Delay Of 502 Days Remained “Unexplained”: J&K&L High Court Rejects Review Plea Against Judicial Officer's Termination

The Court held that the judgment sought to be reviewed did not suffer from any error apparent on the face of the record and had been upheld by the Supreme Court in both Special Leave Petition and review proceedings.

A Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar, while refusing to condone the delay, observed,

“... The petitioner has miserably failed to demonstrate any cause, much less a sufficient cause, which prevented him from filing the review petition within the period of limitation. There is huge delay of 502 days which has remained unexplained.” The Court further noted that the judgment sought to be reviewed was in consonance with law and did not suffer from any error apparent on the face of the record.

The Court was hearing an application for condonation of delay filed by Mohammad Yousuf Allie, a former Judicial Officer, who sought to review a Division Bench judgment dated 18th July 2023 that had dismissed his challenge to his termination from service.

The petitioner was selected as Munsiff (Judicial Magistrate) 1st Class in the J&K Judicial Services in the year 2000 under the RBA Category on the basis of an RBA certificate purportedly issued by the competent revenue authority. His selection was challenged by other candidates, on the ground that he was not a resident of the backward area and was not entitled to the benefit of reservation.

The Single Judge, while hearing the petitions, passed an interim order directing the Registrar Vigilance of the High Court to conduct an enquiry. The Registrar Vigilance concluded that the petitioner had secured appointment on the basis of a fabricated RBA certificate. The petition was finally disposed of.

An LPA preferred by the petitioner was partially allowed, and the Deputy Commissioner, Bandipora was directed to conduct an enquiry into the genuineness of the RBA certificate. The petitioner took the matter to the Supreme Court by way of SLP and while the SLP was pending, the Deputy Commissioner submitted a report to the Supreme Court, concluding that the RBA certificate was fake and not issued by his office.

Apprehending dismissal of his SLP, the petitioner approached the Divisional Commissioner, Kashmir by way of a review petition. The Divisional Commissioner referred the review petition to the Deputy Commissioner, who conducted fresh proceedings and prepared a third report holding the certificate to be valid. Based on this favourable report, the petitioner withdrew his SLP, which was dismissed as infructuous by the Supreme Court on 13th July 2021.

Thereafter, the Judicial Officer was terminated leading to a writ petition. The Division Bench, dismissed the writ petition, holding that the Divisional Commissioner had no authority to delegate his statutory revisional power to the Deputy Commissioner and that the third report favourable to the petitioner was prepared without authority of law.

The petitioner filed an SLP before the Supreme Court, which was dismissed on 5th January 2024 with the observation, “We see no reason to interfere with the impugned order.” A review petition before the Supreme Court was also dismissed on 24th July 2024. Thereafter, the petitioner filed the present review petition before the High Court on 31st December 2024, along with an application seeking condonation of 502 days' delay.

Court's Observation:

The Court examined the explanation offered for the delay. The petitioner contended that after the dismissal of the SLP and the review petition by the Supreme Court, he looked for appropriate legal advice, which took him few months. The Court found this explanation unacceptable. It observed, “It is not acceptable that after the dismissal of his SLP and review petition by the Supreme Court, it took him five months to take a decision with regard to filing of the review petition before this Court.”

The Court further noted that the petitioner could not point out anything shockingly erroneous in the judgment sought to be reviewed that would persuade the Court to construe the delay liberally. Upon examining the judgment, the Court held that it was in consonance with law and did not suffer from any error apparent on the face of the record.

The Court then examined the merits of the underlying controversy. It noted that the Division Bench had correctly interpreted Rules 31 and 32 of the J&K Reservation Rules, 2005. Rule 31 provides that the order passed by the Deputy Commissioner is appealable before the Divisional Commissioner, and the appellate authority has review and revisional powers which can be exercised suo moto or on application. Rule 32 confers power of revision upon the appellate authority. The Court held,

“The power given to the appellate authority is statutory in nature and cannot be further delegated to any authority.”

The Court found that the Divisional Commissioner had abdicated his statutory duty by transferring the review petition to the Deputy Commissioner for passing appropriate orders after holding a fresh inquiry. The Court observed,

“.. We could understand if the Deputy Commissioner would have submitted the report to the Divisional Commissioner and the Divisional Commissioner would have taken a decision thereupon after affording an opportunity of being heard to all the stakeholders.” However, the Divisional Commissioner allowed the Deputy Commissioner to decide the review petition, which was not permissible.

The Court also addressed the legal proposition that dismissal of SLP without assigning reasons does not result in merger of the High Court judgment with the Supreme Court order, and that a review petition may be maintainable in appropriate cases. The Court acknowledged,

“... In appropriate cases, the review petition against the judgment of the High Court would be maintainable notwithstanding that an SLP against the said judgment has been dismissed by the Hon'ble Supreme Court in limini without assigning any reasons. Nor there can be any quarrel with the proposition that a judgment passed by this Court which suffers from a gross error apparent on the face of record can be reviewed/recalled to do substantial justice.”

However, having regard to the facts and circumstances of the case and the two rounds of litigation pursued by the petitioner up to the level of the Supreme Court without any success, the Court found no fit case for condoning the delay.

The application for condonation of delay was thus dismissed, and consequently, the review petition also stood dismissed.

Case Title: Mohammad Yousuf Allie v. High Court of J&K and Ladakh & Anr.

Citation: 2026 LiveLaw (JKL)

Appearances

Petitioner: A. Haqani, Sr. Advocate with Asif Wani, Advocate

Respondents: M. I. Qadiri, Sr. Advocate; Fahim Shah, GA

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