1 HIGH COURT OF JAMMU AND KASHMIR AT [ENTITY] RPSW No.49/2015 in [CASE NUMBER] c/w SWP No. 423/2016 Date of Decision: 28th of May, 2019. i.) [ENTITY] Vs. State of JK & Ors. ii.) Ghulam Rasool Ahanger Vs. State of JK & Ors. Coram: Hon'ble Mr Justice [ENTITY], Judge. Appearance: For the Petitioner(s): Mr [ENTITY], Senior Advocate with Ms [ENTITY], Advocate. For the Respondent(s): Mr [ENTITY], AAG Mr [ENTITY], Advocate. RPSW No.49/2019 in [CASE NUMBER]; Mr [ENTITY], Advocate for the review petitioner/ respondent No.3. Mr [ENTITY], Senior Advocate with Ms [ENTITY], Advocate for the non-applicant/ petitioner Mr Mr [ENTITY], AAG for non-applicant/ respondent Nos. 1 and 2. 01. By this review petition, the review petitioner/ respondent No.3 in [CASE NUMBER] is seeking review of final judgment of this Court dated 31st of October, 2014, passed in [CASE NUMBER], operative portion whereof reads as under: "15. For the reasons discussed above, Writ petition is allowed. [CASE NUMBER] dated 23rd of [ENTITY]uary, 2013 is set-aside and respondents are directed to accord fresh consideration for promotion to the post of Master Craftsman to all eligible candidates on the basis of The [ACT]. Let such exercise be completed within four weeks from the date of receipt of copy of order. In the event on such consideration respondent no.3 is found to be most suitable candidate for promotion, no scope will be left for any confusion as regards benefits already derived by respondent no.3 in wake of promotion order no.105-HD of 2013 dated 23rd of [ENTITY]uary, 2013. However, in case petitioner or any other eligible Assistant 2 Craftsman is found suitable for promotion and accordingly promoted as Master Craftsman (Wood-carving), recovery of benefits availed by respondent no.3 in wake of his promotion shall not be effected by official respondents as respondent no.3 though promoted in violation of Rules, has discharged duties as Master Craftsman (Wood-carving) from the date he was promoted till the date promotion order in compliance of this Judgment is passed." 02. Mr [ENTITY], the learned counsel, representing the petitioner, submits that the Writ Court, while passing the judgment under review, did not take into the consideration the fact pleaded before it by the review petitioner/ respondent No.3 that since the basic appointment of the petitioner therein was illegal and dehors the rules, therefore, he ceased to be a member of the service, thereby rendering him ineligible for promotion. It is further pleaded that the judgments relied upon by the review petitioner before the Writ Court were not considered and no finding was returned thereon. 03. Mr [ENTITY], the learned senior counsel, representing the non-applicant/ petitioner in [CASE NUMBER], while supporting the judgment under review, submits that through the medium of the instant review petition, the petitioner is, in fact, seeking re-hearing of the matter which is unwarranted in a review petition. 04. Heard the learned counsel for the parties, perused the record and considered the matter. 05. What requires to be stated, at the outset, is that in the instant review petition, the review petitioner has touched the merits of the case, which, in a review petition, is unwarranted as per well settled position of law. The grounds urged in the review petition have already been decided and findings 3 returned thereon by the Court and, if the review petitioner was aggrieved of the said findings, he ought to have availed the remedy under law for challenging the same in the appropriate Court. In fact, the instant review petition, on grounds enumerated therein, appears to be a disguised appeal. The grounds taken by the review petitioner are either that the findings recorded by the Court are not legally tenable, or that the same are perverse, or that the same are unacceptable. A judgment may be wrong, erroneous, incorrect, perverse, legally untenable, etc. etc., but, the only course available for the aggrieved party is to go in appeal the said judgment. Such grounds do not constitute errors of fact or of law on the face of the record as would call for a review. 06. A review cannot also be used as a tool for changing the opinion/ view of the Court. In a review petition, it is only an error, apparent on the face of the record, which can be considered and gone into by the Court. It is not open to the Court, dealing with review of its decision, to re-appreciate the evidence and reach a different conclusion, even if that is possible. Conclusion arrived at, on appreciation of evidence and after hearing the rival parties, cannot be assailed in a review petition, unless it is shown that there is an error apparent on the face of the record. So far as the grievance of the review petitioner on merits of the case is concerned, virtually the review petitioner seeks the same relief which they had sought at the time of arguing the main matter and had been negatived. Once such a prayer has been refused, no review petition would lie which would convert re-hearing of the original matter. It is well settled law that the power of review cannot be confused with appellate power which enables a superior Court to correct all errors committed by a subordinate Court. It is not re-hearing of an original 4 matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review has to be exercised with extreme care, caution and circumspection, that too, only in exceptional cases. 07. Law on the subject is no more res integra. The Apex Court of the country, in case titled '[PRECEDENT]', while dealing with a similar issue, at paragraph Nos. 13, 15 to 19, laid down as under: "13. Review of the earlier order cannot be done unless the court is satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. This Court, in [PRECEDENT]. [PRECEDENT], held as under: "12. A review is not a routine procedure. Here we resolved to hear Shri [ENTITY] at length to remove any feeling that the party has been hurt without being heard. But we cannot review our earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. In [PRECEDENT] this Court observed: "1. A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality." 14. 15. 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 the record justifying the Court to exercise its power of review. A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected, but lies only for patent error. This Court, in [PRECEDENT], held as under: "7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of [SECTION] [ACT]. In [PRECEDENT] this Court opined: "11. What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an 'error apparent on the face of the record'. The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an 'error apparent on the face of the record', for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. 8. Again, in [PRECEDENT] while quoting with approval a passage from [PRECEDENT] this Court once again held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of [SECTION] [ACT]. 9. Under [SECTION] [ACT] a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. 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 the record justifying the court to exercise its power of review under [SECTION] [ACT]. In exercise of the jurisdiction under [SECTION] [ACT] it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition, it must be remembered has a limited 6 purpose and cannot be allowed to be 'an appeal in disguise." 16. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. The power of review can be exercised for correction of a mistake but not to substitute a view. The mere possibility of two views on the subject is not a ground for review. This Court, in [PRECEDENT], held as under: "54. [SECTION] empowers this Court to review its judgments subject to the provisions of any law made by Parliament or any rules made under [SECTION] of the [ACT]. The Supreme Court Rules made in exercise of the powers under [SECTION] of the [ACT] prescribe that in civil cases, review lies on any of the grounds specified in [SECTION] of the [ACT] which provides: 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 and 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.' Under [SECTION] of the Supreme Court Rules no review lies except on the ground of error apparent on the face of the record in criminal cases. 7 [SECTION] of the Supreme Court Rules provides that after an application for review has been disposed of no further application shall be entertained in the same matter.
56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under [SECTION] or [SECTION] of the [ACT] and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment.
58. Otherwise also no ground as envisaged under [SECTION] of the Supreme Court Rules read with [SECTION] of the [ACT] has been pleaded in the review petition or canvassed before us using the arguments for the purposes of reviewing the judgment in [ENTITY] case, [[PRECEDENT]] It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing of the judgment. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in [ENTITY] case. We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. No such error has been pointed out by the learned counsel appearing for the parties seeking review of the judgment. The only arguments advanced were that the judgment interpreting [SECTION] amounted to violation of some of the fundamental rights. No other sufficient cause has been shown for reviewing the judgment. The words 'any other sufficient reason appearing in [SECTION] [ACT]' must mean 'a reason sufficient on grounds at least analogous to those specified in the rule' as was held in [PRECEDENT] and approved by this Court in [PRECEDENT] Error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. In [PRECEDENT] this Court held that such error is an error which is a patent error and not a mere wrong decision. In [PRECEDENT], it was held:
"23. It is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated.
Mr. [ENTITY] for the first respondent contended on the strength of certain observations of [ENTITY], C.J. in - '[PRECEDENT] that no error could be said to be apparent on the face of the record if it was not self-evident and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.' Therefore, it can safely be held that the petitioners have not made out any case within the meaning of [SECTION] read with [SECTION] of the Supreme Court Rules and [SECTION] [ACT] for reviewing the judgment in [ENTITY] case. The petition is misconceived and bereft of any substance."
17. In a review petition, it is not open to the Court to re- appreciate the evidence and reach a different conclusion, even if that is possible. Conclusion arrived at on appreciation of evidence cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. This Court, in [PRECEDENT], held as under:
"10. In a review petition it is not open to this Court to re-appreciate the evidence and reach a different conclusion, even if that is possible. Learned counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise."
18. Review is not re-hearing of an original matter. The power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. A repetition of old and overruled argument is not enough to re-open concluded adjudications. This Court, in [PRECEDENT], held as under:
"11. So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases.
12. When a prayer to appoint an arbitrator by the applicant herein had been made at the time when the arbitration petition was heard and was rejected, the same relief cannot be sought by an indirect method by filing a review petition. Such petition, in my opinion, is in the nature of 'second innings' which is impermissible and unwarranted and cannot be granted."
19. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of [SECTION] of [ACT]. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction."
08. A cue can, in this behalf, be also had from the decision rendered by a Division Bench of this High Court in the case of '[PRECEDENT]', of which, incidentally, I am the author, wherein, it has been held as follows:
"13. At the very outset it needs to be kept in mind that review jurisdiction of the Court is limited. It is settled law that it is only an error apparent on the face of the record which can be considered and one into by the Court. In the present review petition, the grounds of facts of law urged in review petitions, as narrated above, including the submissions made at the Bar by the learned Counsels appearing in these review Petitions, which in content and substance were the same as taken in the respective review petitions, cannot in any manner be considered as errors on the face of record. Instead the grounds sought to be raised and urged may constitute grounds of appeal alone. In fact, the instant review petitions on grounds enumerated herein appear to be disguised Second Appeals. As noticed above, the grounds taken by the review petitioners are either that the findings recorded by the Court are not legally tenable, or that the same are perverse, or that the same are unacceptable. A judgment may be wrong, erroneous incorrect, perverse, legally untenable, etc. etc., the only course available for the aggrieved party is to go in appeal. Such grounds do not constitute errors of fact or of law on the face of the record as would call for a review."
09. From a bare perusal of the law laid down above, it is manifestly clear that the scope of review is very limited. The power of review is exercised when some mistake or error, apparent on the face of the record, is found. A mistake or an error, apparent on the face of the record, means a mistake or an error which is, prima facie, visible and does not require any detailed examination. Such an error must strike one on mere looking at the record and should not require any long-drawn process of reasoning on the points where there may, conceivably, be two opinions. In the present case, the review petitioner has not been able to point out any error, apparent on the face of the record, but, on the contrary, under the guise of the instant review petition, the review petitioner is challenging the order passed by this Court, which is under review.
10. In the above background coupled with the law discussed hereinabove, I do not find any error, apparent on the face of the record, in the judgment dated 31st of October, 2014, passed in [CASE NUMBER], as would warrant its recall on review. It being so, this review petition is found to be meritless and, as a sequel thereto, same shall stand dismissed, alongwith all connected IA(s). Interim directions, if any, subsisting as on date, shall stand vacated.
[CASE NUMBER];
Mr [ENTITY], Advocate for the petitioner. Mr [ENTITY], AAG for respondent Nos. 1 to 3 Mr [ENTITY], Senior Advocate with Ms [ENTITY], Advocate for respondent No.4.
11. In view of the dismissal of the review petition and after hearing the learned counsel for the parties, the order of this Court dated 8th of March, 2016 staying the operation of order dated 24 th of February, 2016 issued by respondent No.2 is modified by providing that the respondent No.4 shall be allowed to perform his duties as I/C Master Craftsman which arrangement shall, however, be subject to outcome of the writ petition.
12. Registry to segregate the matter and list the same separately on 3rd of July, 2019. Meanwhile, parties to complete the pleadings on or before the next date of hearing.
13. Copy of this order be placed on each file.
([ENTITY]) Judge [ENTITY] May 28th, 2019 "TAHIR"