State Of U.P.Thru Secy. ... vs Sanjeev Kumar Bajpai
2013 Latest Caselaw 5879 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 1
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 780 of 2012
 

 
Appellant :- State Of U.P.Thru Secy. Deptt.State Govt.& Anr.6435(S/S)2008
 
Respondent :- Sanjeev Kumar Bajpai
 
Counsel for Appellant :- C.S.C.
 
Counsel for Respondent :- Satya Narain Shukla
 

 
Hon'ble Uma Nath Singh,J.

Hon'ble Mahendra Dayal,J.

Order (Oral)

We have heard learned counsel for parties and perused the pleadings of special appeal.

The appeal arises out of the judgment dated 10.07.2012 passed by learned Single Judge in Writ Petition No.643 (SS) of 2008, whereby the writ petition was disposed of with certain directions. It appears from the office report that filing of special appeal is barred by 84 days delay. The explanation given for delay as set out in the application is as under:-

"That challenging the judgment and order dated 10.07.2012 the special appeal is being preferred. However, there is some delay in filing the special appeal which is not deliberate and is bonafide and therefore the same is liable to be condoned.

That the copy of the judgment and order dated 10.07.2012 was received in the office of the appellants on 16.07.2012 through a letter of counsel for the petitioner/resondent.

That after receiving the copy of the judgment and order under appeal the same was placed for discussion and on 28.08.2012 the matter was referred to the Law Department.

That on 28.08.2012 the file was returned by the Law Department with a direction that an officer well versed with the matter be deputed to discuss the issue with it.

That on 11.09.2012 discussion was held with the Special Secretary, Department of Law and Additional Legal Remembrancer. After discussion the file was returned with certain queries.

That on 11.09.2012 itself the queries were replied.

That on 21.09.2012 the permission was granted by the Law Department to file the special appeal.

That thereafter it has taken some time in processing the file and arranging the relevant material and on 04.10.2012 the office of the learned Chief Standing was requested to prepare and prefer the special appeal."

In reply thereto, in the objection, the respondent has stated as under:-

"That with regard to para 2 of the affidavit it is stated that the special appeal has been filed with a delay of 2.5 months while assuring the deponent all the while that necessary order for compliance of the judgment and order of the Hon'ble Writ Court will be issued shortly.

That the averment that the delay in filing the special appeal is not deliberate and is bona fide is prima facie untenable from the averments in the affidavit itself as is evident from the following-

(1) After receipt on 16.07.2012 of certified copy of the impugned judgment the same was placed for discussion on 28.08.2012 more than a month after its receipt.

(2) After discussion on 28.08.2012, the second discussion with the special Secretary Law took place after 2 weeks on 11.09.2012.

(3) After grant of permission by the Law Department on 21.09.2012 it took 2 weeks to request the Chief Standing Counsel on 04.10.2012 to prefer the special appeal.

(4) Thereafter it took more than 3 weeks to file the instant special appeal.

(5) The affidavit does not give any, leave alone a valid, reason for the inordinate delays at (1) to (4) above. Evidently, there is no explanation for the delay at various stages.

That in the absence of any, leave alone satisfactory, justification for the repeated delays at various stages the prayer for condonation of delay in filing the special appeal is liable to be rejected in terms of the law laid down on the subjection by the Apex Court to the effect that each days delay has to be explained, as held in the following cases-

(i) AIR 1962 SC 361 (para 12)

(ii) AIR 1998 SC 2276

(iii) AIR 2011 SC 1199

That even otherwise, the application for condonation of delay is liable to be rejected as the appellant has no case on merits also and the special appeal appears to have been filed only to evade compliance of the judgment of the Hon'ble Writ Court for the second time.

That in this connection it is also relevant that once the proceedings for contempt of non-compliance the order of this Hon'ble Court were deffered till the disposal of the special appeal no.146 of 2005 against the judgment in the deponent's earlier W.P. No.1920 (SS) of 2001, the appellants herein never bothered to take any step for the disposal of the said special appeal. Entertaining this belated special appeal is likely to deprive the deponent fruits of the 11 years old litigation. The application for condonation of unwarranted delay in filing the instant special appeal is liable to be rejected for this reason also."

In rejoinder thereto, the appellant-State has made the following averments which reads as :-

"That in reply to the averments made in paragraph 3 of the counter affidavit it is stated that the respondent is trying to delay the disposal of the instant appeal as when the matter was taken up 12.03.2013, the counsel for the respondent did not appear at the time to hearing and this Hon'ble Court after hearing the counsel for the appellants was pleased to issue notice to the respondent.

That the contents of paragraphs 4 to 7 of the counter affidavit as stated are denied and in reply thereto it is stated that the delay in filing the appeal cannot in the manner be said to be unexplained. In this regard it is further stated here that the explanation has been given in the affidavit filed in support of the application for condonation of delay. The hyper technical objections being raised by the respondent are not acceptable.

That the contents of paragraphs 8 to 16 of the counter affidavit are denied being misconceived and misleading. In reply thereto it is stated that Khaliullah Khan was appointed vide Office Memorandum dated 01.06.1988 against a temporary post in pay scale of Rs.330-495 whereas the respondent was engaged in the year 1999 on contract basis on a consolidated salary for the purpose of driving a new vehicle purchased Uttaranchal Development Department. Thus there cannot be any similarity between the nature of engagement of 2 persons, one who was appointed on a post in a pay scale and other appointed on contract basis and not against any post but to drive a vehicle purchased for Uttaranchal Development Department. Khali-Ullah Khan was appointed in the year 1988 whereas the respondent was appointed after 11 years of engagement of Khali Ullah Khan in the year 1999 that too on contract basis."

Learned counsel for State submitted that the case of Shri Khali-Ullah Khan is totally different from that of the respondent. Learned counsel submitted that Shri Khali-Ullah Khan was appointed against a post of driver on temporary basis in the pay scale admissible to the Staff Car driver where as the respondent was appointed on contractual basis. Services of Shri Khali-Ullah Khan were transferred along with the post to State Estate Department pursuant to a decision dated 20.01.2001 when he had been absorbed and confirmed. Moreover, his appointment was against a regular salary head.

On the other hand, learned counsel for private respondent, Shri S. N. Shukla contends that this is a second round of litigation against the respondent a class-IV employee and working as a driver. The explanation given for condonation of 84 days' delay is contrary to the ratio of judgment of Hon'ble the Apex Court in the case of Lanka Venkateswarlu (D) by L.Rs. Vs. State of A.P. and Ors. (2011) 4 SCC 363. It is also a submission of learned counsel for respondent that filing of appeal, and that too, in second round of litigation by the State against a Class-IV employee who is yet to find a regular source of his daily bread and butter is also contrary to the national litigation policy available on the website of Ministry of Law, Government of India.

On due consideration of rival submissions, we do not find satisfactory explanation to condone the delay. The time taken in the circulation of file from table to table of the officials involved in the process, thus cannot be condoned. It appears that there has been no sincere effort to challenge the order of the learned Single Judge. Moreover, Hon'ble the Apex Court in the case of Lanka Venkateswarlu's case (supra) has held that the courts do not enjoy unlimited and unbridled discretionary powers to condone the delay. The orders of the High Court should not be based on personal perceptions and predilection. The National Litigation Policy of Government of India said to be available on the website of Ministry of Law also does not support the filing of appeals in service matters where the case pertains to an individual grievance without any major financial consequences. The policy statement, as referred to herein above, is also re-produced:-

"The following are the excerpts the National Litigation Policy available on the website of Ministry of Law:

Given that Tribunalisation is meant to remove the loads from Courts, challenge to orders of Tribunals should be exception and not a matter of routine.

In Service Matters, no appeal will be filed in cases where

(a) the matter pertains to an individual grievance without any major repercussion

(b) the matter pertains to a case of pension or retirement benefits without involving any principle and without setting any precedent or financial implications.

Further proceedings will not be filed in service matters because the order of the Administrative Tribunal affects a number of employees. Appeals will not be filed to espouse the cause of one section of employees against another.

Proceedings will be filed challenging orders of Administrative Tribunals only if

(a) There is a clear error of record and the finding has been entered against the Government

(b) The judgment of the Tribunal is contrary to a service rule or is interpretation by a High Court or the Supreme Court

(c) The judgment would impact the working of the administration in terms of morale of the service. The Government is committed to file a petition or

(d) If the judgment will have remaining implications upon order caries or if the judgment involves huge financial claims being made."

Thus, in view of all the aforesaid discussions, we are not able to persuade ourselves to accept the explanation for delay in filing the appeal particularly in the teeth of opposition on behalf of the respondent who is said to be on road and has not found any favourable response, despite two rounds of litigation, said to have ended in his favour.

The special appeal is thus dismissed on the ground of delay.

Order Date :- 18.9.2013/Mahesh