Faridoon Khatana & Ors vs Union Territory Of Jk & Ors
2021 Latest Caselaw 498 j&K/2

             HIGH COURT OF JAMMU AND KASHMIR
                       AT SRINAGAR

                                              Reserved On: 28th of April, 2021.
                                            Pronounced On: 29th of April, 2021.

(i) CM No. 2924/2020 in LPA No.89/2020:

Faridoon Khatana & Ors.
                                                             ... Appellant(s)
                   Through:
                   Mr J. A. Kawoosa, Senior Advocate with
                   Mr Areeb Javaid Kawoosa, Advocate.
                                Versus
Union Territory of JK & Ors.
                                                          ... Respondent(s)

Through:

Mr B. A. Dar, Sr. AAG;

Mr B. A. Bashir, Senior Advocate with Ms Falak Bashir, Advocate; and Mr M. Y. Bhat, Senior Advocate with Mr Furkaan Yaqoob, Advocate.

(ii) CM No. 2925/2020 in LPA No.90/2020:

Faridoon Khatana & Ors.

... Appellant(s) Through:

Mr J. A. Kawoosa, Senior Advocate with Mr Areeb Javaid Kawoosa, Advocate.

Versus Union Territory of JK & Ors.

... Respondent(s) Through:

Mr B. A. Dar, Sr. AAG;

Mr B. A. Bashir, Senior Advocate with Ms Falak Bashir, Advocate; and Mr M. Y. Bhat, Senior Advocate with Mr Furkaan Yaqoob, Advocate.

CM No. 2924/2020 in LPA No.89/2020 Along with connected matters

(iii) CM No. 2930/2020 in LPA No.91/2020:

Faridoon Khatana & Ors.

... Appellant(s) Through:

Mr J. A. Kawoosa, Senior Advocate with Mr Areeb Javaid Kawoosa, Advocate.

Versus Union Territory of JK & Ors.

... Respondent(s) Through:

Mr B. A. Dar, Sr. AAG;

Mr B. A. Bashir, Senior Advocate with Ms Falak Bashir, Advocate; and Mr M. Y. Bhat, Senior Advocate with Mr Furkaan Yaqoob, Advocate.

(iv) CM No. 2938/2020 in LPA No.92/2020:

Faridoon Khatana & Ors.

... Appellant(s) Through:

Mr J. A. Kawoosa, Senior Advocate with Mr Areeb Javaid Kawoosa, Advocate.

Versus Union Territory of JK & Ors.

... Respondent(s) Through:

Mr B. A. Dar, Sr. AAG;

Mr B. A. Bashir, Senior Advocate with Ms Falak Bashir, Advocate; and Mr M. Y. Bhat, Senior Advocate with Mr Furkaan Yaqoob, Advocate.

(v) CM No. 2945/2020 in LPA No.93/2020:

Faridoon Khatana & Ors.

CM No. 2924/2020 in LPA No.89/2020 Along with connected matters

... Appellant(s) Through:

Mr J. A. Kawoosa, Senior Advocate with Mr Areeb Javaid Kawoosa, Advocate.

Versus Union Territory of JK & Ors.

... Respondent(s) Through:

Mr B. A. Dar, Sr. AAG;

Mr B. A. Bashir, Senior Advocate with Ms Falak Bashir, Advocate; and Mr M. Y. Bhat, Senior Advocate with Mr Furkaan Yaqoob, Advocate.

(vi) CM No. 2950/2020 in LPA No.94/2020:

Faridoon Khatana & Ors.

... Appellant(s) Through:

Mr J. A. Kawoosa, Senior Advocate with Mr Areeb Javaid Kawoosa, Advocate.

Versus Union Territory of JK & Ors.

... Respondent(s) Through:

Mr B. A. Dar, Sr. AAG;

Mr B. A. Bashir, Senior Advocate with Ms Falak Bashir, Advocate; and Mr M. Y. Bhat, Senior Advocate with Mr Furkaan Yaqoob, Advocate.

(vii) CM No. 2962/2020 in LPA No.95/2020:

Faridoon Khatana & Ors.

... Appellant(s) Through:

Mr J. A. Kawoosa, Senior Advocate with Mr Areeb Javaid Kawoosa, Advocate.

CM No. 2924/2020 in LPA No.89/2020 Along with connected matters

Versus Union Territory of JK & Ors.

... Respondent(s) Through:

Mr B. A. Dar, Sr. AAG;

Mr B. A. Bashir, Senior Advocate with Ms Falak Bashir, Advocate; and Mr M. Y. Bhat, Senior Advocate with Mr Furkaan Yaqoob, Advocate.

(viii) CM No. 2970/2020 in LPA No.96/2020:

Faridoon Khatana & Ors.

... Appellant(s) Through:

Mr J. A. Kawoosa, Senior Advocate with Mr Areeb Javaid Kawoosa, Advocate.

Versus Union Territory of JK & Ors.

... Respondent(s) Through:

Mr B. A. Dar, Sr. AAG;

Mr B. A. Bashir, Senior Advocate with Ms Falak Bashir, Advocate;

Mr M. Y. Bhat, Senior Advocate with Mr Furkaan Yaqoob, Advocate; and Mr Gulzar Ahmad Bhat, Advocate.

(ix) CM No. 2975/2020 in LPA No.97/2020:

Faridoon Khatana & Ors.

... Appellant(s) Through:

Mr J. A. Kawoosa, Senior Advocate with Mr Areeb Javaid Kawoosa, Advocate.

Versus

CM No. 2924/2020 in LPA No.89/2020 Along with connected matters

Union Territory of JK & Ors.

... Respondent(s) Through:

Mr B. A. Dar, Sr. AAG;

Mr B. A. Bashir, Senior Advocate with Ms Falak Bashir, Advocate; and Mr M. Y. Bhat, Senior Advocate with Mr Furkaan Yaqoob, Advocate.

(x) CM No. 2981/2020 in LPA No.98/2020:

Faridoon Khatana & Ors.

... Appellant(s) Through:

Mr J. A. Kawoosa, Senior Advocate with Mr Areeb Javaid Kawoosa, Advocate.

Versus Union Territory of JK & Ors.

... Respondent(s) Through:

Mr B. A. Dar, Sr. AAG;

Mr B. A. Bashir, Senior Advocate with Ms Falak Bashir, Advocate; and Mr M. Y. Bhat, Senior Advocate with Mr Furkaan Yaqoob, Advocate.

(xi) CM No. 2986/2020 in LPA No.99/2020:

Faridoon Khatana & Ors.

... Appellant(s) Through:

Mr J. A. Kawoosa, Senior Advocate with Mr Areeb Javaid Kawoosa, Advocate.

Versus Union Territory of JK & Ors.

... Respondent(s) Through:

CM No. 2924/2020 in LPA No.89/2020 Along with connected matters

Mr B. A. Dar, Sr. AAG;

Mr B. A. Bashir, Senior Advocate with Ms Falak Bashir, Advocate;

Mr M. Y. Bhat, Senior Advocate with Mr Furkaan Yaqoob, Advocate; and Mr Gulzar Ahmad Bhat, Advocate.

CORAM:

Hon'ble Mr Justice Ali Mohammad Magrey, Judge Hon'ble Mr Justice Vinod Chatterji Koul, Judge

(JUDGMENT)

Per Magrey; J:

01. This batch of applications has been filed by the applicants/

appellants seeking condonation of delay in filing the appeals against the

common judgment dated 19th of August, 2015 passed by the learned Single

Judge in 18 connected Writ petitions, with lead case being SWP

No.1941/2009, operative portion whereof reads as under:

"For the above stated reasons, this writ petition along with connected CMP(s) is disposed of in the following manner:

The official respondents are directed to consider and appoint the petitioners on the posts of Naib Tehsildars against the vacancies which stand already reserved in terms of the Court Orders in these writ petitions. The appointment orders in this behalf be issued within four weeks from the date copy of this order is served. In case of those petitioners who might have crossed the upper age limit for entering into Government services, it shall be deemed that relaxation is granted in the upper age limit. The petitioners in this fact situation shall be given all the service benefits including the seniority from the date the private respondents have been appointed on the posts of Naib Tehsildars. The petitioners, however, will not be entitled to any monetary benefit for the period between appointment of private respondents and till the date of their appointments. Besides this the petitioners in SWP Nos. 1941/2009, 1820/2009 and 1709/2009 shall also be extended the benefit of Judgment dated 31st December, 2014 passed in SWP No.487/2009."

CM No. 2924/2020 in LPA No.89/2020 Along with connected matters

Since all these applications seeking condonation of delay have

been filed on the same date, coupled with the fact that they seek condonation

of delay in filing appeals against the common judgment, we propose to decide

these applications by virtue of this common order. For purpose of appreciating

the facts of the case as well as the arguments of the parties, the application

bearing CM No. 2986/2020 filed in LPA No.99/2020, wherein objections

stand filed by the parties, is relied upon herein this order.

02. The precise case of the applicants/ appellants is that, in terms of

order No. FC(A) 200 of 2013 dated 8th of October, 2013, a final seniority list

of Naib Tehsildars of the State Cadre of Revenue Department, as it stood on

1st of September, 2013, was issued by the official respondents. It is stated that,

thereafter, vide order No. FC(A) 158 of 2019 dated 15th of May, 2019, another

final seniority list of Naib Tehsildars of State Cadre of the Revenue

Department came to be issued, wherein the respondents 3 to 8 herein have

been shown over and above the applicants/ appellants by declaring them to

have been appointed as Naib Tehsildars w.e.f. 20th of November, 2009 on

notional basis. It is pleaded that this seniority list was, however, not circulated

by the official respondents, as a result whereof the applicants/ appellants did

not gain any knowledge about the same. On 20th of December, 2019,

notification bearing No. FC(A)39/Misc/2019 is stated to have been issued by

the Financial Commissioner (Revenue), J&K, wherein reference of the final

CM No. 2924/2020 in LPA No.89/2020 Along with connected matters

seniority list issued vide order dated 15th of May, 2019 (supra) was given.

Upon enquiry, the applicants/ appellants claim to have found out that the

official respondents, in terms of Government Order No. 84-Rev of 2016 dated

30th of June, 2016 and in compliance of the judgment dated 19 th of August,

2015 passed by the learned Single Judge of this Court in batch of Writ

petitions, have accorded sanction to the appointment of Writ petitioners

therein, including respondents 3 to 8 herein, as Naib Tehsildars against

available posts in the Revenue Department kept reserved pursuant to orders

of the Court. It is stated that the applicants/ appellants, upon strenuous efforts,

obtained the copy of the said Government order, wherein no retrospective

effect to the appointment of the said Writ petitioners, including respondents 3

to 8, has been provided by the Court. It is contended that the applicants/

appellants came to know about the passing of the aforesaid judgment only

when the official respondents issued notification dated 20 th of December,

2019 regarding final seniority list, which notification was obtained by them in

the month of February, 2020, thus the time of limitation would run from

February, 2020, when for the first time they gained the knowledge of existence

of impugned judgment. It is also submitted that, thereafter, in the month of

March, 2020 a nationwide lockdown was ordered by the Government of India

as a preventive measure against the outbreak of COVID-19 Pandemic which

was, thereafter, extended from time to time. In the premise, it has been

contended that given the above circumstances, the delay that has occasioned

CM No. 2924/2020 in LPA No.89/2020 Along with connected matters

in filing the appeals against the common judgment dated 19th of August, 2015

deserves to be condoned and appeals heard on merits.

03. Objections stand filed on behalf of the official respondents in CM

No.2986/2020 arising out of LPA No.99/2020, resisting and controverting the

averments of the applicants/ appellants. Mr B. A. Dar, the learned Senior

Additional Advocate General, submitted that the objections filed by him in

the aforesaid CM on behalf of official respondents be treated as objections to

all the connected CMs as well. The statement of the learned Senior Additional

Advocate General is taken on record and the objections filed by official

respondents in CM No. 2986/2020 are treated as objections in all the other

connected CMs seeking condonation of delay in filing the appeals. Besides,

Mr Dar submitted that the answering respondents issued a tentative seniority

list of Naib Tehsildars on 28th of August, 2017, wherein it was specifically

mentioned that 23 Naib Tehsildars, including respondents 3 to 8, have been

appointed in compliance of the judgment dated 19 th of August, 2015 passed

by the learned Single Judge and that their seniority, too, was fixed over and

above the applicants/ appellants on the directions of the judgment aforesaid.

It is further submitted that the aforesaid tentative seniority list was given wide

publicity through print media, besides the same was also uploaded on the

official website of the Department, therefore, the claim of the applicants/

appellants that they came to know about the passing of the judgment only

CM No. 2924/2020 in LPA No.89/2020 Along with connected matters

when the official respondents issued notification dated 20 th of December,

2019 regarding final seniority list is baseless. The learned Senior Additional

Advocate General contended that, in fact, the applicant No.2 also submitted

his objections to the tentative seniority list of Naib Tehsildars issued by the

official respondents vide notification No. 261 of 2017 dated 24th of August,

2017, wherein he objected for placing the respondents 3 to 8 appointed in

compliance to judgment dated 19th of August, 2015 above him and the

Committee constituted vide order No. 320 of 2017 dated 25 th of October,

2017, also disposed of the objections at Para 9 in the Minutes of Meeting held

on 23rd of May, 2018 by intimating him about the order No. 84-Rev of 2016

dated 30th of June, 2016, whereby the respondents 3 to 8 stand given the

seniority w.e.f. 20th of November, 2009 notionally and, as such, the claim of

the applicants/ appellants that they do not know about the passing of the

judgment is baseless. In the end, Mr Dar pleads that the applicants/ appellants

have remained remiss and callous in projecting their claim, if any, and, thus

all these applications seeking condonation of delay in filing the appeals

against the judgment of the learned Single Judge passed way back on 19 th of

August, 2015 deserve to be dismissed along with the accompanying appeals.

04. Respondent No.7 has also filed objections in opposition to the

Condonation of Delay application bearing CM No. 2986/2020, wherein they

have denied the averments of the applicants/ appellants. Mr B. A. Bashir, the

CM No. 2924/2020 in LPA No.89/2020 Along with connected matters

learned Senior Counsel, representing the respondent No.7 submitted that the

objections filed by him on behalf of respondent No.7 in the aforesaid CM be

treated as objections in rest of the connected condonation of delay applications

on behalf of his client(s) therein. The statement of the learned Senior Counsel

is taken on record and the objections filed by Mr Bashir in CM No. 2986/2020

are treated as objections in all the other connected CMs seeking condonation

of delay in filing the appeals on behalf of his client(s) therein. That apart, the

learned Senior Additional Advocate General, submitted that the law of

limitation gives a valuable right to a litigant which cannot be curtailed or

circumscribed at the whims and caprices of those who are not vigilant about

their rights. It is pleaded that any condonation sought has to pass a thorough

test of explaining the delay meticulously and convincingly on facts, whileas

in the case on hand, as per the learned Senior Counsel, in order to escape from

the obligation of explaining the delay, the applicants/ appellants have resorted

to a false and concocted story qua lack of knowledge of the judgment passed

by the Court. It is contended that a tentative seniority list of Naib Tehsildars

came to be issued in terms of notification dated 24th of August, 2017, wherein

it was specifically provided that 23 Naib Tehsildars were appointed in

pursuance of the directions of the Court passed in judgment dated 19 th of

August, 2015. It is stated that in the aforesaid tentative seniority list, the direct

recruits, which included the respondent No.7 as well, figured from S. Nos.

149 to 170, whileas the applicants/ appellants figured at 171, 188 and 210,

CM No. 2924/2020 in LPA No.89/2020 Along with connected matters

respectively. This position, as stated, was accepted by the applicants/

appellants 2 and 3 who did not challenge the same of file any objections

thereto, hence they are estopped from raising any grievance at this stage. Mr

Bashir argues that, in fact, the applicant/ appellant No.2, filed his objections

to the aforesaid tentative seniority list, which objections were disposed of by

a high-level committee constituted for the purpose. In the end, the learned

Senior Counsel vehemently averred that given this factual situation, it is

absolutely false on part of the applicants/ appellants to say that they had no

knowledge about their placement beneath these direct recruits, including the

respondent No.7, in the seniority list till ending 2019 as is sought to be

projected by them in these applications for seeking condonation of delay in

filing the appeals.

05. We have heard the learned counsel for the parties, perused the

pleadings on record and have considered the matter.

06. It cannot be disputed that the Law of Limitation has to be applied

with all its vigor and rigor as prescribed by the Statute. One cannot escape the

consequences of Section 5 of the Limitation Act 1963, which provides that for

the extension of the period of limitation in a given case, the condition

precedent is that the applicants have to satisfy the Court that they have carved

out a sufficient cause in seeking the indulgence of the Court for not preferring

CM No. 2924/2020 in LPA No.89/2020 Along with connected matters

the appeal or application within the stipulated time. The applicants/ appellants

cannot take umbrage under the plea that they did not have the knowledge of

the passing of the judgment in question, when, as a matter of fact, the official

respondents had issued the tentative seniority list as back as on 24 th of August,

2017, wherein it has been specifically mentioned that 23 Naib Tehsildars were

appointed in compliance of the judgment dated 19 th of August, 2015 passed

by the learned Single Judge. The official respondents have categorically stated

that this seniority list was given wide publicity through print media, besides

the same was also uploaded on the official website of the official respondents.

In such circumstances, the applicants/ appellants cannot escape the liability of

satisfying the Court that the appeals were filed with due diligence. The Courts

cannot come to the aid and rescue of such litigants where the application for

condonation of delay does not spell out sufficient cause and the approach of

the applicants/ appellants, in making such application, is casual and cryptic.

The applicants/ appellants have been remiss and callous in seeking the

condonation of delay in filing the appeals.

07. Law on the subject is no more res intregra. Hon'ble the Supreme

Court, in case titled 'Esha Bhattacharjee v. Managing Committee of

Raghunathpur Nafar Academy & Ors.; (2013) 12 SCC 649', while dealing

with a similar matter, has observed as under:

"15 (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these

CM No. 2924/2020 in LPA No.89/2020 Along with connected matters

terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

..................

15 (ix) The conduct, behavior 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.

15 (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.

..................

15 (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

..................

16 (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harboring 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.

....................

22. ....... Neither leisure nor pleasure has any room while one moves an application seeking condonation of delay of almost seven years on the ground of lack of knowledge or failure of justice."

08. Again, the Apex Court, in case titled 'Brahampal @ Sammay &

Anr v. National Insurance Company' bearing 'Civil Appeal No. 2926 of

2020 arising out of Special Leave Petition (C) No. 13645 of 2018', at

paragraphs 18 to 20, held as under:

"18. At this juncture, we need to interpret the term "sufficient cause" as a condition precedent for the granting of the discretionary relief of allowing the appeal beyond the statutory limit of ninety days.

Although this Court has held that provisions of the Limitation Act, 1963 does not apply while deciding claims under the Motor Vehicles Act, but it is relevant to note that even while interpreting "sufficient cause" under the Limitation Act Courts have taken a liberal

CM No. 2924/2020 in LPA No.89/2020 Along with connected matters

interpretation. This Court in the case of Perumon Bhagvathy Devaswom, Perinadu Village v. Bhargavi Amma (Dead) by LRs, (2008) 8 SCC 321, observed that:

"13....The words "sufficient cause for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words "sufficient cause" in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant."

19. The aforesaid view was reiterated in the case of Balwant Singh (Dead) v. Jagdish Singh, (2010) 8 SCC 685, wherein this Court held that:

"25. We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation.

26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly."

20. The Court in the abovementioned cases, highlighted upon the importance introducing the concept of "reasonableness" while giving the clause "sufficient cause" a liberal interpretation. In

CM No. 2924/2020 in LPA No.89/2020 Along with connected matters

furtherance of the same, this Court has cautioned regarding the necessity of distinguishing cases where delay is of few days, as against the cases where the delay is inordinate as it might accrue to the prejudice of the rights of the other party. In such cases, where there exists inordinate delay and the same is attributable to the party's inaction and negligence, the Courts have to take a strict approach so as to protect the substantial rights of the parties."

Applying the ratio of the law laid down above to the instant case,

there has been a reckless delay of 04 years and 262 days in filing the appeals

and no satisfactory explanation has come forward on that count except for

routine words and phrases. No doubt, a liberal approach has to be adopted in

the matter of condonation of delay when there is no gross negligence or

deliberate inaction or lack of bonafides on the part of the litigant, but, in the

instant case, the applicants/ appellants took their own time to formulate an

opinion that the appeals have to be filed. It has, nowhere, been stated that they

were, at all, prevented earlier to take such a decision.

09. Risking repetition, what is stated here is that the applicants/

appellants have been negligent in prosecuting their claim within time and the

explanation offered for the delay in filing the appeal is neither plausible nor

reasonable. The application appears to have been drafted recklessly without

giving a proper account of the dates and details of the grounds agitated in it

and recourse has been had to the leisure and pleasure in moving the

application and, to cap it all, the applicants/ appellants have not knocked the

doors of the Court with clean hands and the fair play has become a casualty at

CM No. 2924/2020 in LPA No.89/2020 Along with connected matters

the hands of the applicants/ appellants. This appears to have been done only

to scuttle the judgment dated 19th of August, 2015 passed by the learned Single

Judge.

10. The case law referred to and relied upon by Mr Kawoosa, the

learned Senior Counsel, representing the applicants/ appellants, being

distinguishable on facts, is not applicable to the case on hand.

11. Viewed in the context of what has been said and done above, we

are of the considered opinion that the applicants/ appellants have failed to

explain the delay of 04 years and 262 days in filing the appeals. That being

so, all these applications seeking condonation of delay in filing the appeals,

are rejected and, as a corollary thereto, the accompanying Letters Patent

Appeals (LPAs) shall also stand dismissed as barred by time.

                                     (Vinod Chatterji Koul)            (Ali Mohammad Magrey)
                                             Judge                             Judge
           SRINAGAR
           April 29th, 2021
           "TAHIR"
                               i.      Whether the Judgment is reportable?            Yes/ No.
                               ii.     Whether the Judgment is speaking?              Yes/ No.




TAHIR MANZOOR BHAT
2021.04.30 10:05
I attest to the accuracy and
integrity of this document