DBCIV.REV.NO.127/09. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R D.B. CIVIL REVIEW PETITIION NO.127/2009. IN D.B. CIVIL SPECIAL APPEAL (WRIT) NO.1145/2002. IN S.B. CIVIL WRIT PETITION NO.517/1994. The High Court of Judicature for Rajasthan, Jodhpur & Anr. Vs. Mool Singh Rathore Date of order : August 13, 2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ HON'BLE MR.JUSTICE MAHESH CHAND SHARMA Shri R.N. Mathur for the review-petitioner. Shri Ajeet Kumar Sharma for the appellants. ****** BY THE COURT:- This review petition has been filed by the original writ petitioner Mool Singh Rathore, who had approached this Court by filing a writ petition against the order of his termination dated 27/1/1994. Initially, learned Single Judge of this Court stayed the operation and effect of the termination order but subsequently when the interim-order was vacated, order of termination was given effect to on 21/10/1994. Writ petition was eventually allowed vide judgment dated 20/11/2002 whereby, respondents in the writ petiton were directed to reinstate him in service on the terms and conditions as before however with liberty to pass fresh order in accordance with DBCIV.REV.NO.127/09. 2 law. High Court and the learned District & Sessions Judge Behrod challenged the aforesaid judgment in appeal before the Division Bench which came to be allowed by the judgment of which, review is sought for. Shri R.N. Mathur, learned counsel for the review-petitioner has submitted that in the present case, so many of the arguments which were required to be advanced on behalf of the respondent in the appeal i.e. original writ petitioner could not be made because matter went un-attended on behalf of the petitioner not because that he did not want to contest the appeal but because learned counsel, who was representing him could not make himself available for making argument before the Division Bench. It is contended that Division Bench has allowed the appeal with the observation that order of termination dated 21/10/1994 was not challenged by the writ petitioner whereas, fact was that order dated 21/10/1994 was not a fresh order but virtually an order giving effect to the original termination order dated 27/1/1994 operation of which, was stayed and subsequently when the stay order was vacated, same was sought to be revived by the subsequent order. Moreover, learned Division Bench did not consider this aspect of the matter that petitioner was already in service of the Government i.e. Forest Department, albeit, on that basis, having been appointed as such, in the DBCIV.REV.NO.127/09. 3 year 1989 and continued therein upto 1990. This fact was completely lost sight by the Division Bench because as per the relevant rules, if petitioner was within the age limit when he remained earlier in service, he would be deemed to be within the age if at the time he secured new appointment with the District Court, Alwar. Learned counsel therefore submitted that petitioner having not raised any of these arguments, needs fresh hearing and more particularly because the matter went un-attended on behalf of the original writ petitioner, who had judgment in his favour having been allowed by the learned Single Judge. Shri Ajeet Kumar Sharma, learned counsel appearing for the non-applicant/appellant herein also before the Division Bench, opposed the review petition and submitted that merely because some of the arguments raised by the writ petitioner were not considered, would not be a ground to review the judgment. It is contended that even though the earlier termination order was under challenge when subsequent order of termination was passed after stay order was vacated, same was also required to be challenged. Learned counsel submitted that mere absence of the learned counsel may not be a ground for review of the judgment if otherwise, judgment is considered and detailed one and does not call for any recall. DBCIV.REV.NO.127/09. 4 We have given our anxious consideration to the rival submissions of the parties and perused the material available on record. On perusal of the judgment, we find that in fact, termination order was only one i.e. 27/1/1994 which was earlier challenged by the original writ petitioner in the writ petition and order dated 21/10/1994 was not a fresh order of termination but was given effect to the earlier termination order after vacation of the stay order. While allowing the appeal, one of the consideration was that writ petitioner did not apply for any amendment so as to challenge the fresh order of termination whereas, there was no fresh order of termination. Secondly, it was indeed an argument which requires consideration by the court whether or not the petitioner would be entitled to age relaxation on consideration of fact that he was already in Government employment. This argument also does not attract the attention of the court and presumably because no one was there on behalf of the writ petitioner to so urge. Moreover, we find that it is a case where judgment so rendered by the Division Bench has the effect of reversing the earlier judgment of the learned Single Bench, which had allowed the writ petition of the original writ petitioner. So many other arguments which were advanced before the learned Single Bench persuaded him to allow the writ petition to be agitated before the Division Bench. DBCIV.REV.NO.127/09. 5 Thus, the judgment needs to be reviewed so as to enable the parties to have a fresh hearing before the Division Bench. In the result, this review petition is allowed. Judgment & order of the Division Bench passed in D.B. Civil Special Appeal (Writ) No.1145/2002 dated 21/5/2009 is reviewed and recalled. Revival of the special appeal shall also result in the revival of the interim-order of stay which was holding in favour of the appellant from before. (MAHESH CHAND SHARMA), J. (MOHAMMAD RAFIQ), J. anil