Jammu & Kashmir High Court - Srinagar Bench
Asgar Ali & Anr vs Union on 20 May, 2014
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR Cond. Of Delay Nos. 122 of 2013, 123 of 2013, 151 of 2013&183 of 2013 Review Petition Nos. 06 of 2013, 07 of 2013, 13 of 2013, 18 of 2013 SWP NO. 922 of 2014 CMP NO. 1462 of 2014 Asgar Ali & anr. Petitioners State of JK and others Respondents !Mr. C. S. Azad, Advocate ^Mr. Jahangir Iqbal Ganai, Advocate Honble Mr. Justice, M. M. Kumar, Chief Justice Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 20/05/2014 : J U D G M E N T :
(Muzaffar Hussain Attar) 1/- Review Petitions have been filed seeking review of the judgment dated 26th December, 2012 passed in LPA NO: 212/2007 and LPA NO. 217/2007. Review petitioners had challenged the aforementioned judgment of the Letters Patent Bench of this Court by filing Special Leave Petition before the Honble Supreme Court. Learned counsel for the appellant(s)/petitioner(s) sought permission of the Honble Supreme Court to withdraw the Special Leave petition, so as to enable the petitioner(s) to file Review Petitions before this Court. The Honble Supreme Court granted the permission and Special leave Petitions were dismissed as withdrawn.
2/- It is in this backdrop, Review Petitions have been filed. Since the Review Petitions have been filed beyond the prescribed time, applications seeking condonation of delay in filing the same have been filed. Despite service, nobody appeared on behalf of the respondents 3 to 5, 8 and 9. The appearing respondents were granted opportunity to file objections. The said respondents have failed to avail the opportunity.
3/- We have considered the applications seeking condonation of delay for filing the Review Petitions. The delay in filing the Review petitions has occasioned, because the judgment of the Letters Patent Bench of this Court was challenged before the Honble Supreme Court. In view of the submissions made at bar and the pleadings made in the applications, we are satisfied that sufficient explanation has been given for filing the Review Petitions beyond the period of limitation. These applications are allowed and delay in filing the Review Petitions are condoned. Review Petition Nos: 06/2013, 07/2013, 13/2013,18/2013 1/- The Review Petitioners and the private respondents are members of the Jammu and Kashmir (Gazetted) Service constituted under Jammu and Kashmir Engineering (Gazetted) Service Recruitment Rules, 1978. The Review Petitioners belong to ST category, whereas, respondents/writ petitioners are open merit category candidates. These two sets of employees got entangled into litigations for getting their seniority settled. 2/- The respondents/writ petitioners thrust of arguments before the writ court was that though Review Petitioners have stolen march over them in the matter of promotion for the only reason that they belonged to ST category but that would not entitle them to rank senior in the higher category/class of service. The writ Court accepted the claim of the open merit category candidates and ruled in their favour.
3/- Review Petitioners as also the State of Jammu and Kashmir challenged the said judgment before the Letters Patent Bench, which Bench vide its judgment dated 26th December, 2012 dismissed the same.
4/- Mr. C. S. Azad, learned counsel for the Review Petitioners submitted that the impact of the law laid down by the Honble Supreme court in case M. Nagaraj and others(petitioners) vs. Union of India (respondents) reported in (2006)8 SCC 212 has not been considered by the Letters Patent Bench while deciding the appeals. Learned counsel submitted that, had the Letters Patent Bench applied the law laid down in the Nagarajs case supra, the Appeals would have been allowed and the judgment of the writ Court would have been set aside. Learned counsel referred to the Nagarajs case supra and submitted that the principle of catch up rule prescribed by the Honble Supreme Court in Ajit Singhs case reported in (1999)7 SCC 209 has been over ruled in Nagarajs case. Learned counsel further submitted that the reliance on the Ajit Singhs case in the judgment under Review would constitute an error apparent on the face of the record which would warrant re-calling of the said judgment. Learned counsel further submitted that the law laid down in Nagarajs case is binding on this Court. Learned counsel accordingly prayed for allowing the Review petitions and re-calling the judgment under Review.
5/- In the scheme of judicial philosophy, power to review its orders and judgments, conferred on court is an exceptional power. The orders/judgments of the Courts, if found wrong or illegal are corrected by the higher courts and in the High Court this function is performed by Bench of two judges in an intra Court Appeal. It is settled position in law that Appeal is continuation of original proceedings. The Appeal Court has vast powers and can correct the errors of both law and fact. In contradistinction thereto, the power of reviewing the orders/judgments by the Court is limited and circumscribed. In exercise of power of review, Court can correct the mistake which is apparent on the face of record and for which there is no need to delve deep in the record of the case and to hear it at great length.
6/- True it is that no human being is perfect. Human fallabilities are known fact. Trust has been reposed in the Court by conferring power of Review on it. This faith is based on the principle that mistake apparent on the face of record when brought to the notice of the Court will be corrected. The power of Review thus is solemn power conferred on the same Court which has passed the original order/judgment. The Court in the appropriate cases has been and will continue to review its orders/judgments when a mistake which is apparent on the face of the record stares at the face of the court.
7/- In the aforestated backdrop, it would require to be seen as to whether the present Review Petitions deserve to be allowed or not.
8/- The sheet anchor of the argument of learned counsel for the Review petitioners is non-consideration of decision of the Honble Supreme Court rendered in Nagarajs case supra. In Nagarajs case, petitions under Article 32 of the Constitution of India were filed for issuance of appropriate writ declaring the Constitution (Eighty-fifth Amendment) Act, 2001 as unconstitutional. According to 85th Amendment, Article 16 (4-A) of the Constitution was inserted in the Constitution retrospectively from 17th June, 1995. In another writ petition which was also considered in Nagarajs case, Constitutional validity, interpretation and implementation of the Constitution (Seventy-seventh Amendment) Act, 1995, the Constitution (Eighty-first Amendment) Act, 2000, the Constitution (Eighty- fifth Amendment) Act, 2001 was considered. 9/- All the aforementioned Constitutional amendments have not been made applicable to the State of Jammu and Kashmir. The complete mechanism has been prescribed for application of provisions of Constitution to the State of Jammu and Kashmir. In terms of (Eighty-fifth Amendment) Act, 2001, amendment has been made in Article 16(4-A) of the Constitution and for words in matters of promotion of any class, words in matters of promotion, with consequential seniority, to any class has been substituted. As already stated these Constitutional amendments have not been made applicable to the State of Jammu and Kashmir, the law laid down by Honble Supreme Court in Nagarajs case in which Honble Supreme Court was considering the Constitutional validity of those amendments would not thus be applicable to the State of Jammu and Kashmir. The law laid down in Nagarajs case supra accordingly is not applicable to the State of Jammu and Kashmir. The Honble Supreme Court at paragraph 124 of the Nagarajs case upheld the Constitutional validity of the provisions of the Amendment Act(s) of 1995, 2000 and 2001 subject to the conclusions arrived at paragraph 121 to 123.
10/- In the aforestated backdrop, it is our considered view there is no error apparent on the face of the judgment under Review. 11/- For the aforestated reasons, these Review Petitions being meritless are dismissed.
SWP NO: 922/20014 CMP NO: 1462/2014 1/- Review petitioner Mr. Asgar Ali has filed writ petition bearing SWP NO: 922/2014, wherein he has called in question letter/order No. GAD(Ser)Genl/38/2013 dated 22-01-2014. It has been further prayed that respondents be directed to follow the law laid down by Honble Supreme Court in M. Nagarajs case reported in (2006)8 SCC 212. The communication is taken note of:
Government of Jammu and Kashmir General Administration Department Subject: LPA No. 212/2007 titled State Vs. Abdul Rashid and others- reframing of seniority list thereof.
Reference: U.O. No. PDD/V/85/2005(ii) Principal Secretary to Government, Power Development Department may refer to the above mentioned subject. The matter was taken up with the Department of Law, Justice and Parliamentary Affairs who vide U. O. No. LD(SER)2009/32-R&B Dated 16.1.2014 have opined as under:
Since Article 16(4A) of the Constitution of India is not applicable to the State of Jammu and Kashmir as the Constitution (Seventy-Seventh Amendment) Act, 1995, and the Constitution (Eight-Fifth Amendment) Act, 2001 have not been established to the State, the law declared by the Honble Supreme Court inVirpal Singh Chauhan case (1995)6-SCC 684 and Ajit Singh Case (AIR 1999) SC-3471, occupy the field so far as the issue of seniority of reserved category promotees is concerned. The judgment of the Division Bench of the State High court in case State Vs. Abdul Rashid and others is inconsonance with the law declared by the Supreme court and , therefore, governs the issue of reservations of roster point promotees vis-`-vis open merit candidates.
This being the stated position of law, the undersigned is directed to request him to take further necessary action in the matter, accordingly. The departmental file is being returned separately.
Sd/-
(Khalid Majeed) Deputy Secretary to Government General Administration Department 2/- In view of the decision rendered by Letters Patent Bench of this Court in LPA NO. 212/2007 and LPA No. 217/2007 and dismissal of Review petition Nos: 06/2013, 07/2013, 13/2013,18/2013, this writ petition is dismissed alongwith connected CMP(s).
(Muzaffar Hussain Attar) (M. M. Kumar)
Judge Chief Justice
Srinagar
May, 20th, 2014
Imtiyaz