Allahabad High Court
Rajendra Kumar Singh vs State Of U.P.Through Secy.Irrigation ... on 12 February, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:9199-DB
In The High Court Of Judicature At Allahabad
Sitting At Lucknow
Court No. - 1
Case :- SPECIAL APPEAL DEFECTIVE No. - 61 of 2018
Appellant :- Rajendra Kumar Singh
Respondent :- State Of U.P.Through Secy.Irrigation Govt.Of U.P.Lko.And Ors.
Counsel for Appellant :- Sudheer Tripathi,Pradeep Chandola
Counsel for Respondent :- C.S.C.
Hon'ble Attau Rahman Masoodi J.
Hon'ble Subhash Vidyarthi J.
1. Heard the learned counsel for the appellant-petitioner and Shri Prafulla Kumar Yadav, learned Additional Chief Standing Counsel appearing for the State-respondents.
2. This is an application seeking condonation of delay of 4 years, 9 months and 12 days in filing the Special Appeal against the judgment and order dated 09.04.2013 passed by an Hon'ble Single Judge Bench of this Court in Writ Petition No.8363 (S/S) of 2010. In the affidavit filed in support of the application seeking condonation of delay, merely this much has been stated that the appellant-petitioner has been working since the year 2007, he continued to work even after passing of the judgment and order dated 09.04.2013 and he had a legitimate expectation that his services would be regularized after completion of 10 years of service. When his services were not regularized, he approached his counsel who advised him to file the Special Appeal.
3. In the counter affidavit filed in Special Appeal No. 532 of 2023, the respondents raised objections against the application for condonation of delay in which it has been stated that by means of the Notification dated 16.12.1986, the cutoff date for regularization of services under the 1996 Rules was fixed as 01.10.1986. The appellant was appointed after the cutoff date. The appellant knew it very well that he is not entitled to regularization of services and he had no reason to believe that he will be regularized after 10 years' service.
4. The appellant of Special Appeal No. 532 of 2023 filed a rejoinder affidavit on 06.11.2023, i.e. after about 2 months since filing of the counter affidavit, wherein he has made an attempt to improve his case by stating that all the 23 petitioners could not be contacted after the judgment dated 09.04.2013 and he could meet sometime in December 2023 and then it was decided to seek the opinion of their Counsel. The appellant no. 9 and some other petitions came to Lucknow meet their Counsel in June 2014, but as he was not available, they went back and came again in July 2014, who advised filing of the Special Appeal. The appellant no. 9 contacted the other petitioners and asked for monetary contribution but they kept dilly dallying and did not contribute the money. Then the 10 appellants out of the 23 petitioners filed the Special Appeal. They have further stated that the cutoff date has subsequently been amended so as to make it 30.06.1998.
5. In the rejoinder affidavit, the appellants have placed reliance on the judgment in the case of State of Nagaland v. Lipk AO & other: (2005) 3 SCC 752, wherein the State of Nagaland had questioned correctness of a judgment rendered by a learned Single Judge of the Gauhati High Court refusing to condone the delay of 57 days in filing an Application for grant of leave to appeal under Section 378(3) of the Code of Criminal Procedure, 1973. Allowing the appeal, the Hon'ble Supreme Court held that: -
"15. It is axiomatic that decisions are taken by officers/agencies proverbially at a slow pace and encumbered process of pushing the files from table to table and keeping it on the table for considerable time causing delay -- intentional or otherwise -- is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in a justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-à-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the courts or whether cases require adjustment and should authorise the officers to take a decision or give appropriate permission for settlement. In the event of decision to file appeal, needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while the State is an impersonal machinery working through its officers or servants.
* * *
17. When the factual background is considered in the light of legal principles as noted above, the inevitable conclusion is that the delay of 57 days deserved condonation. Therefore, the order of the High Court refusing to condone the delay is set aside."
6. The aforesaid judgment given in an appeal filed by the State against an order rejecting the application for condonation of 57 days' delay in filing an application for leave to file an appeal against an order of acquittal in a criminal trial would not apply to the fact of the present case where private appellants are seeking condonation of delay of 3 years 5 months in filing an intra court appeal against the final judgment dismissing their Writ Petition seeking regularization of service.
7. The appellants have also referred to Antiyur Town Panchayat v. G. Arumugam: (2015) 3 SCC 569, wherein the Hon'ble Supreme Court followed the judgment in State of Nagaland v. Lipok Ao (Supra) and further held that: -
"4.. If the court is convinced that there had been an attempt on the part of the government officials or public servants to defeat justice by causing delay, the court, in view of the larger public interest, should take a lenient view in such situations, condone the delay, howsoever huge may be the delay, and have the matter decided on merits."
8. It is significant to note that Writ Petition No.8363 (S/S) of 2010 was filed challenging the validity of the orders rejecting the appellants' claim for regularization of their services. The appellants-petitioners had also sought a Writ in the nature of Mandamus commanding the authorities to regularize their services. The Writ Petition was dismissed by means of the impugned judgment and order dated 09.04.2013 wherein the Writ Court has held as follows: -
"In the instant case, although, the petitioners were selected for appointment on the post in question and their names find place in the select list published on 09.09.1994 but the order for appointment on the post in question has been issued in the year 2005-2006 after completing all the necessary formalities, so their actual date of appointment in the Department is the date on which they were appointed on the post in question (i.e. in the year 2005-2006) and not 09.09.1994, when the select list was published. Hence, the petitioners were not appointed on the post of part time Tube Well Operators before 30, June, 1998, as per the rule 4 of Regularization Rules 1996. Thus, there is no illegality or infirmity in the impugned order dated 21.04.2004 passed by Engineer in Chief and the petitioner cannot claim any benefit from the letter/order dated 17.03.2005 or on the basis of the argument advanced on their behalf in view of the judgment passed by this Court in the case of Indra Kumar Singh (Supra). So, the same is not applicable in the facts and circumstance of the present case.
In the result, writ petition lacks merit and is dismissed as the same is not applicable in the facts and circumstances of the present case."
9. When the appellants-petitioners' claim for regularization of services had explicitly been rejected by the order dated 09.04.2013 passed by the Writ Court, there was no occasion for the appellants to keep on waiting for regularization of their services. Therefore, the sole explanation offered by the appellants-petitioners for the delay in filing the Special Appeal does not make a sufficient cause for condonation of delay of 3 years, 5 and 16 days in filing the Special Appeal.
10. In Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy: (2013) 12 SCC 649, the Hon'ble Supreme Court discussed the law regarding condonation of delay as explained in various precedents and summarized the same as follows: -
21. From the aforesaid authorities the principles that can broadly be culled out are:
(i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
(ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.
(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
(vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
(vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.
(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
(ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
(x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
(xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:
(a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
(b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
(c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
(d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters."
(Emphasis added)
11. In Sheo Raj Singh (Deceased) Through Lrs. v. Union of India: 2023 SCC OnLine SC 1278, after discussing the various precedents on the issue, the Hon'ble Supreme Court again summarized the principles regarding condonation of delay in the following words: -
"29. Considering the aforementioned decisions, there cannot be any quarrel that this Court has stepped in to ensure that substantive rights of private parties and the State are not defeated at the threshold simply due to technical considerations of delay. However, these decisions notwithstanding, we reiterate that condonation of delay being a discretionary power available to courts, exercise of discretion must necessarily depend upon the sufficiency of the cause shown and the degree of acceptability of the explanation, the length of delay being immaterial. Sometimes, due to want of sufficient cause being shown or an acceptable explanation being proffered, delay of the shortest range may not be condoned whereas, in certain other cases, delay of long periods can be condoned if the explanation is satisfactory and acceptable. Of course, the courts must distinguish between an 'explanation' and an 'excuse'. An 'explanation' is designed to give someone all of the facts and lay out the cause for something. It helps clarify the circumstances of a particular event and allows the person to point out that something that has happened is not his fault, if it is really not his fault. Care must however be taken to distinguish an 'explanation' from an 'excuse'. Although people tend to see 'explanation' and 'excuse' as the same thing and struggle to find out the difference between the two, there is a distinction which, though fine, is real. An 'excuse' is often offered by a person to deny responsibility and consequences when under attack. It is sort of a defensive action. Calling something as just an 'excuse' would imply that the explanation proffered is believed not to be true. Thus said, there is no formula that caters to all situations and, therefore, each case for condonation of delay based on existence or absence of sufficient cause has to be decided on its own facts. At this stage, we cannot but lament that it is only excuses, and not explanations, that are more often accepted for condonation of long delays to safeguard public interest from those hidden forces whose sole agenda is to ensure that a meritorious claim does not reach the higher courts for adjudication.
(Emphasis supplied)
12. The plea taken by the appellant in support of the claim for condonation of delay, that although the Writ Court had rejected his request for regularization of services but he continued to work even after passing of the judgment and order dated 09.04.2013 and he had a legitimate expectation that his services would be regularized after completion of 10 years of service, appears to be an excuse only and it does not offer an explanation justifying the delay.
13. As the appellant has failed to make out a sufficient cause for the inordinate delay of 4 years 9 months 12 days in filing the Intra Court Appeal, there is no occasion for condonation of the delay.
14. Accordingly, the application for condonation of delay in filing the special appeal is rejected.
15. Consequently, let the Special Appeal be consigned to record.
(Subhash Vidyarthi J.) (Attau Rahman Masoodi J.)
Order Date: 12.02.2025
akhilesh/-
