Jammu & Kashmir High Court - Srinagar Bench
Nazir Ahmad Ganai vs State (Now Ut) Of J&K Through on 25 July, 2024
Bench: Sanjay Dhar, Wasim Sadiq Nargal
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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
RP No. 15/2024
In LPASW No. 178/2016
Nazir Ahmad Ganai
S/O Abdul Salam Ganai
R/O Hanjura, District Budgam.
...Petitioner(s)
Through: Mr. Shafqat Nazir, Advocate.
V/s
1. State (NOW UT) of J&K through
Commissioner Secretary to Government
General Administration Department,
Civil Secretariat Srinagar/Jammu.
2. Director, Hospitality and Protocol
Department, Srinagar/Jammu.
...Respondent(s)
3. Puneet Kour D/O Shri N. P. Singh R/O
Residency Road, Jammu.
... Proforma Respondent(s)
Through: Mr. Ilyas Nazir Laway, GA for R-1 and 2.
CORAM:
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE.
HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE.
JUDGMENT
Per Wasim Sadiq Nargal (J):
01. The instant review petition has been preferred by the Petitioner-Nazir Ahmad Ganai under Rule 65 of the Jammu & Kashmir High Court Rules, seeking review/clarification/rectification of Order dated 27th February, 2024 passed by the Division Bench of this Court in LPASW No. 178/2016.
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02. Before adverting to the grounds of challenge urged in the present review petition, it would be apt to give a brief factual background of the case, which led to the passing of the order by the Division Bench dated 27th February, 2024, which is sought to be reviewed through the medium of the instant review petition.
03. The Division Bench of this Court has dealt with the issue of appointment of respondent No.3 (respondent No.2 before Appellate Court) which was accorded in December, 1999 as an Assistant Housekeeper in the Hospitality and Protocol Department, to which the review petitioner, (Respondent No. 1 before the Appellate Court) was also an aspirant.
04. The subject matter before the Division Bench of this Court was the Order dated 9th October, 2015 passed by Learned Single Bench in SWP 2209/1999, filed by the petitioner herein, whereby, taking into account the appointment of Respondent No. 2 (Respondent No. 3 herein) which had continued undisturbed for sixteen years at that relevant point of time, the learned Single Bench declined to interfere with her appointment.
05. The learned Single Bench after according consideration to the fact that the Respondent No. 1 (petitioner herein) was also seeking appointment to the said post, had directed his appointment by way of transfer, to the Hospitality and Protocol Department, against the post for which he possesses the requisite qualifications. This order was called in question by the Government before the Division Bench of this Court through the medium of Letters Patent Appeal bearing LPASW No. 178/2016 and the Division Bench of this Court after hearing the learned counsel for the parties and also in the light of the stand taken in the pleadings, observed that the Respondent Page 2 of 13 RP No. 15/2024 No.2-Puneet Kour (Respondent No. 3 herein) was appointed as Assistant Housekeeper in the Hospitality and Protocol Department in December, 1999 against a vacant post, which was being claimed by the Respondent No. 1 (petitioner herein). The genesis of entire controversy started when the petitioner herein approached this Court earlier by filing a writ petition which being SWP No. 1040/1997 which came to be disposed of by the Writ Court on 3rd February, 1999 by directing the authorities to consider the case of the Respondent No. 1 (petitioner herein) along with other eligible candidates against the post of Assistant Housekeeper, as and when it becomes available with the Hospitality and Protocol Department and it was directed that same shall be in accordance with J&K Subordinate Service Recruitment Rules, 1992.
06. As a matter of record, despite the Court direction in the aforesaid writ petition, which required consideration to the case of the petitioner herein and other eligible candidates, the official respondents proceeded to appoint the Respondent No. 3 herein, which appointment became subject matter of challenge in SWP No. 2209/1999, out of which aforesaid appeal (LPASW No. 178/2016) has arisen.
07. The learned Single Bench in the aforementioned writ petition (SWP No. 2209/1999), was alive to the fact that the said post was filled up without advertising, but considering the fact that the incumbent had already been serving for sixteen years at the relevant point of time, invoked the principle of equity and declined to interfere with her appointment.
08. However, considering the fact that the present petitioner also had a right to be considered for appointment to the said post, for which he Page 3 of 13 RP No. 15/2024 had approached the writ court earlier as mentioned supra, the writ court was also inclined to grant certain benefits to him and observed that since the petitioner was already working as Field Operator in Fisheries Department, the writ Court vide order dated 9th October, 2015 directed the respondents to appoint the petitioner by way of transfer in the Hospitality and Protocol Department on a post of which he is possessed of requisite qualifications, within a period of four weeks.
09. Thus, from the record which has been produced before us, it is emphatically clear that what was assailed essentially before the Division Bench, was direction to the authorities qua writ petitioner to appoint him by way of transfer in the Hospitality and Protocol Department on the post of which the petitioner possesses the requisite qualification. The Division Bench of this Court being mindful of the fact that at the stage when the aforesaid order/judgment came to be passed i.e. 27th February, 2024 in LPASW No. 178/2016, the Respondent No.2 (Proforma Respondent No. 3 herein) had already completed more than twenty three years of service and since there was no stay on her appointment and also in the light of the fact that she continued her service uninterruptedly and this, was precisely the reason that the learned Single Bench has also made an observation that even after filing of the writ petition, she was allowed to continue and the fact that her appointment was not stayed, was sufficient for her to have a reasonable belief that her appointment would be maintained. In the light of the observations made by the learned Single Bench to the extent that the Respondent No. 3 herein has been prevented from securing employment elsewhere as also the fact that she may not be in a position to secure employment elsewhere, as she has crossed the age limit for securing the Page 4 of 13 RP No. 15/2024 employment, the Division Bench of this Court was not inclined to interfere with the decision of the learned Single Bench to maintain the appointment of the said respondent.
10. Insofar as the other direction of the learned Single Bench which was assailed by the Union Territory of J&K before the Division Bench is concerned, the Appellate Court has concurred with the arguments advanced by the learned counsel appearing on behalf of the appellants that no such direction could have been issued for appointment of the petitioner by way of transfer in the Hospitality and Protocol Department, since the same will amount to violation of the statutory rules governing the appointment. The Division Bench was also of the view that if there is any provision in the rules for appointment to such a post through transfer or deputation, the Respondent No. 1 (petitioner herein) would certainly be at liberty to apply for the same, which was required to be considered by the official respondents.
11. In the aforesaid backdrop, the Division Bench modified the order passed by the learned Single Bench dated 9th October, 2015 to the extent qua the petitioner herein by observing that as and when there occurs any vacancy in the Hospitality and Protocol Department to which the petitioner would also be eligible to be appointed, the Government can consider his appointment to such a post, through transfer/deputation, provided the rules permit, if the Respondent No. 1 (petitioner herein) makes such an application. This direction passed by the Division Bench is subject matter of the instant review petition.
12. The instant review petition has been preferred by the petitioner assailing the aforesaid order on the ground that because of some Page 5 of 13 RP No. 15/2024 miscommunication or typographical mistake, the word "shall" has been replaced by the word "can" in operative portion of the judgment, reflected in Paragraph 19 of the judgment, which has caused prejudice to the rights and interests of the review petitioner.
Arguments on behalf of the review petitioner.
13. Mr. Shafqat Nazir, learned counsel appearing on behalf of the petitioner has argued that certain documents especially Government order dated 30th January, 2023 was not in the knowledge of the review petitioner when the matter was heard by this Court and thus, according to him inspite of positive directions to consider the adjustment of the petitioner on the post of Assistant Housekeeper in the Hospitality and Protocol Department on the basis of his eligibility and qualification, more particularly in the light of the fact that the petitioner herein had been pursuing his remedies since 1997 and the proforma respondent herein has been allowed to continue in the department only on the ground that she has been there for a considerable period of time, it would not be in the interest of justice to disturb her.
14. Mr. Shafqat, learned counsel has also drawn attention of this Court to the fact that pursuant to the judgment passed by the Division Bench dated 27th February, 2024, vacancy of Assistant Housekeeper has fallen vacant in the Hospitality and Protocol Department on 1st March, 2024 and in the light of the order/judgment passed by this Court, the official respondents are under a legal obligation qua the petitioner to have accorded due consideration to the case of the petitioner in conformity with the order/ judgment passed by this Court, which is sought to be reviewed. Page 6 of 13 RP No. 15/2024
15. It has been further argued by Mr. Shafqat Nazir, learned counsel appearing on behalf of the petitioner that the petitioner is possessed of the requisite qualification for the post, as the petitioner is having diploma in the relevant field and has been pursuing his claim before this Court since 1997. It has also been argued by the learned counsel for the petitioner that the appointment of proforma respondent was per se illegal, however, she was allowed to continue in the department only on the ground of the length of her service, as the Division Bench of this Court did not deem it proper to disturb her, when she had already put more than two decades in the department. Arguments on behalf of the Respondents.
16. The record reveals that pursuant to the issuance of notice in the instant review petition, time was granted to the official respondents to file the reply, but no reply was filed and today, when the instant review petition was taken up for consideration, Mr. Ilyas Nazir Laway, learned Government Advocate has argued that there is no ground for reviewing the order passed by the Division Bench of this Court, as the order under review is perfect, legal and justified. He has further argued that the order can be reviewed only in case there is error apparent on the face of the record and since in the instant case there is none, as such, the instant review petition is not maintainable. He submits that in case the review petition is allowed and the order is reviewed, then it will change the entire complexion of the order by incorporating the word "shall" in place of word "can", which is not permissible under law, while exercising the power of review.
17. The only contention which has been raised by the learned counsel for the petitioner is that the word "shall" was required to be Page 7 of 13 RP No. 15/2024 incorporated in the operative portion of the judgment dated 27th February, 2024 instead of word "can" and the respondents under the garb of the word "can" are not according any consideration to the case of the petitioner. Thus on this ground alone, the instant review petition has been preferred. Legal Analysis:
18. We have heard the learned counsel for the parties at length, perused the material on record as also the operative portion of the judgment passed by Division Bench of this Court, whereby order passed by the learned Single Bench dated 9th October, 2015 was modified to the extent qua the petitioner herein, by observing that as and when there is any vacant post in the Hospitality and Protocol Department to which the petitioner is eligible to be appointed, the Government can consider him for appointment to such a post through transfer/deputation, providing the rules permit, if the Respondent No. 1 (petitioner herein) makes such an application.
19. The Division Bench was mindful of the fact that consideration to the case of the petitioner was only in the eventuality, if a post falls vacant in near future in the Hospitality and Protocol Department and secondly, the Government can consider his appointment to the said post through transfer/ deputation, provided the rules permit, if the Respondent No. 1 (petitioner herein) makes such an application. Thus, consideration to the case of the petitioner to the post in question was conditional, subject to:
(i) Falling of vacancy in the Hospitality and Protocol Department; and
(ii) To consider his appointment through transfer/ deputation provided the rules permit; and
(iii) If the petitioner makes an application, Page 8 of 13 RP No. 15/2024
20. Since, according to the learned counsel for the petitioner, the vacancy has fallen vacant in the Hospitality and Protocol Department, to which petitioner is eligible to be appointed, the Government as has already been observed in the order under review, can consider him for appointment to such a post through transfer/ deputation, provided the rules permit and not otherwise. Thus, we do not find any plausible reason to interfere with the order passed by the Division Bench, as there is no error apparent on the face of the record, which could be the basis for reviewing such order. The Division Bench was mindful of the fact that consideration to the appointment of the Respondent No. 1 (petitioner herein) to the post in question was only subject to "if rules permit" and thus, word "can" has been incorporated and not "shall". Thus, the argument advanced by the learned counsel for the petitioner in the instant review petition that word "shall" was required to be incorporated instead of "can" is bereft of any merit and liable to be rejected, as it is not a case which falls within the realm of error apparent on the face of the record and thus, cannot be a ground for reviewing a well-reasoned order passed by the Division Bench of this Court.
21. An order/judgment may be wrong, erroneous, incorrect, perverse, legally untenable, etc. etc., but, the only course available for the aggrieved party is to go in appeal of the said judgment. Such grounds do not constitute errors of fact or of law on the face of the record, as would call for a review.
22. A review cannot also be used as a tool for changing the opinion/ view of the Courts. In a review petition, it is only an error, apparent on the face of the record, which can be considered and gone into by the Court. Page 9 of 13 RP No. 15/2024 It is not open to the Courts, dealing with review of its decision, to re- appreciate the evidence and reach a different conclusion, even if that is possible. Conclusion arrived at, on appreciation of evidence and after hearing the rival parties, cannot be assailed in a review petition, unless it is shown that there is an error apparent on the face of the record. The power of review has to be exercised with extreme care, caution and circumspection, that too, only in exceptional cases.
23. Law on the subject is no more res integra. The Apex court of the country, in case titled 'Kamlesh Verma v. Mayawati & Ors.' reported in '(2013) 8 Supreme Court Cases 320', while dealing with a similar issue, at paragraph Nos. 13, 15, 16 and 18 has laid down as under:
"13. Review of the earlier order cannot be done unless the court is satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. This Court, in Col. Avtar Singh Sekhon v. Union of India & Ors. [1980 (Supp) SCC 562], held as under:
"12. A review is not a routine procedure. Here we resolved to hear Shri Kapil at length to remove any feeling that the party has been hurt without being heard. But we cannot review our earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. In Sow Chandra Kante v. Sheikh Habib this Court observed:
"1. .... A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.... The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality."
15. An error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review. A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected, but lies only for patent error..."
16. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. The power of review can be exercised for correction of a mistake but not to substitute a view. The mere Page 10 of 13 RP No. 15/2024 possibility of two views on the subject is not a ground for review...
18. Review is not re-hearing of an original matter. The power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. A repetition of old and overruled argument is not enough to re-open concluded adjudications....
24. A cue in this behalf can also be had from the decision rendered by a Division Bench of this High Court in the case of 'State of JK & Ors. vs. Govt. Handloom Silk Weaving Factory & Ors.', reported in '2016 (2) JKJ 795(HC)', wherein, it has been held as follows:
"13. At the very outset it needs to be kept in mind that review jurisdiction of the Court is limited. It is settled law that it is only an error apparent on the face of the record which can be considered and one into by the Court. In the present review petition, the grounds of facts of law urged in review petitions, as narrated above, including the submissions made at the Bar by the learned Counsels appearing in these review Petitions, which in content and substance were the same as taken in the respective review petitions, cannot in any manner be considered as errors on the face of record. Instead the grounds sought to be raised and urged may constitute grounds of appeal alone. In fact, the instant review petitions on grounds enumerated herein appear to be disguised Second Appeals. As noticed above, the grounds taken by the review petitioners are either that the findings recorded by the Court are not legally tenable, or that the same are perverse, or that the same are unacceptable. A judgment may be wrong, erroneous incorrect, perverse, legally untenable, etc. etc., the only course available for the aggrieved party is to go in appeal. Such grounds do not constitute errors of fact or of law on the face of the record as would call for a review."
25. We are further supported by the observations made by the Hon'ble Supreme Court in case titled "S. Murali Sundaram vs Jothibai Kannan and Others" reported in "2023 SCC Online SC 185", the relevant para of which is reproduced as under:
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"15. While considering the aforesaid issue two decisions of this Court on Order 47 Rule 1 read with Section 114 CPC are required to be referred to? In the case of Perry Kansagra (supra) this Court has observed that while exercising the review jurisdiction in an application under Order 47 Rule 1 read with Section 114 CPC, the Review Court does not sit in appeal over its own order. It is observed that a rehearing of the matter is impermissible in law. It is further observed that review is not appeal in disguise. It is observed that power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. It is further observed that it is wholly unjustified and exhibits a tendency to rewrite a judgment by which the controversy has been finally decided. After considering catena of decisions on exercise of review powers and principles relating to exercise of review jurisdiction under Order 47 Rule 1 CPC this Court had summed upon as under:
"(i) Review proceedings are not by way of appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.
(ii) Power of review may be exercised when some mistake or error apparent on the fact of record is found. But error on the face of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on the points where there may conceivably by two opinions.
(iii) Power of review may not be exercised on the ground that the decision was erroneous on merits.
(iv) Power of review can also be exercised for any sufficient reason which is wide enough to include a misconception of fact or law by a court or even an advocate.
(v) An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit.
16. It is further observed in the said decision that an error which is required to be detected by a process of reasoning can hardly be said to be an error on the face of the record."
Conclusion:
26. From a bare perusal of the law discussed hereinabove, it is manifestly clear that the scope of review is very limited. The power of review Page 12 of 13 RP No. 15/2024 is exercised when some mistake or error, apparent on the face of the record, is found. A mistake or an error, apparent on the face of the record, means a mistake or an error which is, prima facie, visible and does not require any detailed examination. Such an error must strike one, on mere looking at the record and should not require any long-drawn process of reasoning on the points where there may, conceivably, be two opinions. In the present case, the review petitioner has not been able to point out any error, apparent on the face of the record, but, on the contrary, under the guise of the instant review petition, the petitioner herein is challenging the order passed by Division Bench of this Court i.e. order dated 27th February, 2024 passed in LPASW No. 178/2016.
27. Thus, in the light of what has been discussed and observed hereinabove, coupled with the law on the subject, We do not find any reasonable ground or plausible reason to interfere with the Order dated 27th February, 2024 passed by this Court in LPASW No. 178/2016, as the said order is perfectly legal and justified and the instant review is found to be without merits, as a sequel thereto, the same shall stand dismissed. However, no order as to costs.
(WASIM SADIQ NARGAL) (SANJAY DHAR)
JUDGE JUDGE
SRINAGAR:
25.07.2024
"HAMID"
i. Whether the Judgment is Reportable: Yes/No
ii. Whether the Judgment is Speaking: Yes/No
Abdul Hamid Bhat
I attest to the accuracy and
authenticity of this document
12.08.2024
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