Jammu & Kashmir High Court - Srinagar Bench
Syed Barjas Akhtar vs . State Of Jk & Ors. on 9 April, 2019
Bench: Ali Mohammad Magrey, Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
RPLPA No. 02/2019 in
LPASW No. 18/2018
Date of Order: 9th of April, 2019.
Syed Barjas Akhtar Vs. State of JK & Ors.
Coram:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
Hon'ble Mr Justice Sanjeev Kumar, Judge.
Appearance:
For the Petitioner(s): Mr J. H. Reshi, Advocate.
For the Respondent(s):
i) Whether approved for reporting in Press/ Media: Yes/No
ii) Whether approved for reporting in Digest/ Journal: Yes/No
Per Magrey, J;
01. The petitioner/ appellant, by medium of this review petition, is seeking
review of judgment dated 8th of March, 2019, passed in LPASW No. 18/2019,
whereby and whereunder the appeal of the appellant/ review petitioner herein
stands dismissed, operative portion whereof reads as under:
"20/- In the circumstances, the LPA, being without any merit, fails,
and is dismissed as such. The impugned judgment and order is upheld.
The respondents are directed to initiate a process of selection against the
post in question and consider all eligible candidates including the
appellant and respondent no.6 if at all they fulfill the eligibility criteria."
02. The review petitioner/ appellant is seeking the review of judgment
aforesaid, inter alia, on the following grounds:
(i) "That the order of disengagement, of the petitioner impugned in
the OWP 2473/2013, as anganwari worker in the anganwari
center Ringmando-B, Laripora, Tehsil Doru, District Anantnag is
per se illegal and bad in law for reason it has been passed
without any prior notice or opportunity of being heard
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whatsoever given to her despite of the fact the Hon'ble Court of
Principal District Judge by his order dated 24.11.2012 passed in
the case has asked official respondents to consider both plaintiff
as the petitioner herein but for some ulterior motive, the said
order had been given an altogether different interpretation and
meaning;
(ii) That the Hon'ble writ court has been pleased to decide the writ
petition filed as against aforesaid order at her back as the learned
counsel engaged by her, had chosen not to appear when the case
had come up for hearing as such said Hon'ble writ court had no
opportunity or occasion to appreciate true facts in the right
perspective;
(iii) That the fact of the matter is that the said post of anganwari
worker occupied by the petitioner since last more twelve years in
the anganwari centre Ringmando-B, Larkipora, Teshil Doru,
District Anantnag was properly advertised and given due
publicity along with other such 38 vacancies vide an
advertisement No.28/SW of 2008 dated 24.03.2008 available in
the ICDS Project, Larkipora, Tehsil Doru, District Anantnag.
Copy thereof is annexed to the review petition as Annexure-ll;
(iv) That the submissions of the learned counsel appearing for the
state/official respondents recorded by Hon'ble court at Para 6 of
the judgment herein are totally contrary to the stand taken by the
official respondents in the objection filed by them before the
Hon'ble writ court which have not been taken into consideration
or considered by the Hon'ble writ court or by this Hon'ble court
at all;
(v) That it is the admitted case of the official respondents as proper
response was received and no eligible candidate from the said
hamlet had applied for filling up of the of the aforesaid post, in
terms of the aforesaid advertisement notice, therefore no merit list
could be framed by the selection committee, and in the interest of
administration and on the recommendation of the MLA
concerned, petitioner was engaged subject to the approval of the
selection committee and that she is continuing to work on the said
post satisfactorily till date;
(vi) That the petitioner is not the only non-local candidate who was
appointed as such anganwari worker, in terms of aforesaid
advertisement notice but other candidates were also appointed
along with her to fill up the vaccines against which no application
were received in terms of aforesaid advertisement and no suitable
candidate was found within such hamlet, in a manner like this.
Apart from this, scores of such other non-local candidates have
been appointed at different anganwai centres across the state on
need basis wherever no applications were received or local
suitable candidate were not available at right point of time;
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(vii) That the submission of the learned counsel, appearing for the
private respondent No.6, recorded at para 7 of the judgment that
she was the only eligible candidate, who had applied for the said
post and was denied appointment, is belied by her own record,
pleadings and the stand taken by the official respondents in the
case;
(viii) That the Hon'ble writ court has wrongly held that parameters
provided under the Government Order No. 07-SW of 2010 dated
18.01.2010 for appointment of anganwari workers have not been
complied with but stand flouted with impunity while making of
appointment of the petitioner as against the said post when as a
matter of the fact said government order was prospective in
nature while as the petitioner had been appointed as AWW way
back in the year 2008 and this Hon'ble Court has committed any
error and mistake of fact and law by upholding the same view;
(ix) That this Hon'ble court has committed an error and mistake
apparent on the face of record in the para 15 of its judgment, by
holding that the appellants service as on date is legally no more
in existence as the interim order dated 18.12.2013 passed in the
SWP No.2473/2013 and by virtue of which her disengagement
order No. CDPO/ICDS/Lp/Estt/2013/486-91 dated 02.12.2013
was stayed, has merged in the final order of dismissal dated
19.05.2017, impugned herein when as a matter of fact this
Hon'ble court by an order dated 29.11.2018 passed in the
condonation of delay application No. CDLSW No.73/2018, filed
in the instant LPA, was pleased to pass a fresh stay order in the
case where under respondents, were asked not to disturb the
services of the petitioner and as a consequence thereof petitioner
as on date is continuing to work on the said post without any
demur or break. Copies of the stay orders issued from time to time
by the Hon'ble writ court and the aforesaid stay order and order
issued by the department concerned in compliance thereof are
collectively annexed to this review petition for the perusal of this
Hon'ble court as Annexure-III;
(x) That showing sudden door to the petitioner, for no fault, after
rendering an uninterrupted and continuous service as an
anganwari worker at Anganwari Centre Ringmandoo-B,
Larkipora, Tehsil Doru, District Anantnag will not only deprive
her of her and her family dependent on her of their only source of
livelihood but is bound to cause a great hardship and material
injustice to them;
(xi) That allowing her to continue on the said post will cause no
prejudice or harm to anyone whatsoever as no one at relevant
point of time, eligible for the post had applied for the same in
response to the aforesaid advertisement notice but will definitely
prejudice the petitioner and her family herein as she has by now
RPLPA No. 02/2019 3|Page
already crossed the age limit of 44 years, prescribed for the post,
as her date of birth is 23.03.1971;
(xii) That Hon'ble Apex court in numerous of its judgments, including
in the judgment reported in the (2000) 8 CCC 25 and relied upon
by the counsel of the petitioner and referred to by this Hon'ble
Court at para 5 and 15 of the impugned judgment, has been
pleased to directed in number of such cases, not disengage any
such appointee or person, who may have continued to work
against a particular post, continuously and uninterruptedly for
such a long time, in the, interest of justice;
(xiii) That the petitioner is not holding any statutory post but is working
as a petty Anganwari Worker not even at par with a class IV post
or daily wage worker engaged by the government in any other
department and can continue work as such only till the continuous
of the aforesaid scheme by the government;
(xiv) That the state of Jammu and Kashmir by virtue of the J&K Civil
Services (Special Provisions) Act, 2010 and other similar schemes
promulgated by other corporations and authorities, have
regularized the services of hundreds and thousands, of such
similarly situated persons as the petitioner herein, therefore it
may not be fair and in the interest of justice if she for reason is
thrown out from her job at this stage or point of time;
(xv) That any such action or order therefore will not be in the interest
of justice and will be a gross violation of Article 14, 16 and 21 of
the Constitution of India; and
(xvi) That there are multiple other vacancies available right now in the
ICDS Larkipora, Tehsil Doru so the petitioner can be very well be
retained in the interest of justice and along with her, respondent
No.6 can also be adjusted if she chooses to do so."
03. We have heard the learned counsel for the petitioner, considered the
matter and perused the documents placed on record.
04. What requires to be stated, at the outset, is that in the instant review
petition, the review petitioner/appellant has touched the merits of the case,
which, in a review petition, is unwarranted as per well settled position of law.
The grounds urged in the review petition have already been decided and
findings returned thereon by this Court and, if the review petitioner/ appellant
was aggrieved of the said findings, he ought to have availed the remedy under
law for challenging the same before the appropriate Court. In fact, the instant
RPLPA No. 02/2019 4|Page
review petition, on grounds enumerated therein, appears to be a disguised
appeal. The grounds taken by the review petitioner/ appellant 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., but, the only course
available for the aggrieved party is to go in appeal against the said judgment
before the appropriate forum. Such grounds do not constitute errors of fact or of
law on the face of the record as would call for a review.
05. A review cannot also be used as a tool for changing the opinion/ view of
the Court. 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. It is not open to the
Court, 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.
06. 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 to 19, 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
RPLPA No. 02/2019 5|Page
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."
14.--------------
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. This Court, in Parsion Devi & Ors. v. Sumitri Devi & Ors.,
[JT 1997 (8) SC 480: (1997) 8 SCC 715], held as under:
"7. It is well settled that review proceedings have to
be strictly confined to the ambit and scope of Order 47
Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of
A.P. this Court opined:
"11. What, however, we are now concerned with is
whether the statement in the order of September 1959 that
the case did not involve any substantial question of law is
an 'error apparent on the face of the record'. The fact
that on the earlier occasion the Court held on an
identical state of facts that a substantial question of law
arose would not per se be conclusive, for the earlier
order itself might be erroneous. Similarly, even if the
statement was wrong, it would not follow that it was an
'error apparent on the face of the record', for there is a
distinction which is real, though it might not always be
capable of exposition, between a mere erroneous decision
and a decision which could be characterized as vitiated
by 'error apparent'. A review is by no means an appeal in
disguise whereby an erroneous decision is reheard and
corrected, but lies only for patent error.
8. Again, in Meera Bhanja v. Nirmala Kumari
Choudhury while quoting with approval a passage from
Aribam Tuleshwar Sharma v. Aribam Pishak Sharma this
Court once again held that review proceedings are not by
way of an appeal and have to be strictly confined to the
scope and ambit of Order 47 Rule 1 CPC.
RPLPA No. 02/2019 6|Page
9. Under Order 47 Rule 1 CPC a judgment may be
open to review inter alia if there is a mistake or an error
apparent on the face of the record. 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 under Order 47 Rule 1 CPC. In exercise
of the jurisdiction under Order 47 Rule 1 CPC it is not
permissible for an erroneous decision to be 'reheard and
corrected'. A review petition, it must be remembered has
a limited purpose and cannot be allowed to be 'an appeal
in disguise."
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 possibility of two views on the subject
is not a ground for review. This Court, in Lily Thomas & Ors. v.
Union of India & Ors., [(2000) 6 SCC 224], held as under:
"54. Article 137 empowers this Court to review its
judgments subject to the provisions of any law made by
Parliament or any rules made under Article 145 of the
Constitution. The Supreme Court Rules made in exercise of
the powers under Article 145 of the Constitution prescribe
that in civil cases, review lies on any of the grounds
specified in Order 47 Rule 1 of the Code of Civil Procedure
which provides:
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 and 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.'
Under Order 40 Rule 1 of the Supreme Court Rules
no review lies except on the ground of error apparent on
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the face of the record in criminal cases. Order XL Rule 5 of
the Supreme Court Rules provides that after an application
for review has been disposed of no further application shall
be entertained in the same matter.
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56. It follows, therefore, that the 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. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment.
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58. Otherwise also no ground as envisaged under Order XL of the Supreme Court Rules read with Order 47 of the Code of Civil Procedure has been pleaded in the review petition or canvassed before us using the arguments for the purposes of reviewing the judgment in Sarla Mudgal case, [JT 1995 (4) SC 331] It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing of the judgment. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in Sarla Mudgal case. We have also not found any mistake or error apparent on the face of the record requiring a review. 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. No such error has been pointed out by the learned counsel appearing for the parties seeking review of the judgment. The only arguments advanced were that the judgment interpreting Section 494 amounted to violation of some of the fundamental rights. No other sufficient cause RPLPA No. 02/2019 8|Page has been shown for reviewing the judgment. The words 'any other sufficient reason appearing in Order 47 Rule 1 CPC' must mean 'a reason sufficient on grounds at least analogous to those specified in the rule' as was held in Chhajju Ram v. Neki, [AIR 1922 PC 112] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, [AIR 1954 SC 526] Error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. In T.C. Basappa v. T. Nagappa, [AIR 1954 SC 440] this Court held that such error is an error which is a patent error and not a mere wrong decision. In Hari Vishnu Kamath v. Ahmad Ishaque [AIR 1955 SC 233], it was held:
"23. .... It is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated.
Mr. Pathak for the first respondent contended on the strength of certain observations of Chagla, C.J. in - 'Batuk K. Vyas v. Surat Borough Municipality, [AIR 1953 Bom 133′] that no error could be said to be apparent on the face of the record if it was not self- evident and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.' Therefore, it can safely be held that the petitioners have not made out any case within the meaning of Article 137 read with Order XL of the Supreme Court Rules and Order 47 Rule 1 CPC for reviewing the judgment in Sarla Mudgal case. The petition is misconceived and bereft of any substance."
17. In a review petition, it is not open to the Court to re- appreciate the evidence and reach a different conclusion, even if that RPLPA No. 02/2019 9|Page is possible. Conclusion arrived at on appreciation of evidence cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. This Court, in Kerala State Electricity Board v. Hitech Electrothermics & Hydropower Ltd. & Ors., [JT 2005 (7) SC 485], held as under:
"10. .........In a review petition it is not open to this Court to re-appreciate the evidence and reach a different conclusion, even if that is possible. Learned counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise."
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. This Court, in Jain Studios Ltd. v. Shin Satellite Public Co. Ltd., [JT 2006 (7) SC 40: (2006) 5 SCC 501], held as under:
"11. So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with RPLPA No. 02/2019 10 | P a g e extreme care, caution and circumspection and only in exceptional cases.
12. When a prayer to appoint an arbitrator by the applicant herein had been made at the time when the arbitration petition was heard and was rejected, the same relief cannot be sought by an indirect method by filing a review petition. Such petition, in my opinion, is in the nature of 'second innings' which is impermissible and unwarranted and cannot be granted."
19. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII Rule 1 of CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point 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."
07. A cue can, in this behalf, be also 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)', of which, incidentally, one of us (Magrey, J) is the author, 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."
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08. From a bare perusal of the law laid down above, it is manifestly clear that the scope of review is very limited. The power of review 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/appellant 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 review petitioner/ appellant is challenging the order passed by this Court, which is under review. The law, as cited by the learned counsel for the review petitioner/ appellant, is not applicable to the facts and circumstances of the case on hand.
09. In the above background coupled with the law discussed hereinabove, we do not find any error, apparent on the face of the record, in the judgment dated 8th of March, 2019, passed by this Court in LPASW No. 18/2019, as would warrant its recall on review. It being so, this review petition is found to be without any merit, as a sequel thereto, same shall stand dismissed, alongwith all connected IA(s).
(Sanjeev Kumar) (Ali Mohammad Magrey)
Judge Judge
Srinagar
April 9th, 2019
"TAHIR"
TAHIR MANZOOR BHAT
2019.04.15 16:17
I attest to the accuracy and
integrity of this document
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