"Application of Mind" By Decision Making Judicial, Quasi Judicial & Administrative Bodies Not For Ritual Sake, It's A Living Principle Of Law: J&K&L High Court

The observations were made by Justice Rahul Bharti while hearing a plea in terms of which the petitioner had challenged the cancellation of his selection based engagement to a public post and his consequent serving duty on the pretext that he had come to report his joining after delay of few days.

The facts of the instant matter were that an advertisement notice was issued for the engagement of person/s as Rehbar-e-Khel on honorarium basis in the Department of Youth Services & Sports, Govt. of J&K. The petitioner, holding requisite qualifications, competed for his selection by facing the selection process and came to be selected as Rehbar-e-Khel for Zone Gundanan, district Doda to find his name in the final provisional select list.

As the petitioner was outside India in Muscat, working for his livelihood when the said order of engagement dated 27.02.2019 came into picture, he engaged himself from that very moment in an exercise to get himself relieved from his employment. Meanwhile, the petitioner, acting through his father, had submitted his joining related documents before the District Youth Services & Sports Officer, Doda.

However, instead of joining duty within 21 days, the petitioner had joined duty on 26th day from the day next to the date of issuance of engagement. The petitioner's joining was accepted and he had come to assume his engagement and discharge duty as Rehbar-e-Khel at given place of his engagement, however his engagement was canceled subsequently for joining after 21 days. It was this order which became a subject matter of challenge before the bench.

Adjudicating upon the matter Justice Bharti observed that a perusal of the order of engagement would manifest that the joining period within a period of 21 days as a condition was not mandatory as it was not attended with any further eventuality. Thus, the period of 21 days was to be reckoned as extendable for any genuine contingency which could be there at any point of time for any selectee to be not able to join within a period of 21 days, which in the present case was with the petitioner as he was out of India working on his occupation, the bench noted.

The bench further recorded that for the petitioner to relieve himself from his private employer in a foreign country and to come back to India could not have been a matter of his own discretion but that of following the due procedure in which he was to relieve himself from his employer, prepare the documents for coming back to India and then only report himself for joining which he did within a period of 24 days of issuance of order of engagement and as such even if there was any delay beyond 21 days then said delay was only of duration of three to four days and that delay by no stretch of mandate could be said to be unwarranted delay on the part of the petitioner.

Deliberating further on the matter the bench observed that the petitioner came and reported himself for joining on 26.03.2019 and was allowed to join without any objection from the Authorities and as such even if there was any delay in reporting joining the same stood condoned by the Authorities themselves.

"There was, thus, no scope for resorting to the extent of cancelling the engagement of the petitioner simply on the pretext that submission of papers and relevant documents related to his engagement were submitted by his father", said the court.

Explaining the expression "Application of mind" used frequently in legal parlance, the bench observed that any public official/authority, be it judicial, quasi judicial and/or administrative one, who knows it as a fact that he is meant to judge/decide matters being part of the very constitution of the office/position held/occupied by him/it, must be made to know it compulsively and consciously without any miss that there is and will be an ever present institutional demand upon his/its understanding to make a decision, which if and upon being questioned, by any aggrieved person who is to suffer the effects of the given decision, is able to self exhibit its factuality and legality so evidently and expressly so as to test and tax the wit of the person in questioning the given decision. This is what is and will be meant in real sense and spirit an act of application of mind on the part of the maker of the judgment/decision, the bench expounded.

Applying the said position to the case at hand the bench maintained that in the present case, without taking pain and bearing patience to see and examine the facts in complete frame of the situation, the respondent came to upset the employment of the petitioner which was earned by him by mode of proper selection process and was earning honorarium for the service being rendered by him only to suffer loss of his employment by rush of impulse disguised as the impugned decision on the part of the respondent and the impugned decision is exhibit of non application of mind.

Accordingly the bench set aside the impugned order for being arbitrary and unfair by all standards and consequently sets it aside and held the petitioner entitled to continue with his engagement as Rehbar-e-Khel, without any break having intervened, with all consequential engagement dues and benefits.

Case Title : Shailender Parihar Vs Sarmad Hafez.

Citation : 2022 LiveLaw (JKL) 193

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