Jammu & Kashmir High Court
Satya Devi vs State Of J&K And Others on 7 July, 2025
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
2025:JKLHC-JMU:1595
Serial No. 20
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
RP No. 157/2021 in
SWP No. 763/2009
Satya Devi .....Appellant(s)/Petitioner(s)
Through: Mr. Anuj Dewan Raina, Advocate.
vs
State of J&K and others ..... Respondent(s)
Through: None.
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
07.07.2025
ORAL
1. The petitioner, in the instant petition, seeks review of the judgment
and order dated 16.07.2010 (for short „the order‟), whereby the writ
petition filed by the petitioner being SWP No. 763/2009 came to be
disposed of as under:-
“For the above stated reasons this petition is allowed in the
following manner:
a) By issuance of writ of certiorari, Government Order No.
583-GAD of 2009 dated 24.04.2009 is quashed.
b) By issuance of writ of Mandamus, respondents are
directed to provide appointment on compassionate ground to the
petitioner within a period of two months from today by granting
relaxation in upper age limit. Petitioner is entitled to cost of Rs.
10,000/- which shall be paid to her within aforesaid period.
2. The petitioner has urged the following grounds in the instant review
petition while maintaining the same:-
(I) Because the petitioner completed all the requisite formalities
as prescribed well within the time and as such her case stand
squarely covered within the four corners of provision of SRO 43
of 1994, as such there is no justification on part of the
respondents in delaying the case of the petitioner for her
appointment more-so when the power to relax the upper age
limit, request whereof stood already made by the concerned
2 RP No. 157/2021 in
SWP No. 763/2009
2025:JKLHC-JMU:1595Administrative Department to he General Administrative
Department. Therefore, the petitioner is required to be treated
in service from the date when she applied under SRO 43 and all
the monetary and other benefits are required to be released
from the date she applied for appointment under SRO 43.
(II) Because in the given set of circumstances, the petitioner
otherwise cannot be discriminated merely because the
respondents for the best reasons known to them have caused
delay in recommending the case of the petitioner and further
appointment of the petitioner.
(III) Because the respondents cannot be said to be legally
justified in delaying the case of the petitioner without any rhyme
or reason and making the petitioner who is a widow and has run
from pillar to post seeking the benefit of provision of SRO 43. It
is submitted that petitioner being appointee of 2011 has been
told by the respondents that in view of the SRO 400 dated 24-12-
2009, whereby Art. 167, 240-G (g) , 249-A, 249-M (B) have
been re- casted with the effect that the services of the petitioner
would be governed under the new SRO and all such appointees
appointed on or after 01-01-2010 shall be governed by ” New
Pension Scheme”. Therefore, action on part of the respondents
is liable to be struck down.
(IV) Because the Hon’ble Apex Court in catena of judgments has
already dealt with the question regarding applicability of
amended rules governing the selection. The Hon’ble Apex Court
in Y. V. Rangaia & Ors Vs. J. Sreenivasa Rao & Ors. reported
1983 (3) SCC pg 284 held that the vacancies occurring before
the amendment of rules will be governed by the old un-amended
rules and not the amended rules. The relevant extract of the
judgement is reproduced as under :
“The vacancies which occurred prior to the amended
rules would be governed by the Old rules and not by the
amended rules. It is admitted by counsel for both the
parties that henceforth promotion to the post of Sub
Registrar Grade II will be according to the new rules on
the zonal basis and not on the State wise basis and
therefore, there was no question of challenging the new
rules. But the question is of filing the vacancies that
occurred prior to the amended rules. We have not the
slightest doubt that the posts which fell vacant prior to
the amended rules would be governed by the old rules
and not by the new rules.”
(V) Because the above made factual and legal submissions make
it abundantly clear that the impugned action on part of the
respondents is a clear example of arbitrariness, colourable
exercise of administrative powers as also total non application
of mind, as such, the writ petition of the petitioner deserves to be
allowed on this score also.
(VI) Because the impugned action and inaction on the part of
official respondents apart from being unjustified, unreasonable
and arbitrary, is also in violation of Article 14, 16 and 21 of the
3 RP No. 157/2021 in
SWP No. 763/2009
2025:JKLHC-JMU:1595
Constitution of India and is perverse and bad in the eyes of law,
violating the basic principle of natural justice.
3. Record of the proceedings would reveal that the respondents despite
having entered appearance and seeking time to file response to the
review petition, did not chose to file any response to the review
petition, as a consequence whereof, in terms of order dated
16.05.2025, the right of the respondents to file reply came to be
closed.
Heard learned counsel for the petitioner and perused the record.
4. Before adverting to the case set up in the instant petition seeking
review of the order, it is significant to refer hereunder to the ambit and
scope of the doctrine of review.
5. It is settled position of law that once a judgment is pronounced or an
order is made, the Court becomes functus officio, i.e. ceases to have
control over the matter and the judgment or the order pronounced and
made becomes final and cannot be altered, modified, varied or
changed, however, the review of a judgment or order is an exception
to this general rule and can be invoked by the parties dissatisfied
thereof on certain grounds only.
It is also settled position of law that every Court can correct an
inadvertent or unintentional error, which may have crept in the
judgment or order either due to procedural defect, mathematical and
clerical error or by misrepresentation or fraud of a party to the
proceedings.
4 RP No. 157/2021 in
SWP No. 763/2009
2025:JKLHC-JMU:1595
6. The Apex Court in case titled as “Shri Ram Sahu (Dead) through
LRs and others vs. Vinod Kumar Rawar, reported in 2020 Online
SC 896”, has noticed and held as under:-
“33. In the case of State of West Bengal and Others vs. Kamal
Sengupta and Anr., (2008) 8 SCC 612, this Court had an occasion
to consider what can be said to be “mistake or error apparent on the
face of record”. In para 22 to 35 it is observed and held as under:
“22. The term “mistake or error apparent” by its very
connotation signifies an error which is evident per se from
the record of the case and does not require detailed
examination, scrutiny and elucidation either of the facts or
the legal position. If an error is not self-evident and detection
thereof requires long debate and process of reasoning, it
cannot be treated as an error apparent on the face of the
record for the purpose of Order 47 Rule 1 CPC or Section
22(3)(f) of the Act. To put it differently an order or decision
or judgment cannot be corrected merely because it is
erroneous in law or on the ground that a different view could
have been taken by the court/tribunal on a point of fact or
law. In any case, while exercising the power of review, the
court/tribunal concerned cannot sit in appeal over its
judgment/decision. . . .
26. In Moran Mar Basselios Catholicos v. Mar Poulose
Athanasius (supra) this Court interpreted the provisions contained
in the Travancore Code of Civil Procedure which are analogous to
Order 47 Rule 1 and observed:
“32. … Under the provisions in the Travancore Code of Civil
Procedure which is similar in terms to Order 47 Rule 1 of our
Code of Civil Procedure, 1908, the court of review has only a
limited jurisdiction circumscribed by the definitive limits
fixed by the language used therein.
It may allow a review on three specified grounds, namely,
(i) Discovery of new and important matter or
evidence which, after the exercise of due diligence,
was not within the applicant‟s knowledge or could
not be produced by him at the time when the decree
was passed,
(ii) Mistake or error apparent on the face of the
record and
(iii) For any other sufficient reason. It has been held
by the Judicial Committee that the words any other
sufficient reason must mean a reason sufficient on
grounds, least analogous to those specified in the
rule.
27. In Thungabhadra Industries Ltd. v. Govt. of A.P. (supra) it
was held that a review is by no means an appeal in disguise
whereof an erroneous decision can be corrected.
5 RP No. 157/2021 in
SWP No. 763/2009
2025:JKLHC-JMU:1595
28. In Parsion Devi v. Sumitri Devi (Supra) it was held as under:
(SCC p. 716) “Under Order 47 Rule 1 CPC 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 Order 47 Rule 1 CPC. In
exercise of the jurisdiction under Order 47 Rule 1 CPC it is not
permissible for an erroneous decision to be „reheard and
corrected‟. There is a clear distinction between an erroneous
decision and an error apparent on the face of the record. While the
first can be corrected by the higher forum, the latter only can be
corrected by exercise of the review jurisdiction. A review petition
has a limited purpose and cannot be allowed to be an appeal in
disguise.
34. To appreciate the scope of review, it would be proper for this
Court to discuss the object and ambit of Section 114 CPC as the
same is a substantive provision for review when a person
considering himself aggrieved either by a decree or by an order of
Court from which appeal is allowed but no appeal is preferred or
where there is no provision for appeal against an order and decree,
may apply for review of the decree or order as the case may be in
the Court, which may order or pass the decree. From the bare
reading of Section 114 CPC, it appears that the said substantive
power of review under Section 114 CPC has not laid down any
condition as the condition precedent in exercise of power of review
nor the said Section imposed any prohibition on the Court for
exercising its power to review its decision. However, an order can
be reviewed by a Court only on the prescribed grounds mentioned
in Order 47 Rule 1 CPC, which has been elaborately discussed
hereinabove. An application for review is more restricted than that
of an appeal and the Court of review has limited jurisdiction as to
the definite limit mentioned in Order 47 Rule 1 CPC itself. The
powers of review cannot be exercised as an inherent power nor can
an appellate power can be exercised in the guise of power of
review.”
7. Keeping in mind the aforesaid position of law and reverting back to
the case in hand, record would reveal that the petitioner herein, sought
from the respondents, appointment on compassionate grounds on
account of death of her husband in harness on 02.01.2003 in terms of
provisions of SRO 43 of 1994 in the year 2003 itself, whereupon her
case came to be recommended by the Executive Engineer, PHE
Division Kathua to the Superintending Engineer, Hydraulic Circle,
6 RP No. 157/2021 in
SWP No. 763/2009
2025:JKLHC-JMU:1595Kathua on 29.04.2003, however, no decision thereon was taken by the
respondents, which compelled the petitioner to file SWP No. 51/2009
before this Court, which came to be disposed of on 15.01.2009 with
direction to the respondents to take final decision about the
compassionate appointment case of the petitioner, consequent to
which order, in terms of communication dated 24.04.2009, case of the
petitioner came to be rejected, aggrieved whereof, the petitioner filed
SWP No. 763/2009, which came to be disposed of vide judgment and
order dated 16.07.2010 i.e. the order under review.
8. It is significant to mention here that against the judgment and order
dated 16.07.2010, the respondents therein preferred LPASW No.
102/2010 before the Division Bench, which came to be disposed of on
20.09.2010 and upheld the order except to the extent of imposition of
costs of Rs. 10,000/-. After the disposal of the LPA (Supra), the
respondents vide Govt. Order dated 11.02.2011 ordered the
appointment of the petitioner on compassionate grounds against Class-
IV post, however, feeling dissatisfied thereof, the petitioner yet again
filed SWP No. 1881/2012 seeking therein, inter alia, a relief that the
petitioner be treated to have been appointed on the date, the petitioner
made an application for appointment on compassionate grounds
instead of 2011 under the provisions of SRO 43 of 1994, besides
praying a direction upon the respondents for bringing the petitioner
under the New Pension Scheme Rules. The said petition, however,
came to be withdrawn by the petitioner on 05.02.2016, while
permitting the petitioner to file review petition against the order dated
7 RP No. 157/2021 in
SWP No. 763/2009
2025:JKLHC-JMU:1595
16.07.2010, whereupon the petitioner has maintained the instant
review petition, essentially seeking the relief which the petitioner had
sought in SWP No. 1881/2012 (Supra) qua retrospective effect to her
appointment.
9. It is an admitted fact that the order dated 16.07.2010 stands upheld by
the Division Bench and the said order of the Division Bench has
assumed finality and in essence the order of the Writ Court under
reference dated 16.07.2010 got merged into the said Division Bench
order. Thus, in law, the petitioner herein cannot seek review of the
order dated 16.07.2010 in presence of the order of the Division Bench
dated 20.09.2010 on any grounds whatsoever including those urged in
the instant petition.
10. Viewed thus, the instant review petition is found to be grossly
misconceived and is accordingly dismissed.
(JAVED IQBAL WANI)
JUDGE
Jammu
07.07.2025
Sahil Padha
Whether the order is speaking: Yes/No.
Whether the order is reportable: Yes/No.
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