Dismissed

Yamavarapu China Bhagya Rao, v. The General Manager

Telangana HC12 Jun 2014WP/4782/2014

Case brief

AI extract

What is this about?

This Writ Petition challenged an order by the Central Administrative Tribunal dismissing an Original Application regarding compassionate appointment. The High Court dismissed the petition, holding the 12-year delay made it barred as it was not filed within a reasonable time, distinguishing it from limitation acts.

What did the court decide?

Writ Petition dismissed at the stage of admission without costs.

Yamavarapu China Bhagya Rao, Vs The… — Pension and Retirement Benefits | Telangana HC (2014)

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THE HON'BLE SRI JUSTICE K.C.BHANU AND

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THE HON’BLE SMT JUSTICE ANIS

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WRIT PETITION No.4782 of 2014

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ORDER:- (per Hon’ble Sri Justice K.C.Bhanu)

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This Writ Petition, under Article 226 of the Constitution of India, is filed to call for the records relating to the order, dated 30.12.2002, in Original Application No.1565 of 2002 passed by the Central Administrative Tribunal, Hyderabad Bench, Hyderabad (for short, ‘the Tribunal’) and quash the same and consequently, direct the respondents to appoint the petitioner on compassionate grounds with all consequential, attendant benefits and continuity of service.

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2. Facts of the case are that petitioner’s father while working as Brick Layer Grade-I under the control of respondent No.4, died in harness on 05.12.1995. Eldest brother of the petitioner made a representation for compassionate appointment and the same was rejected by the respondents, vide order, dated 03.12.1999. Thereafter, eldest brother of the petitioner approached the Tribunal by filing Original Application No.1949 of 1999 and during pendency of the said Original Application, he made a representation to respondent No.1 -General Manager, South Central Railway, Secunderabad. The said Original Application was disposed of on 28.12.1999 with a direction to respondent No.1 to dispose of the representation in accordance with the law. Petitioner entered into an agreement with his eldest brother on 15.04.2002 whereunder his eldest brother agreed for compassionate appointment of petitioner. Thereafter, petitioner made a representation to respondent No.2-Divisional Railway Manager, South Central Railway, Vijayawada on 27.08.2002 to consider his case for providing compassionate appointment on the basis of the said agreement and to dispose of the said representation.

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3. Petitioner herein/applicant filed the aforementioned Original Application to declare the action of the respondents in not considering his representation, dated 27.08.2002, as arbitrary and illegal and consequently, direct the respondents to consider his representation at an early date for appointment on compassionate grounds.

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4. The Tribunal, upon considering the material on record, dismissed the Original Application on the ground that petitioner was minor at the time of demise of his father and he made application seven years after death of his father. Challenging the said order, petitioner filed the present Writ Petition.

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5. Impugned order was passed on 30.12.2002. Challenging the said order, no Writ Petition has been filed for about 12 long years. The very object of compassionate appointment is to give succour to the family, which has been suddenly plunged into penury to the untimely death of its sole breadwinner. Admittedly, the father of the petitioner died on 05.12.1995. At this point of time, the same cannot be considered. If really, the deceased family has to get immediate relief, the petitioner would have approached this Court immediately after dismissal of Original Application.

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6. Learned counsel for the petitioner placed reliance on a decision reported in MATA DIN V. A.NARAYANAN^[1] , wherein it was held thus (para 7):

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“It is quite clear that the Limitation for the appeal to the High Court was three times as much as it was for the District Court. When the appeal was filed the litigant had as much as two months in hand to file the same in the High Court. Further he did not attempt to save courtfee on the appeal but paid the same court-fee on the appeal but paid the same court-fee which would have been payable in the High Court. It does not appear that he had an underhand motive for filing the appeal in the District Court. Therefore, the filing of the

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appeal must be attributed entirely to the advice of the counsel. Here again, the counsel did not suppress anything. As has been stated earlier, he put down both the valuation in the forefront of his memorandum of appeal, that is to say, the valuation of the suit in the original court and the valuation of the appeal. No doubt the counsel was once with some experience and ought to have known that an appeal above Rs.5,000 must be filed in the High Court and not the District Court an therefore, we have to see whether he was genuinely under a mistake or not. Here there is proof that he adhered to this view, because not only he filed the appeal but also took a revision from the order of District Court to the High Court, still labouring under the same mistake view.”

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7. He also relied on a decision reported in THE PUNJABI

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UNIVERSITY ETC. V. ACHARYA SWAMI GANESH AND ANOTHER^[2] ,

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wherein it was held thus (paras 3 and 5):

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“The reasons given in support of the application under Section 5 of the Limitation Act are as follows : One Atma Ram was the counsel for the Punjabi University. He had been instructed by the Punjabi University, to file the appeal. A sum of Rs. 5000/-had been paid to the Stamp vendor on February 1, 1971, itself for purchasing the necessary court fee stamps. Necessary court fee stamps had been purchased on February 2, 1971. According to Mr. Atma Ram, by some miscalculation he had noted in his brief that the last day for filing the appeal was February 11,1971. He had sent a telegram to the Registrar of the Punjabi University on February 9, 1971, informing him that he should come down immediately to Chandigarh as the appeal had to be filed by February 11, 1971. He had also informed him by telegram that the Government's sanction must be obtained by that date. The Registrar of

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the University went over to Chandigarh on February 10, 1971 and the appeal was filed on the same date. According to the appellants the delay in filing the appeal was due to the mistaken miscalculation made by Mr. Atma Ram. Mr. Atma Ram has filed an affidavit wherein he has stated that the appeal was filed two days after the period of limitation entirely because of his mistake. The learned Judges of the High Court have not disbelieved the version given by Mr. Atma Ram. On the other hand, they have opined that the right to file the appeal was primarily that of the Punjab Government and the Punjab Government has not given sufficient reason for their delay in filing the appeal. It may be noted that the party which was essentially interested in filing the appeal was the Punjabi University. It had to pay the compensation for the lands acquired. Therefore, there was nothing surprising if the Government had left the matters in the hands of the Punjabi University. The Punjab Govt. was only fighting the case for the benefit of Punjabi University. The facts stated by Mr. Atmaram in his affidavit are highly probable and we see no reason to disbelieve the version given by him. If that version is believed, are we do, then it affords a good ground for condoning the delay in filing the appeal. It is true that Mr. Atma Ram committed a mistake in his calculation. But that is not the same thing as negligence. In matters of calculation it is common knowledge that people do commit mistakes. They are bonafide mistakes and those mistakes have got to be taken note of by the courts in considering whether the delay in filing the appeal should be condoned or not. It has been repeatedly held by courts that a mistake by a lawyer is a good ground for condoning the delay in filing the appeal. Quite recently this very question came up for consideration by this Court in Civil Appeals Nos. 821-823 of 1968. Dealing with that question this Court observed

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It was urged on behalf of the respondent that the Punjab Government cannot take advantage of the mistake committed by Mr. Atma Ram. It has not given any explanation of its own for not filing the appeal within time. This contention does not appeal to us. As mentioned earlier, Punjab Government had evidently left the matters in the hands of the Punjabi University which was the party really intersted. It depended entirely on the Punjabi University. We see no reason why that cause should be found to be improper.

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Those decisions are rendered with reference to under Section 5 of the Limitation Act, 1963 (for short, ‘the Act’). Section 5 of the Act has no application for filing Writ Petition as no limitation is prescribed for filing the Writ Petition challenging the order of Tribunal. But, it does not mean that the petitioner can approach this Court at any time, but he must approach this Court within a reasonable time so as to challenge the order of the Tribunal. That has not been done so in this case.

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8. In the affidavit filed in support of the petition, it is stated that the case was entrusted to one P.Rattaiah, Advocate, and the petitioner used to contact him on phone. That appears to be a false statement, because affidavit filed by the daughter of P.Rattaiah, Advocate, would clearly go to show that Rattaiah died on 17.09.2003 itself. Therefore, the question of contacting him through phone is absurd, untenable and totally devoid of merit.

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9. Petitioner approached this Court with the abnormal delay of 12 years in filing the Writ Petition. Petitioner has not moved his little finger to know about the proceedings pending before the Tribunal and he has also not made any attempts to come to Hyderabad to know the stage of his case for about 12 long years. For the first time, according to him, he came to Hyderabad and came to know in the year 2013 that his Advocate, P.Rattaiah died. It is a clear case where lapses are there on the part of the petitioner in approaching the Court. Therefore, the Tribunal, after

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considering all these aspects, rightly dismissed the Original Application and that order needs no interference by this Court. Hence, the Writ Petition is devoid of merit and is liable to be dismissed at the stage of admission.

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10. Accordingly, the Writ Petition is dismissed, however, it in the circumstances, without costs. Miscellaneous petitions, if any, pending in this Writ Petition shall stand closed.

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JUNE 12, 2014 YVL

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THE HON'BLE SRI JUSTICE K.C. BHANU AND

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THE HON’BLE MRS JUSTICE ANIS

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WRIT PETITION No.4782 of 2014

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DATED: 12.06.2014

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YVL