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2009 DIGILAW 122 (JK)

Bilal Ahmed Wani v. University Of Kashmir

2009-03-19

MUZAFFAR HUSSAIN ATTAR

body2009
1. This review petition is filed to recall the order dated 17th March 2009 passed in OWP No. 202/09 titled "Bilal Ahmed and ors. vs. University of Kashmir and ors". When this review petition was taken up for consideration Mr. J.A. Kawoosa ld. counsel for University appeared and raised objection about the maintainability of the review petition on the ground that the certified copy of the order/judgment sought to be reviewed has not been filed along with the review petition and the certificate given by learned Advocate is also defective in as much as he has not stated therein that he has perused the judgment and has only stated that he has perused the relevant record of the case which in the face of rule 66 (1) of J&K High Court Rules 1999 cannot be said to be a valid certificate. Passionate appeal was made by ld. counsel Mr. R.A. Jan to consider the review petition on its merits, as the career of the students is involved. The objection about maintainability of review petition raised by Mr. Kawoosa may be of procedural nature but cannot be said to be of possessing the potential of throwing out review petition without considering the same. Since human fallibility is there and errors can be committed, so in order to do substantial justice to the parties, this court decided to consider the review petition on its merits so as to satisfy itself, any error/mistake apparent on the face of record is shown to be existing, and if shown then this court being sentinel of rights of the people will not lose a moment to review the judgment and recall the order. Mr. R.A. Jan was given patient hearing to his satisfaction by the court with earnest endeavour to ensure that injustice is not done. The review petitioners filed writ petition seeking following reliefs: "a) a writ of mandamus be passed in favour of petitioners and against the respondents declaring the impugned statute 15 of the University of Kashmir governing the candidates admitted to 4 year B.E. Decree course as unconstitutional and in violation of the Article 14 and 16 of the constitution. b) a writ in the nature of mandamus against the respondents commanding the respondents allow the petitioner to appear in the 7th Semester examination of B.E. Course when the same is held. b) a writ in the nature of mandamus against the respondents commanding the respondents allow the petitioner to appear in the 7th Semester examination of B.E. Course when the same is held. c) any other writ, or order, which this Honble court deems fit and proper as to meet the ends of justice." 2. This court vide judgment dated 17.03.2009 after considering the case and arguments of the ld. counsel for parties dismissed the same, for the reasons stated therein and for the grounds that no legal foundation has been laid in the writ petition for seeking the reliefs as prayed in the writ petition, and secondly statute 15 would require strict compliance thereof to maintain and observe the academic excellence of academic institutions. 3. Heard ld. counsel for parties and considered the matter. 4. Mr. R.A. Jan ld. counsel appearing in the review petition in his fairness stated that no foundation has been laid for seeking relief(s) of the writ petition. Ld. counsel, however, submitted that there was no requirement to challenge the Statute 15 of the University of Kashmir as in the wisdom of the learned counsel the said statute would not come in the way of the review petitioners to take 7th semester B.E course examination. Mr. R.A. Jan with his usual dexterity made all out efforts to persue the court that statute 15 relates only to promotion of a student from one class to another class and it does not affect the right of a candidate to take examination of B.E 7th Semester. The ld. counsel in order to buttress his argument referred to statute 5.18, 5.21 and statute 6 of the University of Kashmir to canvass that these are only statutes which enable a student to take exams of different semesters and compliance thereof is sufficient to enable the review petitioners to take the 7th semester of B.E Course examination. The ld. counsel was at pains to explain that statute 15 would come into play only at the end of 3rd, 5th and 7th semester results. This court has ruled that the proviso of statute 15 demonstratively makes it clear that backlog papers of the first semester examination shall not be considered for purposes of promotion at the end of 3rd and 5th semester examination, subject to condition that a candidate has secure pass in at least one subject of the Ist semester examination. This court has ruled that the proviso of statute 15 demonstratively makes it clear that backlog papers of the first semester examination shall not be considered for purposes of promotion at the end of 3rd and 5th semester examination, subject to condition that a candidate has secure pass in at least one subject of the Ist semester examination. It is further provided that such candidate shall be required to clear the backlog of first semester examination latest by end of 6th semester. Mr. Jan, ld counsel argued on the merits of the case in his earnest effort to demonstrate that mistake has been committed while passing the judgment sought to be reviewed, as in the wisdom of the ld. counsel statute 15 refers to promotion of student from one class to another class and does not have any bearing with taking of examinations. This argument was raised when the writ petition was considered and dismissed and the contention has been replied in the judgment sought to be reviewed. The ld. counsel referred to judgment reported in 1999 V 6 SCC 667 known as "Common Cause cases" which provides that if there is error apparent on the face of record or any mistake is committed the court shall not shrik in its duty to recall the order. 5. The ld. counsel for respondents Mr. Kawoosa submitted that review petitioners have totally set up a new case in the writ petition. He further submitted that case which was originally projected in the writ petition is diametrically opposite to the case which has been set-up in the review petition. The ld. counsel in his inimitable style while arguing the case submitted that the review petitioners, counsel has argued the case as if he was before the appellate bench, pointing out the legal infirmities, from which in his perspective, the judgment sought to be reviewed suffers from. The ld. counsel submitted that there is no error apparent on the face of the record, neither any mistake is apparent on the face of the record so review petition is not competent and merits dismissal. Ld. counsel in support of his contention referred to judgment reported in 2006 (4) SCC 78, SLJ 1999 J&K 475 and AIR 2006 J&K 35 to canvass that the review petition is misconceived and merits dismissal. 6. Ld. counsel in support of his contention referred to judgment reported in 2006 (4) SCC 78, SLJ 1999 J&K 475 and AIR 2006 J&K 35 to canvass that the review petition is misconceived and merits dismissal. 6. The case which has been set up in the writ petition by review petitioners is totally different from case which has been set up in the review petition which is based on new set of facts which are in stark conflict with the case set up in the writ petition. 7. This court as already stated would deem it not only a constitutional duty but in order to administer justice, believing in constitutional morality and constitutional conscience would recall the order had a case been made out for the same. The ld. counsel for the review petitioners while accepting the situation which has arisen because of the conflicting stand, taken still made efforts to persue the court to recall the order. The ld. counsel, however, could not point out any error apparent on the face of the record or any mistake committed by this court while passing the judgment sought to be reviewed. The ld. counsel, however, while arguing would feebly convey that the judgment is based on wrong interpretation of statute so suffers from legal infirmity. The said ground may be available to the ld. counsel before the appellate court, but cannot be a ground for seeking review of the judgment. 8. The petitioners caught in the conflicting stands taken in the review petition and writ petitions have no case for reviewing the judgment, as there is neither error nor mistake apparent on the face of record. 9. This petition is accordingly dismissed.