Jammu & Kashmir High Court - Srinagar Bench
Mushtaq Ahmad Pathan & Ors vs State Of J&K & Others on 1 December, 2021
Author: Sanjay Dhar
Bench: Sanjay Dhar
Sr. No.55
Advance List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
RPSW No.09/2017
MUSHTAQ AHMAD PATHAN & ORS. ...PETITIONER(S)
Through: Mr. M. Ashraf wani, Advocate
Vs.
STATE OF J&K & OTHERS ...RESPONDENT(S)
Through: Mr. Irfan Andleeb, Dy. AG.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE (ORDER)(ORAL)
1. Instant review petition has been filed by the review petitioners seeking review of order dated 10.05.2016 passed in writ petition bearing SWP No.415/2011 whereby writ petition of the review petitioners has been disposed of.
2. It appears from the record that review petitioners had filed a writ petition challenging the selection list issued pursuant to advertisement notice bearing No.PERS- 21/2010/14840-903 dated 07.04.2010 issued by official respondents, whereby 253 posts of Constables in District Budgam were advertised. It was contended by writ petitioners that the selection was made by the official 2 RPSW No.17/2017 respondents in derogation of the advertisement notice as well as reservation rules. It appears that on 10.05.2016, on the basis of the statement made by learned counsel for the petitioners, the petition came to be disposed of by the Writ Court with a direction to the official respondents to consider the petitioners for appointment on the posts of Constable in District Budgam in Schedule Tribe Category, if the posts have become available because of non-joining of candidates in the said category.
3. The review petitioners are aggrieved of the aforesaid order on the grounds that the Writ Court has not recorded any finding on the merits of the case; that the statement made by learned counsel for the petitioners at the time of disposal of the writ petition is self-destructive and that the writ petition raised important questions which had bearing upon vital rights of the petitioners.
4. I have heard learned counsel for the parties and perused the record.
5. Before proceeding to consider the contentions raised by the review petitioner, it is necessary to notice the legal position as regards the scope of review. 3 RPSW No.17/2017
6. Rule 65 of the Jammu and Kashmir High Court Rules, 1999 deals with power of the High Court with regard to the review of a judgment. It reads as under:
"65. Application for review of judgment- The Court may review its judgment or order but no application for review shall be entertained except on the ground mentioned in order XLVII Rule 1 of the Code."
7. From a perusal of the aforesaid provision, it is clear that a plea for review of a judgment can be entertained only on the grounds mentioned in Order XLVII Rule 1 of the Code of Civil Procedure(CPC). Here it would be apt to quote the provisions contained in Order XLVII Rule 1 of the CPC, which reads as under:
"1. Application for review of judgment-"(1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a court of small causes, and who, from the discovery of new an important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is 4 RPSW No.17/2017 common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.
[Explanation:- The fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for review of such judgment.] "
8. From a perusal of the aforesaid provision, it is clear that review of a judgment can be made on the following grounds:
(i) if it is shown by the aggrieved person that a new and important matter and evidence which, after exercise of due diligence, was not within his knowledge or could not be produced by him, has been discovered.
(ii) if there is some mistake or error apparent on the face of record and
(iii) for any other sufficient reason.
The expression "for any sufficient reason" has been interpreted by the Courts to mean for a reason analogous to the first two reasons.
9. Coming to the facts of the instant case, the writ petition has been disposed of on the basis of the statement made by learned counsel for the petitioners and a direction has been issued to the official respondents to consider the petitioners for appointment on the posts of Constable in District Budgam in Schedule Tribe Category, if the posts have become available because of non-joining of candidates in the said category. It is not the case of review petitioners that the counsel was not authorized to make 5 RPSW No.17/2017 such a statement nor is it their case that the counsel representing the writ petitioners was not engaged by them. Once counsel for the petitioners made a request to the Court to extend a direction to the official respondents for consideration of case of the petitioner, it is not open to the review petitioners now to resile from the same and contend that the merits of the case were not considered by the Writ Court. There is no error apparent on the face of the order sought to be reviewed nor it is a case where any new and important matter or evidence, which was not within the knowledge of the writ petitioners, has been brought to the notice of this Court.
10. For what has been discussed hereinabove, I do not find any error apparent on the face of record which would warrant exercise of jurisdiction of review by this Court. The review petition is, accordingly, dismissed.
(Sanjay Dhar) Judge Srinagar 01.12.2021 "Bhat Altaf, PS"
Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No MOHAMMAD ALTAF BHAT 2021.12.02 13:37 I attest to the accuracy and integrity of this document