Jammu & Kashmir High Court - Srinagar Bench
State Of Jk & Anr vs Dr. Naheed Soz & Anr on 17 February, 2022
Serial No. 07
Regular Cause List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CM No. 5263/2019
LPA No. 210/2019
CM No. 5264/2019
Dated: 17th of February, 2022.
State of JK & Anr.
... Appellant(s)
Through: -
Mr Sajjad Ashraf Mir, Government Advocate.
V/s
Dr. Naheed Soz & Anr.
... Respondent(s)
Through: -
Mr Shuja-ul-Haq Tantray, Advocate for R-1.
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
Hon'ble Mr Justice Mohd. Akram Chowdhary, Judge
(JUDGMENT)
Magrey, J (Oral):
CM No. 5263/2019:
01. The erstwhile State of Jammu and Kashmir (now Union
Territory) has filed this application seeking the indulgence of this Court in
condoning the delay of 271 days in filing the appeal, inter alia, on the
grounds that after the receipt of the copy of the Judgement dated 6th of
August, 2018 passed by the learned Single Judge in the Petition filed by the
Respondent No.1 herein/ Writ Petitioner (SWP No.96/2011), the same was
scanned at various levels to derive satisfaction on the count whether or not
the appeal is to be filed. After going through the entire record of the case,
the matter was referred to the Department of Law, Justice & Parliamentary
CM No. 5263/2019; LPA No. 210/2019; & CM No. 5264/2019
Affairs for its views and the Department of Law, Justice & Parliamentary
Affairs, opined that an appeal be filed against the impugned
order/judgement.
02. Mr Sajjad Ashraf Mir, the learned Government Advocate,
appearing on behalf of the applicants, submitted that the delay that has
occasioned in the filing of the appeal is primarily due to administrative
exigencies. It is further submitted that the Department of Law, Justice &
Parliamentary Affairs, accorded sanction for filing of LPA vide its letter
dated 25th of April, 2019 and that after the receipt of the sanction from the
Department of Law, Justice & Parliamentary Affairs, the then Senior
Additional Advocate General appointed to file the LPA, swung into action
and, immediately, called the record of the case and other documents from
the applicants. It is pleaded that the appeal has an important bearing as far
as the interests of the applicants are concerned and in case the delay in
filing of appeal is not condoned, it will cause great prejudice to the
applicants. It has further been averred that the settled position of law is that
since the decisions at the Government level are taken at a slow pace,
therefore, some amount of latitude has to be given to it and the Government
cannot be equated and treated on par with the private parties in the matter of
condonation of delay.
03. Mr Shuja-ul-Haq Tantray, the learned Counsel representing the
Respondent No.1 herein/ Writ Petitioner, submitted that the application
filed by the applicants is cryptic inasmuch as no ground, much less a
sufficient one, has been projected therein for the Condonation of Delay,
CM No. 5263/2019; LPA No. 210/2019; & CM No. 5264/2019
therefore, the application is liable to be dismissed. It is further stated that in
view of the Judgement dated 6th of August, 2018, the applicants/
Respondents before the Writ Court were supposed to accord fresh
consideration to the case of the Respondent No.1 herein/ Writ Petitioner in
accordance with the law laid down in the aforesaid Judgment as also taking
into consideration the number of years of the service that she has rendered
in the IMPA as expeditiously as possible and pass requisite orders thereon
within two months from the date of receipt of the copy of the said
Judgment. It is pleaded that the applicants did not do so and slept over the
matter for a long time.
04. We, at the first instance, heard the learned Counsel for the
parties on the issue of Condonation of Delay; perused the pleadings on
record; and have also considered the matter.
05. It cannot be disputed that the Law of Limitation has to be
applied with all its vigor and rigor as prescribed by the Statute and that one
cannot escape the consequences of Section 5 of the Jammu and Kashmir
Limitation Act Samvat 1995, which provides that for the extension of the
period of limitation in a given case, the condition precedent is that the
applicants or the appellants have to satisfy the Court that they have carved
out a sufficient cause in seeking the indulgence of the Court for not
preferring the appeal or application within the stipulated time. At the same
time, it is also trite that, while considering an application for condonation of
delay, no straight jacket formula has been prescribed to come to the
conclusion as to whether a sufficient ground is made out or not. The Courts,
CM No. 5263/2019; LPA No. 210/2019; & CM No. 5264/2019
while dealing with condonation of delay, are to adopt a liberal, pragmatic,
justice-oriented and non-pedantic approach. When substantial justice is
pitted against technical considerations, substantial justice must prevail and
the State or a Public body, even an Entity representing a collective cause,
should be given some acceptable latitude. In that view of the matter and
after hearing the Counsel for the parties, we are inclined to accept the
instant application and condone the delay that has occasioned in the filing
of the main appeal. Accordingly, this application is allowed and the delay in
filing the appeal is condoned. CM No. 5263/2019 disposed of accordingly.
Main appeal, which is already registered as LPA No.210/2019, is taken up
for consideration today itself.
LPA No. 210/2019; CM No. 5264/2019:
06. This appeal is directed against the Judgment dated 6 th of
August, 2018 passed by the learned Single Judge in the Writ Petition filed
by the Writ Petitioner/ Respondent No.1 herein (SWP No. 96/2011),
whereby the impugned Government Order in the Writ Petition bearing No.
1192-GAD of 2005 dated 27th of September, 2005, along with
communication No. GAD(Ser)Genl-25/96 dated 17th of September, 2010,
have been set aside and the Respondents therein/ Appellants herein directed
to accord fresh consideration to the case of the Writ Petitioner/ Respondent
No.1 herein in accordance with the law as also taking into consideration the
number of years of the service that she has rendered in IMPA as
expeditiously as possible.
CM No. 5263/2019; LPA No. 210/2019; & CM No. 5264/2019
07. Heard learned Counsel for the parties on the merits of the case
and considered the matter.
08. Perusal of the pleadings on record brings it to the fore that the
impugned Judgment passed by the learned Single Judge, as is the subject
matter of this appeal before us, was already assailed before this Court by
some aggrieved persons through the medium of appeal bearing LPASW No.
196/2018 titled 'Ghulam Mohi-ud-Din Dar & Ors. v. State of JK & Ors.'.
The said appeal, vide Judgment dated 20th of February, 2019: of which,
incidentally, one of us (Magrey-J) is the author, stands disposed of by
maintaining the Judgment impugned insofar as it pertains to the Writ
Petitioner/ Respondent No.1 herein. This important fact, which has a direct
bearing on the subject matter of this appeal, appears to have been concealed
in the appeal filed by the present appellants. Furthermore, the aforesaid
appeal was filed in the year 2018 and same was disposed of by this Court
on 20th of February, 2019 in the presence of the then Senior Additional
Advocate General, representing the Government/ appellants herein, but
despite that the appellants, while filing the instant appeal on 4 th of July,
2019, that is much after the passing of the aforesaid Judgment dated 20th of
February, 2019, have chosen not to make a whisper about the said appeal.
09. Be that as it may, since the impugned Judgment stands already
upheld/ maintained by this Court in the aforesaid appeal filed by the
aggrieved persons qua the Writ Petitioner/ Respondent No.1 herein in terms
of Judgment dated 20th of February, 2019, coupled with the fact that the
said Judgment dated 20th of February, 2019 has, admittedly, not been put to
CM No. 5263/2019; LPA No. 210/2019; & CM No. 5264/2019
challenge and has, thus attained finality, we cannot take another view
contrary to the one already taken by this Court in the aforesaid Judgment.
Consequently, the instant appeal is dismissed, along with the connected
CM. Interim directions, if any subsisting as on date, shall stand vacated.
(Mohd. Akram Chowdhary) (Ali Mohammad Magrey)
Judge Judge
SRINAGAR
February 17th, 2022
"TAHIR"
TAHIR MANZOOR BHAT
2022.02.18 15:26
I attest to the accuracy and
integrity of this document
