A. Ganpathy vs Union Of India And Ors
2012 Latest Caselaw 4802 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Judgment Pronounced on: August 16, 2012

+                            W.P.(C) No.4965/2012


       A.GANPATHY                               ..... Petitioner
                Represented by:Mr.S.R.Kalkal, Advocate


                        versus


       UNION OF INDIA AND ORS               ..... Respondents
                 Represented by:Mr.Ravinder Agarwal, Advocate


        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE MANMOHAN SINGH

PRADEEP NANDRAJOG, J. (ORAL)

1. OA No.195/2009 was dismissed by the Armed Forces Tribunal as per decision dated August 12, 2011.

2. The petitioner filed an appeal before the Supreme Court challenging the said decision, which was registered as CA No.7485/2011. Vide order dated September 12, 2011, the appeal was dismissed. The order dismissing the appeal reads as under:

"On hearing Mr. Seeraj Bagga, learned counsel appearing for the appellant and on going through the materials on record, we see no reason to interfere in this matter. There is no infirmity in the order of the Armed Forces Tribunal.

The appeal is dismissed."

3. Thereafter, the petitioner sought a review of the order dated September 12, 2011 by filing RP(C)No.2292/2011. The

same was dismissed by the Supreme Court vide order dated September 27, 2011, which reads as under:

"1. This petition is filed seeking review of the order dated September 12, 2011 passed in Civil Appeal No.7485 of 2011.

2. Prayer for oral hearing before the Court is rejected.

3. We have gone through the review petition and the record of the civil appeal. We find that the order of which review is sought does not suffer from any infirmity, much less any apparent error on the face of the record. No case is made out for review.

4. The review petition is dismissed."

4. Needless to state, whether a dismissal in limine by the Supreme Court would attract the principle of merger or not is no longer res-integra.

5. With reference to the past precedents being: (2005) 4 SCC 424 U.P.SRTC Vs. Omaditya Verma; (2002) 8 SCC 361 S.Shanmugavel Nadar Vs. State of T.N.; (2001) 5 SCC 37 K.Rajamouli Vs. A.V.K.N.Swamy; (2000) 6 SCC 359 Kanhayammed Vs. State of Kerala; (1998) 7 SCC 386 Abbai Maligai Partnership Firm Vs. K.Santhakumaran; (1996) 9 SCC 29 : 1996 SCC (L&S) 1181 State of Maniput Vs. Thingujam in the latest decision reported as (2011) 4 SCC 602 Gangadhara Palo Vs. Revenue Divisional Officer & Anr., in para 9 it was observed as under:-

"9. The situation is totally different where a special leave petition is dismissed without giving any reasons whatsoever. It is well settled that special leave under Article 136 of the Constitution of India is a discretionary remedy, and hence a special leave petition can be

dismissed for a variety of reasons and not necessarily on merits. We cannot say what was in the mind of the Court while dismissing the special leave petition without giving any reasons. Hence, when a special leave petition is dismissed without giving any reasons, there is no merger of the judgment of the High Court with the order of this Court. Hence, the judgment of the High Court can be reviewed since it continues to exist, though the scope of the review petition is limited to errors apparent on the face of the record. If, on the other hand, a special leave petition is dismissed with reasons, however meagre (it can be even of just one sentence), there is a merger of the judgment of the High Court in the order of the Supreme Court. (See the decisions of this Court in Kunhayammed Vs. State of Kerala, S.Shanmugavel Nadar Vs. State of T.N., State of Manipur Vs. Thingujam Brojen Meetei and U.P.SRTC Vs. Omaditya Verma."

6. As per law declared by the Supreme Court, a dismissal even with a brief reason, which could be only one line, would attract the principle of merger.

7. Under the circumstances, we hold that the Armed Forces Tribunal could not have even entertained RA No.15/2012 which we note was filed by the petitioner seeking review of the judgment and order dated August 12, 2011 passed by the Armed Forces Tribunal.

8. Noting that vide impugned order dated May 11, 2012, the Armed Forces Tribunal has dismissed RA No.15/2012 as not maintainable, a view with which we concur, instant writ petition is dismissed in limine for the reason once the order of the Armed Forces Tribunal had merged in the decision of the Supreme Court, we do not find any jurisdiction to relook into the matter.

9. No costs.

(PRADEEP NANDRAJOG) JUDGE

(MANMOHAN SINGH) JUDGE AUGUST 16, 2012 jk