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2017 DIGILAW 167 (JK)

Kaisar Ahmad Beig v. State of J&K

2017-03-30

DHIRAJ SINGH THAKUR, R.SUDHAKAR

body2017
JUDGMENT : Dhiraj Singh Thakur, J. 1. The present review petition has been filed, seeking review of judgment and order dated 03.03.2017 passed in SWP No. 2768-S/2015 on the ground that a vital aspect of the matter in regard to proviso appended to Sub-Rule (c) of Rule 12-A of the Jammu and Kashmir Public Service Commission (Conduct of Examinations) Rules, 2005 (For short, J&K PSC Rules of 2005) had escaped notice of this court while rendering the judgment (supra). With a view to understand the controversy in its correct perspective, it is, however, necessary to give a few material facts in brief: 2. The petitioners herein preferred a writ petition being SWP No. 2768-S of 2015, challenging the notification dated 15.12.2015 issued by the Public Service Commission (for short, PSC) whereby the result of the screening test conducted by the PSC for the Assistant Engineers (Civil) was questioned primarily on the ground that the same offended the mandate of the proviso appended to Sub-Rule (c) of Rule 12-A of the J&K PSC Rules of 2005. 3. It was stated that certain questions and key answers, totaling 21 in all, were wrongly framed in the process of conduct of the screening test and, therefore, instead of declaring the result, a fresh examination was required to be conducted in accordance with Sub-Rule (c) of Rule 12-A of the J&K PSC Rules of 2005. The Sub Rule (un-amended) has been reproduced even in the review petition, which reads as under: "C. In case the team of the experts confirm the incorrectness of the questions/answers/ options/keys the concerned questions shall be deleted from the paper and the marks allocated therefore shall be redistributed equally amongst the rest of the questions on prorate basis to ensure that the marks allocated for the question paper as a whole remain unchanged. Provided that, where the number of questions so to be deleted exceeds 10% of the total number of questions in that paper, the examination shall be cancelled and fresh examination in that paper shall be held." 4. It was urged that even the committee of experts, which went into the issue, noticed that there was a mistake in one question and recommended deletion of the said question from the paper. 5. It was urged that even the committee of experts, which went into the issue, noticed that there was a mistake in one question and recommended deletion of the said question from the paper. 5. It was also urged that the experts also found a mistake in the key framed for the questions and made corrections/revision in the official key with regard to twenty such answers. 6. It was also averred that the PSC having come to a conclusion that the mistakes having occurred in more than 10% of the questions/key answers, ought to have operated Rule 12-A of the J&K PSC Rules of 2005 and ordered a fresh examination in that paper. 7. The Public Service Commission in their objections admitted the case of the petitioners to the limited extent that the; team of experts undertook an exercise of checking and re-checking of all questions pointed out by the candidates as also the official key and recommended the deletion of one question as also the corrections/revision of the official key in respect of 20 questions. 8. It was further averred that on receipt of the opinion from the team of experts, the Public Service Commission evaluated the answer scripts based on the revised key whereafter alone the result of the candidates was notified on 15.12.2015. 9. This Bench having considered the matter in its entirety as also the provisions of Rule 12-A and 12-B (amended) of the J&K PSC Rules of 2005 came to a conclusion that only one question had been found to be incorrect, which was accordingly deleted and since there were 120 questions posed to the candidates and the deletion being less than 10 percent of the total number of questions in that paper, fresh examination could not have been ordered legally. 10. This court had also rejected the argument regarding holding of a fresh examination on the ground that wrong answers in the key in regard to 20 questions would fall under the mischief of the 10% rule. The basis of rejection was that the fresh examination was envisaged only if the number of questions to be deleted exceeded 10 percent, which percentage did not apply to the answers in the key framed for the said question paper. The basis of rejection was that the fresh examination was envisaged only if the number of questions to be deleted exceeded 10 percent, which percentage did not apply to the answers in the key framed for the said question paper. It is worthwhile to highlight, at this stage, the fact that there is a difference in the Rule 12-A of the J&K PSC Rules of 2005 after amendment and the same can be seen in the comparative table reproduced below:- Amended Un-amended "C. In case the team of the experts confirm the incorrectness of the questions/answers/options, the concerned questions shall be deleted from the paper and the marks allocated therefore shall be redistributed equally amongst the rest of the questions on prorate basis to ensure that the marks allocated for the question paper as a whole remain unchanged. "C. In case the team of the experts confirm the incorrectness of the question/answers/options/keys the concerned questions shall be deleted from the paper and the marks allocated therefore shall be redistributed equally amongst the rest of the questions on prorate basis to ensure that the marks allocated for the questions paper as a whole remain unchanged. Provided that, where the number of question so to be deleted exceeds 10% of the total number of questions in that paper, the examination shall be cancelled and fresh examination in that paper shall be held." Provided that, where the number of questions so to be deleted exceeds 10% of the total number of questions in that paper, the examination shall be cancelled and fresh examination in that paper shall he held." 11. It was in the context of the amended Rule 12-A Sub Rule-C of the J&K PSC Rules of 2005 that this court had held that the fresh examination as prayed for by the petitioners was not permissible and had accordingly dismissed the petition. 12. The entire basis of seeking review of the judgment in question proceeds on the premise that this court had committed an error in appreciating the sub rule (c) of Rule 12-A of the J&K FSC Rules of 2005, which according to learned senior Counsel, Mr. R.A. Jan, envisaged that if the experts confirmed the incorrectness of the questions/answers/options/ keys, the concerned questions ought to have been deleted from the paper and in case the deletions exceeded 10 percent then a fresh examination be held. 13. R.A. Jan, envisaged that if the experts confirmed the incorrectness of the questions/answers/options/ keys, the concerned questions ought to have been deleted from the paper and in case the deletions exceeded 10 percent then a fresh examination be held. 13. We, however, are not convinced with the argument of the learned senior counsel for the petitioners inasmuch as the entire basis for seeking review proceeds on the interpretation of the un-amended sub Rule (c) of Rule 12-A of the J&K PSC Rules of 2005, which is no longer in existence and therefore, could not at all have been applied to the facts and circumstances of the present case. 14. This court had rightly appreciated the correct contours of the amended Sub-Rule (c) of Rule 12-A of the J&K PSC Rules of 2005 and had rightly come to a conclusion that fresh examination could not have been ordered in those circumstances. 15. The scope of powers exercisable by a court in its review jurisdiction is no longer res-integra. 16. In Thungabhadra Industries Ltd. vs. Govt. of A.P. AIR 1964 SC 1372 , the Apex Court held as under: ".........What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an 'error apparent on the face of the record'. The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an error apparent on the face of the record, for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by error apparent. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error." 17. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error." 17. The above position of law was reiterated in the case reported as Parsion Devi and Others vs. Sumitri Devi and Others, (1997) 8 SCC 715 , by holding as under: "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 & cannot be allowed to be "an appeal in disguise." 18. In Board of Control for Cricket, India and Another vs. Netaji Cricket Club and Others, AIR 2005 SC 592 , the Apex Court in paragraphs 89 and 90 of the judgment, held as under:- "89. Order 47, Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason. 90. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefore. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words sufficient reason in Order 47, Rule 1 of the Code is wide enough to include a misconception of fact or law by a court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit." 19. The words sufficient reason in Order 47, Rule 1 of the Code is wide enough to include a misconception of fact or law by a court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit." 19. In Kamlesh Verma vs. Mayawati and Others, (2013) 8 SCC 320 , while dealing with the issue, the Apex Court detailed the grounds on which a review is maintainable and otherwise. In paragraphs 19 and 20 of the judgment, it was held as under:- "19. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction. Summary of the principles 20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute: 20.1. 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 vs. Neki, AIR 1992 PC 112 and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526 , 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 vs. Sandur Manganese & Iron Ores Ltd. (2013) 8 SCC 337 . 20.2. 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. (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 less only for patent error. (vi) The mere possibility of two views on the subject cannot be a ground of 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." 20. Again in N. Anantha Reddy vs. Anshu Kathuria and Others, (2013) 15 SCC 534, the Apex Court held as under:- "A careful look at the impugned order would show that the High Court had a fresh look at the question whether the appellant could be impleaded in the suit filed by the respondent No. 1 and, in the light of the view which it took, it recalled its earlier order dated 08.06.2011. The course followed by the High Court is clearly flawed. The High Court exceeded its review jurisdiction by reconsidering the merits of the order dated 08.06.2011. The review jurisdiction is extremely limited and unless there is mistake apparent on the face of the record, the order/judgment does not call for review. The mistake apparent on record means that the mistake is self evident, needs no search and stares at its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit rehearing of the matter on merits." 21. In the light of the ratio of the aforementioned judgments of the Apex Court, we cannot persuade ourselves to allow the present review petition as the counsel for the petitioner has failed to project any error apparent on the face of record which could justify, on merits, review of the judgment and order dated 03.03.2017, passed in SWP No. 2768-S/2015. For the reasons mentioned above, this petition is found to be without merit and is dismissed.