Jammu & Kashmir High Court - Srinagar Bench
Abdul Rahim Sholla vs Chairman Cum Managing on 1 July, 2021
Sr. No.217
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(THROUGH VIRTUAL MODE
CJ Court
RP No.22/2019
ABDUL RAHIM SHOLLA ...PETITIONER(S)
Through:- Mr. Arshad Andrabi, Advocate,
Petitioner also present in person.
Vs.
CHAIRMAN CUM MANAGING
DIRECTOR & ORS. ...RESPONDENT(S)
Through:- Mr. Javaid Kawoosa, Sr. Advocate, with
Mr. Aatir Kawoosa, Advocate.
CORAM:-
HON‟BLE THE CHIEF JUSTICE
HON‟BLE MR. JUSTICE SANJAY DHAR, JUDGE.
ORDER
01-07-2021
Per Sanjay Dhar „J‟
1) By virtue of instant review petition, petitioner is seeking review
of the judgment and order dated 03.10.2018 passed by this Court in an
intra Court appeal bearing LPASW No.247/2017. In the aforesaid
Letters Patent Appeal, challenge was thrown to a judgment and order
dated 06.07.2017 passed by learned Single Judge in SWP
No.2201/2011 titled Abdul Rahim Sholla vs. Chairman Cum
Managing Director & others.
(A) Background facts:
2) Initially the review petitioner had filed a writ petition bearing
SWP No.51/2004 whereby he had sought issuance of a Writ of
RP No.22/2019 Page |2
Certiorari for quashing the action of respondent Insurance Company
in reducing his salary with a Writ of Mandamus directing the
respondents to release all the withheld amount of salary, increments
and allowances. The petitioner had also challenged General Insurance
(Rationalization of Pay Scales and other Conditions of Service of
Development Staff) Scheme under which the reduction in salary and
allowances etc. of the petitioner had been effected.
3) The learned Writ Court vide its judgment dated 26.03.2010,
while upholding the vires of the aforesaid scheme, directed the
respondent Insurance company to reconsider the case of the petitioner
and take a fresh decision in view of the observation of the Writ Court
that the action of the respondent company to deprive the petitioner of
non-core allowance and order him to suffer decrements in the facts of
circumstances prevailing in the Valley at the relevant time, was
arbitrary and unreasonable.
4) It appears that pursuant to the aforesaid direction of the Writ
Court, the respondent Company reconsidered the case of the petitioner
and passed an order dated 19.11.2010 rejecting his claim. This order
came to be challenged by the petitioner by way of a writ petition
bearing SWP No.2201/2011 and the same was dismissed by the Writ
Court in terms of its judgment and order dated 06.07.2017.
5) The aforesaid judgment and order of the Writ Court came to be
challenged by the petitioner by way of an intra court appeal bearing
LPASW No.247/2017, primarily, on two grounds. Firstly, on the
RP No.22/2019 Page |3
ground that no opportunity of hearing was given to the petitioner
while passing order dated 19.11.2010 and the same was not
appreciated by the learned Single Judge. The second ground of
challenge to the judgment of the learned Single Judge was that
upholding of order of reduction of core allowances and effecting of
decrements in the emoluments of the petitioner amounted to taking of
disciplinary proceedings against the petitioner which could not be
done without following due procedure provided under General
Insurance (Conduct, Discipline and Appeal) Rules, 1975 and that this
contention of the petitioner has not been dealt with by the Writ Court.
6) Vide order dated 03.10.2018, the Division Bench of this Court
found no merit in the appeal of the petitioner and the same was
dismissed. It is this order which is under challenge before us by way
of the instant review petition.
(B)Grounds urged by the Review Petitioner:
7) Learned counsel for the petitioner has, primarily, urged and
contended that there is an error apparent on the face of record of the
judgment under review, inasmuch as the petitioner‟s contention that
the respondent Company could not have reiterated its earlier decision
of deduction of core allowances and effecting of decrements in his
emoluments after their said action had been quashed by the Writ
Court in its judgment dated 26.03.2010 passed in SWP No.51/2004
has not been taken note of by the Division Bench. It has also been
contended that the order of rejection dated 19.11.2010 has been
RP No.22/2019 Page |4
passed without hearing the petitioner and this contention has also not
been dealt with in the judgment under review. Lastly, it has been
argued that the Division Bench did not appreciate the fact that the
reduction in core allowances and effecting of decrements tantamount
to punishment which could not have been inflicted without recourse to
the Rules of 1975.
(C) Discussion:
8) We have heard learned counsel for the parties and perused the
record.
9) Before coming to the contentions of the review petitioner, we
would like to discuss the scope of review jurisdiction by reference to
relevant statutory provisions and the case law.
10) 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."
11) 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.
Here it would be apt to quote the provisions contained in Order XLVII
Rule 1 of the CPC, which reads as under:
RP No.22/2019 Page |5
"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.] "
12) 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
RP No.22/2019 Page |6
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 a reason analogous to the first two reasons.
13) In Kamlesh Verma v Mayawati and others, (2013) 8 SCC
320, the Supreme Court while discussing the scope of review, in
paragraphs 20.1 and 20.2 of the said judgment laid down its
conclusions as under:
"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....."
"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 mistake 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 fact of
the order, undermines its soundness
or results in miscarriage of justice.
RP No.22/2019 Page |7
(v) A review is by no means an appeal in
disguise whereby an erroneous
decision is reheard and corrected but
lies only for patent error.
(vi) The mere possibility of two views on
the subject cannot be a ground for
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 "
14) The aforesaid principles were reiterated by the Supreme
Court in Yashwant Sinha and others v Central Bureau of
Investigationand another, 2019 SCC online 517 and Sunil
Vasudeva and others v Sundar Gupta and others, (2019) 17 SCC
385.
15) In the light of aforesaid principles governing the scope of
review, let us now advert to the facts and contentions raised in the
instant review petition.
16) The contention of the petitioner that the Division Bench while
passing the judgment/order under review did not take note of the fact
that the order of withholding of core allowances and effecting
decrements in the emoluments of the petitioner had been declared
arbitrary by the Writ Court in earlier round of litigation, is patently
misconceived as the Division Bench after noticing the reliefs granted
RP No.22/2019 Page |8
in the first writ petition of the petitioner, in paragraph 7 of the
judgment under review, has proceeded to uphold the finding of the
Writ Court, whereby the learned Single Judge, on the basis of
comparative chart of performance of the petitioner vis-à-vis his other
colleagues had justified the order of rejection of case of the petitioner.
17) Similarly, in paragraph 9 of the judgment under review, the
Division Bench has considered the contention of the petitioner that he
was not given personal hearing before passing order of rejection dated
19.11.2010.
18) So far as the contention of petitioner that the order of rejection
amounted to inflicting punishment upon him which could not be done
without taking recourse to the procedure provided in the Rules of
1975, is concerned, the same has also been considered and dealt with
in paragraph 9 of the judgment under review.
(D) Conclusion:
19) What we have found from the contentions raised by the review
petitioners as noted hereinbefore, is that in the guise of review
petition, he has tried to persuade this Court to rehear the issues that
have already been decided. We are of the firm view that, even if the
view taken in the judgment and order under review on any point may
not be right but it is not a ground for review that a judgment proceeds
on an incorrect exposition of law. Simply because a Judge has gone
wrong in law, that is no ground for a review, though it may be a
RP No.22/2019 Page |9
ground for appeal. A mere repetition of old and overruled arguments
are insufficient for exercising jurisdiction of review.
20) Thus, we are of the opinion that all the contentions raised by the
petitioner before the Division Bench have been appropriately dealt
with in the judgment and order under review and we do not find any
error apparent on the face of record that would warrant interference by
this Court in exercise of its review jurisdiction. We do not find any
merit in this review petition. The same is, accordingly, dismissed.
(SANJAY DHAR) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
SRINAGAR
01.07.2021
"Bhat Altaf, PS"
MOHAMMAD ALTAF BHAT
2021.07.03 10:38
I attest to the accuracy and
integrity of this document
