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2009 DIGILAW 578 (JK)

Anju Bala Jamwal v. State Of J. &K.

2009-11-23

BARIN GHOSH, SUNIL HALI

body2009
1. This review application is against a judgment and order of a Division Bench dated August 25, 2005, whereby and under Division Bench dismissed the appeal by observing that we do not find any ground to interfere with the well reasoned judgment of the learned Single Judge. 2. The principal contention in the present review application is that no reason has been furnished in support of the order. 3. The Appellate Court, when not interfering with the judgment appealed against, is not required in the normal circumstances, to give any additional reason. Of course, if it is contended before the Appellate Court that a particular reason given in the judgment under appeal is wrong and if the Appellate Court is of the view that such contention is not acceptable, it is a requirement to give reasons in support thereof. If the Appellate Court feels that the judgment already rendered needs no interference, there is no need for Appellate Court to repeat the reasons, which have already been furnished in the judgment appealed against. When, however, the Appellate Court interferes with the judgment appealed against, it is required to give full reasons for doing so. The reason for not furnishing additional reason, as appears to us, was not highlighting what has been sought to be highlighted in the review application. 4. The facts of the case are that, in 1989, father of the review applicant died in harness, when the review applicant was nine years old. After she became eighteen years old, she applied for an appointment on compassionate ground. This application was rejected. The review applicant, accordingly, filed a writ petition. That writ petition along with similar such writ petitions were heard together by a learned Single Judge. His Lordship concluded the matter, saying that if the death has taken place before 1994, the same must be dealt with in terms of the policy then applicable. The Learned Judge disposed of the writ petition by directing consideration of the case of the review applicant. The case of the review applicant was thus considered again, when her request was rejected once more. While doing so, it was held out that the department is still of the view that the law applicable since after 1994 applies. Being aggrieved thereby, the review applicant filed a second writ petition. The case of the review applicant was thus considered again, when her request was rejected once more. While doing so, it was held out that the department is still of the view that the law applicable since after 1994 applies. Being aggrieved thereby, the review applicant filed a second writ petition. In that writ petition, it was principally, contended that she is situate in the same position as that of one Sanjay Raina and that, while Sanjay Raina has been given an appointment, the same was denied to her without any just reason. Before the Writ Court, it was disclosed by the appointing authority that insofar as Sanjay Raina is concerned, there was a positive direction of this Court in a separate writ petition against which no appeal had been preferred and, as such, Sanjay Raina was appointed. The Learned Judge, who dealt with the second writ petition, then looked into the Rules, which became applicable since after 1994, and held that rejection of the application of the review applicant applying the principles of the said Rules, cannot be said to have affected any legal right of the review applicant. In the first round of litigation, there was a direction by the Court to consider the case of the review applicant in the light of disposal of the case of Sanjay Raina. The review applicant, therefore, while pressing her second writ petition, thought it that the order passed on the first writ petition having not been appealed against, has reached finality and, accordingly, what has been given to Raina, by reason of the order passed on the first writ petition, the review applicant has become entitled to the same as a matter of course. This argument was not accepted by the learned Judge, who dealt with the second writ petition. The learned Judge gave reasons in support thereof. In the appeal preferred against the judgment rendered on the second writ petition, the one and the only grievance that was highlighted was also consideration of Sanjay Raina, but non-consideration of the review applicant in the same manner. 5. Looking into the reasons, furnished by the learned Judge, while dealing with the second writ petition, the Division Bench found no scope to interfere with the same, and, accordingly, dismissed the appeal without repeating the self same reasons. 5. Looking into the reasons, furnished by the learned Judge, while dealing with the second writ petition, the Division Bench found no scope to interfere with the same, and, accordingly, dismissed the appeal without repeating the self same reasons. We, accordingly, find no ground available for review on the above score, inasmuch as, while reviewing the earlier order, we cannot see the correctness thereof. 6. However, the learned counsel for the review applicant having drawn our attention to the order passed on the first writ petition directing consideration of the case of the review applicant under the Rules applicable before 1994 and that having not been done by the order which was passed in compliance with the directions contained in the said order passed on the first writ petition and the said aspect of the matter having not been gone in, we feel that a case for review has been made out, as the same contains an error of law apparent on the face of records. 7. We, accordingly, review the said order of the Division Bench. After having had reviewed the same, the one and only thing that we, in the normal circumstances, could do was to remit back the matter to the Government for compliance with that direction passed in the first writ petition, namely, SWP no. 2725/1999, to the effect that the case of the petitioner should be considered in terms of the Rules prevailing prior to February 22, 1994. At the same time, the matter has been delayed inordinately. We, accordingly, wanted to look at the Rules in order to ascertain whether in terms of the Rules then prevalent, a re-consideration would benefit the review applicant. The matter was adjourned for the purpose and the learned counsel for the review applicant, today, has produced before us the Rules made on May 18, 1989. According to the learned counsel for the review applicant, these Rules were in vogue before February 22, 1994. 8. As aforesaid, the death occurred in 1989 when the review applicant was nine years old and, accordingly, only after nine years from the date of death, she became 18 years old and applied for an appointment, which resulted in the first rejection followed by the first writ petition and thereupon the second rejection followed by the second writ petition. 8. As aforesaid, the death occurred in 1989 when the review applicant was nine years old and, accordingly, only after nine years from the date of death, she became 18 years old and applied for an appointment, which resulted in the first rejection followed by the first writ petition and thereupon the second rejection followed by the second writ petition. The question is when the right for being considered for appointment on compassionate grounds in terms of the said Rules accrued? 9. A look at the said Rules makes it abundantly clear that the right accrued on the date of death. The question is whether such right to be converted into a benefit of compassionate appointment could wait for nine years from the date of accrual? Sub-rule (a) of Rule 4 of the said Rules authorised relaxation of upper age limit up to forty years and of lower age limit up to four years. The said state of affairs makes it abundantly clear that postponement of the benefit to be obtained in exercise of the right already accrued by reason of death could only be for a period of four years, and not beyond that. In the instant case, postponement of benefit by four years would have had not given any benefit to the review applicant. Accordingly, if we once again remit the matter for re-consideration, the same would meet the same result. 10. Learned counsel for the review applicant drew our attention to a judgment of the Division Bench of this Court rendered in the case Ghulam Mohi-ud-Din v. Union of India and ors, reported in 2000 SLJ 1. In that case, the death occurred on November 26, 1968, when the compassionate appointment seeker was less than two years old. He attained majority in the year 1985 and became a Matriculate in 1987. He applied for compassionate appointment in 1989. The Division Bench directed to appoint the said applicant. The case dealt with by the Division Bench pertained to an appointment on compassionate ground in Union of India, with which we have no connection in the instant review application. The Rules applicable to Union of India, on the basis whereof such direction had been issued by the Division Bench, have not been indicated in the judgment. The case dealt with by the Division Bench pertained to an appointment on compassionate ground in Union of India, with which we have no connection in the instant review application. The Rules applicable to Union of India, on the basis whereof such direction had been issued by the Division Bench, have not been indicated in the judgment. On the other hand, in the instant case, we are covered by a set of Rules, on the basis whereof consideration can result only in rejection and, accordingly, no purpose would be served by sending back the matter once again to the Government for consideration. 11. Application is, accordingly, dismissed.