Suhail Ur Rehman vs State Of J&K & Others
2021 Latest Caselaw 1308 j&K/2

                               HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                              AT SRINAGAR


                                                          Reserved on:   13.10.2021
                                                          Pronounced on: 21.10.2021


                                              RPSW No.21/2018


                           SUHAIL UR REHMAN                       ...PETITIONER(S)
                                 Through: Mr. Bhat Fayaz, Advocate

                           Vs.

                           STATE OF J&K & OTHERS                ...RESPONDENT(S)

Through: None for R1 to R4.

Mr. Javed Kawoosa, Sr. Adv. With Mr. Areeb Kawoosa, Adv.-for R5 & R6.

Mr. Shafqat Nazir, Adv-for R7 (review petitioner)

CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

(ORDER)(ORAL)

1. Instant review petition has been filed by Nisar

Ahmad Malik, who was impleaded as respondent No. 7

(hereinafter referred to as the review petitioner) to the

writ petition bearing SWP No.1794/2011. By virtue of

this review petition, judgment and order dated 3rd

October, 2018, passed by the Writ Court is sought to be

reviewed.

2. The facts emerging from the record of the case are

MOHAMMAD ALTAF BHAT 2021.10.21 16:49 that the one Suhail ur Rehman (hereinafter referred to as I attest to the accuracy and integrity of this document

the writ petitioner) filed a writ petition challenging the

appointment order of review petitioner who had been

appointed as Rehbar-e-Taleem (ReT) in terms of order

dated 21st June, 2011, issued by Chief Education Officer,

Anantnag. The writ petition came to be allowed by the

Writ Court in terms of the judgment and order dated 3 rd

October, 2018 and the appointment of review petitioner

was quashed.

3. It seems that the review petitioner challenged the

judgment and order of the Writ Court before the Division

Bench by way of a Letters Patent Appeal. The said appeal

came to be dismissed as withdrawn in terms of order

dated 22.10.2018 with liberty to the review petitioner to

approach the Writ Court with a review petition. It is in

these circumstances that the instant review petition has

been filed before this Court.

4. The writ record suggests that an advertisement

notice was issued by the Zonal Education Officer, Vailoo,

whereby applications were invited from eligible

unemployed youth having minimum qualification of 10+2

or above from the habitations of Peer Mohalla and Nai

Basti for engagement of two ReTs in the newly

established primary schools. The applications along with

requisite testimonials were to reach the office of the Zonal MOHAMMAD ALTAF BHAT 2021.10.21 16:49 I attest to the accuracy and integrity of this document

Education Officer within seven days after the publication

of advertisement notice in the newspaper. The

advertisement notice was published in the newspaper on

6th of December, 2009.

5. The case of the writ petition before the Writ Court

was that the review petitioner, who had been selected

pursuant to the aforesaid advertisement, was not a

graduate degree as on date of submission of his

application form and, as such, he could not have been

preferred over and above the writ petitioner who was

holding the degree of graduation at the relevant time.

6. The contention of the review petitioner before the

Writ Court was that even though he had not qualified the

paper of Environmental Studies course at the time when

he submitted his application yet he had passed all other

compulsory papers of graduation at the relevant time. It

was further contention of the review petitioner that once

the paper relating to Environmental Studies was passed

by the review petitioner after the cutoff date, his degree of

graduation has to be reckoned from the date of

declaration of result of 3rd year class, meaning thereby

that his degree is to be reckoned from the date he had

passed the other compulsory papers. This contention of

the review petitioner has been rejected by the Writ Court MOHAMMAD ALTAF BHAT 2021.10.21 16:49 I attest to the accuracy and integrity of this document

by holding that without passing the paper of

Environmental Studies the review petitioner cannot be

shown to have obtained the degree of B. A. meaning

thereby that he was not eligible for the post when he

applied for it in view of the relevant guidelines.

7. It has been contended by learned counsel for the

review petitioner that eligibility for the post of ReT is

10+2 and not graduation and, as such, the Writ Court

was not justified in holding that the review petitioner was

not eligible at the time of submitting his application as,

admittedly, he had passed 10+2 examination prior to the

said date.

8. It has been next contended that the Writ Court did

not appreciate the fact that once the review petitioner

had passed the paper of Environmental Studies, his

degree of graduation has to be reckoned from the date of

declaration of his result in respect of other compulsory

papers.

9. I have heard learned counsel for the parties and

perused the record including the record of the Writ

Court.

10. Before proceeding to consider the contentions raised

by the review petitioner, we need to notice the legal MOHAMMAD ALTAF BHAT 2021.10.21 16:49 position as regards the scope of review. I attest to the accuracy and integrity of this document

11. 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."

12. 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 MOHAMMAD ALTAF BHAT other party except where the ground of such appeal is 2021.10.21 16:49 I attest to the accuracy and integrity of this document

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.] "

13. 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.

14. In the light of the aforesaid legal position, let us now

determine the merits of the contentions raised by the

review petitioner.

15. So far as the contention of the review petitioner that

even if it is assumed that he was not holding a graduate

degree at the time of making his application still then he

was eligible for the post of ReT, is concerned, the same

appears to be full of substance because as per the MOHAMMAD ALTAF BHAT 2021.10.21 16:49 advertisement I attest to the accuracy and notice, the minimum qualification integrity of this document

prescribed was 10+2 or above. So, there can be no

dispute to the fact that the review petitioner was eligible

as on date of submission of his application form.

16. The question falls for consideration is as to whether

he can be stated to have been holding the B. A. degree on

the date of submission of application form. The answer to

this question becomes necessary because the writ

petitioner was, admittedly, holding B. A. degree on the

relevant date. For the selection of ReTs, as per the laid

down criteria, extra credits were to be given for higher

qualifications. Therefore, for determination of

comparative merit of the writ petitioner and the review

petitioner, it is essential to go into the question as to

whether review petitioner was holding the degree of B. A.

at the time of submission of application form.

17. It has been contended by review petitioner that

Academic Council of University of Kashmir had decided

that degree of a candidate shall be reckoned from the

date of declaration of result of 3rd year class even though

the candidate has passed the compulsory subject of

Environmental Studies course after the actual

declaration of result. The said contention of the review

petitioner has been taken note of by the Writ Court and

has been dealt with and decided in the judgment sought MOHAMMAD ALTAF BHAT 2021.10.21 16:49 I attest to the accuracy and integrity of this document

to be reviewed. The Writ Court has, after taking note of

the objections filed by the University of Kashmir to the

writ petition, in para 5 of the judgment clearly held that

passing of Environmental Studies, which is a compulsory

course for an undergraduate student of all branches of

higher education, is mandatory in nature and a degree of

graduation is incomplete without it. According to the

learned counsel for the review petitioner, the

interpretation given by the Writ Court to the stand of the

University is not correct.

18. The question whether the Writ Court has correctly

interpreted the stand of the University authorities cannot

be a subject matter of review. As already noted, the scope

of review is very limited in nature and it cannot be

extended to the extent of rehearing the issues that have

already been decided by the Writ Court. Even if it is

assumed that the view taken by the Writ Court is not

correct, still it cannot be a ground for review. Merely

because a judgment has proceeded on an incorrect

exposition of law or because a Judge has gone wrong in

law is not a ground for review though it may be a ground

for appeal. A Court cannot rehear or correct erroneous

judgment by way of a review. A mere repetition of old and

overruled arguments are insufficient for exercising MOHAMMAD ALTAF BHAT 2021.10.21 16:49 jurisdiction of review. I attest to the accuracy and integrity of this document

19. 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 21.10.2021 "Bhat Altaf, PS"

Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No

MOHAMMAD ALTAF BHAT 2021.10.21 16:49 I attest to the accuracy and integrity of this document