State Of U.P. Thru. Prin. Secy. ... vs Ram Kailash
2025 Latest Caselaw 6312 ALL

Allahabad High Court

State Of U.P. Thru. Prin. Secy. ... vs Ram Kailash on 20 March, 2025

Author: Jaspreet Singh

Bench: Jaspreet Singh

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2025:AHC-LKO:16279-DB
 

 
Chief Justice's Court 
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 616 of 2024
 

 
Appellant :- State Of U.P. Thru. Prin. Secy. Horticulture U.P. Lko. And 2 Others
 
Respondent :- Ram Kailash
 
Counsel for Appellant :- C.S.C.
 
Counsel for Respondent :- Mohd. Ateeq Khan
 

 
Hon'ble Arun Bhansali,Chief Justice 
 
Hon'ble Jaspreet Singh,J. 
 

(Per:- Jaspreet Singh, J.)

1. Heard Sri Indrajeet Shukla, learned Additional Chief Standing Counsel for the State-appellant and Sri Mohammad Atique Khan, learned counsel for the sole respondent.

2. This intra-court appeal preferred under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 assails the judgment and order dated 24.01.2024 passed in Writ-A No. 5175 of 2023; Ram Kailash Vs. State of U.P. and Others whereby the learned Single Judge while allowing the writ petition quashed the order dated 27.05.2023 and a direction was issued to the State Government to forward a proposal to the State to take action as per proviso of Rule 5 of the Government Department on Group-C and Group-D posts (outside the purview of Uttar Pradesh Public Service Commission) Rules, 2016 within a period of two months and further the State was directed to take a decision on the said proposal within a period of one month and in case if a supernumerary post is created, then the petitioner shall be regularized on the same.

3. The intra court appeal is reported to be barred by 271 days and it is accompanied by an application seeking condonation of delay bearing No. C.M.A. No. 1 of 2024.

4. This Court by means of order dated 23.11.2024 had passed an order which reads as under:-

"1. The affidavit supporting application seeking condonation of delay is absolutely laconic as no valid explanation has been given for the delay in filing the appeal.

2. It be seen that the learned Single Judge while passing the order dated 24th January, 2024 directed the appellants to pass necessary orders within a period of two months, which period expired on 23.03.2024, however, apparently for the first time on 16.07.2024, the Special Secretary directed seeking legal opinion from the office of the Chief Standing counsel, which opinion was delivered on 01.08.2024 and whereafter the appeal has been filed on 20.11.2024.

3. Learned counsel for the appellants prays for time to file a better affidavit. It would also be required of the appellants to place on record all the letters, reference whereof has been made in the affidavit filed and it would also be required of the appellants to place on record the communication from the counsel along with judgment which was received after passing of the judgment dated 24.01.2024.

4. Let the needful may be done before the next date.

5. List on 16.12.2024."

5. In furtherance of the above quoted order, the State-appellant have filed a supplementary affidavit dated 13th February, 2025.

6. The learned counsel for the appellant submitted that even though the appeal is barred by limitation but the State who does not have a personal machinery and it works through a bureaucratic methodology whereby multiple approvals have to be taken which are not only cumbersome but also slow, hence, in such circumstances, the State cannot be penalized for the delay which is otherwise not deliberate.

7. It is further urged that the appellants have clearly explained the delay with sufficient particularity and in the aforesaid circumstances, the delay deserves to be condoned.

8. The learned counsel for the appellant while referring to the supplementary affidavit dated 14.02.2025 has pointed out that as soon as the order passed by the writ court came before the appellant no. 2 for compliance, the same was forwarded to the State Government for its necessary compliance. The State Government held deliberations and thereafter the matter was sent to the Department of Finance for consultation as the compliance of the order passed by the writ court necessarily involved financial implications. 

9. It is in the aforesaid process that the matter was also forwarded to the Department of Appointment and Personnel and a decision was taken by the Government to file an appeal on 29.05.2024. The matter was sent to the Department of law who thereafter called for an opinion from the office of the Chief Standing Counsel of the High Court at Lucknow who submitted his opinion for the filing of a Special Appeal.

10. In this way, the file was retracted through the different Departments ratifying the decision of filing a special appeal and thereafter it came back to the office of the Chief Standing Counsel in the month of October, 2024 and thereafter the appeal was preferred and filed on 20.11.2024.

11. It is urged that the delay was an outcome of procedural compliances and not deliberate and in the aforesaid circumstances, the delay deserved to be condoned and even otherwise the matter requires consideration on merits.

12. The Additional Chief Standing Counsel in support of his submissions has relied upon the following decisions:-

(i) Isha Bhattacharya Vs. Managing Committee of Raghunathpur, Nafar Academy and others; AIR 2013 SCW 6158;

(ii) Shiv Raj Singh Vs. Union of India and another; 2023 (10) SCC 531; and;

(iii) Moolchand Vs. Union of India; AIR 2024 SC 4046.

13. The learned counsel for the respondents has opposed the application seeking condonation of delay and urged that there are no bonafides of the appellants. The affidavits filed by the appellants merely highlights the bureaucratic red-tapism but does not indicate any promptitude on part of the state-appellants.

14. It is urged that despite the Court having granted another opportunity for filing a better affidavit to explain the delay but even in the supplementary affidavit, there is reiteration of the bureaucratic delays where there was unexplained delay at each step. The State knew the prescribed period of limitation but there was no effort made by the State to initiate or expedite the process of filing of an appeal, if aggrieved by the order impugned.

15. The record indicates that only when the respondent had moved an application seeking compliance of the order passed by the writ court that the appellant no. 2 forwarded the matter to the State-Authorities for its compliance and till that point of time there was no contemplation of filing an appeal.

16. As stated by the appellants themselves that the decision to file an appeal for the first time was taken on 29.05.2024 i.e. almost after four months of the passing of the order. As per the order passed by the writ court, the entire exercise was to be completed within a period of three months whereas the decision to file an appeal was taken after four months which shows the disinterest and the casual manner in which the State Authorities have acted, accordingly, the delay cannot be condoned as no sufficient cause has been made out and accordingly the application for condonation of delay deserves to be rejected as a consequence the intra court appeal must also fail.

17. In support of his submissions, the learned counsel for the respondents has relied upon the decision of the Apex Court in Postmaster General and others vs. Living Media India Limited and another, (2012) 3 SCC 563 .

18. The Court has heard the learned counsel for the parties and also perused the material on record.

19. At the outset, it may be stated that in the initial affidavit filed by the appellants in support of the application for condonation of delay, a cliched explanation for seeking condonation of delay of 272 days was given. This Court had granted an opportunity to the State to explain the delay by filing a better affidavit including bringing on record the documents which were referred to in the affidavit seeking condonation of delay dated 19.11.2024 as well as to categorically state and bring on record the communication received by the Department from the counsel after passing of the judgment of the learned Single Judge dated 21.04.2024.

20. In furtherance thereof, the supplementary affidavit dated 14.02.2025 has been filed which has also been taken note of by the Court.

21. This Court finds that in paragraph 25 of the supplementary affidavit dated 14.02.2025, it has clearly been indicated that neither the Director nor the Government received any information from the counsel after passing of the order dated 24.01.2024. It is for the first time that the matter was put for consideration after the respondent had filed a representation for seeking compliance of the order passed by the writ court. 

22. Even if the same is noticed, it would reveal that the representation for seeking compliance of the writ court was addressed to the Director who forwarded the said representation to the State on 28.02.2024 i.e. almost after a month. Thereafter the State wrote back to the Director i.e. the appellant no. 2 to seek the opinion of the Chief Standing Counsel for filing a Special Appeal. This letter is dated 16.07.2024.

23. What is relevant to note that the letter dated 16.07.2024 has been brought on record which clearly states that the opinion be sought from the learned Standing Counsel as to whether an appeal should be filed but in paragraphs 5 to 8 of the supplementary affidavit, it is stated that deliberations were done at the level of the Government for calling for the report from the Directorate and it was further sent to the Department of Finance on 21.05.2024 for consultation.

24. On 24.05.2024, the Department of Finance responded and required the opinion of the Department of Appointment and Personnel and whereafter in paragraph 8 it is stated that on 29.05.2024, a decision was taken to file the special appeal and the file was sent to the Department of law on 12.06.2024.

25. It will be relevant to point out that the averments contained in paragraphs 5 to 8 are not supported by any documentation despite the clear order passed by the Court dated 23.11.2024 which has been quoted hereinabove.

26. The record would further indicate that after the alleged reminder dated 26.03.2024 was sent by the appellant no. 2, the State vide its letter dated 16.07.2024 informed the Director to seek opinion from the office of the learned Chief Standing Counsel to file a Special Appeal.

27. From 26.03.2024 till 16.07.2024, there is no explanation nor any document to indicate that whether such deliberations were made and the file was sent to the Department of Finance and Department of Appointment and Personnel.

28. Apparently, from 26.03.2024 till 16.07.2024 i.e. for almost four months, there is no adequate explanation. The other letters which have been brought on record is again an attempt to cover the period of delay.

29. It would be relevant to point out that not only the effort made to explain the delay for the period after the prescribed period of limitation expires till the time the appeal is filed is required but it also has to be shown what efforts were made during the period of limitation which was available to the appellants after the order impugned was passed.

30. As admitted, no effort whatsover was made except when the appellant no. 2 received the representation of the respondents seeking compliance which was forwarded to the State-Authorities but no explanation worth its name is on record. 

31. It is also admitted that the State did not receive any information from the office of the Chief Standing Counsel after the order was passed by the writ court, coupled with the fact that the order itself had provided a total period of three months for the Authorities to comply.

32. The record indicates that for almost four months, there is no cogent explanation as to what transpired between 26.03.2024 till 16.07.2024 except the bald averments made in paragraphs 5 to 8 of the supplementary affidavit without any corroborating material. The explanation thereafter also indicates the lackadaisical attitude of the Authority despite knowing the fact that the prescribed period of limitation for filing a Special Appeal is 30 days.

33. As per paragraph 8 of the supplementary affidavit, it is stated that the State had taken a decision to file an appeal on 29.05.2024 and by then the period for filing the appeal had already expired rather the period to comply with the order of the writ court had also expired yet the manner in which the files have proceeded post 29.05.2024 till the date of filing of the appeal is also not satisfactory and is reflective of lethargy.

34. This is for another reason, inasmuch as, the State had already taken a decision to file an appeal as stated by the State-Authorities on 29.05.2024 and in furtherance thereof the opinion was also available with the State from the office of the learned Chief Standing Counsel on 01.08.2024 and even then it took them three months to actually file the appeal which shows the casual manner in which the State deals with the matters especially where the State has its own department and a panel of lawyers.

35. Considering the decisions cited by the learned counsel for the appellants, even though, it has been reiterated by the Apex Court that while considering an application for condonation of delay, the Courts must adopt liberal approach and where technicalities are pitted against substantive justice, it is latter which is preferred.

36. Be that as it may, the fact still is that it is not the length of delay which is material rather it is the explanation for the cause shown which is to be taken into consideration. Even a short delay, if not adequately explained can be rejected whereas a long delay if cogently explained, can be condoned.

37. Even though, the State may work through a long impersonalized machinery but the fact remains that even the said machinery, though, impersonal has certain obligations while performing  its duties and cannot take the umbridge of the plea of impersonalized machinery which otherwise would be negligence on the part of the Authorities.

38. This aspect of the matter has been considered by the Apex Court in the case of Postmaster General (supra) and the relevant portion thereof reads as under:-

"3. ... Having regard to the law of limitation which binds everybody, we cannot find any way of granting relief. It is true that the Government should not be treated as any other private litigant as, indeed, in the case of the former the decisions to present and prosecute appeals are not individual but are institutional decisions necessarily bogged down by the proverbial red tape. But there are limits to this also. Even with all this latitude, the explanation offered for the delay in this case merely serves to aggravate the attitude of indifference of the Revenue in protecting its common interests. The affidavit is again one of the stereotyped affidavits making it susceptible to the criticism that the Revenue does not seem to attach any importance to the need for promptitude even where it affects its own interest.

(emphasis supplied)

23. In Pundlik Jalam Patil v. Jalgaon Medium Project [(2008) 17 SCC 448 : (2009) 5 SCC (Civ) 907] the question was whether the respondent Executive Engineer, Jalgaon Medium Project had shown sufficient cause to condone the delay of 1724 days in filing appeals before the High Court. In para 17, this Court held: (SCC p. 455).

"17. ... The evidence on record suggests neglect of its own right for long time in preferring appeals. The court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The court helps those who are vigilant and 'do not slumber over their rights'."

24. After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and the government undertaking, this Court observed as under: (Pundlik Jalam case [(2008) 17 SCC 448 : (2009) 5 SCC (Civ) 907] , SCC pp. 457-58, paras 29-30).

"29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a life span for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.

30. Public interest undoubtedly is a paramount consideration in exercising the court's discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the landlosers facilitating their rehabilitation/resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the landlosers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the landlosers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest."

25. We have already extracted the reasons as mentioned in the "better affidavit" sworn by Mr Aparajeet Pattanayak, SSRM, Air Mail Sorting Division, New Delhi. It is relevant to note that in the said affidavit, the Department has itself mentioned and is aware of the date of the judgment of the Division Bench of the High Court in Office of the Chief Postmaster v. Living Media India Ltd. [(2009) 8 AD 201 (Del)] as 11-9-2009. Even according to the deponent, their counsel had applied for the certified copy of the said judgment only on 8-1-2010 and the same was received by the Department on the very same day. There is no explanation for not applying for the certified copy of the impugned judgment on 11-9-2009 or at least within a reasonable time. The fact remains that the certified copy was applied for only on 8-1-2010 i.e. after a period of nearly four months.

26. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the person-in-charge has filed any explanation for not applying the certified copy within the prescribed period. The other dates mentioned in the affidavit which we have already extracted, clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned. Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps.

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 bona fides, 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 bona fide 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 the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.

30. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay."

39. Recently, the Apex Court in H. Guruswamy & Ors. v. A. Krishnaiah, 2025 SCC OnLine SC 54 had the occasion to consider the issue of condonation of delay and it has held as under:-

"13. We are at our wits end to understand why the High Court overlooked all the aforesaid aspects. What was the good reason for the High Court to ignore all this? Time and again, the Supreme Court has reminded the District judiciary as well the High courts that the concepts such as "liberal approach", "Justice oriented approach", "substantial justice" should not be employed to frustrate or jettison the substantial law of limitation.

14. We are constrained to observe that the High Court has exhibited complete absence of judicial conscience and restraints, which a judge is expected to maintain while adjudicating a lis between the parties.

15. The rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics but seek their remedy promptly.

16. The length of the delay is definitely a relevant matter which the court must take into consideration while considering whether the delay should be condoned or not. From the tenor of the approach of the respondents herein, it appears that they want to fix their own period of limitation for the purpose of instituting the proceedings for which law has prescribed a period of limitation. Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long, it cannot be presumed to be non-deliberate delay and in such circumstances of the case, he cannot be heard to plead that the substantial justice deserves to be preferred as against the technical considerations. While considering the plea for condonation of delay, the court must not start with the merits of the main matter. The court owes a duty to first ascertain the bona fides of the explanation offered by the party seeking condonation. It is only if the sufficient cause assigned by the litigant and the opposition of the other side is equally balanced that the court may bring into aid the merits of the matter for the purpose of condoning the delay.

17. We are of the view that the question of limitation is not merely a technical consideration. The rules of limitation are based on the principles of sound public policy and principles of equity. No court should keep the 'Sword of Damocles' hanging over the head of a litigant for an indefinite period of time."

40. Taking note of the aforesaid and the facts indicated in the supplementary affidavit and the documents enclosed therewith, this Court does not find that the delay has been adequately explained.

41. As far as the submission of the learned counsel for the appellants that where the matter has merit, the delay should be liberally construed, if the same is examined in the present case, only for the limited purposes of the meeting with the said submissions advanced by the Additional Chief Standing Counsel, this Court finds that the learned Single Judge has merely directed the State to consider the case of regularization of the petitioner in terms of the applicable Rules including the proviso appended thereto which was not taken note of while passing the order which was impugned in the writ petition.

42. To that extent, the submission of learned counsel for the State-appellant also does not impress this Court to persuade it to condone the delay of 214 days in context with the explanation furnished.

43. For the aforesaid reasons, the application seeking condonation of delay is dismissed, as a consequence, the appeal also meets the same fate. Costs are made easy.

Order Date:- 20th March, 2025

Asheesh/-

(Jaspreet Singh, J.) (Arun Bhansali, CJ.)