Ajaz Ahmad Bhat vs State and Others

Muzaffar Hussain Attar, Judge

This review petition is filed seeking review of the order dated 05-11-2009 passed in SWP 1435/2008 on the principal ground that the learned

counsel for the writ petitioner had referred to Government order dated 01-10-2003 to indicate that the writ petitioner's qualification of B.Sc. B.Ed.

has to be given extra weightage but though the said argument of the learned counsel is referred to in the judgement but it has not been considered

and no finding has been recorded.

On notice issued, respondents have filed objections.

Learned counsel for the petitioner submitted that a specific reference was made to Government order dated 01-10-2003, therefore, a duty was

cast on the Court to consider the said submission in reference to the aforesaid Government order and then return a finding on the same. He

submitted that as the issue raised has already been referred to in the order under review and same has not been considered, it is a mistake

apparent on the face of the record which would require to be corrected.

Mr. Naik, learned counsel appearing for the official respondents, while inviting attention of the Court to the objections, submitted that in view of

the orders passed by the Court in SWP 1815/2009, an affidavit was filed by the then Secretary to Government Education Department, in which

the position about the Government order No. 1503-Edu of 2003 dated 01-10-2003 has been clarified.

Mr. Reshi, learned counsel appearing for the private respondent, vehemently argued that the review petition is not maintainable as there is no

mistake apparent on the face of the record. He further submitted that the order under review cannot be altered on the basis of the judgement/order

passed in another writ petition, the review petition cannot be entertained and allowed. To substantiate the contention, reference was made by him

to AIR 2006 SC 484 and submitted that review petition merits dismissal. He also made an effort to argue on the merits of the petition so as to

satisfy the Court that the review petitioner's merit pales into insignificance in comparison to the private respondent. He also submitted that under the

guise of review petition, the issue raised cannot be reheard on merits. It is further submitted that as no mistake has been committed by the Court,

review petition may be dismissed.

The Court in SWP 1435/2008 was considering the comparative merit of the petitioner and private respondent. The Court took a view that

private respondent being possessed of Masters degree in Education (M.Ed.), had superior merit than that of the writ petitioner who is possessed

of the degree of B.Sc./B.Ed. only.

At the time of hearing of the case, learned counsel for the writ petitioner had referred to Government order dated 01-10-2003 to indicate that

the writ petitioners qualification has to be given extra weightage in comparison to the academic qualification of the private respondent therein. The

Court took note of the argument of the counsel but while disposing the writ petition, did not consider the same and did not also return any finding

on the said issue.

When an issue is raised and argued by the learned counsel, a duty is cast on the Court to consider the same and return a finding. However,

when an issue is raised but not considered and no finding returned, it constitutes a mistake in law which the Court is duty bound to rectify when

same is brought to its notice.

In the affairs of human activities, mistakes are committed because no human being is perfect. The moment a mistake, committed by the Court, is

brought to its notice, it is dutybound to rectify the same in accordance with law. The duty of constitutional Court is more onerous and sacrosanct,

in as much as, it is dutybound to maintain correct record as same is to be rolled into perpetuity in terms of the section 94 of the Constitution of

J&K read with article 215 of the Constitution of India, being the Court of record.

After perusal of the order under review and hearing the learned counsel for the parties, the Court is satisfied that a mistake has been committed

which requires to be rectified and same can be done only by recalling the said order.

The judgement aforementioned cited at the bar by learned counsel for the private respondent is not applicable to the facts of the case as the

review petition is not based on the subsequent judgement but is based solely on the issue raised at the time of hearing of the case which,

admittedly, has been referred to by the Court but no finding has been returned. When issue/s is/are raised, the Court is under obligation to deal

with the said issue/s and return finding/s. Non consideration of an issue, though specifically raised, constitutes a mistake and requires to be rectified.

The Court, in such fact situation, should not lose a moment to rectify the mistake. The Government order dated 01-10-2003 has, admittedly, not

been considered. The mistake committed by the Court is apparent on the face of the record.

For the above stated reasons, this review petition is allowed. Order dated 05-11-2009 passed in SWP 1435/2008, is recalled and set aside.

Review petition is, accordingly, disposed of.

List the writ petition for consideration. Till then, subject to orders to be passed therein, status quo as on date to be maintained.