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2017 DIGILAW 1652 (ALL)

STATE OF U. P. v. KANEEZ

2017-07-14

ARUN TANDON, RITU RAJ AWASTHI

body2017
JUDGMENT By the Court.—Heard learned Standing Counsel for the State-appellants and Sri Nisheeth Yadav, learned counsel for the respondent. 2. The present intra-Court appeal under Chapter-VIII Rule 5 of the Allahabad High Court Rules, 1952 is directed against the judgment and order of the learned Single Judge dated 30th March, 2009 passed in Civil Misc. Review Application No. 56238 of 2010 filed in Civil Misc. Writ Petition No. 67137 of 2006 (Smt. Kaneez v. State of U.P. and others) as also against the order of the learned Single Judge dated 6th March, 2009 passed in the writ petition itself. 3. On behalf of the respondent, a preliminary objection has been raised with regard to the maintainability of the present intra-Court appeal. 4. For deciding the preliminary objection, it is worthwhile to reproduce certain relevant facts: 5. Sole respondent Kaneez claiming herself to be the dependent of one Shamsher Ali Khan, who was employed as seasonal collection peon in Tehsil Sadar, District Agra. Kaneez made an application on 8th May, 2006 for compassionate with reference to the death of her husband during harness on 23rd April, 2006. Since the application was not decided, Kaneez filed Civil Misc. Writ Petition No. 67137 of 2006. In the writ petition a counter-affidavit was filed sworn on 5th June, 2007, wherein it was stated that the husband of respondent Kaneez was not seasonal collection peon on the date of his death and therefore, Kaneez was not entitled to any compassionate appointment. After exchange of affidavits, the learned Single Judge was pleased to decide the writ petition vide order dated 6th March, 2006 and to uphold the right of Kaneez for compassionate appointment in terms of the order of the Division Bench dated 10th September, 2003 passed in Special Appeal No. 598 of 2001 (Commissioner Agra Division Agra and others v. Smt. Kamlesh). 6. The State of U.P. however, preferred Special Appeal Defective No. 1305 of 2009, the appeal was got dismissed as withdrawn on 9th December, 2009. The order of the Division Bench dated 9th December, 2009 reads as follows: “Mr. Suresh Singh, Additional Chief Standing Counsel, appearing on behalf of the appellants, prays for withdrawal of this appeal with liberty to the appellants to seek the remedy of review. Appeal stands dismissed as withdrawn with liberty aforesaid. 9.12.2009" 7. The State of U.P. accordingly filed Civil Misc. Review Application No. 56238 of 2010. Suresh Singh, Additional Chief Standing Counsel, appearing on behalf of the appellants, prays for withdrawal of this appeal with liberty to the appellants to seek the remedy of review. Appeal stands dismissed as withdrawn with liberty aforesaid. 9.12.2009" 7. The State of U.P. accordingly filed Civil Misc. Review Application No. 56238 of 2010. This review application has been rejected by the learned Single Judge vide order dated 30th March, 2010. It is against main order and the order of the learned Single passed on the review application that the present intra-Court appeal has been preferred. 8. On behalf of respondent it is stated that the Apex Court in the case of Vinod Kapoor v. State of Goa and others, (2012) 12 SCC 378 , has laid down that if the first Special Leave Petition had been withdrawn on the ground that the appellant shall file a review applicationwithout reserving any right to file second Special Leave petition against the order impugned in the first Special Leave Petition, then the second Special Leave Petition filed for challenging the main order cannot be maintained. It is further stated that no appeal against the order rejecting the review application when the original order is not challenged would be maintained. For the purpose reliance has been placed upon the judgment of the Apex Court in the case of Bussa Overseas And Properties Private Limited and another v. Union of India and another, (2016) 4 SCC 696 . It is therefore, submitted that on both the grounds, the present intra-Court appeal is liable to be dismissed following the legal proposition as laid down in the aforesaid two judgments of the Apex Court. 9. Learned Standing Counsel for the State-appellant could hardly dispute the correctness of the preliminary objection so raised on behalf of the respondent. 10. We may record that the Apex Court in the case of Vinod Kapoor (Supra) has laid down that if a Special Leave Petition is withdrawn with liberty to file review application without reserving any right to file a fresh Special Leave Petition on merits, then the subsequent Special Leave Petition cannot be filed questioning the main order of the High Court, if the review application is rejected. Similarly in the case of Bussa Overseas And Properties Private Limited (Supra), the Apex Court has laid down that no appeal would be maintainable against the order dismissing the review application without the main order of the Writ Court being challenged. 11. Following the laws laid down by the Apex Court in the aforesaid two judgments, we have no other option but to accept the preliminary objection raised on behalf of the respondent. We hold that the the present intra-Court appeal is not maintainable. 12. The present intra-Court is accordingly dismissed.