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2021 DIGILAW 602 (JK)

Qazi Gousia Jeelani v. Mehraj-ud-Din Najar

2021-11-17

JAVED IQBAL WANI

body2021
JUDGMENT : Javed Iqbal Wani, J. 1. In the instant petition, review of the judgement dated 21.10.2021, passed by this Court in SWP No. 1405/2011 titled Mehraj-ud-Din Najar v. S.K. University of Agriculture Science and Technology and others, is sought by the Review Petitioner (Respondent No. 3 in the writ petition) on the following grounds: (i) Because the Order sought to be reviewed, it is stated that Mr. Azhar-ul Amin, Advocate, representing the review petitioner, due to indisposed state of health could not attend the hearing on the date fixed in the matter viz. 09.09.2021 and the review petitioner was unrepresented at the hearing of the matter and the judgement rendered quashing the appointment of the Respondent No. 3 in the writ petition (review petitioner) without hearing the review petitioner. Resultantly the material of vital bearing and decisive importance has not formed the part of consideration of this Court while rendering the impugned judgement and order dated 21.10.2021, afflicting thereby the impugned judgement and order with error apparent on the face of the judgement within the meaning of contemplation of Order 47 Rule 1 of Code of Civil Procedure read with Rule 65 of the High Court Rules, rendering in sequel thereto the impugned judgement and order dated 21.10.2021 liable to be reviewed to correct the error apparent as well as the resultant miscarriage of justice. (ii) Because the order sought to be reviewed it is humbly submitted, has failed to appreciate the grounds urged by the review petitioner vis-a-vis the facts, as available from the records, as such, is liable to be reviewed for the error apparent on the face of record. (ii) Because the order sought to be reviewed it is humbly submitted, has failed to appreciate the grounds urged by the review petitioner vis-a-vis the facts, as available from the records, as such, is liable to be reviewed for the error apparent on the face of record. (iii) Because the order sought to be reviewed could not bring the material discovered during the pendency of the writ petition of clinching effect though, in that, the said material comprising official record maintained by the Respondent-University in the ordinary course of official business, furnished the clinching evidence of the fact that the stand of the review petitioner in counter affidavit that application in the prescribed form was submitted well in time but unfortunately mislaid/misplaced is factually correct and it was under the directions of the Vice Chancellor of the University, issued/passed in exercise of powers as by law vested under Clause 6(b) of the University Statutes, 1983 that the application of the review petitioner submitted on plain paper was entertained and review petitioner allowed to appear in the interview test. (iv) Because the order sought to be reviewed fails to consider the above aspect of the matter inasmuch as the review petitioner has suffered for negligence, intentional or otherwise, of his counsel in all bona fides and not because of any intended omission on the part of the review petitioner. (v) Because the order sought to be reviewed that the requirements of the job of Workshop Assistant was/is in the Agricultural Engineering Division of the Respondent-University, the qualification possessed by the review petitioner, in the estimation of the experts in the field fully answered the imperatives of the qualification prescribed as a matter of eligibility for appointment to the post of Workshop Assistant in the Agricultural Engineering Division in the Respondent-University and it is because of above the review petitioner was appointed against the advertised post of Workshop Assistant. (vi) Because the order sought to be reviewed in view of the law declared on the subject by the Hon'ble Supreme Court of India in S. Nagaraj Case reported in 1993 (Supp.) 4 SCC 595, paragraphs 18 and 19 at page 618-619 and paragraphs 89 and 90 at page 605 in Netaji Cricket Club Case reported in AIR 2005 SC 592 , is also liable to be reviewed and the application seeking review deserves to be accepted/allowed ex debito justitiae. 2. 2. Before adverting to the grounds detailed out hereinabove, it would be appropriate to give a brief background of the case hereunder:- 3. Respondent No. 1 herein invoked the extraordinary writ jurisdiction of this Court in SWP No. 1405/2011 for quashment of the impugned selection and appointment order dated 19.04.2010 insofar as it related to Respondent No. 3 (review petitioner herein) with a further prayer to direct the official respondents herein to select and appoint the writ petitioner against the post of Workshop Assistant on the basis of his overall merit in the selection process and give him all consequential benefits. The writ petition came to be filed, inter alia, on the following grounds : "(a) That admittedly the last date for receipt of application had been fixed by the respondents on 11.09.2009 and Respondent No. 3 had applied on 13.03.2010 much after cutoff date and even after all letters had been issued to other candidates. The official respondents could not have even entertained the application of Respondent No. 3 much less consider her for appointment by permitting her to participate in selection process. The selection and appointment of Respondent No. 3 is not only ex-facie illegal and contrary to law but also amounts fraud on powers vested in the selection authorities. (b) That Respondent No. 3 is not otherwise eligible and has been wrongly selected and appointed. It is submitted that in terms of advertisement notice the qualification prescribed is ITI trained in the trade of Carpenter/fitter/Turner/ Lathe-operator/Machinist. The Respondent No. 3 has claimed to be diploma holder in Agriculture Engineering which is quite different than prescribed qualification. In the said view of the matter, Respondent No. 3 is rendered ineligible for appointment to the post of Workshop Assistant. The Respondent No. 3 could not have been considered for appointment and her appointment de-hors the conditions of eligibility contained in advertisement notice. (c) That the action of official respondents is contrary to law and suffers from vice of abuse of power and legal malice in that it has been accentuated by and based on either extraneous considerations." 4. The Respondent No. 3 could not have been considered for appointment and her appointment de-hors the conditions of eligibility contained in advertisement notice. (c) That the action of official respondents is contrary to law and suffers from vice of abuse of power and legal malice in that it has been accentuated by and based on either extraneous considerations." 4. The official respondents in their objections filed in opposition to the writ petition contended that the writ petitioner as also Respondent No. 3 sought consideration for appointment against the post of workshop assistant and that the petitioner did not get selected and filed the petition upon issuance of appointment order dated 19.04.2021, after more than a year and that the Respondent No. 3 applied for the post through an application on plain paper dated nil having been marked by the then Registrar on 13.03.2010 and that along with the application form, the Respondent No. 3 submitted the application on plain paper on the basis of which interview call letter dated 17.03.2010 came to be issued in her favour and that the Respondent No. 3 was allowed to appear in the interview before the selection committee under the instructions of Registrar-Respondent No. 2 and that the Respondent No. 3 is holding Diploma in Agriculture Engineering and that though her application form was not referred to the screening committee and the selection committee headed by Registrar-Respondent No. 2 had found her to be eligible on the basis of her qualification and consequently selected her on the basis of merit obtained during the said selection process. 5. The Respondent No. 3 (review petitioner herein) in response to the writ petition of the writ petitioner in the counter affidavit pleaded the following which is reproduced in verbatim : "1. I State and submit that I was engaged as Workshop Assistant on 19.04.2010. The writ petition has been filed in August, 2011. In this view of the matter the writ petition suffers from latches and on that count is liable to be dismissed. 2. I State and submit that the only controversy raised in the case relates to; as to whether the answering respondent responded to the Advertisement Notice No. 3 of 2009, dated 22.08.2009. It is the case of the answering respondent that she responded to the said Advertisement Notice before the cut of date. 2. I State and submit that the only controversy raised in the case relates to; as to whether the answering respondent responded to the Advertisement Notice No. 3 of 2009, dated 22.08.2009. It is the case of the answering respondent that she responded to the said Advertisement Notice before the cut of date. The answering respondent submitted her application form complete in all respects. The form was duly deposited by her in the concerned Section of the University. The answering respondent was provided the receipt by the Receipt Clerk dated 07.09.2009. A photocopy of the Receipt is appended to this affidavit as Annexure "R-I". In the month of March, 2010 the answering respondent learnt that the University has sent Call Letters to the candidates for interview. Since the answering respondent did not receive the Call Letter she immediately approached the Registrar of the University. The answering respondent informed the Registrar that she had also submitted her application form and that she was entitled to be called for interview but since she has not been called, therefore, she is approaching the University authorities in this behalf. The then Registrar asked the concerned Clerk to look into the matter. The Clerk informed the Registrar that the Form submitted by the answering respondent was not readily available. The Registrar asked the answering respondent to submit application. The application was accordingly submitted on 13.03.2010 and the Registrar on the said application passed the appropriate order. It is categorically denied that the answering respondent applied for the post of Workshop Assistant on 13.03.2010. The answering respondent, it is reiterated, had applied for the said post on 07.09.2009. The application was filed in view of the circumstances indicated above. That the answering respondent was accordingly called for interview. The answering respondent has been selected for appointment on the basis of her merit. The writ petitioner has not been found suitable for appointment. The answering respondent, therefore, submits that she was eligible for appointment before the Advertisement, during the Advertisement and even after the Advertisement. The answering respondent had also applied under the Advertisement and in accordance therewith well within time. In these circumstances the appointment of the answering respondent cannot be questioned on these grounds." 6. Heard learned counsel for the review petitioner, perused the record of the file and considered the matter. 7. The answering respondent had also applied under the Advertisement and in accordance therewith well within time. In these circumstances the appointment of the answering respondent cannot be questioned on these grounds." 6. Heard learned counsel for the review petitioner, perused the record of the file and considered the matter. 7. It is pertinent to mention here that Rule 65 and 66(4) of the Jammu and Kashmir High Court Rules, 1999 deals with the provision of review and the same is reproduced hereunder:- “65. Application for review of Judgement. The Court may review its judgement or order but no application for review shall be entertained except on the ground mentioned in order XLVII Rule I of the Code. 66(4) The application for review shall be disposed of by the Court in accordance with the provisions of Order XLVII of the Code." A bare perusal of the aforesaid rules postulate that the Court may review its judgement or order upon an application which has to be entertained only and exclusively on the grounds mentioned in Order 47 Rule 1 CPC. 8. Before proceeding further in the matter, it would be appropriate and advantageous to refer to the law on the subject of review laid down by the Apex Court in case titled as Inderchand Jain Vs. Motilal reported in 2009 (14) SCC 663 , wherein at paragraphs 7 to 11, it has been provided as under:- "7. Section 114 of the Code of Civil Procedure (for short "the Code") provides for a substantive power of review by a civil court and consequently by the appellate courts. The words "subject as aforesaid" occurring in Section 114 of the Code means subject to such conditions and limitations as may be prescribed as appearing in Section 113 thereof and for the said purpose, the procedural conditions contained in Order 47 of the Code must be taken into consideration. Section 114 of the Code although does not prescribe any limitation on the power of the court but such limitations have been provided for in Order 47 of the Code; Rule 1 whereof reads as under: "17. The power of a civil court to review its judgement/decision is traceable in Section 114 CPC. The grounds on which review can be sought are enumerated in Order 47 Rule 1 CPC, which reads as under: 1. The power of a civil court to review its judgement/decision is traceable in Section 114 CPC. The grounds on which review can be sought are enumerated in Order 47 Rule 1 CPC, which reads as under: 1. Application for review of Judgement (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 and 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 judgement of the court which passed the decree or made the order.” ” 9. An application for review would lie, inter alia when the order suffers from an error apparent on the face of the record and permitting the same to continue would lead to failure of justice. In Rajendra Kumar V. Rambai this court held: (SCC P. 514, para 6) : "6. The limitation on exercise of the power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgement/order cannot be disturbed." 10. The power of review can also be exercised by the court in the event discovery of new and important matter or evidence takes place which despite exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when the order was made. An application for review would also lie if the order has been passed on account of some mistake. Furthermore, an application for review shall also lie for any other sufficient reason. 11. An application for review would also lie if the order has been passed on account of some mistake. Furthermore, an application for review shall also lie for any other sufficient reason. 11. It is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A rehearing of the matter is impermissible in law. It constitutes an exception to the general rule that once a judgement is signed or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order. 12. Review is not appeal in disguise. In Lily Thomas V. Union of India 2000 (6) SCC 224 this court held: (SCC P. 251, para 56) : "56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise." 13. Having regard to the aforesaid position of law the instant petition may be considered : The grounds urged by the review petitioner that she was unrepresented at the hearing of the matter on 21.10.2021 due to non-appearance of the counsel namely Mr. Azhar-ul-Amin, owing to his ill health is not a ground worth the name warranting review of the judgment in question for the simple reason that there had been no motion laid before the Court in regard to the ailment of the counsel either by review petitioner or by her counsel and that the review petitioner as also her counsel did not choose to appear on the said date before the Court. However, notwithstanding that, the Court while considering the writ petition considered the response/counter affidavit filed by the review petitioner in opposition to the writ petition. The ground thus urged in this regard is thus misconceived and, in law, does not warrant review of the judgment in question. However, notwithstanding that, the Court while considering the writ petition considered the response/counter affidavit filed by the review petitioner in opposition to the writ petition. The ground thus urged in this regard is thus misconceived and, in law, does not warrant review of the judgment in question. The ground that the review petitioner could not bring on record material discovered during the pendency of the petition comprising of official record maintained by the University furnishing clinching evidence that the application in the prescribed form was submitted well in time but unfortunately mislaid/misplaced and that it was under the directions of Vice-Chancellor of the University who issued/passed in exercise of his powers vested under clause 6(b) of the University Statute 1983, that the application of the applicant submitted on the plain paper was entertained and the applicant was allowed to appear in the interview test. The aforesaid ground urged having regard to case set up by the review petitioner in the counter affidavit to the writ petition itself appears to be mutually destructive, in that, in one breath review petitioner claims to have applied in time for the post in question, but simultaneously suggesting that the review petitioner was called for interview in terms of clause 6(b) of the University Statute whereunder Vice-Chancellor is stated to be vested with power to place case of such person, who may not have applied for a post before the selection committee for consideration along with others who have applied in response to the advertisement. If the review petitioner had applied well within time in response to the advertisement notice, then there was no reason for invoking clause 6(b) of the University Statute. Moreover, the aforesaid ground urged by the review petitioner runs contrary to the stand taken by the official respondents as is discernible from their reply affidavit filed to the writ petition as also the report of enquiry dated 11.06.2013 placed on record before the Court by the said respondents in the writ petition wherein the said enquiry the review petitioner had been associated thereof and the review petitioner indisputably did not controvert the said enquiry report upon its placement before the Court by the official respondents. The said report manifestly is a clinching evidence of the fact that the review petitioner did not apply well within timeframe in response to the advertisement notice and that her candidature was entertained upon her having submitted an application before the Registrar-Respondent No. 2 in the writ petition on 13.03.2010 and that the review petitioner managed to insert application form (II) in the records of the Registry obtaining a fake receipt of the application form reflecting fake bank draft number/date also and that the review petitioner was not figuring in the list of Screening Committee which had screened the applications for the post in question on 31.03.2010 as the review petitioner had not applied for the post on prescribed format within the stipulated time. The ground urged thus is also misconceived and does not call for review of judgment in question. 14. The rest of the grounds urged by the review petitioner in the instant petition either are repetition of the aforesaid grounds dealt with hereinabove, as such, do not warrant any further consideration or are such which do not constitute a ground for seeking the review of the judgment in question. 15. At the cost of risking repetition on the provision of review, a reference to the latest judgment of the Apex Court passed in case of Ram Sahu (Dead) through LRs and others v. Vinod Kumar Rawat and others, 2020 SCC On-Line SC 896 (reported as well in 2021 (1) JKJ 77 [SC]), would be relevant herein, wherein at paragraphs 33 and 34 following has been observed and held:- 33. In the case of State of West Bengal V. Kamal Sengupta, (2008) 8 SCC 612 , this Court had an occasion to consider what can be said to be "mistake or error apparent on the face of record". In para 22 to 35 it is observed and held as under:- 22. The term "mistake or error apparent" by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision. . . . 26. In Moran Mar Basselios Catholicos v. Mar Poulose Athanasius (supra) this Court interpreted the provisions contained in the Travancore Code of Civil Procedure which are analogous to Order 47 Rule 1 and observed: "32. ... Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order 47 Rule 1 of our Code of Civil Procedure, 1908, the court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified grounds, namely, (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason. It has been held by the Judicial Committee that the words 'any other sufficient reason' must mean 'a reason sufficient on grounds, least analogous to those specified in the rule'. " 27. In Thungabhadra Industries Ltd. v. Govt., of A.P. (supra) it was held that a review is by no means an appeal in disguise whereof an erroneous decision can be corrected. 28. In Parsion Devi v. Sumitri Devi (Supra) it was held as under: (SCC p. 716) "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. 28. In Parsion Devi v. Sumitri Devi (Supra) it was held as under: (SCC p. 716) "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'. There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be 'an appeal in disguise'." "34. To appreciate the scope of review, it would be proper for this Court to discuss the object and ambit of Section 114 CPC as the same is a substantive provision for review when a person considering himself aggrieved either by a decree or by an order of Court from which appeal is allowed but no appeal is preferred or where there is no provision for appeal against an order and decree, may apply for review of the decree or order as the case may be in the Court, which may order or pass the decree. From the bare reading of Section 114 CPC, it appears that the said substantive power of review under Section 114 CPC has not laid down any condition as the condition precedent in exercise of power of review nor the said Section imposed any prohibition on the Court for exercising its power to review its decision. However, an order can be reviewed by a Court only on the prescribed grounds mentioned in Order 47 Rule 1 CPC, which has been elaborately discussed hereinabove. An application for review is more restricted than that of an appeal and the Court of review has limited jurisdiction as to the definite limit mentioned in Order 47 Rule 1 CPC itself. However, an order can be reviewed by a Court only on the prescribed grounds mentioned in Order 47 Rule 1 CPC, which has been elaborately discussed hereinabove. An application for review is more restricted than that of an appeal and the Court of review has limited jurisdiction as to the definite limit mentioned in Order 47 Rule 1 CPC itself. The powers of review cannot be exercised as an inherent power nor can an appellate power can be exercised in the guise of power of review." 16. The judgments referred to in the review petition by the review petitioner in view of the above analysis do not lend any support to the case of the review petitioner. 17. The review petitioner cannot be permitted to introduce a new case in the garb of the instant review petition while urging the aforesaid grounds. Review petitioner has not been able to carve a case for review of the judgment in question on any grounds provided under Order 47 CPC. 18. For what has been observed, considered and analysed hereinabove having regard to the facts and circumstances of the case and the legal position enunciated by the Apex Court in the judgments supra, this Court is satisfied that the grounds urged in the instant review petition do not warrant review of the judgment dated 21.10.2021. Resultantly review petition fails and is accordingly dismissed. 19. Dismissed alongwith connected CM.