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2017 DIGILAW 1016 (JK)

Imtiaz Hussain v. State of J&K

2017-11-17

ALOK ARADHE, SANJEEV KUMAR

body2017
JUDGMENT : 1. This petition by the petitioner is for seeking review of the judgment dated 19.7.2017 passed in SWP No. 1739/2016, whereby the writ petition of the petitioner was dismissed and the order impugned in the writ petition passed by respondent No. 2 was upheld. 2. The review has been sought inter alia on the ground that the writ petition has been disposed of in the absence of objections by the respondent-Education Department and that another candidate namely Ishtaq Hussain who was similarly situated with the petitioner and also belonged to habitation Kanger has been appointed as RET in the Primary School, Kanger and therefore, different yard stick could not have been applied to the petitioner. This court, thus, committed an error apparent on the face of record by not taking into consideration the aforesaid aspect. 3. Before we appreciate the submissions made by the learned counsel for the petitioner, it would be appropriate to take notice of the settled legal position with regard to the scope of interference in review jurisdiction. There is subtle but real distinction existing between the power of review, on one hand, and the power of the appellate court on the other. Order 47 Rule 1 circumscribes power of review by specifying three grounds on which review is possible, specific ground being (i) discovery of new and important matter or evidence which despite exercise of due diligence, was not within the applicants' knowledge or could not be produced by him at the time when decree or order was passed (ii) mistake or error apparent on the face of record and (iii) for any other sufficient reason. 4. Having taken into account the aforesaid three grounds, which Order 47 Rule 1 CPC embodies as the ground for review, the Supreme Court in Moran Mar Basselios Catholicos vs. Mar Paulose Athanasius, AIR 1954 SC 526 held that the power of review is circumscribed of three grounds which have been specified in Order 47 Rule 1. In the aforesaid judgment, the Supreme Court further held that "any other reason" cannot be "any sufficient reason" but reason, which is "sufficient" and at the same time, atleast "analogous" to one of the two reasons as indicated hereinbefore namely (i) discovery of new or important matter which, after the exercise of due diligence, was not within the knowledge of applicant etc. (ii) mistake or error apparent on the face of record. 5. In short, thus, what Moran Mar Basselios Catholicos (supra) laid down was that expression, "any other sufficient reason" cannot be construed as any sufficient reason and that any sufficient reason, cannot become a ground for review unless even such sufficient reason is analogous to one of the other two grounds i.e. discovery of new facts and mistake or error apparent on the face of record. Rule 65 of the J&K High Court Rules, 1999 clearly provides that the High Court may review its judgment or order but no application for review shall be entertained except on the grounds mentioned in Order 47 Rule 1 of the Code of Civil Procedure. 6. In Tunga Bhara Industries Limited vs. Government of Andhra Pradesh, (1964) 5 SCR 174 , the Supreme Court in clear terms held that there was a real distinction between the mere erroneous decision and decision which could be characterised as vitiated by "error apparent" and that a review was by no means appeal in disguise. This legal position was reiterated by the Supreme Court in subsequent judgments also. 7. In the light of settled position of law, defining the contours exercise of power of review, the submissions made by the learned counsel for the petitioner may be examined. 8. The contention of the petitioner that the writ petition could not have been disposed of without inviting objections from the respondent-Education Department and therefore, the judgment sought to be reviewed is vitiated is devoid of any merit and therefore, cannot be accepted. The writ petition when it came up for consideration before us was for admission and therefore, this court after hearing learned counsel for the petitioner in extenso and going through the record, did not find it a fit case for admission and consequently dismissed the writ petition. It was not incumbent upon this court to necessarily call upon the respondent-Education Department to file the response/objections and therefore, the disposal of the writ petition in terms of the judgment sought to be reviewed without inviting objections from the respondent-Education Department, cannot be said to be vitiated by an error apparent on the face of record. It was not incumbent upon this court to necessarily call upon the respondent-Education Department to file the response/objections and therefore, the disposal of the writ petition in terms of the judgment sought to be reviewed without inviting objections from the respondent-Education Department, cannot be said to be vitiated by an error apparent on the face of record. Further contention of the petitioner that one Ishtaq Hussain who was similarly situated with the petitioner and a resident of habitation Kanger has been appointed as RET in Primary School, Kanger and therefore, a different yard stick could not have been applied to the petitioner, is again an argument which cannot be accepted and in any case does not furnish any ground to review the judgment. In this regard it may be noted that it is true that the petitioner had been engaged as RET in the Primary School, Kanger on the basis of select list prepared by taking Kanger as habitation but the same was challenged by one Zubina Kousar and Kaifat Ullah in two separate writ petitions and the writ petition of Zubina Kousar was disposed of by directing the Deputy Commissioner, Rajouri to conduct an enquiry about the permanent place of residence of the petitioner. Similarly, in writ petition filed by Kaifat Ullah, the court while disposing of the writ petition vide order dated 21.5.2016 had directed the Deputy Commissioner, Rajouri to conduct enquiry with regard to review petitioner's residence and also to enquire about the applicability of the Govt. Order No. 288-Edu of 2009, dated 8.4.2009. As is apparent from the record of the petition that enquiry was conducted by the Deputy Commissioner, Rajouri, who in his report came to the conclusion that Morha Kanger did not fulfill the norms laid down in Govt. Order No. 288-Edu of 2009, dated 8.4.2009. The report of Deputy Commissioner was also challenged by the petitioner in SWP No. 2419/2014 in which vide order dated 04.9.2014, Choudhary Niaz Ahmed Naaz, Advocate of this court was appointed as Court Commissioner for conducting the spot measurement of the actual distance between the two adjoining Morhas i.e. Kanger and Khaker. Taking note of the report of the Court Commissioner, this court did not find any merit in SWP No. 2491/2014, which was dismissed on 16.12.2015. Review was also filed by the petitioner herein which was also dismissed. Taking note of the report of the Court Commissioner, this court did not find any merit in SWP No. 2491/2014, which was dismissed on 16.12.2015. Review was also filed by the petitioner herein which was also dismissed. Respondent No. 2 therefore, acting upon the report of the Deputy Commissioner, Rajouri which was corroborated by the report of the court Commissioner and after dismissal of writ petition and the review petition filed by the petitioner herein, ordered disengagement of the petitioner from the service. This made the petitioner to file petition bearing SWP No. 1739/2016, which has been dismissed by this court vide judgment sought to be reviewed in this petition. 9. In the aforesaid facts and circumstances, it cannot be said that while dismissing the writ petition vide judgment dated 19.7.2017, this court has committed any error of law or fact apparent on the face of record. The Deputy Commissioner's report which was corroborated by the report of court Commissioner, came to be upheld by this court when the writ petition challenging the report of the Deputy Commissioner bearing SWP No. 2419/2014 was dismissed on 16.12.2015. The order impugned in the writ petition was, thus, only in consonance of law and therefore, challenge to the same was rightly found not tenable by this court. 10. In view of the aforesaid analysis, we found that the petitioner has not been able to make out any ground much less the grounds enumerated in Order 47 Rule-1 of the Civil Procedure Code for seeking review of the judgment dated 19.7.2017 passed by this court. 11. Accordingly, the review petition is found to be without any merit and dismissed.