TMI Blog2021 (4) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... of U.P. Trade Tax Tribunal, including members appointment in quota of Advocates also. There is no apparent error on the face of judgment and order dated 03.04.2017. The exposition of law of Hon ble Apex Court relied upon by the learned Advocate General does not extend any benefit to the applicant/State. When the review will not be maintainable:- (i) A repetition of old and overruled argument is not enough to reopen concluded adjudications. (ii) Minor mistakes of inconsequential import. (iii) Review proceedings cannot be equated with the original hearing of the case. (iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. (v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. (vi) The mere possibility of two views on the subject cannot be a ground for review. (vii) The error apparent on the face of the record should not be an error which has to be fished out and searched. (viii) The appreciation of evidence on record is fully within the domain of the appellate court, it ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment order dated 5.5.2000 cannot be held to be without jurisdiction. 4. It is further submitted that while passing the judgment and order dated 03.04.2017 this Hon ble Court did not consider that it is well settled proposition of law that an appointment for a fix term cannot be equated with a regular government servant and thereby he cannot be held to be entitled for pension. 5. It is further submitted that the conditions of appointment by such an administrative decision had been upheld by the Hon ble Supreme Court in the case of Nagpur Improvement Trust Vs. Y. J. Kumbhare others, 1999 8 SCC P.99, wherein it has been held that in absence of statutory rules governing service conditions, the executive instructions and or decision taken administratively operate and appointment/ promotion can be made in accordance with such executive instructions. 6. Learned Advocate General has further submitted that the provisions of Section 10 (1-B) of the Act of 1948 does not say anything about the tenure of service nor it say about the age of retirement. In its true prospected as in the said section, only this much had been provided that the provisions of fundamental rule 56 shall con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, the executive must abide by that act or rule and it cannot in exercise of the executive power under Art. 162 of the Constitution ignore or act contrary to that rule or act. 9. Learned Advocate General has also relied upon the exposition of law in the case of Kusheshwar Prasad Singh Vs. State of Bihar and others reported in (2007) 11 Supreme Court Cases 447 in paragraph nos. 14 to 16 Hon ble the Apex Court has held as under:- 14. In this connection, our attention has been invited by the learned counsel for the appellant to a decision of this Court in Mrutunjay Pani Another v. Narmada Bala Sasmal Another, AIR 1961 SC 1353, wherein it was held by this Court that where an obligation is cast on a party and he commits a breach of such obligation, he cannot be permitted to take advantage of such situation. This is based on the Latin maxim 'Commodum ex injuria sua nemo habere debet' (No party can take undue advantage of his own wrong). 15. In Union of India Ors. V. Major General Madan Lal Yadav (Retd.), (1996) 4 SCC 127, the accused-army personnel himself was responsible for delay as he escaped from detention. Then he raised an objection against initiation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they apply to any other Government servant: Provided that a member of the Tribunal including the President appointed before the commencement of the Uttar Pradesh Sales Tax (Second Amendment and Validation) Act, 1983, may continue as such till he attains the age of sixty years. 13. The Coordinate Bench has held that fundamental rule 56 is made applicable to the members of the tribunal by virtue of Section 10 (1-B) of the Act, 1948 (U.P. Trade Tax Act, 1948) and in absence of any otherwise statutory amendment, by an executive order, statutory rules cannot be modified or amended. 14. The Coordinate Division Bench has also considered the provisions of fundamental rules 56 (e), which is reproduced as follows:- 56(e). A retiring pension shall be payable and other retirement benefits, if any, shall be available in accordance with and subject to the provisions of the relevant rules to every Government servant who retires or is required or allowed to retire under this rule. Provided ... Explanation. (1) (2) (2-A) (3) (4). Every order of the appointing authority requiring a Government servant to retire forthwith under the first proviso to clause (d) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... U.P. Trade Tax Tribunal as member. The qualifying service has already been completed by the petitioner as per provisions of Civil Service Regulations (hereinafter referred to as CSR read with U.P. Recruitment Benefit Rules, 1961 (hereinafter referred to as, Rules 1961 ). 17. The question, whether in view of the government order dated 5.5.2000, it can be said that the petitioner/opposite party is not entitled for the pensionary benefit , was considered and decided by the Coordinate Division Bench of this Court vide order dated 03.04.2017 after considering the provisions of Section 10 (1)(b) of the U.P. Trade Tax Act, 1948 and Rule 56 (e) of the State of U.P. 18. It is pertinent to mention here that the applicant/State permitted the petitioner/opposite party to serve on the post of Member of U.P. Trade Tax Tribunal, during period from 27.01.1994 upto 31.12.2011, i.e., qualifying service for ten years for entitlement for getting pension. The Government Order dated 05.05.2000 cannot override the provisions of Rule 56 of fundamental rules framed by the State of U.P. The applicant/State on the basis of principles of estoppel and acquiescence, cannot raise objection on the basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of Appeal. A power of review is not to be confused with appellate powers which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court. 24. Again, in Meera Bhanja v. Nirmala Kumari Choudhury AIR 1995 SC 455 while quoting with approval the above passage from Abhiram Taleshwar Sharma Vs. Abhiram Pishak Shartn (supra), the Court once again held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. 25. In Parsion Devi and others Vs. Sumitri Devi and others 1997 (8) SCC 715 it was held that an error, which is not self evident and has to be detected by process of reasoning, can hardly be said to be error apparent on the face of the record justifying the court to exercise powers of review in exercise of review jurisdiction. 26. In Rajendra Kumar Vs. Rambai, AIR 2003 SC 2095 , the Apex Court has observed about limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The same principles have been reiterated in Union of India vs. Sandur Manganese Iron Ores Ltd. Ors., 2013 (8) SCC 337 . 22.2. When the review will not be maintainable:- (i) A repetition of old and overruled argument is not enough to reopen concluded adjudications. (ii) Minor mistakes of inconsequential import. (iii) Review proceedings cannot be equated with the original hearing of the case. (iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. (v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. (vi) The mere possibility of two views on the subject cannot be a ground for review. (vii) The error apparent on the face of the record should not be an error which has to be fished out and searched. (viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition. (ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negative ..... X X X X Extracts X X X X X X X X Extracts X X X X
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