TaxTMI 
TaxTMI 
2021 (4) TMI 188
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.... was categorically mentioned that the services of the petitioner are not pensionable. The petitioner/opposite party was fully aware from the date of initial appointment that the services are not pensionable. He did not challenge the condition of service during the period of his service as member of the U.P. Trade Tax Tribunal. It was open to him to raise claim for pensionary benefit. 3. It is further submitted that the Division Bench of this Court has not considered that the petitioner/opposite party was appointed as per provisions contained in Section 10 (1) of the U.P. Trade Tax Act, 1948, therefore, the petitioner's services are not governed by the rules framed under the proviso to Article 309 of the Constitution of India. The petitioner is not entitled for pensionary benefits as per paragraph 361 of the Civil Services Regulations. The State Government invoking power under Section 10 (1-A) has issued government order dated 5.5.2000 whereby the conditions of service had been prescribed, under which, it has been provided that the services are non-pensionable, as such, the said government order dated 5.5.2000 cannot be held to be without jurisdiction. 4. It is further submitted ....
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....s of recruitment, etc., before a service can be constituted or a post created or filled. This is not to say that it is not desirable that ordinarily rules should be made on all matters which are susceptible of being embodied in rules. Secondly, the State Government has executive power, in relation to all matters with respect to which the Legislature of the State has power, to make laws. It follows from this that the State Government will have executive power in respect of List II, Entry 41, State Public Services. It was settled by this Court in Ram Jawaya Kapur V. State of Punjab, 1955-2 SCR 225 : (AIR 1955 SC 549), that it is not necessary that there must be a law already in existence before the executive is enabled to function and that the powers of the executive are limited merely to the carrying out of these laws. We see nothing in the terms of Article 309 of the Constitution which abridges the power of the executive to act under Art. 162 of the Constitution without a law. It is hardly necessary to mention that if there is a statutory rule or an act on the matter, the executive must abide by that act or rule and it cannot in exercise of the executive power under Art. 162 of t....
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....d Advocate General for the State/applicant and perused the record of Service Bench Petition No. 401 of 2005 (Mohd. Zubair Vs. U.P. State Public Service Tribunal). 11. The petitioner/opposite party Mohd. Zubair approached the U.P. State Public Service Tribunal by instituting Claim Petition No. 1444 of 2000, which was disposed of vide impugned judgment and order dated 3.5.2005 delivered by U.P. State Public Service Tribunal by which the claim petition of the petitioner was dismissed relying upon government order dated 5.5.2000 and held that the services of the petitioner was not pensionable as per provisions of the aforesaid government order. 12. The Division Bench of this Court considered the provisions of Section 10 (1-B) of Act 1948, which are reproduced as follows:- "(1-B) The provisions of Rule 56 of the Uttar Pradesh Fundamental Rules shall continue to apply to every member of the Tribunal including the President, whether appointed before or after the commencement of the Uttar Pradesh Sales Tax (Second Amendment and Validation) Act, 1983, as they apply to any other Government servant: Provided that a member of the Tribunal including the President appointed before the comm....
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....t, 1948." 15. We have also considered the provisions of Section 10 (1)(b) of U.P. Trade Tax Act, 1948 and Fundamental Rule 56 of U.P. Fundamental Rules. There is no dispute that the petitioner/opposite party applied for the post of Member of Sales Tax Tribunal, against two posts reserved for eligible advocates. As per requisition letter dated 13.12.1991 (Annexure No. 5) and after examining his application, he was appointed as Member of the U.P. Trade Tax Tribunal, through, U.P. Public Service Commission, Allahabad. 16. It is not the case of the applicant/State of U.P. that his appointment was against any provisions of U.P. Trade Tax Act, 1948 or publication for the aforesaid post (Annexure No. 6). The publication issued by the U.P. Public Service Commission, Allahabad is available on record. Although it is mentioned in the publication that the petitioner/opposite party was initially appointed for three years and his services was liable to be renewed for next two years. It is not disputed that the petitioner/opposite party served in U.P. Trade Tax Tribunal as member. The qualifying service has already been completed by the petitioner as per provisions of Civil Service Regulations ....
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....er, the following exposition of law is relevant:- 22. In Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh AIR 1964 SC 1372 the Court said: "A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error." 23. In Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma 1979 (4) SCC 389 the Court said: "... there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake 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 ....
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....oint is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction. Summary of the Principles: 20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute: 20.1. When the review will be maintainable:- (i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; (ii) Mistake or error apparent on the face of the record; (iii) Any other sufficient reason. 29. The words "any other sufficient reason" has been interpreted in Chhajju Ram vs. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius & Ors., AIR 1954 SC 526, to mean "a reason sufficient on grounds at least analogous to those specified in the rule". 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 eno....