Khurshid Ahmad Naqeeb vs State Of J&K & Others
2025 Latest Caselaw 106 J&K/2

Jammu & Kashmir High Court - Srinagar Bench

Khurshid Ahmad Naqeeb vs State Of J&K & Others on 9 May, 2025

Author: Sanjeev Kumar

Bench: Sanjeev Kumar

                                     IN THE HIGH COURT OF JAMMU & KASHMIR AND
                                                 LADAKH AT SRINAGAR

                                                                                    Reserved on: 25.04.2025
                                                                                    Pronounced on: 09.05.2025

                                                             RPNo.34/2025
                                                             in LPA No.26/2020


                                KHURSHID AHMAD NAQEEB                                ...PETITIONER(S)
                                Through: -      Mr. R. A. Jan, Sr. Advocate, with
                                                Mr. Adil, Advocate.

                                Vs.

                                STATE OF J&K & OTHERS                                ...RESPONDENT(S)
                                Through:-       None.


                                CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
                                       HON'BLE MR. JUSTICE MOHD. YOUSUF WANI, JUDGE

                                                                JUDGMENT

Per Sanjeev Kumar 'J'

1) The petitioner seeks review of judgment dated 20th

March, 2025, passed by a Division Bench of this Court in

LPA No.26/2020 titled "State of J&K and others vs.

Khurshid Ahmad Naqeeb & another"

2) Review of the judgment (supra) is sought, primarily,

on the following grounds:

(I) That the Division Bench while disposing of LPA vide judgment dated 20th March, 2025, has not taken note of the Government instructions appended to Article 1-A, Article 185-D(iv) and Article 177 of J&K

CSR, 1956 Vol. I and, therefore, committed an error apparent on the face of the record.

(II) That this Court also committed another error apparent on the face of record, in that, the Court, despite there being ample material on record, erroneously held that the petitioner, at the time of his retirement, was not holding any pensionable post.

3) Before we advert to the grounds of challenge

reproduced hereinabove, a quick recollection of the review

jurisdiction of this Court would be necessary.

4) Apart from the ground enumerated in Order 47 Rule

(1) of the Code of Civil Procedure, on which review by an

aggrieved party can be sought, there is ample power

vested in this Court even under Article 226 of the

Constitution of India to review or recall its orders where it

is necessary to prevent miscarriage of justice or to correct

the grave and palpable errors apparent on face of record

committed by it. Such power inheres in every Court of

plenary jurisdiction. It is trite that review can be sought

broadly on three grounds, i.e.:

(I) Discovery of new and important matter or evidence, which, after the exercise of due diligence, was not within the knowledge of the person seeking review or could not be produced by him at any time when an order or judgment was made;

(II) There is some mistake or error apparent on face of record;

(III) Any other sufficient cause.

The "sufficient cause", of course, has to be Ejusdem

Generis to other two grounds.

5) Obviously, the cause, projected by Mr. Jan on behalf

of the review petitioner, is in reference to ground (II), i.e.

'an error apparent on the face of the record'.

6) The contention of Mr. Jan, learned senior counsel, is

that the failure of this Court to refer to and discuss the

provisions of Government instructions appended to

Articles 1-A, 185-D(iv) and 177 of the J&K CSR, has

resulted in an error in the judgment which is apparent on

face of record. Reliance is placed by Mr. Jan on the

judgment reported in (2020) 2 SCC 338.

7) We have given our thoughtful consideration to the

arguments of Mr. Jan and do not find any merit or

substance therein. There are no Government instructions

appended to Article 1-A, as was contended by Mr. Jan.

However, Government instructions appended to Article 4

deal with a situation where a Government servant is

confirmed in a post from retrospective date and provides

that such Government servant should be deemed to have

MIR ARIF MANZOOR held the post substantively from such date and benefits, if

any, by virtue of such confirmation on account of increase

in pay and allowances or pension, reckoned under rules in

vogue from time to time should be allowed to him

notwithstanding the provisions of Article 4(b).

8) From bare reading of the Government instructions

appended to Article-4 of the J&K CSR, it becomes

abundantly clear that what is provided therein pertains to

a Government servant who is appointed temporarily and is

later confirmed on the post with retrospective date.

9) We have, in the judgment under review, clearly held

that the petitioner was never appointed to any civil post

under the Government and, therefore, was not a

Government servant at any point of time. The petitioner

was an employee of SKICC, a society registered under

Societies Registration Act. We also fail to understand as to

how Articles 185-D and 177 would be attracted in respect

of the employees of a Society registered under Societies

Registration Act which is governed by its own bylaws.

Article 185-D(iv) deals with pensionary benefits in respect

of Government servants who are transferred to an

Autonomous Body/Public Sector Undertaking and

provides that such Government servants shall have an

option to retain the pensionary benefits available to them

MIR ARIF MANZOOR under the Government rules or to be governed by the rules

of the Public Sector Undertaking/Autonomous Body, as

the case may be. Article 177 deals with qualifying service

of a Government servant.

10) We, thus, fail to understand as to how the reference

to aforesaid regulations of the CSR had any relevance with

the controversy which had arisen for determination in LPA

No.26/2020. We have in paragraph 14(i) of the judgment

under review given a clear finding that the post held by

respondent No.1 (review petitioner herein) was never filled

up on substantive basis by following any regular selection

process or otherwise and that there was nothing on record

to suggest that the services of respondent No.1 (review

petitioner herein) were ever regularized against any

substantive post. Similar position was reflected in

paragraph-15 of the judgment, wherein we have clearly

held that though the Government Order dated 28th

September, 1988, cannot be construed as an order of

regularizing the services of the review petitioner herein,

that too with retrospective effect, yet even if we were to

assume that the said Government order confirms the

services of the petitioner, it would mean that from

04.12.1981 to 05.02.1988, he could be treated as a

Government employee. However, the petitioner ceased to

be a government employee, the moment he accepted

appointment in the society i.e. SKICC after its constitution

vide Government Order No.13-TSM of 1988 dated

05.20.1988. It is because of these reasons we found the

reference to the aforesaid Articles of J&K CSR uncalled

for. The failure to refer to and discuss all the Articles of

the J&K CSR referred to by the review petitioner, which

had no bearing on the controversy raised in the appeal,

cannot be said to be an error apparent on face of record.

As discussed above, the reference and discussion of the

Articles of J&K CSR relied upon by the review petitioner

would not have changed the result of the appeal.

11) The other ground of challenge urged by Mr. Jan is

equally not tenable in law. The review petitioner cannot be

permitted to re-agitate the matter on merits in the review

petition. We have, on the basis of material on record, come

to a definite conclusion that the review petitioner was not

holding any pensionable post in the pensionable service at

the time of his superannuation and, therefore, cannot be

held entitled to pension, in that, pension scheme was

introduced for the first time in the Corporation in the year

2014, whereas the review petitioner stood retired with

effect from 31st May, 2010. We have given elaborate

reasons in the judgment to hold that the classification

between the employees of the Society retiring prior to

01.01.2014 and the employees retiring on and after

01.01.2014 is neither arbitrary nor discriminatory in

nature.

12) For the foregoing reasons, we do not find any merit

in the review petition and the same is, accordingly,

dismissed.

                                               (MOHD. YOUSUF WANI)      (SANJEEV KUMAR)
                                                   JUDGE                     JUDGE
                                Srinagar,
                                09.05.2025
                                "Bhat Altaf-Secy"

Whether the JUDGMENT is reportable: Yes/No