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2015 DIGILAW 593 (JK)

Naresh Kumar v. State of J&K

2015-11-17

DHIRAJ SINGH THAKUR, N.PAUL VASANTHA KUMAR

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JUDGMENT : Dhiraj Singh Thakur, J. 1. The present review petitions have been filed seeking review of the judgment and order dt. 29.1.2014, whereby this Court has dismissed two Letters Patent Appeals bearing Nos. 68/2012 and 44/2010. While passing the aforementioned judgment, this court held the petitioner not eligible for having his services regularized against the post of Foreman in the State Health Transport Organization on the ground inter-alia that he belonged to a different organization i.e. State Malaria Organization as both the organizations had maintained separate seniority positions with regard to the employees on their cadre. It was held that the petitioner, in fact, was a Pump Mechanic in the Malaria Organization and, therefore, not eligible to be regularized as Foreman in the State Health Transport Organization in as much as, the said post could be filled up according to the rules i.e. the Jammu and Kashmir Health and Medical (Subordinate) Services Recruitment Rules, 1992, 100% by promotion from Class V category (a) i.e. Driver/Driver-cum-Mechanic with five years experience. 2. Reliance was also placed by this court on the judgment of the Apex Court in the case reported as "Secretary, State of Karnataka and Ors. v. Uma Devi and Ors.", AIR 2006 SC 1806 , which holds that regularization was not to be a mode of recruitment and to accede to such a proposition would be to introduce a new head of appointment in defiance of the rules or else, it may have the effect of setting at naught the rules itself. 3. Counsel for the petitioner urged that this court had committed an error apparent on the face of record in as much as, after holding that the order of consideration dt. 24.1.2004, passed pursuant to the directions issued in the earlier round of litigation, initiated at the behest of the petitioner was non-est in the eyes of law as the same had been signed by the Deputy Director, Health Services and not by the Director Health Services, the order of consideration ought to have been quashed and relief granted to the petitioner regarding his claim of regularization. 4. 4. It was also urged by the counsel for the petitioner that the observation of this court that the petitioner (appellant) would be entitled to the benefits including promotion in his own cadre, also required to be reviewed in as much as, there was no separate cadre being maintained in the department. 5. Yet another point urged by the learned counsel for the petitioner Mr. Lehar, Sr. Counsel, was that nothing had been said in the judgment with regard to the challenge thrown by the petitioner to the promotion of private respondent No. 4, as Foreman in the State Health Transport Organization. 6. Heard counsel for the petitioner. 7. Dealing with the first ground, it needs to be highlighted that while this court did hold that the order of consideration dt. 24.1.2004, passed by the official respondents was not issued under the signatures of the Director, Health Services but instead issued by the Dy. Director, Health Services and that on that ground, the court could allow the appeals and grant liberty to the Director, Health Services to pass a fresh order duly signed by him, yet that course was not adopted by this court in as much as it would give a false sense of success to the petitioner temporarily and that the same order would be repeated this time under the signatures of the Director, Health Services. 8. It was in these circumstances that this court in its judgment of which review is sought, proceeded to consider the core issue as to whether the petitioner herein could, at all, be considered for regularization in a different organization where seniority was being maintained separately and where promotion to the post of Foreman was subject to certain qualifications and eligibility, which was not being fulfilled by the petitioner. The judgment had to be read in its entirety and not in between lines. The petitioner has reproduced only a part of order in his review petitions but omitted to refer to the subsequent paragraph, which highlights the reason for this court to embark upon determining the right of the petitioner to such a regularization on the basis of admitted facts. 9. The petitioner has reproduced only a part of order in his review petitions but omitted to refer to the subsequent paragraph, which highlights the reason for this court to embark upon determining the right of the petitioner to such a regularization on the basis of admitted facts. 9. The other ground urged by the counsel for the petitioner was that the judgment and order to the extent it held the petitioner entitled to promotion in his own cadre was also required to be reviewed in as much as there was no such separate cadre maintained by the official respondents. 10. In this regard, it would be necessary to reproduce paragraph 24 of the judgment dt. 29.1.2014, passed by this court wherein the above observation had been made. The said paragraph reads as under:- "24. Notwithstanding the fact that the appellant has failed to succeed in the present round of litigation before the writ court or before this Bench for his regularization against the post of Foreman, he would certainly be entitled to the benefits including the promotion in his own cadre, if otherwise permitted under rules, in case his juniors were granted such benefits. The benefits would necessarily have the effect retrospectively from the date such benefits were granted to his juniors". 11. On a reading of the above paragraph, it would become clear that this court had clearly held that the petitioner would be entitled to the benefit of promotion only in his own cadre, if it was permitted under rules and, in case, his juniors were granted such a benefit. It only restricted the right of the petitioner to claim benefits in his own cadre and nothing beyond. 12. The next point urged before us was that nothing had been said as regards the challenge thrown to the promotion of private respondent No. 4, as Foreman in the State Health Transport Organization in the Letters Patent Appeal. 13. Having held that the petitioner had no right of regularization in the State Health Transport Organization against the post of Foreman, the petitioner could not have questioned the promotion of private respondent No. 4, against the said post in the aforementioned Organization. For questioning the promotion of the private respondent No. 4, the petitioner had to first succeed in establishing his right or eligibility for the post of Foreman, which he miserably failed before the court. 14. For questioning the promotion of the private respondent No. 4, the petitioner had to first succeed in establishing his right or eligibility for the post of Foreman, which he miserably failed before the court. 14. The scope of powers exercisable by a court in its review jurisdiction is no longer res integra. In Thungabhadra Industries Ltd. v. Govt. of A.P., AIR 1964 SC 1372 , the Apex Court held that review was by no means an appeal in disguise whereby an erroneous decision is reheard and corrected. It was further observed that "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 had 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." 15. The above position of law was reiterated in the case reported as Parsion Devi and Others v. Sumitri Devi and Others, (1997) 8 SCC 715 , and subsequently in Kamlesh Verma v. Mayawati and Others, (2013) 8 SCC 320 . 16. Testing the facts of the present case on the touchstone of the principles of law aforementioned, we have no hesitation in coming to the conclusion that none of the grounds urged call for interference in the present review petitions. These petitions are, accordingly, found to be without merit and are dismissed.