SUDERSHAN SINGH JAMWAL Vs. CHAIRMAN, PUBLIC SERVICE COMMISSION

JUDGEMENT

(1.) ON a writ petition filed by one Sudershari Singh Jamwal, which was registered as writ petition No. 167 of 1985 against the present applicants, namely, Chairman Public Service Commission and Secretary to Public Service Commission, State of Jammu and Kashmir, Jammu, thin court vide judgment and order delivered on April 9,1935 allowed the writ petition and regularized the examination of the papers, in which the petitioner, Sudershan Singh Jamwal was allowed to appear under the interim orders of this court with a further direction to hold the examination of the first paper (English), in which he was not allowed to appear by she respondents / applicants herein on the only ground that he was over age which later on stood relaxed by the order of the Government. The applicants have filed this Review Petition seeking review of the order passed by us on the ground. "That the Honble Chief Justice and the Government while relaxing the age bar of the petitioner -were influenced by the provisions of Rule (9 -A) of Jammu and Kashmir Civil Service (Judicial) Recruitment Rules, 1967 Rule 9 -A is reproduced here under: - "9 -A. Notwithstanding anything contained in rules 7 and 9 of these rules, the Government may, on the recommendations of the court, exempt any person who holds may post under the Govt by virtue of those he has kept himself in touch with and gained sufficient experience in the knowledge and application of law from the operation of rules 7.and 9." It is submitted that the said rule stood deleted vide SRO -425 on August 28 -1974 in exercise of the powers conferred under section 110 of the Constitution of Jammu and Kashmir. Thus it is further submitted that the power to relex the age bar was exercised by mistake of fact completely ignoring the amended rules of 1974, the same was void abintio and did not confer any right upon the petitioner to be allowed to sit in the examination of K. C. S. Judicial This is not disputed that the above quoted writ petition was contested by the present applicants and was heard in presence of the counsel for the respondents and the petitioner. The applicants in that writ petition were represented by learned Chief Government Advocate, if is pertinent to note by the reading of the order under review itself, it was neither contended in the counter filed in the said writ petition by the respondents nor was disputed at the time of arguments that the Government is competent to relax the age bar, which was notified by the respondent -Commission. It was neither pleaded nor submitted that the age bar was relaxed in exercise of the powers conferred by Rule 9 -A (Supra) nor in the order itself there is any mention of the fact that the same is passed in exercise of the powers conferred on the Governor under that Rule. The order Annexure -PA/filed with the writ petition issued by the Government on 14 -2 1985 is in the following words: - "Sanction is accorded to the relaxation of upper age bar by two years, eight months and twenty three days in favour of Shri Sudershan Singh Jamwal, Librarian High Court of Jammu By order of the Government of Jammu and Kashmir. Sd/ -Secretary lo Govt." Law Department. Copy was also endorsed to the Secretary, Public Service Commission, Jammu. In the counter power of the Government to relax the age bar was nowhere disputed.

(2.) THE grounds on which the review is sought were neither the basis of the counter nor argued at the time when the writ petition was heard. It is to be seen whether such a review petition, the ground of which do not fall within the scope of order 47 Rule 1 of the Code of Civil procedure is maintainable and it is permissible to review the order passed by us in the writ petition. The review petition is contested by the non applicant.

(3.) HEARD learned counsel for the respective parties. Learned counsel for the applicants vehemently argued that the ground quoted above regarding deletion of Rule 9 -A is a discovery of new and important matter/evidence which after the exercise of due diligence was not within the knowledge and could not be produced by applicants at the time when the order was passed, it is an error apparent on the face of the record and thus according to him in the facts and circumstances of the case, it is a fit case that the power of review be exercised in favour of the applicants. In support of his contention, learned counsel for the applicants placed his reliance on AIR 1950 Federal Court 131 (Mst. Jamna Kuer -appellant Vs Lal Bahadur and others -respondent?), AIR 19/1 S. C. 2162 (Girdhari Lal Gupta, petitioner Vs D. N Mehta and another, respondents) that the question as to how error occurred is not relevant for the exercise of power of review, whether the error occurred by reason of the counsels mistake or it kept is by reason of a over -sight on the pert of the court, is not circumstance, which can effect the exercise of the jurisdiction of the court to review its decision. In an authority of the Supreme Court 1971 S. C. 2 62 (supra) it is also held: - When the attention of the Supreme Court was not drawn to the particular provision of the statute it can review its decision. It is not a case of mistaken judgment."