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2021 DIGILAW 552 (JK)

Suhail Ur Rehman v. State of J&K

2021-10-21

SANJAY DHAR

body2021
ORDER : 1. Instant review petition has been filed by Nisar Ahmad Malik, who was impleaded as respondent No. 7 (hereinafter referred to as the review petitioner) to the writ petition bearing SWP No.1794/2011. By virtue of this review petition, judgment and order dated 3rd October, 2018, passed by the Writ Court is sought to be reviewed. 2. The facts emerging from the record of the case are that the one Suhail ur Rehman (hereinafter referred to as the writ petitioner) filed a writ petition challenging the appointment order of review petitioner who had been appointed as Rehbar-e-Taleem (ReT) in terms of order dated 21st June, 2011, issued by Chief Education Officer, Anantnag. The writ petition came to be allowed by the Writ Court in terms of the judgment and order dated 3rd October, 2018 and the appointment of review petitioner was quashed. 3. It seems that the review petitioner challenged the judgment and order of the Writ Court before the Division Bench by way of a Letters Patent Appeal. The said appeal came to be dismissed as withdrawn in terms of order dated 22.10.2018 with liberty to the review petitioner to approach the Writ Court with a review petition. It is in these circumstances that the instant review petition has been filed before this Court. 4. The writ record suggests that an advertisement notice was issued by the Zonal Education Officer, Vailoo, whereby applications were invited from eligible unemployed youth having minimum qualification of 10+2 or above from the habitations of Peer Mohalla and Nai Basti for engagement of two ReTs in the newly established primary schools. The applications along with requisite testimonials were to reach the office of the Zonal Education Officer within seven days after the publication of advertisement notice in the newspaper. The advertisement notice was published in the newspaper on 6th of December, 2009. 5. The case of the writ petition before the Writ Court was that the review petitioner, who had been selected pursuant to the aforesaid advertisement, was not a graduate degree as on date of submission of his application form and, as such, he could not have been preferred over and above the writ petitioner who was holding the degree of graduation at the relevant time. 6. 6. The contention of the review petitioner before the Writ Court was that even though he had not qualified the paper of Environmental Studies course at the time when he submitted his application yet he had passed all other compulsory papers of graduation at the relevant time. It was further contention of the review petitioner that once the paper relating to Environmental Studies was passed by the review petitioner after the cut-off date, his degree of graduation has to be reckoned from the date of declaration of result of 3rd year class, meaning thereby that his degree is to be reckoned from the date he had passed the other compulsory papers. This contention of the review petitioner has been rejected by the Writ Court by holding that without passing the paper of Environmental Studies the review petitioner cannot be shown to have obtained the degree of B. A. meaning thereby that he was not eligible for the post when he applied for it in view of the relevant guidelines. 7. It has been contended by learned counsel for the review petitioner that eligibility for the post of ReT is 10+2 and not graduation and, as such, the Writ Court was not justified in holding that the review petitioner was not eligible at the time of submitting his application as, admittedly, he had passed 10+2 examination prior to the said date. 8. It has been next contended that the Writ Court did not appreciate the fact that once the review petitioner had passed the paper of Environmental Studies, his degree of graduation has to be reckoned from the date of declaration of his result in respect of other compulsory papers. 9. I have heard learned counsel for the parties and perused the record including the record of the Writ Court. 10. Before proceeding to consider the contentions raised by the review petitioner, we need to notice the legal position as regards the scope of review. 11. Rule 65 of the Jammu and Kashmir High Court Rules, 1999 deals with power of the High Court with regard to the review of a judgment. It reads as under: “65. Application for review of judgment- The Court may review its judgment or order but no application for review shall be entertained except on the ground mentioned in order XLVII Rule 1 of the Code.” 12. It reads as under: “65. Application for review of judgment- The Court may review its judgment or order but no application for review shall be entertained except on the ground mentioned in order XLVII Rule 1 of the Code.” 12. From a perusal of the aforesaid provision, it is clear that a plea for review of a judgment can be entertained only on the grounds mentioned in Order XLVII Rule 1 of the Code of Civil Procedure(CPC). Here it would be apt to quote the provisions contained in Order XLVII Rule 1 of the CPC, which reads as under: “1. Application for review of judgment-”(1) Any person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a court of small causes, and who, from the discovery of new an important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review. [Explanation:- The fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for review of such judgment.]” 13. [Explanation:- The fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for review of such judgment.]” 13. From a perusal of the aforesaid provision, it is clear that review of a judgment can be made on the following grounds: (i) if it is shown by the aggrieved person that a new and important matter and evidence which, after exercise of due diligence, was not within his knowledge or could not be produced by him, has been discovered. (ii) if there is some mistake or error apparent on the face of record and (iii) for any other sufficient reason. The expression “for any sufficient reason” has been interpreted by the Courts to mean for a reason analogous to the first two reasons. 14. In the light of the aforesaid legal position, let us now determine the merits of the contentions raised by the review petitioner. 15. So far as the contention of the review petitioner that even if it is assumed that he was not holding a graduate degree at the time of making his application still then he was eligible for the post of ReT, is concerned, the same appears to be full of substance because as per the advertisement notice, the minimum qualification prescribed was 10+2 or above. So, there can be no dispute to the fact that the review petitioner was eligible as on date of submission of his application form. 16. The question falls for consideration is as to whether he can be stated to have been holding the B. A. degree on the date of submission of application form. The answer to this question becomes necessary because the writ petitioner was, admittedly, holding B. A. degree on the relevant date. For the selection of ReTs, as per the laid down criteria, extra credits were to be given for higher qualifications. Therefore, for determination of comparative merit of the writ petitioner and the review petitioner, it is essential to go into the question as to whether review petitioner was holding the degree of B. A. at the time of submission of application form. 17. Therefore, for determination of comparative merit of the writ petitioner and the review petitioner, it is essential to go into the question as to whether review petitioner was holding the degree of B. A. at the time of submission of application form. 17. It has been contended by review petitioner that Academic Council of University of Kashmir had decided that degree of a candidate shall be reckoned from the date of declaration of result of 3rd year class even though the candidate has passed the compulsory subject of Environmental Studies course after the actual declaration of result. The said contention of the review petitioner has been taken note of by the Writ Court and has been dealt with and decided in the judgment sought to be reviewed. The Writ Court has, after taking note of the objections filed by the University of Kashmir to the writ petition, in para 5 of the judgment clearly held that passing of Environmental Studies, which is a compulsory course for an undergraduate student of all branches of higher education, is mandatory in nature and a degree of graduation is incomplete without it. According to the learned counsel for the review petitioner, the interpretation given by the Writ Court to the stand of the University is not correct. 18. The question whether the Writ Court has correctly interpreted the stand of the University authorities cannot be a subject matter of review. As already noted, the scope of review is very limited in nature and it cannot be extended to the extent of rehearing the issues that have already been decided by the Writ Court. Even if it is assumed that the view taken by the Writ Court is not correct, still it cannot be a ground for review. Merely because a judgment has proceeded on an incorrect exposition of law or because a Judge has gone wrong in law is not a ground for review though it may be a ground for appeal. A Court cannot rehear or correct erroneous judgment by way of a review. A mere repetition of old and overruled arguments are insufficient for exercising jurisdiction of review. 19. For what has been discussed hereinabove, I do not find any error apparent on the face of record which would warrant exercise of jurisdiction of review by this Court. The review petition is, accordingly, dismissed.