IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 18TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR. JUSTICE H.P.SANDESH WRIT APPEAL NO.3349 OF 2018 (S-RES) BETWEEN:
THE SUPERINTENDENT OF ENGINEER (ELECL.) O & M CIRCLE BENGALURU ELECTRICITY SUPPLY COMPANY LIMITED HADADI ROAD DAVANAGERE-577 002.
... APPELLANT (BY SRI:S.S.NAGANAND, SENIOR COUNSEL FOR SRI:S.SRIRANGA, ADVOCATE) AND:
1. KHALANDAR K SON OF KHADAR BASHA AGED ABOUT 32 YEARS RESIDENT OF NO.1260/1, 6TH CROSS, 3RD MAIN, K.J. NAGAR DAVANAGERE-577 002.
2. THE MANAGING DIRECTOR KARNATAKA POWER TRANSMISSION CORPORATION LIMITED CORPORATE OFFICE CAUVERY BHAVAN BENGALURU-560 009.
... RESPONDENTS (BY SRI:M.RAGHAVENDRACHAR, ADVOCATE FOR R1; SMT:M.C.NAGASHREE, ADVOCATE FOR R2) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961 PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 15.03.2017 PASSED BY THE LEARNED SINGLE JUDGE IN WRIT PETITION NO.29051 OF 2013 (S-RES) AND DISMISS THE WRIT PETITION WITH COSTS.
***** THIS WRIT APPEAL COMING ON FOR ORDERS THIS DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the appellant who is respondent No.2 before the learned Single Judge being aggrieved by the order dated 15.03.2017 passed in Writ Petition No.29051 of 2013.
2. In terms of the said order, keeping in view the submissions made by the appellant’s Counsel, Annexure-D was quashed and the matter was relegated to the respondent No.2 therein to consider the claim of the writ petitioner within two months.
3. There is a delay of 605 days in filing the appeal. In support of the application seeking condonation of delay, it is narrated in para 4 of the affidavit, which reads as under:
“I submit that the earlier Law Officer of BESCOM failed to appraise the management of BESCOM about the ramifications of the impugned as well as the remedies available against the same. Disciplinary action has been instituted against the said officer for various acts of negligence. The DGM (Personnel) has temporarily taken charge of the Legal Department of BESCOM until appointment of a new Law Officer. On 05.12.2018, the DGM (Personnel) informed the management of BESCOM that steps should be taken to challenge the order dated 15.03.2017 passed by the learned Single Judge in W.P.No.29051 of 2013 (S-RES). The present Counsel were instructed to file a writ appeal on 06.12.2018, and the drat writ appeal was circulated by Counsel on 08.12.2018. I submit that the delay in filing the writ appeal is unintentional, bonafide and for reasons stated above.”
Hence, he pleads that there is a delay in filing the appeal.
4. The same is disputed by the respondents’ Counsel. He contends that there are no sufficient grounds made out to condone the delay.
5. Learned Counsels have addressed arguments on merits.
6.(a) Sri.S.S.Naganad, learned Senior Counsel appearing for the appellant’s Counsel submits that the Counsel for respondent No.2 before the learned Single Judge had not been instructed to make such submissions. Therefore, when he had no instructions to make such a submissions, the order impugned requires to be set aside.
That the material on record would indicate that the amendment made to the Karnataka Electricity Board Employees’ Recruitment (Appointment on Compassionate Grounds) Regulations, 1997, came into effect after the death of one Dadapeer. Therefore, the question of applying the amendment Regulation would not arise.
(b) In support of his contention, he relies on the order passed by this Court dated 05.06.2018 passed in Writ Petition No.13246 of 2014 by the learned Single Judge, with reference to para 3 to contend that since the amendment is brought subsequent to the death of the deceased, the amended Rule would not apply.
(c) Reliance is also placed on the judgment of the Hon’ble Supreme Court in the case of STATE BANK OF INDIA AND ANOTHER Vs SOMVIR SINGH reported in (2007) 4 SCC 778, with reference to para 10 to contend that the right to claim compassionate appointment is traceable only to the scheme, executive instructions, rules etc., framed by the employer. That there is no right to demand appointment on compassionate grounds.
(d) So far as the concession being made, reliance is placed on the judgment of the Hon’ble Supreme Court in the case of BSNL AND OTHERS Vs. SUBASH CHANDRA KANCHAN AND ANOTHER reported in (2006) 8 SCC 279, with reference to para 20, wherein it is indicated that a wrong concession on a legal question by the lawyer may not be binding upon his client. Hence, he pleads that the delay be condoned and the appeal be allowed.
7. On hearing learned Counsels, we do not find any reason to accept the contention being advanced. So far as the question of merits are concerned, we do not find it appropriate to go into the said issue for the reason that the order passed by the learned Single Judge was based on the submissions made by the respondents’ Counsel therein. It is not an order passed on merits. It is an order passed on the submission that was made. Therefore, we do not find that the writ appeal could be filed challenging the order on this ground. The very contention of the appellant’s Counsel is that the respondents’ Counsel therein had no instructions to make any such submissions as narrated in paras 7.1 and 7.2 of the appeal memorandum. If that be the case, we do not think that the same would constitute a ground in order to file the appeal. If any mistake is noticed, then one would have to approach the Court that made the order. It cannot form a ground for an appeal. The remedy of the appellant would lie elsewhere.
8. So far as the judgment of the Hon’ble Supreme Court in the case of ‘BSNL and others’ are concerned, the Hon’ble Supreme Court narrated therein that a wrong concession on a legal question may not be binding upon his client. In the facts of this case, what has been conceded by the learned Counsel is that they would consider the case of the petitioner keeping in view the amendment made to the Regulation. It is not a concession on a question of law. It is a concession on facts. Hence the judgment is not applicable to the facts of this case.
9. So far as the unreported judgment of this Court in Writ Petition No.13246 of 2014 and the judgment of the Hon'ble Supreme Court in the case of STATE BANK OF INDIA AND ANOTHER Vs. SOMVIR SINGH reported in (2007) 4 SCC 778, as stated supra, we are of the considered view that the same would not come to the aid the appellant. The unreported judgment is with reference to the amended Rule being brought about subsequent to the death of the deceased and the judgment of the Hon'ble Supreme Court is with regard to the right to claim compassionate appointment. Both are not relevant for the consideration of this case.
10. Whether the concession is justified or not is not for the appellate Court to consider. It is a concession made to a party. If he subsequently realizes that it is wrong, then it is for him to get it corrected before the concerned Court and not by filing an appeal. Under these circumstances, we do not find any ground to entertain the appeal on merits. Hence, consideration of I.A.No.1 of 2018 for condonation of delay is futile. Consequently, the appeal is dismissed along with I.A.I of 2018.
Pending Interlocutory applications are rejected.
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JUDGE JUDGE *bgn/-