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2016 DIGILAW 406 (JK)

State of J&K v. Showkat Ali Mufti

2016-07-27

DHIRAJ SINGH THAKUR, N.PAUL VASANTHAKUMAR

body2016
JUDGMENT : N. Paul Vasantha Kumar, J. 1. This Review petition is filed by the State seeking review of the order made in LPA(SW) No. 03/2010 dated 25.09.2013. The case of the 1st respondent before the Writ Court as well as the Division bench was that he was appointed as Lecturer on 16.08.1993 against a temporary vacancy in the faculty of general medicines in SKIMS. He continued to discharge his duties on the said post till 03.12.1996. The respondent was regularly appointed in Open Merit on 09.07.2001 in SKIMS. As per the [JKS Soft JKS/1169 [SKIMS Faculty Members (Revised Pay) Rules, 2000] SRO 378 dated 18.10.2000 the post of Lecturer was re-designated as Assistant Professor. The review petitioners adopted Assessment Merit Promotion Scheme (APS) and as per the scheme, an Assistant Professor who has put in four years of satisfactory service have to be given the pay scale of the post of Associate Professor. 2. The case of the review petitioners was that 1st respondent having been appointed on 09.07.2001, he was not having 4 years of service as Assistant Professor as on 30.06.2005 and he was lacking 9 days to complete four years. 3. According to the 1st respondent, he having served as Lecturer from 16.08.1993 to 03.12.1996, the said service is bound to be taken as service rendered as Assistant Professor as prior to SRO 378 dated 18.10.2000 the post of Assistant Professor was equivalent to the post of Lecturer (before re-designation). The writ Court as well as the Division Bench, on perusing the terms of temporary appointment order given to the 1st respondent and others by order dated 16.08.1993, wherein it was specifically ordered that the services rendered by all the appointees on the respective posts shall be counted for eligibility for higher post, held that the period of service rendered i.e. 16.08.1993 to 03.12.1996 is bound to be counted as service/experience for the purpose of giving Assessment Merit Promotion. 4. The contention of the review petitioners is that respondent having served in a temporary vacancy, the said service is not regular service. The learned Single Judge considered the said aspect with reference to Rule 5 of the Assessment Merit Promotion Scheme and held that as the respondent was in continuous service from 1993 to 1996, the said period should be treated as regular service for shorter period. The learned Single Judge considered the said aspect with reference to Rule 5 of the Assessment Merit Promotion Scheme and held that as the respondent was in continuous service from 1993 to 1996, the said period should be treated as regular service for shorter period. The Division Bench also appreciated the said reasoning given by the Writ Court and up held the order. 5. In this review petition the review petitioners are attempting to re-argue the matter by contending that the Writ Court as well as the appellate Court was not justified in treating the temporary service rendered by the 1st respondent from 1993 to 1996 as regular service. 6. The 1st respondent, who is appearing as party in person, submitted that petitioners are re-arguing the matter which is not permissible under review jurisdiction. 7. We have considered the rival submissions. 8. The scope of review is very limited. It is well settled proposition of law that in the guise of review no one can be allowed to re-argue the matter like arguing an appeal in disguise. The Hon'ble Supreme Court in the decision reported in (1979) 4 SCC 389 (Aribam Tuleshwar Sharma v. Aribam Pishak Sharma & Ors.), in paragraph 3 held thus:- "3....It is true as observed by this Court in Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909 ) there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Sub-ordinate Court." In the decision reported in (1997) 8 SCC 715 (Parsion Devi and Ors. v. Sumitri Devi and Ors.), the Hon'ble Supreme Court in paragraph 9 held thus:- "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" The Hon'ble Supreme Court in the decision reported in 2013 (8) SCC 320 (Kamlesh Verma v. Mayawati), considered the scope of the review jurisdiction and summarised the factors as to when the review will be maintainable and when the review will not be maintainable and the same reads as follows: "When the review will be maintainable: (i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; (ii) Mistake or error apparent on the face of the record; (iii) Any other sufficient reason. The words "any other sufficient reason" have been interpreted in Chhajju Ram v. Neki (1921-22) 49 IA 144 : (1922) 16 LW 37 : AIR 1922 PC 112 ) and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius ( AIR 1954 SC 526 : (1955) 1 SCR 520 ) to mean "a reason sufficient on grounds at least analogous to those specified in the rule". Mar Poulose Athanasius ( AIR 1954 SC 526 : (1955) 1 SCR 520 ) to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. (2013) 8 SCC 337 : JT (2013) 8 SC 275). When the review will not be maintainable: (i) A repetition of old and overruled argument is not enough to reopen concluded adjudications. (ii) Minor mistakes of inconsequential import. (iii) Review proceedings cannot be equated with the original hearing of the case. (iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. (v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. (vi) The mere possibility of two views on the subject cannot be a ground for review. (vii) The error apparent on the face of the record should not be an error which has to be fished out and searched. (viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition. (ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived." The attempts now made by the petitioners are coming within clause (i), (iii), (v), (vi), (viii) and (ix). As per the above cited judgment the review cannot be entertained. In the light of the well settled proposition of law and having regard to the fact that the point urged in the review petition has already been appreciated by the learned Single Judge as well as by the Division Bench the same cannot be re-appreciated in the review petition. There is no merit in the review petition and the same is dismissed.