Uttarakhand High Court
WPSS/2213/2014 on 28 June, 2022
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Date COURT'S OR JUDGES'S ORDERS
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28.06.2022 WPSS No. 2213 of 2014
Hon'ble Sharad Kumar Sharma, J.
Mr. Sandeep Kothari, Advocate for the
petitioner.
Mr. N.S. Pundir, Deputy Advocate
General for the State of Uttarakhand.
Mr. K.P. Upadhyay, Senior Advocate
assisted by Mr. Hemant Pant, Advocate for the
respondent.
The petitioner had preferred this writ
petition challenging the impugned order dated
15.09.2014, as it has been passed by the respondent
no.3, with a simultaneous prayer of writ of
mandamus for being promoted on the post of
Special Intelligence Officer/Inspector Intelligence
in pursuance to the promotional exercise which was
resorted to by the notification dated 21st May, 2014.
After institution of this writ petition on
22.12.2014, the private respondent no.4 was
noticed by this court by an order dated 23.12.2014.
The respondent no.4 had put in appearance on
23.07.2018, through Mr. Bhuwan Bhatt, Advocate,
who had filed the counter affidavit. Raising various
contentions qua the inter se dispute of promotion,
between the petitioner and respondent no.4, he
pursued the matter till it was finally decided by the
judgement of 8.12.2021. The writ petition was
ultimately allowed, the impugned order was
quashed and a writ of mandamus was issued to the
respondents to consider the claim of the petitioner
for promotion on the post of Special Intelligence
Officer.
Being aggrieved against this judgment,
the respondent no.4 had preferred a Special Appeal
being Special Appeal No. 19 of 2022; the same was
dismissed with the liberty left open to file a review
petition.
Hence, the present review petition. As a
matter of fact, if the review petition itself is taken
into considerations, in fact, all the grounds, which
had been taken for the purposes of seeking review
of the judgment, were the ground, which were
already available to the respondent no.4, who was
represented by her counsels at the time, when the
writ petition was heard on 08.12.2021. But for the
reasons best known to the then counsel who
appeared on behalf of respondent no.4, none of the
pre-existing grounds were either argued or pleaded
except for the fact. that the petitioner had been
already promoted. Hence, the review has been filed
on the ground that certain pre-existing facts were
not taken into consideration when the matter was
decided.
This Court is of the view the
consideration or non consideration of a fact will
always depend upon the level of assistance
extended by the counsel and the pleadings too and
the presumption would be that if the party is
represented by counsel, the factum of any existing
or pre-existing facts, is known to him, if that is not
pressed and no finding has been sought to be got
returned it will not fall to be within the purview of
an apparent error, which has been committed by the
court, once it has not been called upon by the
assisting counsel for the parties, nor was ever
pressed before the court to be answered. Inability of
a counsel to press all the grounds available to him
on the date when the matter was decided, cannot be
a ground for review.
In that eventuality, I am of the view that
as far as the judgment and the manner, in which, it
was argued, this Court has elaborately considered
the matter and all its facits, after considering the
rival contentions which was pressed by the parties
and it is not a case where review applicant
submitted, that those arguments which were
extended and were not considered. Hence, I am not
inclined to entertain the review petition. The review
petition is accordingly rejected.
(Sharad Kumar Sharma, J.)
28.06.2022
Nahid
