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2010 DIGILAW 579 (JK)

Surinder Kumar v. State Of J&K

2010-11-22

Aftab H.Saikia, MUZAFFAR HUSSAIN ATTAR

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Dr. Saikia, CJ. 1. Heard Mr. K. S. Charak, learned counsel appearing for the applicant. 2. By means of this Review application, the review applicant has sought for review of the judgment dated March 12, 2010, passed in LPASW no. 376/2001. 3. Seeking review of the judgment, learned counsel for the applicant has submitted that the issue involved herein pertains to the promotion of respondent nos. 3 and 4 by selection to the post of Sanitation Officers, being gazetted post, from the non-gazetted post of Sanitary Inspector, on the basis of seniority. Promotion of those respondent nos. 3 and 4 was assailed before the Writ Court contending that in promoting those respondents who were being simple matriculates, the petitioner, being the Science graduate, was ignored and such promotion of respondent nos. 3 & 4 ought to have been made on merit basis taking into account the qualification prescribed for the direct recruitment to the said post. It is further submitted that the promotion of those respondents on the basis of seniority amounts to violation of Rules, as they were not being eligible for such promotion due to lack of educational qualification. Besides, it is also pleaded that the entire selection ought to have been made on the basis of merit as required under Sub-rule 2 of Rule 25 of Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, (for short `the Rules’). 4. The Writ Court dismissed the writ petition, being SWP no. 1969/1999, by its judgment and order dated 13.8.2001, observing that there was no fault in the selection process as admittedly, the post of Sanitary Inspector, being a non-gazetted post, from which respondent nos. 3 & 4 were promoted to the post of Sanitation Officer, was governed by the Jammu Municipality Subordinate Service Rules, 1970 (for short `the Service Rules’); whereas the Sanitation Officer, being the gazetted post, did not fall within the purview of the Service Rules. The Writ Court also took into account annexure to the Service Rules where under Column 5, minimum qualification for direct recruitment was prescribed as graduate with Science and one year’s course under the State Medical faculty or equivalent qualification recognised by the Government and method of recruitment for selection from Class III Category (A) was stipulated under Column 6. The Writ Court also took into account annexure to the Service Rules where under Column 5, minimum qualification for direct recruitment was prescribed as graduate with Science and one year’s course under the State Medical faculty or equivalent qualification recognised by the Government and method of recruitment for selection from Class III Category (A) was stipulated under Column 6. The Service Rules does not provide direct recruitment for the post of Sanitation Officer and the post of Sanitation Officer can be supplied by the in-service employees working in Class III Category (A). 5. In the instant case, it is not disputed that both respondent nos. 3 and 4 were senior to the applicant in the feeder post and they were promoted to the post on the basis of seniority without taking into account their qualification, which has been questioned by the applicant. 6. The Appellate Court by its order dated 12.3.2010, while dismissing the appeal, held that although the instant selection having been made from Class III Category (A) without insisting that candidate should have the qualification as prescribed for direct recruitees, it could not be said that the stand taken by the respondents while making such selection/ promotion was absolutely not permissible and hence not interferable under judicial review. 7. Power of the Court to review its own judgment is limited. In order to exercise the jurisdiction of review, Court should arrive at a finding that there exists an error on the face of the record. The review can be granted only if there is mistake apparent on the face of the record. In the instant case, having meticulously gone through the finding of the Court, as indicated above, we are of the view that no apparent mistake has been noticed on the face of the record. 8. Having carefully considered the judgment under review and also upon hearing learned counsel for the applicant at length, we are of the firm view that no case for review has been made out as required under the law. 9. In view of the above, this review petition is bereft of any merit and, accordingly, the same stands dismissed.