# Dr. Rajendra Bahadur Singh & Ors v. State of U.P

- **Citation:** (2021) 7 ILRA 442
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-12
- **Case number:** Service Bench No. 1432 of 2015
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-rajendra-bahadur-singh-ors-v-state-of-u-p-47196
- **Pages:** 18

## Headnote

A. Service law - UP State Universities Act,
1973 - Section 31(3)(c) - Part time
Lecturer - Regularization on the report of
Committee appointed by the Executive
Council, which is further approved by
another Committee - Exercise of power by
Executive Council to re-examine and
review its earlier decision - Validity -
Held, the power, which has not been
expressly given by the Statute, cannot be
exercised - Act of 1973 does not permit or
vest any power in the Executive Council to
review its earlier decision - Further held,
the impugned order being illegal and unreasoned cannot be sustained. (Para 51
and 54)
Writ Petition allowed. (E-1)
Cases relied on :-

## Text

_Characters 0–39,987 of 57,409. This is a partial read: ask again with offset=39987 for what follows._

442 INDIAN LAW REPORTS ALLAHABAD SERIES
Parishad and others, 1991 (18) ALR 591;
Smt. Maya Devi Vs. State of U.P. (Writ
Petition No.24231 of 1998 decided on
2.3.1998); State of U.P. Vs. Maya Devi
(Special Appeal No.409 of 1998); Santosh
Kumar Misra Vs. State of U.P. & Ors.,
2001 (4) ESC (Alld) 1615; and Anju Misra
Vs.
General
Manager,
Kanpur
Jal
Sansthan (2004) 1 UPLBEC 201 giving
benefit of compassionate appointment to
the
dependants
of
daily
wage
and
workcharge employee have not been
correctly decided."

17. The Uttar Pradesh Recruitment of
Dependents
of
Government
Servants
(Dying in Harness) Rules, 1974 defines the
'Government Servant' for the purpose of
appointment of dependents of a deceased
government employee. Rule 2 (a) in this
regard is reproduced below:

"2. Definitions. - In these rules,
unless the context otherwise requires,-

(a) "Government servant" means
a
Government
servant
employed
in
connection with the affairs of Uttar
Pradesh who-

(i)
was
permanent
in
such
employment; or

(ii) though temporary had been
regularly appointed in such employment;
or

(iii)
though
not
regularly
appointed,
had
put
in
three
years'
continuous service in regular vacancy in
such employment.

Explanation.
-
"Regularly
appointed" means appointed in accordance
with
the
procedure
laid
down
for
recruitment to the post or service, as the
case may be;"

18. Since we have come to the
conclusion that the father of the appellantpetitioner was not a regular employee and
he could not have worked against a
substantive post of collection amin, as
such, we are of the considered view that he
was not covered under the definition of
'government servant' as provided under
Uttar Pradesh Recruitment of Dependents
of
Government
Servants
(Dying
in
Harness) Rules, 1974.

19. In view of above, we are of the
considered view that the submissions made
by learned counsel for the appellantpetitioner has no force. There is no
infirmity or illegality in the impugned final
order dated 10.05.2016, passed by learned
Single Judge in Writ Petition No.10079
(SS) of 2016; Vijay Pratap Singh Vs. State
of U.P. and others

20. The special appeal, being devoid
of merit is dismissed.
----------
(2021)07ILR A442
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.07.2021

BEFORE

THE HON'BLE IRSHAD ALI, J.

Service Bench No. 1432 of 2015
With
Service Bench No. 1431 of 2015

Dr. Rajendra Bahadur Singh & Ors.
 ...Petitioners
Versus
State of U.P. ...Respondent

Counsel for the Petitioners:
7 All. Dr. Rajendra Bahadur Singh & Ors. Vs. State of U.P.
443
Vidha Bhushan Kalia

Counsel for the Respondent:
C.S.C., Savitra Vardhan Singh

A. Service law - UP State Universities Act,
1973 - Section 31(3)(c) - Part time
Lecturer - Regularization on the report of
Committee appointed by the Executive
Council, which is further approved by
another Committee - Exercise of power by
Executive Council to re-examine and
review its earlier decision - Validity -
Held, the power, which has not been
expressly given by the Statute, cannot be
exercised - Act of 1973 does not permit or
vest any power in the Executive Council to
review its earlier decision - Further held,
the impugned order being illegal and unreasoned cannot be sustained. (Para 51
and 54)
Writ Petition allowed. (E-1)
Cases relied on :-
1. Rajeev Hitendra Vs Achyut Kashinath; (2011)
9 SCC Page 541
2. S. Nagaraj & ors. Vs St. of Karn. & anr.; 1993
Supp (4) SCC 595
3. Lily Thomas & ors. Vs U.O.I. & ors.; (2000) 6
SCC 224.
4. Ram Deo Chauhan Vs St. of of Assam; 2001
AIR SCW 2159
5. Rajeev Hitendra Pathak & ors. Vs Achyut
Kashinath Karekar & anr.; (2011) 9 SCC 541.
(Delivered by 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 respondentUniversity 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."
444 INDIAN LAW REPORTS ALLAHABAD SERIES

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
7 All. Dr. Rajendra Bahadur Singh & Ors. Vs. State of U.P.
445
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 parttime 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 subcommittee 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.
446 INDIAN LAW REPORTS ALLAHABAD SERIES

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.
7 All. Dr. Rajendra Bahadur Singh & Ors. Vs. State of U.P.
447

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
448 INDIAN LAW REPORTS ALLAHABAD SERIES
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
7 All. Dr. Rajendra Bahadur Singh & Ors. Vs. State of U.P.
449
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:
450 INDIAN LAW REPORTS ALLAHABAD SERIES

"......................................

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.
7 All. Dr. Rajendra Bahadur Singh & Ors. Vs. State of U.P.
451

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 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
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
452 INDIAN LAW REPORTS ALLAHABAD SERIES
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,
7 All. Dr. Rajendra Bahadur Singh & Ors. Vs. State of U.P.
453
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
454 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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 [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: