( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 592 OF 2002 Anilkumar s/o Baikunthnarayan Tripathi, R/o c/o Mr. Hemant Auchit Choudhari, `Matri Pitri Chhaya’, Behind Municipal Girls High School, Faizpur, Dist. Jalgaon. PETITIONER VERSUS 1. North Maharashtra University, Jalgaon, through its Registrar. 2. The Pune University, Pune, through its Registrar. 3. The Principal, Technical & Medical Education Society’s J.T.M. College of Engineering, Jivram Nagar, Faizpur, Dist. Jalgaon. RESPONDENTS ..... Smt. Manjusha Deshpande, advocate for the petitioner. Mr. A.B. Girase, advocate, holding for Mr. R.B. Raghuwanshi, advocate for respondent No. 1. Mr. S.V. Natu, advocate holding for Mr. A.R. Joshi, advocate for respondent No. 2. None for respondent No. 3. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 23rd June, 2009] ( 2 ) ORAL JUDGEMENT : 1. By this petition, petitioner seeks to challenge judgement and order rendered by the learned Presiding Officer, University and College Tribunal, Aurangabad on 5th July, 2001 in Review Petition No. 1/2001. By the impugned judgement and order, the learned Presiding Officer reviewed the earlier judgement and order dated 15-01-2001 in appeal No. ADM-55/2000 and dismissed the appeal which was allowed earlier. 2. The petitioner was admittedly student of J.T.M. College of Engineering, Faizpur (District Jalgaon). He was admitted to the Engineering course in the academic year 1987-88 in the said college. There is no dispute about the fact that at the material time, the J.T.M. College of Engineering, Faizpur was affiliated to Poona University. The petitioner cleared his first year of engineering degree course and was declared as passed. For the academic year 1991-92, he appeared for the ( 3 ) second year examination of the engineering course. He was allowed to keep the terms (A.T.K.T.). In the academic year 1992-93, he was admitted to the third year course of engineering. He could not, however, successfully pass the third year examination held in May, 2000. He was declared to have failed in the third year examination. The petitioner was student of engineering course (old). In the meanwhile, on 15th August, 1990, North Maharashtra University, Jalgaon was established. The said University, however, became functional from academic year 1991-92. The student of engineering course (old) continued to appear for the engineering course examinations of the Poona University though the college was affiliated to the North Maharashtra University, Jalgaon. By a circular No. UMV/7-A/Engg/ATKT/1791/2000 dated 05-07-2000, the North Maharashtra University (N.M.U.) decided to allow the students who were obtaining education in third year engineering course (old) to appear for final year engineering (B.E.) course for 2000-2001. The only condition was that such student ought to be one who cleared the subjects for the first three (3) years, more ( 4 ) than five in number. Thus, a student who had failed in five (5) subjects for the first three (3) years course, could be admitted to appear for examination of the final year engineering course. This was a concession only for academic year 2000-2001. The concession was sought to be availed by the petitioner. He, therefore, made a representation and requested the Principal to allow his admission for the final year B.E. course for the year 2000. His application dated 18-08-2000 was rejected by the Principal on the ground that he was ineligible for regular admission for the sessions in 2000-2001 as per the then existing rules. He persuaded the Registrar, North Maharashtra University to grant him permission to appear for the final year examination by his application dated 14-08-2000. He was denied the benefit of concession granted vide the above mentioned circular of the North Maharashtra University. 3. Feeling aggrieved, he filed appeal No. ADM-55/2000 before the University and College Tribunal, Aurangabad. ( 5 ) 4. It is pertinent to note that at the time of hearing of the appeal, the learned advocate for the petitioner was present, but none had appeared for the North Maharashtra University, the Poona University and the Principal of the J.T.M. College who were the respondents. By judgement dated 15-01-2001, the learned Presiding Officer allowed appeal of the petitioner. The learned Presiding Officer considered pleadings of the North Maharashtra University. It was asserted by the North Maharashtra University that the petitioner was student of Poona University and without migration certificate for the fourth year engineering course, he could not avail benefit of the circular in question. The learned Presiding Officer came to the conclusion that section 112 of the North Maharashtra University Act was attracted and, therefore, all the colleges which were erstwhile affiliated to Poona University were entitled to receive same privileges of the Poona University after they had been transferred to the North Maharashtra University. The learned Presiding Officer held that the J.T.M. College was automatically affiliated to North Maharashtra University w.e.f. 15-08-1990 and, therefore, ( 6 ) the student of the said college became student under the North Maharashtra University. In the wake of such findings, the learned Presiding Officer held that there was no need to obtain migration certificate by the petitioner from Poona University to become student of the North Maharashtra University and as such, he was entitled to avail benefit of the circular in question. The learned Presiding Officer, therefore, directed to admit the petitioner to the engineering degree course of the North Maharashtra University as per his entitlement. 5. By filing an application in the month of February, 2001, the North Maharashtra University sought review of the earlier judgement and order rendered by the learned Presiding Officer on 15-01-2001. The review petition No. 1/2001 was heard by the learned Presiding Officer. The learned Presiding Officer accepted contentions of the North Maharashtra University and dismissed the appeal by the impugned judgement and order. 6. Heard learned counsel for the petitioner and ( 7 ) for respondents No. 1 and 2. None appears for respondent No. 3. 7. It is important to notice that the review application was allowed for the reason that the petitioner was allowed to keep terms by the Poona University from the academic year 1991-92 and had passed first and second years of engineering course from the said University. It was noticed that in May, 2000, he had appeared for the third year engineering course examination conducted by the Pona University. It was for such reason that the learned Presiding Officer came to the conclusion that the petitioner was student of Poona University and to could obtain admission for the final year B.E. Course of the North Maharashtra University. 8. The significant questions involved in this petition are : (i) Whether, in the facts and circumstances of the present case, it was necessary for the ( 8 ) petitioner to obtain migration certificate of Poona University so as to seek admission to the engineering degree course or to keep terms for the third/fourth year of engineering course (old) of the North Maharashtra University when he continued to be student of the same college which was transferred and affiliated to North Maharashtra University after establishment of the said University ? (ii) Whether the Presiding Officer of the University and College Tribunal exceeded his powers in allowing the review petition though the limited powers will not permit re-calling of the earlier judgement in its entirety and that the review application was outside the pale of Order-XLVII Rule-1 of the Code of Civil Procedure ? 9. At the threshold, let it be noted that the petitioner has grown in age and much time has elapsed. I, therefore, ascertained from the learned counsel for the petitioner as to whether the petitioner is still willing to continue his studies in the same college for the engineering course. The learned counsel makes a statement that the petitioner is anxious to continue his ( 9 ) studies. It is contended that the petitioner was mentally unwell during the relevant period and, therefore, could not pass the third year engineering course. He, however, wanted to continue the study. He asserted that he had gone to native place due to ill- health and mental depression. He could not come out of the medical problems for a long drawn period. The learned Presiding Officer considered these difficulties while allowing the appeal as per order dated 15-01-2001. 10. Clinching question is whether the learned Presiding Officer, University and College Tribunal could have reviewed his judgement in appeal No. ADM-55/2000 and moreover whether the entire judgement could be reviewed in order to substitute de novo judgement which is diagonally opposite to the earlier findings of the Tribunal. The impugned judgement shows that the review petition was allowed for the reason that the petitioner continued to keep his terms with the Poona University and appeared at the examination conducted by the Poona University and he appeared for such examination even in the month of May, 2000 as external student. These facts ( 10 ) were not unknown to the Registrar of North Maharashtra University or the college authorities. The petitioner was required to apply for obtaining benefit of the concession granted by the North Maharashtra University. The affiliation of the J.T.M. College of Engineering, Faizpur was transferred to North Maharashtra University due to the establishment of the latter University. The affiliation of the college obviously made the petitioner eligible to appear for the B.E. IIIrd year examination from the North Maharashtra University because except and save his giving of examination from Poona University as an external candidate, he did not by any positive act had abandoned his studentship of the J.T.M. College of Engineering and the North Maharashtra University. He had not appeared for the B.E. IIIrd year examination from the Poona University as regular candidate through any other college. Had it been a fact that he had taken admission in a college affiliated to Poona University, then the question of migration certificate could be raised by the North Maharashtra University. The order passed by the learned Principal on the application of the petitioner is somewhat cryptic. His application ( 11 ) dated 18-08-2000 is rejected by passing following order : “As per the existing rules of North Maharashtra University, Jalgaon, regular admission in BE (E&T.C.) can not be given in this college in the session 2000-2001.” The learned Principal did not assign any particular Rule/reasons which would prohibit admission of the petitioner in the college affiliated to the North Maharashtra University. He was continuously the student of the J.T.M. College of Engineering, Faizpur and had applied through the Principal of the said college. The learned Principal could have referred the issue to the appropriate Committee or the Vice Chancellor as the case may be. Without referring to any particular rule, he dismissed the application dated 18-08-2000. It is of common knowledge that there is a Grievance Cell, the Senate of the University and the Vice Chancellor also can be moved to take appropriate decision in such a matter. The order dated 18-08-2000 rendered by the learned Principal is only administrative order. ( 12 ) 11. It is well settled that the review power is creature of statute. Unless there is specific provision in the statute whereby the Presiding Officer of the University and College Tribunal is empowered to review his own judgement, such power could not have been exercised. It is conspicuous that the entire text of the earlier judgement is changed while allowing the review petition of the respondent No.1. In “Patel Narshi Thakershi and others v. Pradyumansinghji Arjunsinghji” (AIR 1970 S.C. 1273), the Apex Court held that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The Apex Court observed : “The order passed by Mr. Mankodi, in law amounted to a review of the order made by Saurashtra Government. It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to our notice from which it could be gathered that the ( 13 ) Government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order.” The learned counsel for the respondent No.1, in the present case, could not pinpoint as to under which provision, the University and College Tribunal can exercise the review power in such a matter. 12. The Apex Court in “Kapra Mazdoor Ekta Union v. Management of M/s Birla Cotton Spinning and Weaving Mills Ltd. and others” (2005 AIR SCW 1561), held that the Industrial Tribunal had become functus officio after the award was passed under section 17-A of the Industrial Disputes Act and, therefore, had no power to recall the award. The Apex Court observed : “Applying these principles it is apparent that where a Court or quasi judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgement or order can be reviewed on merit only if the Court or the quasi-judicial authority is vested with power ( 14 ) of review by express provision or by necessary implication. The procedural review belongs to a different category. In such a review, the Court or quasi judicial authority having jurisdiction to adjudicate proceeds to do so, but in doing so commits a procedural illegality which goes to the root of the matter and invalidates the proceeding itself, and consequently the order passed therein. Cases where a decision is rendered by the Court or quasi judicial authority without notice to the opposite party or under a mistaken impression that the notice had been served upon the opposite party, or where a matter is taken up for hearing and decision on a date other than the date fixed for its hearing, are some illustrative cases in which the power of procedural review may be invoked. In such a case the party seeking review or recall of the order does not have to substantiate the ground that the order passed suffers from an error apparent on the face of the record or any other ground which may justify a review.” 13. In “Kuwarben Chhabildas Patel through her C.A. Pratapsingh Chhabildas Patel v. State of Maharashtra and others” 2003 (3) Mh.L.J. 948, a Single Bench of this ( 15 ) Court held that the Slum Tribunal constituted under the Maharashtra Slum Areas (Improvement, Clearance and Re- development) Act, 1971, cannot exercise the review powers. 14. Apart from absence of the review power, let it be noted that the entire text of the earlier judgement has been changed by the impugned judgement rendered in the exercise of the review power. In other words, the learned Presiding Officer of the University and College Tribunal assumed role of the appellate authority. It is well settled that review power cannot be exercised likewise appellate power. The review petition cannot be treated like an appeal and the entire text of the previous judgement cannot be completely changed. The parameters available under section 114 and under Order- XLVII Rule-1/2 of the Code of Civil Procedure have not been followed by the learned Presiding Officer of the University and College Tribunal, Aurangabad while allowing the review petition No. 1/2001. Under these circumstances, the impugned judgement is quite unsustainable in the eye of law. ( 16 ) 15. In the result, the petition is allowed. The impugned judgement and order is quashed. Rule is made absolute accordingly. It is made clear, however, that if due to certain technicalities, the order of the Tribunal in appeal No. ADM-55/2000 cannot be translated into action, then the respondent No. 1 would be at liberty to take appropriate legal measure for moulding of the relief in accordance with the law. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/WP592-02