2021 (4) TMI 188 - HC - VAT and Sales Tax

Maintainability of review petition - Rectification of Mistake - error apparent on the face of record - entitlement to pensionary benefit - HELD THAT - 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 basis of government order dated 05.05.2000 that now the petitioner/opposite party is not entitled for getting pension. The respondent/ opposite party joined on 27.01.1994, hence, government order cannot have retrospective effect, because, Rule 56 of Fundamental Rules has been made applicable by virtue of provisions of Section 10(1-B) of U.P. Trade Tax Act, to members 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 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 negatived. The present application for review of judgment and order dated 3.4.2017 is devoid of merits - Application for ROM dismissed.

Issues Involved:
1. Error apparent on the face of the judgment.
2. Applicability of Section 10 (1) and Section 10 (1-B) of the U.P. Trade Tax Act, 1948.
3. Entitlement to pensionary benefits under Civil Services Regulations and Fundamental Rule 56.
4. Impact of the government order dated 5.5.2000 on service conditions.
5. Applicability of Supreme Court precedents on service conditions and pension entitlement.
6. Principles of estoppel and acquiescence regarding pension entitlement.
7. Scope and limits of review jurisdiction.

Detailed Analysis:

1. Error Apparent on the Face of the Judgment:
The applicant argued that there was an error apparent on the face of the judgment dated 3.4.2017. The court, however, found no such error that would justify a review. The principles for review were reiterated, emphasizing that a review is not an appeal in disguise and should be limited to correcting patent errors, not for rehearing the matter.

2. Applicability of Section 10 (1) and Section 10 (1-B) of the U.P. Trade Tax Act, 1948:
The court considered the provisions of Section 10 (1-B) of the Act, which states that the provisions of Rule 56 of the Uttar Pradesh Fundamental Rules apply to members of the Tribunal. The court held that the statutory rules cannot be modified by an executive order, thereby affirming that the petitioner was entitled to pensionary benefits under these provisions.

3. Entitlement to Pensionary Benefits under Civil Services Regulations and Fundamental Rule 56:
The court examined Fundamental Rule 56 (e), which provides for a retiring pension to every government servant who retires under this rule. The court concluded that the petitioner, having served for the qualifying period, was entitled to pensionary benefits as per the Civil Services Regulations and Fundamental Rule 56.

4. Impact of the Government Order Dated 5.5.2000 on Service Conditions:
The government order dated 5.5.2000 stated that the services of the petitioner were non-pensionable. However, the court held that this executive order could not override the statutory provisions of Rule 56, which had been made applicable to the petitioner by virtue of Section 10 (1-B) of the Act. The court emphasized that the government order could not have retrospective effect on the petitioner’s pension entitlement.

5. Applicability of Supreme Court Precedents on Service Conditions and Pension Entitlement:
The court reviewed the precedents cited by the Advocate General, including the cases of Nagpur Improvement Trust Vs. Y. J. Kumbhare and B.N. Nagarajan Vs. State of Mysore. The court found that these precedents did not apply to the facts and circumstances of the present case. The court reiterated that statutory rules take precedence over executive orders.

6. Principles of Estoppel and Acquiescence Regarding Pension Entitlement:
The court applied the principles of estoppel and acquiescence, stating that the State could not now claim that the petitioner was not entitled to pension after having allowed him to serve for the qualifying period. The court held that the State was estopped from denying pensionary benefits to the petitioner.

7. Scope and Limits of Review Jurisdiction:
The court extensively discussed the scope and limits of review jurisdiction, citing various Supreme Court judgments. It emphasized that a review is limited to correcting errors apparent on the face of the record and cannot be used to reargue the case. The court concluded that the grounds for review presented by the applicant did not meet the criteria for review as established by law.

Conclusion:
The application for review was dismissed as it lacked merit. The court upheld the judgment dated 3.4.2017, affirming the petitioner’s entitlement to pensionary benefits under the statutory provisions, and rejected the arguments based on the government order dated 5.5.2000 and other precedents cited by the Advocate General.

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