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2023 (2) TMI 1395 - SC - Indian LawsMaintainability of review application filed against the order dismissing the Special Appeal - error apparent on the face of the record justifying the review of the Division Bench s order or not - HELD THAT - The Full Bench decision in State of U.P. through Secretary Secondary Educations Ors. vs. C/M Sri Sukhpal Intermediate College Tirhut Sultanpur Ors. 2015 (5) TMI 1266 - ALLAHABAD HIGH COURT LB holding that in the absence of sanctioned post a direction for payment of salary cannot be given is not helpful. The provision of review is not to scrutinize the correctness of the decision rendered rather to correct the error if any which is visible on the face of the order / record without going into as to whether there is a possibility of another opinion different from the one expressed. The Division Bench in allowing the review petition has dealt with the matter as it is seized of the special appeal itself and has virtually reversed the decision by taking a completely new stand for the payment of salary to teachers subjectwise. It amounts to rehearing and rewriting the judgment in appeal without there being any error apparent on the face in the earlier order. The Division Bench thus clearly exceeded its review jurisdiction in passing the impugned order. Conclusion - i) The review application is not maintainable as there is no error apparent on the face of the record. The Court emphasized that review jurisdiction is limited and should not be used as a substitute for an appeal. ii) The Division Bench exceeded its review jurisdiction by effectively rehearing the appeal and reversing its earlier decision. The impugned order allowing the review set aside - appeal allowed.
1. ISSUES PRESENTED and CONSIDERED
The core legal questions considered in this judgment include:
2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Maintainability of the Review Application The relevant legal framework involves the principles governing review jurisdiction, which is typically limited to correcting errors apparent on the face of the record. The Court emphasized that a review is not an appeal in disguise and should not be used to reargue the merits of the case. The Court found that the Division Bench, in allowing the review petition, effectively conducted a rehearing of the appeal, which is beyond the scope of review jurisdiction. The Court concluded that the review application was not maintainable as there was no error apparent on the face of the record in the original dismissal of the Special Appeal. Issue 2: Error Apparent on the Face of the Record The Court examined whether the Division Bench's order dismissing the Special Appeal contained any error apparent on the face of the record. The review was sought on the basis that the Division Bench allegedly ignored the statutory provisions requiring prior approval for the creation of new posts. The Court noted that the Single Judge had allowed the writ petition based on the seniority of teachers, as stated by the Joint Secretary, and not on the creation of new posts. The Division Bench's original order did not permit payment beyond the sanctioned strength, aligning with the legal framework. Thus, the Court concluded that no error apparent justified the review, and the Division Bench's decision to allow the review amounted to an overreach of its jurisdiction. Issue 3: Jurisdiction of the Division Bench in Review The Court scrutinized whether the Division Bench exceeded its jurisdiction by effectively reversing its earlier decision through the review process. The Court emphasized that review jurisdiction is not meant for rehearing or rewriting judgments unless there is a clear error on the face of the order. The Court found that the Division Bench, by allowing the review, effectively conducted a rehearing of the appeal, which was inappropriate and beyond the scope of review jurisdiction. The Court held that the Division Bench had exceeded its jurisdiction, making the impugned order unsustainable. Issue 4: Application of the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 The Court considered the applicability of Sections 9 and 10 of the Act, which require prior approval for the creation of new posts. The argument was that the institution could not create new posts without the Director's approval, and the State was only liable for salaries of validly appointed teachers. The Court noted that the writ petition and subsequent orders did not involve creating new posts but rather focused on the payment of salaries based on seniority within the sanctioned strength. Therefore, the statutory provisions did not necessitate a review of the Division Bench's original order. 3. SIGNIFICANT HOLDINGS The Court held that the review application was not maintainable as there was no error apparent on the face of the record. The Court emphasized that review jurisdiction is limited and should not be used as a substitute for an appeal. The Court stated, "The provision of review is not to scrutinize the correctness of the decision rendered rather to correct the error, if any, which is visible on the face of the order / record without going into as to whether there is a possibility of another opinion different from the one expressed." The Court concluded that the Division Bench exceeded its review jurisdiction by effectively rehearing the appeal and reversing its earlier decision. The impugned order allowing the review was set aside, and the appeal was allowed. The final determination was that the original dismissal of the Special Appeal was upheld, and the review order was unsustainable in law. The appeal was allowed with no order as to costs, and all pending applications were disposed of.
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