Himachal Pradesh High Court
State Of H. P. & Anr vs Parwati Sharma & Ors on 6 January, 2021
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 5764 of 2020
.
Decided on: 06.01.2021
State of H. P. & Anr. ...Petitioners
Versus
Parwati Sharma & Ors. ...Respondents
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
No.
Whether approved for reporting? 1
For the Petitioners : Mr. Ajay Vaidya, Sr. Additional Advocate
r General.
For the Respondents : Nemo.
(Through Video Conferencing)
Tarlok Singh Chauhan, Judge (Oral)
The instant petition has been filed for the grant of
following reliefs:-
(i) That the impugned judgment/order dated 11.01.2018
(Annexure P-1) may very kindly be quashed and set aside.
2. The petitioners have questioned the impugned order
passed by the erstwhile learned Tribunal on 11.01.2018. Since,
the writ petition was filed nearly three years after the aforesaid
decision, therefore, this Court on 18.12.2020 passed the
following orders:-
It is nearly after three years of the decision that the
instant petition has been filed. There is no explanation,
whatsoever, for the delay and latches, that has occurred
Whether reporters of the local papers may be allowed to see the judgment? yes
in filing the petition. Therefore, the petitioners are
directed to file a supplementary affidavit in this regard,
.
within a week.
3. In compliance to the aforesaid orders, a
supplementary affidavit was filed by the Director, Health
Services, relevant portion whereof reads as under:-
Sr. No. Date Events
1 11-1-2018 TA No. 4478/2015 was allowed by the
erstwhile Hon'ble HPAT vide order dated
11-1-2018.
2 4-5-2018 Representation was submitted by the
respective applicants (herein the
r respondents) to the Government alongwith
the copy of the judgment/order dated 11-1-
2018, for granting them the benefits in
terms of the order dated 11-1-2018.
3 10-5-2018 The Government vide its letter dated 10-5-
2018 forwarded the representation of the
respondents to the Directorate of Health for
appropriate action.
4 29-5-2018 In response to the Government letter dated
29-5-2018, the Government was apprised of
the complete detailed factual position by
the Directorate of Health vide its letter
dated 29-5-2018, with further request to
pass necessary decision/directions after
examination of the matter in consultation of
the Advisory Departments.
5 26-6-2018 The Government in response of the letter
dated 29-5-2018 had directed and conveyed
to the Directorate vide its letter dated 26-6-
2018 to re-examine the proposal and send
the specific law points on which opinion of
the Law Department can be taken.
6 7-7-2018 Accordingly, as desired and directed by the
Government vide its letter dated 26-6-2018,
specific law points for opinion were framed
and conveyed to it by the Directorate vide
letter dated 7-7-2018.
7 23-7-2018 However, since in the meanwhile various
other cases as filed by the similarly situate
persons for the same and similar cause of
action, stood also allowed on the analogy of
the order dated 11-1-2018 as passed in TA
No. 4478/2015, the matter was referred
alongwith the specific law points by the AD
(Health) to the Law Department on noting
.
file on 23-7-2018 for legal opinion.
8 4-8-2018 The Law Department before rendering any
effective opinion in the matter had sought
some additional information and record as
per its note incorporated on the noting file
on 4-8-2018.
9 10-8-2018 Accordingly, the Government vide its letter
dated 10-8-2018 had conveyed the
observations of the Law Department to the
Directorate for further necessary action.
10 19-9-2018 As per the observations conveyed by the
Government, the complete factual
position/information was forwarded to the
Government by the Directorate vide its
letter dated 19-9-2018.
29-10-2018 Accordingly, the matter was re-referred
alongwith the specific law points by the AD
(Health) to the Law Department on noting
file on 23-7-2018 for legal opinion.
12 6-11-2018 The Law Department before rendering any
effective opinion in the matter had again
sought the latest status of the judgment in
TA No. 4478/2015, as per its note
incorporated on the noting file on 6-11-
2018.
13 26-11-2018 The observations of the Law Department
were again forwarded to the Directorate by
the Government vide its letter dated 26-1-
2018.
14 5-12-2018 In response to the letter dated 26-11-2018,
the Directorate vide its letter dated 5-12-
2018 had forwarded the requisite
information to the Government.
15 5-1-2019 As per the information furnished to it, the
matter was again referred by the AD
(Health) to the Law Department on noting
file on 5-1-2019 for legal opinion.
16 17-1-2019 The Law Department in turn, had advised
the AD to decide as to whether they want to
implement the judgment passed in TA No.
4478/2015 or agitate it further.
17 1-2-2019 The Government vide its letter dated 1-12-
2019 had sought some additional
information from the Directorate vide its
letter dated 1-12-2019.
18 13-2-2019 The requisite information was furnished to
the Government by the Directorate vide its
letter dated 13-2-2019.
19 15-3-2019 The matter was thereafter referred by the
.
AD (Health) to the Personnel Department
on noting file on 15-3-2019 for opinion.
20 27-3-2019 The Department of Personnel vide its
advice on 27-3-2019 on the noting file had
suggested to act in accordance with the
advice tendered by the Law Department as
also in view of the instructions of the
Finance Department.
21 3-6-2019 Thereafter, after the detailed discussions
and observations on the noting file, the
matter was again referred to the Law
Department on 3-6-2019 on the noting file
by the AD (Health) at Govt. level.
22 19-6-2019 The Law Department while making the
observations returned the file to the AD
r (Health) on 19-6-2019 without suggesting
any further course of action.
23 29-6-2019 The matter was again referred to the Law
Department on 29-6-2019 on the noting file
by the AD (Health) at Govt. level.
24 9-7-2019 The opinion of the Law Department was
conveyed on the noting file on 09-7-2019.
25 11-7-2019 Thereafter the matter was referred to the
Finance Department on the noting file by
the AD (Halth) at Govt. level.
26 23-7-2019 The Finance Department at Government
level has suggested to first seek the opinion
of the Ld. Advocate General, HP in the
matter.
27 18-9-2019 The DDA (Health) discussed the matter
with the Ld. Sr. Addl. Advocate General,
HP as recorded on file.
28 25-9-2019 The matter was again taken up with the
Law Department by the AD (Health) on
noting file in view of the discussion held
and opinion.
29 22-10-2019 The Law Department vide its opinion dated
22-10-2019 conveyed that the direction
passed by the Hon'ble Tribunal is binding
in nature.
30 20-12-2019 Thereafter the matter was again referred to
the Finance Department by the AD (Health)
on noting file.
31 15-7-2020 The Finance Department vide its opinion
dated 15-7-2020 had suggested to
immediately go for filing the review
petition in the matter on various grounds.
32 29-7-2020 The Govt. accordingly conveyed its
.
decision to the Directorate to immediately
file a Review Petition in the matter.
33 29-9-2020 However as suggested by the office of the
Ld. Advocate General instead of Review
Petition, the CWP was required to be filed
in the matter, the Government was apprised
of the same by the Directorate.
34 5-10-2020 The Government in response to the letter
dated 29-9-2020 had conveyed to act upon
the advise and file CWP in the matter.
4.
A perusal of the affidavit would clearly reveal that
there is a delay at every stage and except mentioning the dates
of the receipt of the file and decision taken therein, there is no
explanation as to why such delay has occurred. Though, it is
stated by the Department that the delay was due to some
unavoidable circumstances and genuine difficulty, but the fact
remains that from day one, Department or the person/persons
concerned have not evinced diligence in prosecuting the matter
to this Court by taking appropriate steps.
5. It is not in dispute that the person(s) concerned were
well aware or conversant with the issue involved including the
concept of delay and latches for taking up the matter by way of
filing a writ before this Court. As repeatedly held by the Hon'ble
Supreme Court that they cannot claim a separate period of
limitation when the Department was possessed with competent
persons familiar with court proceedings. In 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.
.
6. We are fully conscious of the fact that we are dealing
with the writ petition for which there is no prescribed period of
limitation nonetheless the principle of delay and latches equally
apply to this case.
7. Even while filing this petition, the petitioners had
taken it for granted that this petition would be entertained as a
matter of right without any question being raised regarding the
delay and latches or else there should have at least been
slightest whisper in the writ petition and in the prayer to this
effect seeking condonation of delay and latches.
8. It is more than settled that in absence of plausible
and acceptable explanation merely because the wing of the
government happens to be the party, the same cannot be done
mechanically, especially when there is negligence, inaction or
lack of bonafide exhibited by the petitioners.
9. The Hon'ble Supreme Court has repeatedly
deprecated the practice of the Government/Boards
/University(ies) moving the Court(s) belatedly only by way of
formality.
10. The Hon'ble Supreme Court in Special Leave
Petition (Civil) No(s). 13348 of 2020, titled as The State
of Madhya Pradesh & Anr. vs. Chaitram Maywade,
decided on 27.10.2020, observed as under:-
.
"The State of Madhya Pradesh continues to do the same
thing again and again and the conduct seems to be
incorrigible. The Special Leave Petition has been filed
after a delay of 588 days. We had an occasion to deal
with such inordinately delayed filing of the appeal by the
State of Madhya Pradesh in SLP(C) D. No. 9217/2020-
State of Madhya Pradesh & Ors. vs. Behru Lal in terms of
our order dated 15th October, 2020.
We have penned down a detailed order in that case and
we see no purpose in repeating the same reasoning again
except to record what are stated to be the facts on which
the delay is sought to be condoned. On 05.01.2019, it is
stated that the Government advocate was approached in
respect of the judgment delivered on 13.11.2018 and the
Law Department permitted filing of the SLP against the
impugned order on 26.05.2020. Thus, the Law
Department took almost about 17 months' time to decide
whether the SLP had to be filed or not. What greater
certificate of incompetence would there be for the legal
Department!
We considered it appropriate to direct the Chief Secretary
of the State of Madhya Pradesh to look into the aspect of
revamping the legal Department as it appears that the
Department is unable to file appeals within any
reasonable period of time much less within limitation.
These kinds of excuses, as already recorded in the
aforesaid order, are no more admissible in view of the
judgment in Office of the Chief Post Master General &
Ors. vs. Living Media India Ltd. & Anr.-(2012) 3 SCC 563.
WE have also expressed our concern that these kinds of
the cases are only "certificate cases" to obtain a
certificate of dismissal from the Supreme Court to put a
quietus to the issue. The object is to save the skin of
officers who may be in default. We have also recorded the
.
irony of the situation where no action is taken against the
officers who sit on these files and do nothing."
11. Similar reiteration of law can also be found in
another judgment of the Hon'ble Supreme Court in Special
Leave Petition (Civil) Diary No(s). 971/2020, titled as The
State of Uttar Pradesh & Anr. vs. Prem Chandra, decided
on 27.11.2020, wherein it was observed as under:-
"We have set out the aforesaid facts to show the callous
manner in which these proceedings have gone on. The
fact that the matter should have gone on for two decades
before the Tribunal in case of a labour dispute is itself a
travesty of justice. That the petitioner takes its own time
to assail the same before the High Court is the next stage
and finally it has taken them almost three years to get
this petition before the Supreme Court.
The application for condonation of delay is a usual one
showing the file moving from one place to the other. The
reliance again on different judgments including Collector,
Land Acquisition, Anantnag & Anbr. vs. Mst. Katiji & Ors. -
(1987) 2 SCC 107 is followed by referring to judgments of
the different vintage, if one may say so. There is complete
non-reference to the judgment in the case of Office of the
Chief Post Master General & Ors. vs. Living Media India
Ltd. & Anr. (2012) 3 SCC 563. It is the latter judgment
which sets out the position after technology has come to
the aid of the Governments.
We have had opportunity to deal with such matters and
have extended cautions to the State Governments not to
come to this Court only to obtain the certificate of
dismissal what we have called as "certificate cases", so
as to put the quietus to the matter and absolve the
officers of the responsibility of not having performed their
.
duties. A detailed discussion in this behalf is in SLP(C)
Diary No. 9217/2020- State of Madhya Pradesh & Ors. vs.
Bherulal decided on 15.10.2020. It appears that the
cautions extended from time to time are falling on deaf
ear. If the petitioners feel that the period of limitation
prescribed by the Legislature is not sufficient, given their
inefficiencies and incompetence, then it is for them to
persuade the Legislature to change the Law of Limitation
so far as applicable to the Government concerned. Till the
Law remains, it must be applied as it stands.
We also find that no action is ever taken against the
personnel responsible for the delay and to save their skin,
these special leave petitions are filed wasting judicial
time.
We are thus, not inclined to let go the matter at this and
do consider appropriate, as in the other cases, to impose
costs on the petitioners for having wasted judicial time.
12. Not only this, the Hon'ble Supreme Court has
repeatedly reiterated that government cannot take the plea of
differential treatment in matters of condonation of delay. As a
matter of fact, the Hon'ble Supreme Court very recently in case
of SLP(C) Diary No(s). 19059 of 2020, titled as Deputy
Conservator of Forests vs. Timblo Irmaos Ltd. & Ors.,
decided on 18.12.2020, refused to differentiate between the
government and private party in the matter of belatedly
approaching the Court without sufficient cause. The relevant
portion whereof reads as under:-
"A perusal of the impugned order shows that once again a
reference has been made, as in similar cases of delay by
.
the State to the judgment of this Court in the case of
Collector, Land Acquisition, Anantnag & Anr. vs. Mst. Katiji
& Ors., AIR 1987 SC 1353. A claim was also made that the
petitioner should not suffer for the fault of the counsel.
The High Court opined that such substantial delay could
not be condoned by mere shifting the blame on the
counsel as the parties are required to keep track of the
matter and there is negligence despite numerous
opportunities.
We have dealt with the issue of Government authorities in
approaching courts belatedly as if the Statute of
Limitation does not exist for them. While referring to
some reasons given for insufficiencies, we observed that
the parties cannot keep on relying on judicial
pronouncements for a period of time when technology
had not advanced and a greater leeway was given to the
Government, (Collector, Land Acquisition, Anantnag &
Anr. (supra). This situation no more prevail and this
position had been elucidated by the judgment of this
Court in office of the Chief Post Master General & Ors. vs.
Living Media India Ltd. & Anr. (2012) 3 SCC 563.
These aspects have been analyzed by us recently in SLP
(C) No. D. 9217/2020-State of Madhya Pradesh & Ors. vs.
Bheru Lal decided on 15.10.2020.
In the aforesaid judgment we have defined "certificate
cases" the objective of which is only to put a quietus to
the issue by recording that nothing could be done
because the highest Court had dismissed the appeal. We
have repeatedly deprecated such practice and process.
The irony is that despite observations, no action was ever
taken against officers who sit on the file and do nothing.
The matter is further aggravated in the present case and
even the present petition is filed with a delay of 462 days
.
and once again the excuse is of change of counsel.
We have repeatedly deprecated such attempts of the
State Governments to approach this Court only to
complete a mere formality. Learned counsel for the
petitioner strenuously contends that there is valuable
land involved. In our view, if it was so, then the concerned
officers responsible for the manner in defending this
petition must be made to pay for it.
We are thus constrained to dismiss the petition as barred
by time and impose cost of Rs. 15,000/- on the petitioner
for wastage of judicial time. We put it to the learned
counsel that the cost would have been much greater but
for the fact that a young counsel is appearing before us
and we have given considerable concession in the costs
on that factor alone.
13. In view of the aforesaid discussion, we are of the
considered view that the instant petition is barred by the
principle of delay and latches and accordingly the same is
dismissed on this ground alone, so also pending application(s), if
any.
(Tarlok Singh Chauhan)
Judge
(Jyotsna Rewal Dua)
6th January, 2021 Judge
(sanjeev)
