Golam Rasul Vs Mustafizur Rahman

------For the Petitioner : Md. Jalisur Rahman, Advocate [In Cont. Case No. 740/2023] : Mr. Ashim Kr. Sahani, Advocate [In C.M.P. No. 982/2023] For the O.P. No.3 : Mr. Ashim Kr. Sahani, Advocate [In Cont. Case No. 740/2023 For the O.P. No.1 : Md. Jalisur Rahman, Advocate [In C.M.P. No. 982/2023] For the State : Mr. Suresh Kumar, SC(L&C)-II For the JAC : Mr. Abhijit Kumar Singh, Advocate

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Order No. 17 / Dated 6^th August, 2025

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1. The contempt case as also the civil miscellaneous petition have been listed together for hearing.

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C.M.P. No.982 of 2023

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2. This Court has passed an order that prior to proceeding in the contempt case, the civil miscellaneous petition is to be decided.

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3. Accordingly, the instant civil miscellaneous petition has been heard which has been filed for clarification/ modification of the order passed by this Court dated 15.06.2023 in W.P.(S) No.2766 of 2023.

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4. It would be evident from the prayer and the pleading made in the instant civil miscellaneous petition that though the petitioner has sought for clarification/ modification of the order passed by this Court dated 15.06.2023 in W.P.(S) No.2766 of 2023 but it has not specifically been mentioned that what clarification/modification is required in the aforesaid order, therefore, it appears that in the garb of clarification, the petitioner has sought to review the order dated 15.06.2023.

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5. The ground has been taken for review of the aforesaid order that the petitioner has not brought the relevant documents on record which would suggest that the O.P. No.1 is not qualified to hold the post.

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6. According to Mr. A.K. Sahani, learned counsel for the petitioner, the O.P. No.1 is holding the post of Alim but he is not having the educational qualification to hold the said post. 7. Mr. Jalisur Rahman, learned counsel appearing for the O.P. No.1, has rebutted the said stand by filing the counter affidavit stating inter alia therein that the educational qualification for the purpose of appointment in Madarsa starts from the post of Maulvi, Alim and Fazil. The post either of Maulvi, or the Alim or the Fazil is to be held by an individual having the qualification either of Maulvi, or the Alim or the Fazil, as the case may be.

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8. It is the contention of the learned counsel for the O.P. No.1 that the O.P. No.1 is holding the post of Alim and he is

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having the higher qualification, i.e. Fazil and, as such, there cannot be any doubt that there is no educational qualification of Alim which is lesser in comparison to that of the Fazil.

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9. Learned counsel has demonstrated the said argument from the various documents appended with the counter affidavit i.e., letter dated 21.01.2023 of District Education Officer, Pakur addressed to Registrar/Secretary, Madarsa Education Board, Lucknow and the response received vide letter dated 02.05.2023.

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10. We have heard learned counsel for the parties and gone through the pleadings made in the instant petition where the sole ground has been taken to review the order dated 15.06.2023 passed in W.P.(S) No.2766 of 2023 that the O.P. No.1/petitioner/writ petitioner is having no educational qualification although he is holding the post of Alim but there is no degree to hold the post of Alim.

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11. This Court, before dealing with the aforesaid ground to be a just and proper for review of the order passed by this Court, deems it fit and proper to refer the position of law so far as the power of review is concerned.

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12. The Hon’ble Apex Court has considered the width and scope of power of review in Moran Mar Basselios Catholicos and Anr. Vrs. Most Rev. Mar Poulose Athanasius and Ors ., reported in AIR 1954 SC 526 particularly at paragraph-32 which read as hereunder:-

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“32. Before going into the merits of the case it is as well to bear in mind the scope of the application for review which has given rise

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to the present appeal. It is needless to emphasis that the scope of an application for review is much more restricted than that of an appeal. Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order XL VII, Rule I 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.”

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13. In the case of Shivdev Singh Vrs. State of Punjab ,

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reported in AIR 1963 SC 1909 , in a review petition filed under Order 47, Rule 1 C.P.C., the Supreme Court held that the power of review of its own order by the High Court inheres in every Court of plenary jurisdiction, to prevent miscarriage of justice or to correct grave and palpable errors committed by it. In doing so, the Court was only upholding the principles of natural justice. This decision indicates that the Court’s power of review while exercising jurisdiction under Article 226 of the Constitution extends to correct all errors to prevent miscarriage of justice. The judgment rendered by Hon’ble Apex Court in the case of

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Sow. Chandra Kanta and Anr. Vrs. Sheik Habib , reported in AIR 1975 SC 1500 wherein it has been held that –

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“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. A mere repetition through different counsel of old and overruled arguments, a second trip over ineffectually covered ground or

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minor mistakes of inconsequential import are obviously insufficient.”

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14. It is the settled proposition as has been settled by Hon’ble Apex Court in the judgment discussed hereinabove that the scope of review can only be done in case of 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, mistake or error apparent on the face of the record and for any other sufficient reason and in the light of this legal position the fact of these review petitions need to be appreciated.

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15. It is thus evident that the power of review can only be exercised on the following conditions:-

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(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,

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(ii) Mistake or error apparent on the face of the record and

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(iii) For any other sufficient reason.

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16. This Court is now proceeding to deal with as to whether the ground which has been agitated can be said to be a ground of review as per the principle to be followed by the review court while reviewing the order.

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17. This Court, in order to appreciate the argument that the Respondent No.1/petitioner/writ petitioner is having no educational qualification although he is holding the post of Alim but there is no degree to hold the post of Alim, rather, he is only having the degree of Fazil, has gone through the counter affidavit, particularly, the documents, i.e., AnnexureB dated 21.01.2023 which is correspondence made at the level of the District Education Officer to the concerned institute for the purpose of verifying the issue of certificate/genuineness thereof.

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18. The response has been given by the concerned Board vide its letter dated 02.05.2023 certifying that the certificates, which the petitioner is possessing, is genuine, as appended as Annexure-C to the counter affidavit.

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19. This Court, considering the aforesaid stand based upon the communications issued by the District Education Officer and acceptance of the response of the institution by the District Education Officer, is of the view that there is no substance to recall the order dated 15.06.2023 passed in W.P.(S) No.2766 of 2023 by exercising the power of review.

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20. The instant civil miscellaneous petition is dismissed.

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Cont. Case (Civil) No.740 of 2023

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21. The present contempt case is for alleged willful and deliberate non-compliance of order dated 15.06.2023 passed in W.P.(S) No.2766 of 2023.

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22. Mr. A.K.Sahani, learned counsel appearing for the O.P. No.7, has submitted that the Management of the school has already sent all the documents, particularly the absentee statement and details of bills.

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23. However, Mr. Suresh Kumar, learned S.C.(L&C)-II appearing for the concerned opposite party, has submitted that the said documents have not been sent by the O.P. No.7 and the moment the said documents will be sent, there will be no delay on disbursal of the amount pertaining to the salary of the petitioner.

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24. Learned State counsel has further submitted that the Head Clerk/Clerk posted in the office of the District Education Officer will go to the office of the Headmaster of the concerned school for collecting the relevant documents within two days.

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25. It has further been submitted that after receipt of the said documents, the further necessary action for disbursement of the arrears of the salary and current salary would be taken within a further period of four days.

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26. Accordingly, let this matter be listed on 13.08.2025.

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(Sujit Narayan Prasad, J.)

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Birendra/

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Golam Rasul v. Mustafizur Rahman

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Golam Rasul v. Mustafizur Rahman

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