Sri Bhoopendra Nath Singh
Sri D.P. Singh

Counsel for the Respondents:
Sri S.P. Srivastava
Sri R.K. Singh
S.C.

F.C.I.
(Staff)
Regulation,
1971Regulation-22-A-Voluntary
Retirementaccepted but the claim of appointment of
his son refused-considering Nizamuddin
Case application can not be treated
conditional one-similar order based on
wrong assumptions-can not be basis for
claiming right of equity-two wrongs will
not
make
one
right-held-claim
of
appointment rightly declined.

Held: Para 9

Suffice it it mention here that application
to provide appointment as a result of
acceptance of retirement is available
only when application is conditional and
not otherwise. Merely because in some
other matter some error or illegality has
been committed by respondents that will
not give a cause of action to petitioners
to claim parity in the matter of such
illegality. If some benefit has been given
by the respondents to some persons
illegally or contrary to the law, no
mandamus
can
be
issued
to
the
respondents to commit same illegality
again, inasmuch as, the right of equality
is not extended to claim parity in illegal
acts since it is well settled legal position
that two wrongs will not make one right.
Case law discussed:
2010 (2) UPLBEC 909; Civil Misc. Writ Petition
No. 34434 of 2007, Mohit Kumar and another
Vs. Senior Regional Manager and another; AIR
2000 SC 2306; AIR 2003 SC 3983; AIR 2004
SC 2303; AIR 2005 SC 565; AIR 2006 SC 1142

(Delivered by Hon'ble Sudhir Agarwal,J. )

1. Heard Sri B.N. Singh, learned
counsel for the petitioners and learned
Standing Counsel as well as Sri R.K. Singh,
Advocate for the respondents.

2. The petitioner no. 1 has sought
voluntary retirement and appointment for
his son (petitioner no. 2) by application
dated 08.08.2001 in the light of the
Standing Order contained in Regulation 22A of FCI (Staff) Regulation, 1971 stating
that since he is not well the authorities may
accept his retirement and give appointment
to his son. The respondents have accepted
retirement of petitioner no. 1 on medical
ground and declined to give appointment to
his son. Hence this petition.

3. Placing reliance on a Division
Bench decision of this Court in Ram Gopal
and another Vs. Union of India and
others, 2006(3) UPLBEC 2268 learned
counsel for petitioner contended that it was
incumbent upon the respondents to provide
appointment to petitioner no. 2.

4. However, this Court find that the
matter was examined by the Apex Court in
Food Corporation of India and another
Vs. Ram Kesh Yadav and another, JT
2007(4) SC 1 wherein the Apex Court has
observed if the letter sent by employee
concerned seeking retirement on medical
ground is conditional and if the employer
has accepted the same then it is incumbent