Mushtaq Ahmad Dar And Others vs State Of J&K And Others
2021 Latest Caselaw 284 j&K/2

               HIGH COURT OF JAMMU AND KASHMIR
                         AT SRINAGAR
                              (through Video Conference)

                                                              Reserved on : 25.02.2021
                                                           Pronounced on :   04.03. 2021


                                                   RPSW No. 52/2014
                                                   IA No. 1/2014
                                                   c/w
                                                   Contempt(SWP) No. 125/2014

Mushtaq Ahmad Dar and others                                          .....Petitioner(s)

                   Through :- Mr. M. Y. Bhat, Sr. Advocate with
                              Mr. Furkan, Advocate
                          V/s

State of J&K and others                                             .....Respondent(s)

                   Through :-    Mr. B. A. Dar, Sr. AAG
                                (for review petitioners)

CORAM :       HON‟BLE MR. JUSTICE TASHI RABSTAN, JUDGE

                                (JUDGEMENT)


RPSW No. 52/2014

01. The present petition has been filed seeking review of judgment and

order dated 30.01.2014 passed in SWP No. 1732/2013 titled Mushtaq Ahmad

Dar and other Vs State and others.

02. The writ petitioners/non-applicants herein filed the writ petition

bearing SWP No. 1732/2013, challenging the order No. 3265 of 2012 dated

22.09.2012 issued by the Director General of Police, whereby selection of the

petitioners/non-applicants herein have been cancelled. It is averred that the

reason for cancellation of selection of the petitioners/non-applicants herein was

that while verification of the certificates on which the petitioners had laid claim

to the post of Constable, had been found fake.

03. Objections have been filed in the writ petition, the paragraph No. 5

which is reproduced hereunder:-

"That during the process of investigation, the Crime Branch, Srinagar concluded the investigation with the report that the ITI/NC „C‟ certificates have been proved to be genuine and the instant case has been disposed of as not admitted before the Hon‟ble CJM, Srinagar. Meanwhile, the respondent department has been directed to re-verify the genuineness of the certificates in question of the petitioners from the concerned quarters again. However, the necessary re- verification report has been obtained from NCC Hqrs. Vide No. 1723 dated 10.10.2013 besides, the report received from State Board of Technical Education, Srinagar vide No. SBOTE/Verif/VI/13/ 247-78 dated 23.09.2013."

04. On the basis of the admissions made by the respondents/review

petitioners herein, the writ petition bearing SWP No. 1732/2013 was disposed

of with a direction to the respondents to issue appointment order in favour of

the petitioners in pursuance of the date of their initial selection.

05. The present review petition has been filed by the respondents/review

petitioners herein seeking review of the judgment and order dated 30.01.2014

on the ground that the respondents/review petitioners herein came to know that

a fraud has been committed by the authorities of the State Board of Technical

Education in connivance with the petitioners/non-applicants herein and

accordingly, they approached the concerned Magistrate for further

investigation in the matter, which was allowed. On investigation, it was

emerged beyond any shadow of doubt that the Secretary, State Board of

Technical Education, Jammu vide communication dated 27.03.2014

categorically mentioned that the certificates on which the petitioners had earlier

laid claim to the post of Constable were found fake.

06. It is further averred in the review petition that the Assistant Scientific

Officer, Documents Division, J&K FSL, Srinagar vide his report dated

31.05.2014 has categorically stated that the certificates of the petitioner were

scanned documents through the process of scanning. After investigation, it was

found that the ITI certificates were compared with the record and found that

none of them were figuring in their record and were fake. As such, the

respondents/review petitioners herein seeking review of the judgment and

order dated 30.01.2014.

07. Heard learned counsel for the parties.

08. Mr. B. A. Dar, learned Sr. AAG appearing on behalf of the review

petitioners has vehemently argued that the petitioners/non-applicants herein

had not entitled to the selection for the post of Constable, inasmuch as, the

certificates produced by them have been found fake. He, therefore, submits that

this is a fit and appropriate case to review the judgment and order impugned. In

support of his argument, he has placed reliance upon catena of judgments

passed by the Apex Court in (1994)1 SCC 1, (1996)5 SCC 550, (2000)3 SCC

581, (2006)7 SCC 416, (2007)4 SCC 221 & (2012)1 SCC 476. However, the

judgments cited by the learned counsel appearing for the review petitioners are

distinguishable, as the facts of the case in hand are different.

09. Mr. M. Y. Bhat, learned senior counsel appearing on behalf of the

petitioners/non-applicants herein has vehemently argued that the present

review petition is not maintainable in term of Order 47 Rule 1 of CPC,

whereunder it was envisaged that a judgment may be opened to review inter

alia, if there is a „mistake‟ or an „error‟ apparent on the face of record. It is

further argued that 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

record, justifying the Court to exercise its jurisdiction under Order 47 Rule 1 of

CPC. It is further argued that the review in terms of Order 47 Rule 1 of CPC is

not permissible for an erroneous decision to be re-heard and corrected.

10. Mr. Bhat, learned senior counsel while arguing further emphasized

that it is the admitted case of the respondents/review petitioners herein in their

objections that after conducting investigation by the Crime Branch with regard

to the genuineness of the certificates, it was found that the same were found

genuine and correct and accordingly, the case was closed as not admitted. As

such, the judgment and order dated 30.01.2014 was passed by this Court on the

basis of admission made by the respondents/review petitioners herein.

Therefore, the instant review petition is liable to be dismissed at the threshold.

11. During arguments, Mr. Bhat, learned senior counsel placed on record

the communication dated 10.07.2014 issued by the erstwhile Government of

Jammu & Kashmir, Civil Secretariat, Home Department, wherein the Home

Department has already formed its opinion not to file the review petition. The

aforesaid communication is reproduced hereunder:-

"The Director of General of Police, J&K, Srinagar.

No.Home/PB-IV/111/2013/3694 dated: 10.07.2014

Sub:- File and conduct of review against the judgment dated 30.01.2014 passed by the Hon‟ble High Court, J&K, Srinagar in SWP no. 1732/2013, IA No. 2772/2013 titled Mushtaq Ahmad Dar and others Vs State and others.

Sir,

I am directed to refer to your letter No. Legal/SV/P/S/123/2014/19058/60 dated 29.03.2014 regarding the subject cited above and to say that the case was referred to the Department of Law, Justice and Parliamentary Affairs to accord sanction for filing of Review petition against the judgment dated 30.01.2014 passed by the Hon‟ble High Court at Srinagar in SWP No. 1732/2013

titled Mushtaq Ahmad Dar and others Vs State and others. The said Department vide their U.O. No. LD(lit) No. 2014/28-Home dated 30.06.2014 has returned the case with the following advice/opinion:-

"... The department is advised that the time for filing of review petition against the judgment dated 30.01.2014 is already over. Filing of review at this stage would be a futile exercise as there is every little scope in seeking condonation of delay in review matters..."

You are accordingly, requested to take further necessary action in accordance with the above opinion/advice of the Department of Law, Justice & Parliamentary Affairs under an intimation to this Department.

Yours faithfully, sd/-

(Mohammad Yaqoob Malik) Under Secretary to the Government Home Department."

The aforesaid communication is taken on record.

12. It is well settled principle of law that "no one can be vexed twice for

the same offence," i.e. Doctrine of double jeopardy as envisaged under Article

20 of the Constitution, therefore, the review Court has a very limited scope to

entertain the review petition. While in the present case, the writ petition was

disposed of on the basis of admission made by the respondents/review

petitioners herein in their objections. As such, the respondents at this very

belated stage cannot be asked for review of judgment and order dated

30.01.2014 on the additional grounds.

13. For filing the review petition the review petitioners have to satisfy two

conditions normally, that they are aggrieved by the order and also that they for

the reasons mentioned was not in a position to bring that facts to the notice of

the Court earlier, which resulted in a wrong order being passed. In this regard,

Mr. Bhat, learned senior counsel appearing on behalf of the petitioners/non-

applicants herein has placed reliance upon the Apex Court judgments in

(2020)2 SCC 338, (1979) AIR(SC) 1047 & (1988) AIR(SC) 2121, judgment

passed by the High Court of Patna in [2019]69GSTR 224 (Patna) and

judgment passed by the J&K High Court in (2013)1 JKJ 168.

14. In the present case, the writ petition bearing SWP No. 1732/2013 was

disposed of on the basis of admission made by the respondents, particularly in

paragraph 5 of their objections and the writ petition was taken up for final

consideration with the consensus of the learned counsel for the parties. As

such, the writ petition was decided on merits after hearing both the parties.

15. So far as the grounds taken by the petitioners in the present review

petition are concerned, the same does not appear to have been raised by the

respondents/review petitioners herein at the time of disposal of the

aforementioned writ petition. Therefore, the new ground cannot be taken into

consideration for purposes of review applications, apart from the fact that it

involved the new facts, which were not on record till the point of time, when

the petition was finally disposed of by this Court on 30.01.2014.

16. In view of the aforementioned facts and circumstances of the case,

I find no reason to entertain this review petition, which is accordingly,

dismissed, along with connected application(s).

Contempt (SWP) No. 125/2014

List this contempt petition on 03.05.2021.

(Tashi Rabstan) Judge

JAMMU 04.03.2021 (Muneesh)

MUNEESH SHARMA 2021.03.05 12:18 I attest to the accuracy and integrity of this document