Jammu & Kashmir High Court - Srinagar Bench
Ahmad Ali And Ors vs Central Administrative Tribunal ... on 22 April, 2021
Serial No. 103
Suppl. list
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
CM No. 2456/2021 in
RP No. 46/2021
CM No. 2457/2021
CM No. 2458/2021
Ahmad Ali and Ors.
..... Appellant(s)
Through: -
Mr. M. A. Qayoom, Advocate and Mr. Mian Tufail, Advocate
V/s
Central Administrative Tribunal & Ors.
..... Respondent(s)
Through: -
Mr. T. M. Shamsi, ASGI
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
Hon'ble Mr Justice Vinod Chatterji Koul, Judge
Order
22.04.2021
CM No. 2456/2021
This application, for the reasons stated and grounds urged therein, is
allowed. Since Court proposed to decide the review petition at motion hearing,
therefore, no requirement of making good the deficiency of annexing the
requisite Court fee, stamp papers, notarization, etc.
CM disposed of as above.
RP No. 46/2021
In the instant review petition, filed under Chapter XLVII Rule 1 of the
Code of Civil Procedure, seeking review/modification and/ or setting aside of
the order dated 16.04.2021 passed in WP(C) No. 761/2021 and CM No.
2246/2021, in so far as it directs that the impugned orders passed by the
Central Administrative Tribunal (CAT), Bench, Jammu on 24.03.2021, and
order dated 07.08.2018, passed by the respondent No. 2, to remain subject to
outcome of the writ petition and with further direction, directing the
petitioners to join the Health Department forthwith, for rendering their
services and instead the parties deserve to be directed to maintain status quo,
on the grounds detailed out in the review petition with particular reference as
under:-
I. That the Court has not taken note of the fact that after the passing of
their permanent orders of transfer and posting, the petitioners have been
promoted in the transferee departments against the higher posts of
Junior Assistant, assistant Stockman and Assistant Storekeeper etc. and
they have been drawing the salary against these higher posts for the last
more than four years, which has substantiated by the orders placed on
record of the writ petition and mentioned in Sub Para-1 of Ground (a)
of the review petition.
II. That in terms of order dated 07.08.2018, the petitioners were repatriated
back to their respective parent departments against their original borne
cadre post, therefore, the order dated 07.08.2018, was an order of
reversion and not repatriation and it was, accordingly, challenged by
the petitioners before the Court through the medium of SWP No.
1903/2018 and this Court while entertaining the writ petition was
pleased to direct that the present status of the petitioners shall not be
disturbed. This Court in terms of order dated 16.04.2021, having
directed the petitioners to join the Health Department, without
indicating as to against which post they have to join and work in the
Health Department, therefore, the order dated 16.04.2021, deserves to
be reviewed/ modified and/or set aside and in order to protect the
present status of the petitioners and their rights and interests the position
obtaining as on today deserves to be maintained in the matter, till the
final disposal of the writ petition.
III. That the posts on which the petitioners were working before their
permanent transfer from Health Department, Kargil, to different other
departments, have been filled by the respondents and the lien of the
petitioners against those posts has also ceased to exist in terms of Civil
Service Regulations. The order dated 16.04.2021, directing the
petitioners to join back the Health Department is, therefore, unjust and
harmful to the rights and interests of the petitioners and is bound to
affect their service career adversely, as such, it deserves to be
reviewed/modified and/or set aside and the position obtaining as on
today deserves to be maintained in the matter, till the final disposal of
the writ petition.
IV. That the petitioners transfer and posting from Health Department,
Kargil, to other departments of the Government was an order of
appointment by transfer, against available posts. The petitioners having
been promoted in the transferee departments thereafter, therefore, the
respondent No. 3, who was the successor of the officer, who had issued
the order of transfer of the petitioners, had no jurisdiction to issue the
order dated 07.08.2018, repatriating the petitioners back to the Health
Department, against their original borne cadre posts and that too
without issuing any show cause notice to them and/ or providing them
an opportunity of being heard. He having done otherwise, therefore,
also the order dated 07.08.2018, was legally untenable and deserves to
be set aside. The respondent No. 1 while passing order dated
24.03.2021 having not however adverted to the said aspect of the matter
and the Hon'ble Court while passing order dated 16.04.2021 having not
also taken the said aspect of the matter into consideration and in the
process it having passed the order dated 16.04.2021, which has serious
adverse consequences on the rights and interests of the petitioners,
therefore, the order deserves to be reviewed/modified and/ or set aside
and the respondents deserve to be directed to maintain status quo, as it
exists today, till the final disposal of the writ petition.
V. That the purpose of issuing an order of stay is to preserve the rights of
the parties in status quo with reference to the application of the Judgment
of the Apex Court delivered in case titled Dalpat Kumar V. Prahlad
Singh reported in AIR 1993 SC 276.
VI. That a constitutional Bench of the Hon'ble Supreme Court in case Shri
Kihota Hollohon Vs. Mr. Zachilhuand others (AIR 1993 SC 412) has
also authoritatively pronounced that the purpose of interlocutory order
is to preserve in status quo the rights of the parties so that the
proceedings do not become infructuous by any unilateral overt acts by
one side or the other, during its pendency.
VII. That the order dated 16.04.2021, suffers from an error apparent on the
face of the record which warrants its review/modification and/or setting
aside and to avoid any miscarriage of justice, the parties deserve to be
directed to maintain status quo till the final disposal of the writ petition
VIII. That in case the order dated 16.04.2021 is not reviewed/ modified
and/or set aside to the extent indicated above, the petitioners shall
suffer incalculable loss and injury which cannot be compensated by any
method whatsoever.
Heard learned counsel for the petitioners, perused the records and
considered the matter.
Admittedly, this Court while considering the writ petition, filed by the
review petitioners, challenging the final order and Judgment dated
24.03.2021, passed by the Central Administrative Tribunal (CAT) Bench,
Jammu, in terms whereof, the CAT, Bench Jammu declining to interfere with
the impugned order dated 07.08.2018, issued by respondent No. 2, in terms
whereof petitioners have been repatriated as Class-IV employees of Health
Department, Kargil, from various departments to the Health Department
against their original cadre posts, leaving it open to the petitioners to make a
representation on the grounds detailed out in the petition with particular
reference that respondent No. 1, had no authority under law to pass such order,
entertaining the writ petition and sought returns from other side to pass final
orders after hearing the parties on the issue and while doing so, the Court after
detailed discussion qua the claim of the review petitioners for grant of interim
stay passed the order dated 16.04.2021, of which review is sought after proper
application of mind with adherence to principles for grant of ad-interim relief
and protecting the lis, which in the opinion of the Court does not warrant any
review/modification/setting aside. The contention raised by Mr. M. A.
Qayoom, learned appearing counsel for the petitioners that principles laid
down by the Constitutional Bench of Supreme Court in case titled Shri Kihota
Hollohon Vs. Mr. Zachilhuand others (AIR 1993 SC 412) as also the other
Judgment of the Supreme Court titled Dalpat Kumar V. Prahlad Singh
reported in AIR 1993 SC 276 is not adhered to, has no substance, as the grant
of interim relief depends on the peculiar facts and circumstances of the case.
Mere entertaining the writ petition for examining the issue in detail by seeking
returns from other side and for purpose of examining the records of the CAT,
Bench, Jammu, does not mean that the petitioners have cast iron case for
allowing the writ petition and for grant of relief on their asking, it shall not be
proper for the interest of the parties to go into the merits of the case at this
stage, lest that may prejudice the rights of the parties, therefore, we refrain
from making any observation and record any finding on the merits of the case,
but while doing so, we record satisfaction qua protecting the lis of the parties,
by keeping the impugned orders of the CAT, Bench Jammu as also
repatriation order of respondent No. 2 subject to outcome of the writ petition.
It is made clear that in the event petitioners succeed in the writ petition, there
shall be no difficulty for the Court to set aside the order of respondent No. 2,
having repatriated the petitioners to the Health Department as also the order
passed by the CAT, Bench, Jammu, thereby restoring the original position of
the petitioners wherefrom they have been repatriated with further release of
all consequential benefits.
What requires to be stated, at the outset, is that in the instant review
petition, the petitioners have touched the merits of the case, which, in a review
petition, is unwarranted as per law. It is well settled that the scope of review
of an order is very limited and it cannot be a forum to re-argue the matter
already decided by the Court. A review cannot also be used as a tool for
changing the opinion/ view of the Court. In a review petition, it is only an
error, apparent on the face of the record, which can be considered and gone
into by the Court.
Law on the subject is no more res integra. The Apex court of the
country, in case titled 'Kamlesh Verma v. Mayawati & Ors.' reported in
'(2013) 8 Supreme Court Cases 320', while dealing with a similar issue, held
as under:
"13. Review of the earlier order cannot be done unless the court
is satisfied that material error, manifest on the face of the order,
undermines its soundness or results in miscarriage of justice. This
Court, in Col. Avtar Singh Sekhon v. Union of India & Ors. [1980
(Supp) SCC 562], held as under:
"12. A review is not a routine procedure. Here we
resolved to hear Shri Kapil at length to remove any feeling
that the party has been hurt without being heard. But we
cannot review our earlier order unless satisfied that material
error, manifest on the face of the order, undermines its
soundness or results in miscarriage of justice. In Sow
Chandra Kante v. Sheikh Habib this Court observed :
1. .....A review of a judgment is a serious step and
reluctant resort to it is proper only where a glaring
omission or patent mistake or like grave error has crept in
earlier by judicial fallibility.... The present stage is not a
virgin ground but review of an earlier order which has the
normal feature of finality."
15. 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. A review is by no means an appeal in disguise whereby an
erroneous decision is re-heard and corrected, but lies only for patent
error. This Court, in Parsion Devi & Ors. v. Sumitri Devi & Ors., [JT
1997 (8) SC 480 : (1997) 8 SCC 715], held as under:
"7. It is well settled that review proceedings have to
be strictly confined to the ambit and scope of Order 47 Rule
1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P. this
Court opined:
11. 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
characterised 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.' (emphasis ours)
8. Again, in Meera Bhanja v. Nirmala Kumari
Choudhury while quoting with approval a passage from
Aribam Tuleshwar Sharma v. Aribam Pishak Sharma this
Court once again held that 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.
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."
16. Error contemplated under the rule must be such which is
apparent on the face of the record and not an error which has to be
fished out and searched. It must be an error of inadvertence. The power
of review can be exercised for correction of a mistake but not to
substitute a view. The mere possibility of two views on the subject is not
a ground for review. This Court, in Lily Thomas & Ors. v. Union of
India & Ors., [(2000) 6 SCC 224], held as under:
"54. Article 137 empowers this Court to review its
judgments subject to the provisions of any law made by
Parliament or any rules made under Article 145 of the
Constitution. The Supreme Court Rules made in exercise of
the powers under Article 145 of the Constitution prescribe
that in civil cases, review lies on any of the grounds specified
in Order 47 Rule 1 of the Code of Civil Procedure which
provides:
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 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 judgment to the court which passed the
decree or made the order.'
Under Order 40 Rule 1 of the Supreme Court Rules
no review lies except on the ground of error apparent on the
face of the record in criminal cases. Order XL Rule 5 of the
Supreme Court Rules provides that after an application for
review has been disposed of no further application shall be
entertained in the same matter.
-----------------
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. The mere possibility of
two views on the subject is not a ground for review. Once a
review petition is dismissed no further petition of review can
be entertained. The rule of law of following the practice of the
binding nature of the larger Benches and not taking different
views by the Benches of coordinated jurisdiction of equal
strength has to be followed and practised. However, this
Court in exercise of its powers under Article 136 or Article
32 of the Constitution and upon satisfaction that the earlier
judgments have resulted in deprivation of fundamental rights
of a citizen or rights created under any other statute, can take
a different view notwithstanding the earlier judgment.
----------------
58. Otherwise also no ground as envisaged under
Order XL of the Supreme Court Rules read with Order 47 of
the Code of Civil Procedure has been pleaded in the review
petition or canvassed before us using the arguments for the
purposes of reviewing the judgment in Sarla Mudgal case,
[JT 1995 (4) SC 331] It is not the case of the petitioners that
they have discovered any new and important matter which
after the exercise of due diligence was not within their
knowledge or could not be brought to the notice of the Court
at the time of passing of the judgment. All pleas raised before
us were in fact addressed for and on behalf of the petitioners
before the Bench which, after considering those pleas, passed
the judgment in Sarla Mudgal case. We have also not found
any mistake or error apparent on the face of the record
requiring a review. Error contemplated under the rule must
be such which is apparent on the face of the record and not
an error which has to be fished out and searched. It must be
an error of inadvertence. No such error has been pointed out
by the learned counsel appearing for the parties seeking
review of the judgment. The only arguments advanced were
that the judgment interpreting Section 494 amounted to
violation of some of the fundamental rights. No other
sufficient cause has been shown for reviewing the judgment.
The words 'any other sufficient reason appearing in Order 47
Rule 1 CPC' must mean 'a reason sufficient on grounds at
least analogous to those specified in the rule' as was held in
Chhajju Ram v. Neki, [AIR 1922 PC 112] and approved by
this Court in Moran Mar Basselios Catholicos v. Most Rev.
Mar Poulose Athanasius, [AIR 1954 SC 526] Error apparent
on the face of the proceedings is an error which is based on
clear ignorance or disregard of the provisions of law. In T.C.
Basappa v. T. Nagappa, [AIR 1954 SC 440] this Court held
that such error is an error which is a patent error and not a
mere wrong decision. In Hari Vishnu Kamath v. Ahmad
Ishaque [AIR 1955 SC 233], it was held:
23. .... It is essential that it should be something more
than a mere error; it must be one which must be manifest
on the face of the record. The real difficulty with reference
to this matter, however, is not so much in the statement of
the principle as in its application to the facts of a
particular case. When does an error cease to be mere
error, and become an error apparent on the face of the
record? Learned counsel on either side were unable to
suggest any clear-cut rule by which the boundary between
the two classes of errors could be demarcated.
Mr. Pathak for the first respondent contended on the
strength of certain observations of Chagla, C.J. in - 'Batuk
K. Vyas v. Surat Borough Municipality, [AIR 1953 Bom
133′] that no error could be said to be apparent on the face
of the record if it was not self-evident and if it required an
examination or argument to establish it. This test might
afford a satisfactory basis for decision in the majority of
cases. But there must be cases in which even this test might
break down, because judicial opinions also differ, and an
error that might be considered by one Judge as self-evident
might not be so considered by another. The fact is that
what is an error apparent on the face of the record cannot
be defined precisely or exhaustively, there being an
element of indefiniteness inherent in its very nature, and it
must be left to be determined judicially on the facts of each
case.'
Therefore, it can safely be held that the petitioners
have not made out any case within the meaning of Article
137 read with Order XL of the Supreme Court Rules and
Order 47 Rule 1 CPC for reviewing the judgment in Sarla
Mudgal case. The petition is misconceived and bereft of
any substance."
17. In a review petition, it is not open to the Court to re-
appreciate the evidence and reach a different conclusion, even if that is
possible. Conclusion arrived at on appreciation of evidence cannot be
assailed in a review petition unless it is shown that there is an error
apparent on the face of the record or for some reason akin thereto. This
Court, in Kerala State Electricity Board v. Hitech Electrothermics &
Hydropower Ltd. & Ors., [JT 2005 (7) SC 485], held as under:
"10. .........In a review petition it is not open to this
Court to reappreciate the evidence and reach a different
conclusion, even if that is possible. Learned counsel for the
Board at best sought to impress us that the correspondence
exchanged between the parties did not support the conclusion
reached by this Court. We are afraid such a submission
cannot be permitted to be advanced in a review petition. The
appreciation of evidence on record is fully within the domain
of the appellate court. If on appreciation of the evidence
produced, the court records a finding of fact and reaches a
conclusion, that conclusion cannot be assailed in a review
petition unless it is shown that there is an error apparent on
the face of the record or for some reason akin thereto. It has
not been contended before us that there is any error apparent
on the face of the record. To permit the review petitioner to
argue on a question of appreciation of evidence would
amount to converting a review petition into an appeal in
disguise."
18. Review is not re-hearing of an original matter. The power of
review cannot be confused with appellate power which enables a
superior court to correct all errors committed by a subordinate court.
A repetition of old and overruled argument is not enough to re-open
concluded adjudications. This Court, in Jain Studios Ltd. v. Shin
Satellite Public Co. Ltd., [JT 2006 (7) SC 40 : (2006) 5 SCC 501], held
as under:
"11. So far as the grievance of the applicant on
merits is concerned, the learned counsel for the opponent is
right in submitting that virtually the applicant seeks the same
relief which had been sought at the time of arguing the main
matter and had been negatived. Once such a prayer had been
refused, no review petition would lie which would convert
rehearing of the original matter. It is settled law that the
power of review cannot be confused with appellate power
which enables a superior court to correct all errors
committed by a subordinate court. It is not rehearing of an
original matter. A repetition of old and overruled argument
is not enough to reopen concluded adjudications. The power
of review can be exercised with extreme care, caution and
circumspection and only in exceptional cases.\
12. When a prayer to appoint an arbitrator by the
applicant herein had been made at the time when the
arbitration petition was heard and was rejected, the same
relief cannot be sought by an indirect method by filing a
review petition. Such petition, in my opinion, is in the nature
of 'second innings' which is impermissible and unwarranted
and cannot be granted."
19. Review proceedings are not by way of an appeal and have
to be strictly confined to the scope and ambit of Order XLVII Rule 1 of
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."
A cue can, in this behalf, be also had from the decision rendered by a
Division Bench of this High Court in the case of 'State of JK & Ors. vs. Govt.
Handloom Silk Weaving Factory & Ors.', reported in '2016 (2) JKJ
795(HC)', of which I was the author, wherein, it has been held as follows:
"13. At the very outset it needs to be kept in mind that review
jurisdiction of the Court if limited. It is settled law that it is only an
error apparent on the face of the record which can be considered and
one into by the Court. In the present review petition, the grounds of facts
of law urged in review petitions, as narrated above, including the
submissions made at the Bar by the learned Counsels appearing in
these review Petitions, which in content and substance were the same
as taken in the respective review petitions, cannot in any manner be
considered as errors on the fact of record. Instead the grounds sought
to be raised and urged may constitute grounds of appeal alone. In fact,
the instant review petitions on grounds enumerated herein appear to be
disguised Second Appeals. As noticed above, the grounds taken by the
review petitioners are either that the findings recorded by the Court are
not legally tenable, or that the same are perverse, or that the same are
unacceptable. A judgment may be wrong, erroneous incorrect,
perverse, legally untenable, etc. etc., the only course available for the
aggrieved party is to go in appeal. Such grounds do not constitute
errors of fact or of law on the face of the record as would call for a
review."
We have also considered the submission made by Mr. M. A. Qayoom,
learned counsel appearing for the petitioners, regarding the grant of interim
relief, qua maintaining the status of the petitioners wherefrom they have been
repatriated by reviewing the order, which as detailed out in the forgoing paras
is not admissible as there is no error apparent on the face of the record of the
interim order of which review/modification/setting aside is sought. We also
make it clear that petitioners can avail the appropriate remedy if they feel
aggrieved of the interim order passed by this Court on 16.04.2021, by filing
appeal.
In light of the above, having carefully considered the petition at hand
and the submissions made at Bar, it is held that the review petition deserves
to be dismissed and it is, accordingly, dismissed in limini along with
connected CM(s) .
(Vinod Chatterji Koul) (Ali Mohammad Magrey)
Judge Judge
SRINAGAR
22.04.2021
"Mohammad Yasin Dar"
i. Whether the Judgment is reportable? Yes/ No.
ii. Whether the Judgment is speaking? Yes/ No.
MOHAMMAD YASIN DAR
2021.04.22 13:18
I attest to the accuracy and
integrity of this document
