Himachal Pradesh High Court
Between:- R To vs State Of H.P. (1994) 2 Suppl. 316 on 30 March, 2022
Bench: Tarlok Singh Chauhan, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 29th DAY OF MARCH, 2022
.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE SANDEEP SHARMA
CIVIL WRIT PETITION NO. 7822 OF 2021
1.
Between:- r to
THE STATE OF H.P. THROUGH
PRINCIPAL SECRETARY (PW) TO
THE GOVT. OF H.P., SHIMLA.
2. THE ENGINEER-IN-CHIEF,
HPPWD, NIRMAN BHAWAN,
NIGAM VIHAR, SHIMLA-2.
3. THE SUPERINTENDING
ENGINEER, HPPWD 14TH
CIRCLE ROHROO, DISTT.
SHIMLA, H.P.
4. THE EXECUTIVE ENGINEER,
HPPWD DIVISION ROHROO,
DISTT SHIMLA, H.P.
...PETITIONERS
(BY SH. ASHOK SHARMA, A.G.
WITH SH. VINOD THAKUR, SH.
SHIV PAL MANHANS, ADDL.
A.GS., SH. YUDHBIR THAKUR,
DY. A.G. AND SH. RAJAT
CHAUHAN, LAW OFFICER.)
AND
SMT. LAKSHMI DEVI WIFE OF
LATE SH. BALA DUTT, RESIDENT
OF VILLAGE CHIUNI, P.O.
LOWER KOTI, TEHSIL ROHROO,
DISTT. SHIMLA, H.P.
...RESPONDENT
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2
(SH. V. D. KHIDTTA, ADVOCATE,
FOR THE RESPONDENT.)
.
This Petition coming on for order on this day, Hon'ble Mr.
Justice Tarlok Singh Chauhan, passed the following:-
ORDER
The petitioners have questioned the impugned order
dated 27.02.2018, whereby the erstwhile learned Tribunal
allowed the Original Application filed by the petitioner
(respondent herein) for regularizing the services of her deceased
husband on completion of eight (8) years in terms of the
judgment rendered by the Hon'ble Supreme Court in Mool Raj
Upadhaya vs. State of H.P. (1994) 2 Suppl. 316.
2. Since, this petition has been filed after a
considerable delay, therefore, this Court on 14.12.2021, passed
the following order:-
"Petitioners seek to assail the order passed by the
learned erstwhile Tribunal on 27.02.2018. There is
virtually no whisper in the petition as to what prevented
the petitioners from assailing this order within a
reasonable period.
Therefore, let supplementary affidavit to this effect be
filed within eight weeks.
List on 08.03.2022."
3. The petitioners now have filed supplementary
affidavit wherein they have tried to explain the delay, the
relevant portion whereof reads as under:-
"2. That in this behalf it is respectfully submitted that the
copy of impugned judgment/order dated 27.02.2018
passed by erstwhile H.P. Administrative Tribunal in OA No.
.
6072/2016 was supplied to the petitioner department
vide letter No. 16-1/2016-I Addl. AG-12284, dated
05.05.2018 from the office of Ld. Addl. Advocate General,
H.P. Since, the direction was issued to regularize the
service of the deceased husband of respondent w.e.f.
31.03.1999, as such the o/o Executive Engineer was
asked to supply the entire record vide letter No. PW-LC-OA
No. 6072/2016-Lakshmi Devi-12077-79, dated 19.05.2018
for further examination. The record was supplied from the
o/o Executive Engineer Division Rohroo to the o/o
Engineer-in-Chief HPPWD vide letter No. PW-RD-EA-II-C.
Case Laxmi Devi/2018-19-3237, dated 28.05.2018. Upon
receipt of requisite record, the matter was referred to
Government vide letter No. PW-LC-OA No. 6072/2016-
Laxmi Devi-1700-02, dated 15.06.2018 for obtaining
necessary advice/opinion of Law Department in respect of
the impugned judgment dated 27.02.2018. The matter
was examined at the Government level and vide letter
No. PBW-AE(1)-67/2018, dated 25.07.2018, the petitioner
department was advised that the impugned judgment is
not fit for further agitation. Since in impugned judgment
dated 27.02.2018, there was a direction to petitioner
department for regularizing the deceased husband of the
respondent upon completion of 8 years of service i.e.
w.e.f. year, 1999, which in fact was contrary to the ratio of
law laid down in Mool Raj Upadhaya case as well as the
policies of the department, as such the matter was re-
referred to Government vide letter No. PW-LC-OA No.
6072/2016-Laxmi Devi-3186, dated 09.08.2018 for further
examination. The Government vide letter No. PBW-AE(1)-
67/2018 dated 03.10.2018 has directed the petitioner
department to re-examine the matter on few points and
thereafter re-refer the same for obtaining necessary
advice. Subsequently, the matter was re-examined on the
points as suggested by the Government and was re-
.
referred to Government vide letter No PW-LC-OA No.
6072/2016-Laxmi Devi-3555-57, dated 15.10.2018. The
matter was re-examined at the Government level and
vide letter No PBW-AE(1)-67/2018 dated 30.11.2018, the
petitioner department was advised that the impugned
judgment dated 27.02.2018 is fIt for further agitation.
3. That the advice of Government was conveyed to
Executive Engineer HPPWD Division Rohroo vide letter No.
PW-LC-OA No. 6072/2016-Laxmi Devi-4866-68, dated
10.12.2018. IN the meantime, the respondent has filed
COPC
r No. 328/2019 before the Hon'ble Court for
implementation of judgment/order dated 27.02.2018.
Thereafter, the o/o Executive Engineer HPPWD Division
Rohroo has processed the draft CWP against impugned
judgment/order dated 27.02.2018 for its vetting from the
o/o Ld. Advocate General, H.P. on 08.10.2019. The CWP
was prepared and vetted in the o/o Engineer-in-Chief,
HPPWD and further referred to Ld. Advocate General, H.P.
vide letter dated 06.11.2019 through the official
concerned. The CWP was vetted in the o/o Ld. AG, H.P. on
06.11.2019. It is worth to mention here that HPPWD
Division Rohroo is one of the far flung area of Himachal
Pradesh and also during December to February (winter
season) it was covered with the snow at that time. The
CWP was faired out, but do not file due to bad weather
conditions, as transportation was affected. It is further
submitted that during March, 2020 due to the pandemic
Covid-19, the State was facing complete lockdown.
Transportation was totally affected. Not only this in all the
Government departments the officials were performing
duties on rotation basis. Therefore, the case file remained
without any action. It is further submitted that in HPPWD
Division due to shortage of staff the dealing assistant was
overburdened and was incharge of he establishment of
field staff of about 450 workmen. Therefore, the issue of
.
filing of CWP escaped his attention. The matter was come
o the notice of the petitioner department, when the notice
of COPC(T) transferred from the erstwhile Tribunal was
receipt. Therefore, the CWP was immediately processed
for its filing, and the same was also filed in October 2021.
However, in order to justify the delay in filing the CWP the
official concerned was issued show cause notice to
explain the reasons on 07.03.2022 but the reply of the
officials is yet to be received as the official concerned
proceeded on earned leave w.e.f. 09.02.2022 to
11.03.2022 in connection with his ailing mother who is a
heart patient. The CWP was also processed for its filing.
But at that time the Registry in the Hon'ble Court has
raised few objections in respect of the specification for
font size, line spacing margins etc. because the Hon'ble
Court vide No. HHC/Rules/Vol.V/97-I-16256-69, dated
03.08.2021 and has conveyed the new specification for
font, size, line spacing, margins, etc. for filing of various
reply(s)/petition(s) in the Hon'ble Court. After meeting out
all the specifications as prescribed by the Hon'ble Court,
the CWP was fled on October 2021 through the deponent.
The reply to COPC was also filed before the Hon'ble Court
on December 2021. Therefore, the reasons stated above
for he delay in filing the CWP were neither intentional nor
willful, but beyond the control of the deponent.
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. The mere fact that there was inter se consultation
process of the Department, the same cannot be permitted to go
beyond a reasonable limit.
7. 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 these cases.
8. 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 petitions and in the prayer(s) to this
effect seeking condonation of delay and latches.
9. 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.
10. The
r 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.
11. 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."
12. 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.
13. 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.
.
14. It is more than settled that condition precedent for
condoning the delay is always the existence of sufficient cause.
Whether the explanation furnished for the delay would constitute
sufficient cause or not would depend upon the facts of each
case? It cannot be any straight jacket formula for accepting or
rejecting the explanation furnished by the parties seeking
condonation of delay. Acceptance of explanation furnished
should be the rule and refusal an exception more so when no
negligence or inaction or want of bonafide can be imputed to the
defaulting party.
15. However, equally true the proposition that valuable
right may accrue to the other party on account of delay or
inaction of the opposite party.
16. As would be noticed from the explanation offered by
the petitioners, there was no serious attempt whatsoever to
ensure that the files are attended and moved expeditiously from
one desk to other. Not only inaction but there is a gross
negligence on the part of the officials of the petitioners and at
the same time valuable right has accrued in favour of the
respondent.
17. In view of the aforesaid discussion, we are of the
considered view that this 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
(Sandeep Sharma)
th
29 March, 2022 Judge
(sanjeev)
r to
