Jammu & Kashmir High Court - Srinagar Bench
Mushtaq Ahmad Pathan & Ors vs State Of J&K & Others on 1 December, 2021
Sr. No.55
Advance List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
RPSW No.09/2017
MUSHTAQ AHMAD PATHAN & ORS. ...PETITIONER(S)
Through: Mr. M. Ashraf wani, Advocate
Vs.
STATE OF J&K & OTHERS ...RESPONDENT(S)
Through: Mr. Irfan Andleeb, Dy. AG.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
(ORDER)(ORAL)
1. Instant review petition has been filed by the review
petitioners seeking review of order dated 10.05.2016
passed in writ petition bearing SWP No.415/2011 whereby
writ petition of the review petitioners has been disposed of.
2. It appears from the record that review petitioners had
filed a writ petition challenging the selection list issued
pursuant to advertisement notice bearing No.PERS-
21/2010/14840-903 dated 07.04.2010 issued by official
respondents, whereby 253 posts of Constables in District
Budgam were advertised. It was contended by writ
petitioners that the selection was made by the official
respondents in derogation of the advertisement notice as
well as reservation rules. It appears that on 10.05.2016,
on the basis of the statement made by learned counsel for
the petitioners, the petition came to be disposed of by the
Writ Court with a direction to the official respondents to
consider the petitioners for appointment on the posts of
Constable in District Budgam in Schedule Tribe Category,
if the posts have become available because of non-joining
of candidates in the said category.
3. The review petitioners are aggrieved of the aforesaid
order on the grounds that the Writ Court has not recorded
any finding on the merits of the case; that the statement
made by learned counsel for the petitioners at the time of
disposal of the writ petition is self-destructive and that the
writ petition raised important questions which had
bearing upon vital rights of the petitioners.
4. I have heard learned counsel for the parties and
perused the record.
5. Before proceeding to consider the contentions raised
by the review petitioner, it is necessary to notice the legal
position as regards the scope of review.
6. 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."
7. 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.] "
8. 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.
9. Coming to the facts of the instant case, the writ
petition has been disposed of on the basis of the statement
made by learned counsel for the petitioners and a direction
has been issued to the official respondents to consider the
petitioners for appointment on the posts of Constable in
District Budgam in Schedule Tribe Category, if the posts
have become available because of non-joining of
candidates in the said category. It is not the case of review
petitioners that the counsel was not authorized to make
such a statement nor is it their case that the counsel
representing the writ petitioners was not engaged by them.
Once counsel for the petitioners made a request to the
Court to extend a direction to the official respondents for
consideration of case of the petitioner, it is not open to the
review petitioners now to resile from the same and contend
that the merits of the case were not considered by the Writ
Court. There is no error apparent on the face of the order
sought to be reviewed nor it is a case where any new and
important matter or evidence, which was not within the
knowledge of the writ petitioners, has been brought to the
notice of this Court.
10. 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.
(Sanjay Dhar)
Judge
Srinagar
01.12.2021
"Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
MOHAMMAD ALTAF BHAT
2021.12.02 13:37
I attest to the accuracy and
integrity of this document
