State Of U.P. Thru Prin.Secy. Home ... vs Deep Kumar Bajpai
2021 Latest Caselaw 7179 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 1
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 220 of 2021
 

 
Appellant :- State Of U.P. Thru Prin.Secy. Home Dept. And Ors.
 
Respondent :- Deep Kumar Bajpai
 
Counsel for Appellant :- C.S.C.
 
Counsel for Respondent :- Ranjeet Singh
 

 
Hon'ble Ritu Raj Awasthi,J.

Hon'ble Dinesh Kumar Singh,J.

1. The present intra-Court appeal has been filed impugning the judgement and order dated 22.10.2019 passed by the learned Single Judge in Writ Petition No.1099 (SS) of 2013, whereby the learned Single Judge has allowed the writ petition. It is held that appointment of the respondent-petitioner was under The U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (for short 'the Dying in Harness Rules') and the appointment was made on 12.6.1987 in anticipation of approval by the State Government. The State Government granted approval on 15.11.1990. Respondent-petitioner had continued in service without any break since his initial appointment on 12.6.1987 and, therefore, the order dated 18.5.2011 passed by the opposite parties treating him to be in regular appointment w.e.f. 12.4.1991 has been held to be bad and set aside.

2. This special appeal has been filed with delay of 586 days as on the date of filing. It is accompanied with an application for condonation of delay supported by an affidavit sworn by Sri Anil Kumar Jha, Additional Superintendent of Police (Establishment), DG, PHQ, Lucknow. It has been stated in the affidavit that office of the Police Head Quarters, Allahabad (Now Prayagraj) has been shifted to new building 'Signature Building' in Lucknow and the files and papers were transported from Prayagraj to Lucknow by trucks and in the course of transportation, the file of Writ Petition No.1099 (SS) of 2013 got lost and, therefore, on 18.2.2021 duplicate file was prepared and thereafter special appeal has been filed.

3. It has been stated that legal opinion was sought from the office of the learned Chief Standing Counsel vide letter dated 10.11.2020. Learned Chief Standing Counsel, High Court, Lucknow Bench vide his opinion dated 21.12.2020 stated "Thus, in view of the settled principle of law that the appointment under Rules, 1974 is a regular appointment, hence, the petitioner has to be considered as appointed on regular basis w.e.f. 12.6.1987 and accordingly, the judgement and order dated 22.10.2019 passed in Writ Petition No.1099 (SS) of 2013 seems to be justified, however, opinion from the Law Department may also be obtained on the subject matter." 

4. Thereafter, the Legal Remembrancer in his opinion dated 4.1.2021 opined that there was a little chance of success in the appeal against the judgement and order dated 29.10.2019 passed by the learned Single Judge in Writ Petition No.1099 (SS) of 2013.

5. Thereafter, the case file was referred to the Administrative Department on 22.12.2020. In the meantime, respondent-petitioner filed Contempt Case No.1706 (C) of 2021 and this Court vide order dated 7.1.2021 granted four weeks' time for filing counter affidavit.

6. Despite the opinions of the learned Additional Chief Standing Counsel and the Law Department, the Administrative Department i.e. Home Department vide Government Order dated 12.1.2021 directed for filing the special appeal. The Law Department was asked to give its consent for filing the special appeal and the Law Department vide order dated 28.1.2021 granted permission. Some time was taken in preparing the special appeal.

7. From the aforesaid facts as stated in the affidavit filed in support of the application for condonation of delay, the appellants have spent time in inter-departmental communication since October, 2019 till this appeal was filed on 30.6.2021.

8. The Supreme Court in the cases of Postmaster General and others Vs. Living Media India Limited and another, (2012) 3 SCC 563 and in State of Madhya Pradesh and others Vs. Bherulal, (2020) 10 SCC 654 has held that reasonable explanation for delay has to be furnished by the appellants even if it is a state entity. It has been further held that mere inter-departmental communication between the authorities is not enough to condone the delay of such nature. Paragraphs 27, 28 and 29 of the judgement rendered in the case of Postmaster General and others (supra) are extracted herein-under:-

"27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.

28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.

29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."

9. Further, in the case of State of Madhya Pradesh and others Vs. Bherulal (supra) the Hon'ble Supreme Court in paragraphs 5, 6 and 7 has held as under:-

"5. A preposterous proposition is sought to be propounded that if there is some merit in the case, the period of delay is to be given a go-by. If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the jurisdiction of the Court in an appropriate case to condone the delay.

6. We are also of the view that the aforesaid approach is being adopted in what we have categorized earlier as "certificate cases". The object appears to be to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue and thus, say that nothing could be done because the highest Court has dismissed the appeal. It is to complete this formality and save the skin of officers who may be at default that such a process is followed. We have on earlier occasions also strongly deprecated such a practice and process. There seems to be no improvement. The purpose of coming to this Court is not to obtain such certificates and if the Government suffers losses, it is time when the concerned officer responsible for the same bears the consequences. The irony is that in none of the cases any action is taken against the officers, who sit on the files and do nothing. It is presumed that this Court will condone the delay and even in making submissions, straight away counsels appear to address on merits without referring even to the aspect of limitation as happened in this case till we pointed out to the counsel that he must first address us on the question of limitation.

7. We are thus, constrained to send a signal and we propose to do in all matters today, where there are such inordinate delays that the Government or State authorities coming before us must pay for wastage of judicial time which has its own value. Such costs can be recovered from the officers responsible."

10. In view of the aforesaid, we are of the view that this special appeal has been filed with considerable delay and laches without any plausible or reasonable explanation and, therefore, we do not deem it fit and proper to condone the delay, hence the application for condonation of delay in filing the special appeal is rejected.

Order on Memo of the Special Appeal

11. We could have dismissed the special appeal as we have not condoned the delay for the reasons stated herein-above, but we would like to deal with the merit of the case and the manner in which the Administrative Department i.e. Department of Home has proceeded to file the special appeal despite the opinions given against filing of the special appeal by the learned Additional Chief Standing Counsel as well as by the Law Department (Legal Remembrancer office).

12. As per the facts of the case, father of the respondent-petitioner, Sri Ambika Prasad Bajpai, Head Constable, died in harness in the year 1974. Respondent-petitioner is the only son of late Ambika Prasad Bajpai. He became handicapped in the year 1984 in a train accident. Respondent-petitioner was appointed as Constable on compassionate ground initially for a period six months vide order dated 12.6.1987. Services of the respondent-petitioner were extended from time to time by the competent authority. However, vide order dated 15.7.1989 services of the respondent-petitioner were terminated.

13. Aggrieved by the said order dated 15.7.1989, respondent-petitioner filed Writ Petition No.9839 (SS) of 1989 and this Court vide order dated 21.3.1990 stayed the operation of the order dated 15.7.1989 and further direction was issued for continuity of the service of the respondent-petitioner. A direction was also issued for payment of salary. Respondent-petitioner's pay had been revised from time to time as per the relevant rules. Thereafter, the respondent-petitioner's services were regularised vide order dated 12.4.1991 on the post of Constable and he was promoted to the post of Assistant Sub-Inspector (Ministerial) vide order dated 16.4.1993.

14. The respondent-petitioner filed Writ Petition No.27 (SS) of 1994 with a prayer for direction to promote him to the next higher post treating him to be in regular service w.e.f. 12.6.1987 with all consequential benefits. This Court vide interim order dated 4.1.1994 directed the authorities concerned to consider and decide the representation of the respondent-petitioner in this regard and in case persons junior to the respondent-petitioner were promoted, the case of the respondent-petitioner was also to be considered.

15. The respondent-petitioner's representation was, however, rejected vide order dated 30.4.1994 on the ground that the respondent-petitioner was given regular appointment w.e.f. 14.12.1994 and, therefore, the services rendered by him before the said date were ad hoc services and could not be counted as regular service.

16. This Court vide order dated 4.2.2011 disposed of Writ Petition No.27 (SS) of 1994 finally with the direction to the authorities concerned to consider the claim of the respondent-petitioner for counting his services from 12.6.1987 to 5.6.1991 in accordance with law expeditiously.

17. The respondent-petitioner's representation was again rejected vide order dated 18.5.2011 stating therein that the respondent-petitioner was initially given appointment on 12.6.1987 on the post of Constable on ad hoc basis for a period of six months and his services were thereafter, extended from time to time. Respondent-petitioner was a handicapped person and he did not fulfill the physical standards for appointment on the post of Constable. The proposal was sent to the Government for relaxing the physical standards in case of the respondent-petitioner and, the Government vide order dated 15.11.1990 relaxed the physical standard in case of the respondent-petitioner and thereafter, he was appointed on 12.4.1991 under the Dying-in-Harness Rules. The ad hoc appointment could not be treated to be a regular appointment and, therefore, the services rendered on ad hoc basis would not be counted for determining his seniority.

18. The respondent-petitioner filed Writ Petition No.1099 (SS) of 2013 before this Court challenging the order dated 15.11.1990. Learned Single Judge vide impugned judgement has held that the initial appointment of the respondent-petitioner was also under the Dying-in-Harness Rules as no ad hoc appointment could be made under the Rules. Merely because the initial appointment was made in anticipation of approval for relaxing the physical standards in case of the respondent-petitioner, the same cannot be a ground for denying the benefit of continuity in service to the respondent-petitioner from his initial appointment i.e. 12.6.1987. Further, the respondent-petitioner has worked without any break since 12.6.1987 and, therefore, the learned Single Judge has allowed the writ petition and held that the order dated 18.5.2011 is not sustainable and set aside the same.

19. This appeal was listed initially on 5.7.2021 when this Court enquired from Sri Q.H. Rizvi, learned Additional Chief Standing Counsel prosecuting the appeal that why this special appeal had been filed with such an inordinate delay and having not much substance in it. He fairly submitted that office of the learned Chief Standing Counsel gave opinion against filing of the special appeal. However, the said opinion has been over ruled and the special appeal has been filed. We, therefore, vide order dated 5.7.2021 directed the Principal Secretary (Law)/LR, Government of U.P. along with the departmental head of the concerned Administrative Department (Home) to appear before this Court with record and satisfy the Court that how permission to contest the case has been granted and why the special appeal has been filed with so much delay.

20. In pursuance of the aforesaid order, Sri P.K. Srivastava, Principal Secretary (Law)/LR, Sri Awanish Kumar Awasthi, Additional Chief Secretary/Principal Secretary (Home) and the Director General of Police have appeared along with the record. Sri Ramesh Kumar Singh, learned Additional Advocate General assisted by Mr. Sanjay Sarin appeared as counsel for them.

21. We have perused the original record. The Law Department in its opinion dated 4.1.2021 specifically said that there was a very little chance of success in the appeal against the judgement and order dated 22.10.2019 passed by the learned Single Judge in Writ Petition No.1099 (SS) of 2013 and, even the learned Additional Chief Standing Counsel had also given the same opinion and said that the judgment and order of the learned Single Judge was justified. The Administrative Department (Home) over ruling these opinions had decided to file the special appeal on its own. The Home Department was of the opinion that the special appeal against the judgement and order dated 22.10.2019 was advisable and, therefore, contest order should be obtained from the Law Department. The file was sent to the Law Department on 28.1.2021 for according its approval for filing the special appeal.

22. We are perplexed to find that despite the opinions given by the learned Additional Chief Standing Counsel and the Law Department against filing of the special appeal, the Administrative Department over ruled these opinions and decided to file the special appeal. The Law Department is headed by senior District Judge, who is the Legal Remembrancer and principal legal adviser to the Government. The opinion expressed by the Legal Remembrancer has to be given weightage and should have some sanctity. If the Administrative Department is of the opinion that some aspects of the matter have not been considered by the Law Department in its opinion, then the matter should be sent back to the Law Department to re-consider its opinion and, if the Law Department thereafter, opines for filing the case, then only the case should be filed.

23. Part-II of the Legal Remembrancer Manual deals with the procedure to be adopted in advisory work by the Legal Remembrancer. Rule 64 specifies the matters on which Legal Remembrancer's advice is to be sought. It is specifically provides that opinion of the Legal Remembrancer is to be sought in cases where disputes have arisen or likely to arise between the Government or other person or action in a Court of law is taken against the Government. Thus, it is the Legal Remembrancer, who is clothed with the authority of giving opinion regarding contesting/filing of cases in the Court of Law.

24. In the present case, when we ask Sri Awanish Kumar Awasthi, Additional Chief Secretary/Principal Secretary (Home) that if the Administrative Department was not in agreement with the Law Department, then why the matter could not be referred back to the Law Department to re-consider its opinion taking into account certain aspects, which in the opinion of the Administrative Department, were not taken into consideration by the Law Department while advising against filing of the special appeal. Sri Awasthi accepted that it was a mistake on the part of the Administrative Department and, he regretted that such a course of action was not taken by the Administrative Department before deciding to go ahead for filing the special appeal. He has further said that in future the Administrative Department shall be careful and this mistake would not be committed.

25. We are of the opinion that the Court proceedings should not be used to satisfy ego of some official(s) of the State Government. The Government is the biggest litigant and, therefore, decision to file a case on behalf of the Government should be taken only when it is sure of merit of the case and not otherwise to satisfy ego of the some Government functionary. There is huge pendency of cases. The Court's precious time should not go wasted in such cases, which are filed to take a chance or otherwise to satisfy one's ego.

26. In view of the aforesaid admission of Sri Awasthi, we are of the opinion that in future if an Administrative Department is not in agreement with the Law Department to contest the case, it should refer back the matter to the Law Department requesting the Law Department to re-consider the matter and, if the Law Department gives its opinion for contesting the case, then only the Administrative Department should go ahead and not otherwise.

27. On being confronted that why the Administrative Department has taken the stand for filing the special appeal despite the opinions given by the learned Additional Chief Standing Counsel and the Law Department, Sri Awasthi has said that there are large number of such employees and, financial implication on the State exchequer would be huge. However, when we asked specifically that how many such employees were working in the police force, after instructions, Sri Awasthi said that it was the only case and, therefore, the stand of the Administrative Department that there would be huge financial implication also, does not stand to scrutiny on facts.

28. With the above observations, we put curtains down on this aspect of the matter. We do not find any ground to interfere with the impugned judgement and order dated 22.10.2019 passed by the learned Single Judge on merit also.

29. Special appeal is accordingly dismissed on merit as well.

.

(Dinesh Kumar Singh, J.) (Ritu Raj Awasthi, J.)

Order Date :- 7.7.2021

Rao/-