Vishesh Kumar vs Union Of India And Others

Ramesh Ranganathan, CJ

Heard Mr. Vinay Kumar, learned counsel for the petitioner and Mrs. Monika Pant, learned Standing Counsel for the Union of India and, with their consent, the Writ Petition is disposed of at the stage of admission.

This Writ Petition is filed against the order passed by the Central Administrative Tribunal dismissing the Delay Condonation Application, in O.A. No. 331/00073/2015 filed by the petitioner dated 20.07.2018, on the ground of delay and laches.

The petitioner's father died while in service in the year 2002. The petitioner submitted an application on 16.03.2004 to the respondents seeking compassionate appointment. The petitioner's application was rejected by order dated 30.03.2005, and he was informed that the Board of Officers/Committee, in their meeting held on 21.03.2005, had considered his case in terms of the provisions and orders of the Government of India, DOPT; and they had found his case not to be deserving in view of the overall financial status of the family of the deceased, based on the family pension, terminal benefits, other monthly income etc. vis-à-vis the liabilities of the family; and, hence, his case for compassionate appointment was not being recommended.

The petitioner completed his graduation in the year 2006 and claims to have submitted another application, seeking compassionate appointment, which was also rejected by proceedings dated 03.03.2008 informing him that his application for grant of compassionate appointment had already been rejected by order dated 30.03.2005.

In his application, seeking condonation of delay in filing O.A. No. 331/00073/2015 before the Central Administrative Tribunal, the petitioner stated that he had made an application, under Section 6 of the Right to Information Act, 2005, before the respondents on 23.11.2011 seeking detailed information; and, by proceedings dated 22.12.2011, the petitioner was informed of the marks obtained by him under various heads at the time of consideration of his application for grant of compassionate appointment. The petitioner claims that it is on the basis of this information, furnished to him by letter dated 22.12.2011, that he came to know that he was erroneously awarded lesser marks; and he had filed Writ Petition (S/S) No. 366 of 2012 before the Uttarakhand High Court on 14.06.2012, which Writ Petition came to be dismissed by order dated 13.05.2014 on the ground that an alternative remedy was available to the petitioner under the Administrative Tribunals Act, 1985. The petitioner states that he was informed about the dismissal of the said Writ Petition on 24.06.2014, he received a certified copy of the order on 01.07.2014 and, thereafter, he filed the O.A. before the Central Administrative Tribunal under Section 16 of the Administrative Tribunals Act, 1985. The petitioner refers to certain meetings which he claims to have held with his counsel at Delhi, and to have approached the Central Administrative Tribunal in November, 2015.

In the order, impugned in the Writ Petition, the Tribunal held that the petitioner had waited almost for 8-9 years after completion of his graduation; it was incumbent upon him to invoke the jurisdiction of the Tribunal within time; if some delay had occurred, then the applicant was duty bound to show some reasonable cause for the delay; and the subsequent moving of representations itself would not extend the period of limitation. The Tribunal was not convinced by the reasons advanced for the delay of 09 years in invoking its jurisdiction and, therefore, dismissed the Delay Condonation Application. Aggrieved thereby, the present Writ Petition.

Mr. Vinay Kumar, learned counsel appearing on behalf of the petitioner, would submit that the petitioner has sufficiently explained the delay in invoking the jurisdiction of the Tribunal; the petitioner could not have challenged the said order, passed by the respondents on 30.03.2005, without sufficient information being furnished to him; it is only by way of letter dated 22.12.2011 that information was furnished to him; he had soon, thereafter, filed Writ Petition (S/S) No. 366 of 2012 before the Uttarakhand High Court on 14.06.2012; after the said Writ Petition was dismissed on the ground of existence of an alternative remedy, by order dated 13.05.2014, he had invoked the jurisdiction of the Tribunal; the Tribunal ought to have entertained the O.A, and should have examined the matter on merits, instead of non-suiting the petitioner on the ground of delay and laches; and this Court should, therefore, set aside the order of the Tribunal and direct it to consider the petitioner's claim for compassionate appointment.

On the other hand, Mrs. Monika Pant, learned Standing Counsel for the Union of India, would submit that it is only because the petitioner had made an application, under the Right to Information Act, 2005, on 23.11.2011 was information furnished to him within a month thereafter by the authorities on 22.12.2011; the petitioner has not furnished any explanation for his not seeking this information for a period of nearly six and a half year from 30.03.2005 when his application was rejected till he made an application under the Right to Information Act on 23.11.2011; even after the Writ Petition was dismissed by order dated 13.05.2014, the petitioner waited for nearly a year and a half before he invoked the jurisdiction of the Central Administrative Tribunal in November, 2015; and the Tribunal was justified in dismissing the application for condonation of delay; and in refusing to entertain the O.A. and to examine the contentions on merits.

Section 21 of the Central Administrative Tribunals Act, 1985 provides for limitation and, under Sub-Section (1)(a) thereof, the Tribunal shall not admit an application, in a case where a final order has been made in connection with the grievance, unless the application is made within one year from the date on which such final order has been made.

In the present case, the petitioner's application for compassionate appointment was rejected by order dated 30.03.2005. The petitioner, even on his own admission, kept quiet for more than three years thereafter till he filed a representation in the year 2008, which resulted in the respondents passing an order on 03.03.2008 informing him that his application had already been rejected by proceedings dated 30.03.2005. The petitioner kept quiet for more than six and a half year from the order of rejection dated 30.03.2005 till he made an application under the Right to Information Act, 2005 on 23.11.2011. While the petitioner, no doubt, filed Writ Petition (S/S) No. 366 of 2012 before this Court on 14.06.2012, he kept quiet for more than a year and a half after the said Writ Petition was dismissed on 13.05.2014 till he filed the O.A. before the Central Administrative Tribunal in November, 2015. The Tribunal was, therefore, justified in rejecting the petitioner's application on the ground of inordinate delay and laches.

The contention that the petitioner could not have invoked the jurisdiction of the High Court or the Tribunal, before the information was furnished to him by the respondents on 22.12.2011, is not tenable for the simple reason that the said information was furnished on the application made by the petitioner just a month prior thereto i.e. on 23.11.2011. What is not explained by the petitioner is why he did not seek such information for more than six and a half year after his application for compassionate appointment was rejected on 30.03.2005, till he made the application under the Right to Information Act, 2005 on 23.11.2011.

What the petitioner seeks in this Writ Petition is for a writ of certiorari to quash the order passed by the Tribunal. The certiorari jurisdiction exercised by the High Courts is extremely limited. A writ of certiorari can be issued for correcting errors of jurisdiction such as in cases where the order is passed without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction or where, in the exercise of the jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly. The jurisdiction to issue a writ of certiorari is supervisory and not appellate. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. The adequacy or sufficiency of evidence, and the inference of fact to be drawn therefrom, cannot be agitated in certiorari proceedings (Syed Yakoob Vs. K.S. Radhakrishnan & Others : AIR 1964 SC 477) as it is in the province of a court of appeal.

Unlike an appellate authority which can re-appreciate the evidence on record, the High Court, in the exercise of its certiorari jurisdiction, would not substitute its views for that of the Tribunal, nor would it re-appreciate the evidence on record to arrive at a conclusion different from that of the Tribunal whose order is impugned before it. Even if two views are possible, and the Tribunal has taken one of the possible views, the High Court would not interfere, in the exercise of its certiorari jurisdiction, even if it were to be satisfied that other possible view, canvassed before it, is more attractive. A finding of fact reached, on the appreciation of evidence, cannot be reopened or questioned in writ proceedings save a finding of fact which is either perverse or is based on no evidence. If a provision is reasonably capable of two constructions, and one construction has been adopted by the authority, its conclusion may not always be open to correction in writ proceedings. (Syed Yakoob Vs. K.S. Radhakrishnan & Others : AIR 1964 SC 477).

It is only errors of law apparent on the face of the record, and not errors of fact though they may be apparent on the face of the record, which can be corrected, (Shri Ambica Mills Co. Ltd. Vs. S.B. Bhatt and Anr. : AIR 1961 SC 970; R. Vs. Northumberland Compensation Appeal Tribunal : (1952) 1 KB 338; and Nagendra Nath Bose Vs. Commr. of Hills Division : AIR 1958 SC 398), and not every error either of law or fact which can be corrected by a Court of appeal or revision. (T. Prem Sagar Vs. The Standard Vacuum Oil Company Madras and Ors. : AIR 1965 SC 111; Bachan Singh and others Vs.Gaurishankar Agarwal and Others : (1972) 4 SCC 257; and Nagendra Nath Bose Vs. Commr. of Hills Division : AIR 1958 SC 398 ).

Further an error of law, which can be corrected by a writ of certiorari, must be self-evident. It should not need an elaborate examination of the record (Shri Ambica Mills Co. Ltd. Vs. S.B. Bhatt and Anr. : AIR 1961 SC 970), or require a detailed examination or an elaborate argument to establish it (CIT Vs. Saurashtra Kutch Stock Exchange Ltd. : (2008) 14 SCC 171; Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Ors. : AIR 1955 SC 233; Batuk K. Vyas Vs.Surat Borough Municipality and Ors. : AIR 1953 Bom 133). An error cannot be said to be apparent if one has to travel beyond the record to see whether the judgment is correct or not. It is an error which strikes on the mere looking, and does not need a long-drawn out process of reasoning on points where there may conceivably be two opinions. Such an error would not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest and clear that no court would permit it to remain on record. (CIT Vs. Saurashtra Kutch Stock Exchange Ltd. : (2008) 14 SCC 171; Sant Lal Gupta Vs. Modern Coop. Group Housing Society Ltd. : (2010) 13 SCC 336).

We are satisfied, therefore, that the order of the Tribunal does not suffer from any perversity or a patent illegality justifying exercise of the certiorari jurisdiction of this Court. The Writ Petition fails and is, accordingly, dismissed. No costs.