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Information reagarding appeal & caveat (Civil Law)

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Author : Anonymous

Posted On 24 February 2010 at 23:12

Dear Sir,
I have filed the case in the Hon'ble Central Administrative Tribunal as Applicant in person and the the Hon'ble Tribunal has allowed my application.
Please inform whether I should file the caveat application at the High Court or supreme Court so that the appeal filed by the respondents may not be admitted without notifying me?

Please inform whether the caveat will be applicable in the High Court or the Supreme Court of India against the order of the Hon'ble C.A.T?




Expert : B K Raghavendra Rao

Posted On 24 February 2010 at 23:34

CAT is on par with High Courts. Supreme Court is the appellate court for CAT.



Expert : Parveen Kr. Aggarwal

Posted On 24 February 2010 at 23:51

Order XVIII, Rules 2 and 3 of the Supreme Court Rules, 1966 are reproduced below:


"2. Where a petition is expected to be lodged, or has been lodged, which does not relate to any pending appeal of which the record has been registered in the Registry of the Court, any person claiming a right to appear before the Court on the hearing of such petition may lodge a caveat in the matter thereof, and shall thereupon be entitled to receive from the Registrar notice of the lodging of the petition, if at the time of the lodging of the caveat such petition has not yet been lodged, and, if and when the petition has been lodged, to require the petitioner to serve him with copy of the petition and to furnish him, at his own expense, with copies of any papers lodged by the petitioner in support of his petition. The caveator shall forthwith, after lodging his caveat, give notice thereof to the petitioner, if the petition has been lodged.

3. Where a petition is lodged in the matter of any pending appeal of which the record has been registered in the Registry of the Court, the petitioner shall serve any party who has entered an appearance in the appeal, with a copy of such petition and the party so served shall thereupon be entitled to require the petitioner to furnish him at his own expense, with copies of any papers lodged by the petitioner in support of his petition."



Expert : raj kumar makkad

Posted On 25 February 2010 at 08:58

I have similar opinion as of parveen



Expert : ajitabh acharya

Posted On 25 February 2010 at 09:11

my views are differ.... pls see this judgement of Delhi High Court....



Expert : ajitabh acharya

Posted On 25 February 2010 at 09:12

UOI through G.M. Western Railway vs. Sanjay Kumar Jain
Filed Under: Section 47 of the Persons with Disabilities Act, 1995
Appellant: UOI through G.M. Western Railway
Respondent: Sanjay Kumar Jain
Citation: 102 (2003) DLT 525 (DB)
Court: The High Court of Delhi
Judges: Anil Dev Singh and R.S. Sodhi

This is a case filed by Sanjay Kumar Jain who was not called for an interview on the ground that he was disabled, and was thus denied a chance for promotion.

Facts
Sanjay was working in the railways at a Group ‘C’ post. The Western Railway held a written exam for eligible individuals working at this level for departmental promotions to fill up Group ‘B’ posts. Sanjay took the written test and was among the seven people who qualified the exam. His name appeared at no. 5 in the list of successful candidates. However, he was not called for the interview on ground of his disability.

Sanjay filed an appeal against this action of Western Railway and sought protection under Section 47 of the Persons with Disabilities Act. The Central Administrative Tribunal allowed his petition. The Western railway then filed this appeal against the order of the Central Administrative Tribunal.

Observations of the Court
The Court held that the provision of the Act were mandatory and should have been followed by the GM of Western Railway. The Court pointed out that through the means of a circular; directions had been issued to the concerned authorities of the Railway administration to implement the provisions of the Act even in case of staff who acquired disability during service. The Court held that the action of the Western Railway whereby Sanjay was not invited for an interview for promotion was against the object and purpose of the Act and was therefore not justified.

Accordingly, the Court upheld the decision given by the Central Administrative Tribunal and quashed the order passed by the GM of Western Railway. The GM was directed to allow Sanjay to appear for an interview. It was further stated that in case he secured more marks than the selected candidates did, he would be promoted. The Writ Petition was accordingly disposed of.

Section Referred:
Section 47 of the Persons with Disabilities Act, 1995
Top

Union of India vs. Sanjay Kumar Jain
Filed Under: Section 47 of the Persons with Disabilities Act, 1995
Appellant: Union of India
Respondent: Sanjay Kumar Jainv
Citation: Civil Appeal No.5173 of 2004; Decided on 11.08.2004
Court: In the Supreme Court of India
Judge: Arijit Pasayat
Facts
Sanjay Kumar Jain while working in the Group–C post of the railways applied for a promotion to the Group-B post. He qualified the written test and had to thereafter undergo a medical examination as per the rules of the Indian Railways. As per the terms of the Railway Board’s Circular-passing of the medical test is a mandatory requirement before the candidate is called for the viva-voce test. Sanjay was considered medically unfit as it was suspected that he could lose his sight in the future. He was suffering from a disease, which affects the eyesight progressively. He therefore, did not qualify for the viva-voce test.

He filed an appeal before the Central Administrative Tribunal (CAT) challenging this order. The CAT after hearing both the parties held that the provisions of the Persons with Disabilities Act had not been followed. The CAT accordingly allowed the application.

The UOI questioned the authenticity of CAT’s order and filed a Writ Petition, which was dismissed by the High Court. The High Court held that the CAT’s order was perfectly in accordance with the provisions of the Act.

The UOI then filed this appeal against the order of the CAT and the High Court.

Arguments made on behalf of UOI
It was contended by UOI’s lawyer that both the CAT and the High Court had overlooked the proviso to sub-section (2) of Section 47 of the Act, which permitted the appropriate Government to exclude any establishment from the provisions of the Act. According to him, if one were to take into account the nature of duties of Group ‘B’ posts, then it would become clear that a physically handicapped person, particularly a visually handicapped person could not be granted relief on this front, after he had failed the medical test. It was further argued that Sanjay could be denied protection of the Act according to the proviso.

Sanjay Kumar Jain’s Response
Sanjay appeared in person and contended that the judgment passed by the CAT and the High Court was valid and did not warrant interference.

Observations of the Court
The Court made reference to the pertinent sections of the Act along with relevant previous cases. In accordance with these the Court held that the proviso to the section of the Act was not applicable to this case. Therefore, the Court affirmed the order given by the Tribunal Court and the High Court. The appeal was thereby dismissed.

Section Referred:
Section 47 of the Persons with Disabilities Act, 1995
Cases Referred:
AN Sehgal & Ors vs. Raje Ram Sheoram & Ors, AIR 1991 SC 1406
Ahd MK & Ors vs. State of Kerala & Ors, 2003 (4) SCALE 197
Calcutta Tramways Co. Ltd vs. Corporation of Calcutta, AIR 1965 SC 1728
Forbes vs. Git [1922] AC 256
Jennings vs. Kelly [1940] AC 206
Kerala State Housing Board & Ors vs. Rampriya Hotels (P) Ltd & Ors, 1994(5)SCC 672
R vs. Taunton, St James 9B & C 836
Mulling vs. Treasurer of Survey 1880 (5) QBD 170
Shah Bhoirai Kuverji Oil Mills and Ginning Factory vs. Subhash Chandra Yograj Sinha, AIR 1961 SC 1596
Tribhovandas Haribhai Tamboli vs. Gujarat Revenue Tribunal & Ors, AIR 1991 SC 1538
West Derby Union vs. Metropolitan Life Asuarance Co, (1897) AC 647



Expert : ajitabh acharya

Posted On 25 February 2010 at 09:16

so. you should file caveot before high court. Against an order of CAT, a writ petition lies before a Division Bench of the High Court.



Author : Anonymous

Posted On 25 February 2010 at 13:26

I think the writ petition lies on the High Court only when the order has been made against the Applicant and Respondent organisation have only the legal remedy to file the appeal application against the order passed by the CAT which lies only in the Supreme Court of India
CAT Rules of practise 1993 also expalins the same
But I am doubtful whether one should file the caveat application in the High court ??



Expert : Member (Account Deleted)

Posted On 25 February 2010 at 17:33

The law is quite settled. The CAT order can be challenged in writ petition (before the division bench) in the hon'ble High Court.

Hence, you file a caveat petition in the hon'ble High Court in writ jurisdiction. The caveat petition is enforceable for 90 days from the date of filing.



Expert : B K Raghavendra Rao

Posted On 25 February 2010 at 23:24

Please see Section 28 of Administrative Tribunals Act, 1985.


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