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Sunil Kumar Bande v/s Secretary to Government Education Department (Primary & Secondary Education) & Another


Company & Directors' Information:- SUNIL & CO PVT LTD [Active] CIN = U32109WB1984PTC037810

Company & Directors' Information:- SUNIL KUMAR PVT LTD [Strike Off] CIN = U17111RJ1985PTC003429

    Writ Petition No. 202163 of 2018

    Decided On, 16 February 2019

    At, High Court of Karnataka Circuit Bench OF Kalaburagi

    By, THE HONOURABLE MR. JUSTICE B. VEERAPPA & THE HONOURABLE MR. JUSTICE P.G.M. PATIL

    For the Petitioner: Gopal Krishna B. Yadav, S. Narayana Nagesh Kumar, Advocates. For the Respondents: K.M. Ghate, Additional Government Advocate.



Judgment Text


B. Veerappa, J.

1. The present petitioner is before this against the order dated 16.01.2018 made in Application No.175/2018 on the file of Karnataka State Administrative Tribunal, Bengaluru (for short the 'Tribunal') thereby rejecting the application on merits as well as on delay.

2. It is the case of the petitioner that his father Rajashekara C.Bande was appointed as Assistant Teacher in Government Model Primary School, Nagtana, Vijayapura Taluk and District and while he was in service he died on 20.05.1996, at that time the son of the deceased who is applicant/petitioner was a minor and could not able to file application for appointment on compassionate grounds as he was not eligible at that time. The applicant's mother filed application on 20.03.1997 within the time prescribed for appointment on compassionate grounds in favour of applicant/petitioner. The third respondent issued endorsement on 01.08.1998 directing the mother of the applicant to submit representation for appointment on compassionate grounds after attaining the majority of the applicant/petitioner within one year as per Annexure-A3. The applicant/petitioner attained the age of majority on 30.03.2002 and on 24.01.2003 petitioner made representation to third respondent within the time stipulated under the proviso to Rule 5 of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996 (for short the 'Rules 1996') for appointment on compassionate grounds.

3. On 02.04.2014 the petitioner made one more representation by producing all the relevant documents namely SSLC, PUC and Degree marks cards as required by the department and on 29.03.2014 respondents No.2 and 3 forwarded the said representation of the petitioner to first respondent for consideration of appointment on compassionate grounds. Again on 03.01.2015 the applicant/petitioner was forced to moved one more representation. The second respondent by the impugned endorsement dated 17.06.2015 Annexure-A10 rejected the representation on the ground that Rule does not permit for compassionate appointment. Hence, the applicant/petitioner was forced to file Application No.175/2018 before the Tribunal, the Tribunal at the stage of admission has rejected the application on merits as well on delay. Hence the present writ petition is filed.

4. We have heard the learned counsel for the parties to the lis.

5. Sri S.Narayana Nagesh Kumar, learned counsel for the petitioner contended that the impugned order passed by the Tribunal confirmed the endorsement issued by the second respondent is erroneous and contrary to material on record. He would further contend that the Tribunal has erred in holding that according to Rules 1996 in the case of minor he/she must have attained the age of majority of eighteen years within one year from the date of death of the Government Servant and he must make an application within one year thereafter. The said observation made by the Tribunal is erroneous and contrary to material on record.

6. He would further contend that the Tribunal in one paragraph considered the delay application and rejected the same only on the ground that reasoning does not constitute 'sufficient cause' for condonation of delay application. The rejection of the application on merits as well as the limitation is erroneous and no sufficient reasons are assigned by the Tribunal.

7. He would further contend that the application filed by the applicant is within the time stipulated under the Rules 1996. But the Tribunal relied upon certain judgments, which are not at all applicable to the facts of the applicant's case, erroneously rejected the application. Therefore, he sought to allow the writ petition.

8. Per contra, learned Additional Government Advocate appearing for respondents sought to justify the impugned order passed by the Tribunal as well as the endorsement issued by the second respondent.

9. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully.

10. It is undisputed fact that the father of the petitioner namely late Rajashekara Bande was working as Assistant Teacher in Government Model Primary School, Nagatana, Vijayapur District and he died while he was in service on 20.05.1996. After his death, the mother of the present petitioner filed an application on 20.03.1995 within the time stipulated for appointment of petitioner on compassionate ground. As he was a minor the respondent No.3 Block Education Officer, Vijayapur issued endorsement dated 01.08.1998 stating that the representation for appointment on compassionate ground can be filed after the petitioner attaining the age of majority. Admittedly, the petitioner attained majority on 30.03.2002 and accordingly filed application on 24.01.2003 within the time stipulated. Unfortunately the Tribunal proceeded to hold that the claim of the applicant/petitioner is hit by the proviso to Rule 5 of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996. According to which in the case of a minor he or she must have attained the age of eighteen years within one year from the date of death of the Government Servant and he must make an application within one year thereafter. The provision of Rule 5 of the Rules 1996 reads as under :-

"5. Application for appointment:- Every dependent of a deceased Government servant, seeking appointment under these rules shall make an application within one year from the date of death of the Government servant, in such form, as may be notified by the Government, from time to time, to the Head of the Department under whom the deceased Government servant was working; 1[2[Provided that in the case of a minor he must have attained the age of eighteen years within one year from the date of the death of the Government servant and he must make an application within one year thereafter:] Provided further that nothing in the first proviso shall apply to an application made by the dependant of a deceased Government servant, after attaining majority and which was pending for consideration on the date of commencement of the Karnataka Civil Services (Appointment on Compassionate Grounds) (Amendment) Rules, 1998."

11. A careful reading of the said Rule makes it clear that every dependent of a deceased Government Servant seeking appointment under these rules shall make an application within one year from the date of death of the Government Servant. Provided that in the case of a minor, application shall be made within a period of one year after attaining the majority. The Tribunal wrongly understood and wrongly stated that the application should be filed after attaining the age of eighteen years within one year from the date of death, that is contrary to the rule. Virtually the Tribunal followed the Rules 1999, which will not be applicable to the facts of the present case since the death of the deceased is in the year 1996, Rule 5 of 1996 Rules stated supra is applicable. Accordingly, the application filed within the time stipulated under the said rules. The said aspect has not been considered by the Tribunal. As rightly pointed out by the learned counsel for the petitioner that the Tribunal also relied upon some other judgments based on the 1999 amended Rules and proceeded to erroneously rejected the application. The Tribunal while considering the limitation proceeded to reject only on the ground that it does not constitute sufficient cause to condone the delay without considering the application filed in a proper perspective.

12. In the application for condonation of delay, the applicant has stated that the applicant must have approached the court on or before 17.06.2016 and application filed on 08.01.2018 and the delay was neither deliberate nor intentional but for the bonafide reason that he and his family members were in deep financial crises and are struggling for maintaining day to day life for spending money for education of family members i.e., brother and sisters and there was a delay and after obtaining documents and arranging money to meet the Court expenses the delay was occurred. Therefore, delay in application was due to the bonafide reasons. If once the Tribunal considered the case on merits it ought to have considered the application with liberal approach. If the Tribunal proceeded to reject the application on the ground of delay then Tribunal ought not to have proceeded on merits.

13. It is relevant to state at this stage that we can take judicial notice of the fact that villagers in our country are by and large illiterate and are not conversant with the intricacies of law. They are usually guided by their co-villagers, who are familiar with the proceedings in the courts or the advocates with whom they got in touch for redressal of their grievance. Affidavits filed in support of the applications for condonation of delay usually drafted by the advocates on the basis of half-baked information made available by the affected persons.

14. Admittedly in the present case the applicant/petitioner stated that due to poverty and ignorance they could not file the application within the time and there was hardly one year six months twentyone days delay in filing the application.

15. The Tribunal ought to have considered the provisions of Section 19 the Administrative Tribunal Act, 1985 and ought to have applied liberal approach to condone the delay as the application filed by the applicant for appointment on compassionate ground after attaining the age of majority was within one year as contemplated under Rules 1996, the Tribunal ought not to have rejected the application on merits as well as on delay.

16. It must be remember that, ordinarily a litigant does not stand to benefit by lodging late application. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

17. In view of the above the impugned order passed by the Tribunal cannot be sustained. It is also relevant to note th

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at, when the application filed for appointment on compassionate ground by the petitioner before the second respondent Commissioner for Public Instructions has only stated that rules does not permit to avail appointment on compassionate ground except the said three lines endorsement, no reasons are assigned. The second respondent has not mentioned which rules, does not provide. When the petitioner's father died on 20.05.1996 the second respondent ought to have applied his mind to the 1996 rules ought to have passed a speaking order the endorsement/orders issued by the second respondent also cannot be sustained. 18. In view of the aforesaid reasons the writ petition is allowed. The impugned order passed by the Tribunal dated 16.01.2018 in Application No.175/2018 as well as the endorsement dated 17.06.2015 Annexure-A10 issued by the second respondent are hereby quashed. The matter is remanded back to the second respondent for reconsideration of the claim of the petitioner for compassionate appointment under Rules 1996 and pass appropriate reasoning order strictly in accordance with law within a period of eight weeks. Ordered accordingly.
O R







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