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Gujarat High Court · body

2001 DIGILAW 546 (GUJ)

PRINCIPAL, v. V. N. JOSHI

2001-07-26

M.R.CALLA, N.G.NANDI

body2001
M. R. CALLA, J. ( 1 ) THIS Civil Application has been filed seeking condonation of delay of 235 days in filing the Letters Patent Appeal. ( 2 ) SPECIAL Civil Application No. 958/90 was decided by the learned single Judge on 3. 3. 2000 holding that the original petitioner was entitled to the benefit of Government Resolutions dated 18. 1. 89 and 8. 12. 89 and the clarificatory Circulars dated 24. 4. 90, 7. 7. 90 and 20. 12. 91 and accordingly the petitioner was found to be entitled for notional pay fixation in the higher scale for the period on and from 1. 7. 79 to 31. 12. 85 and his pay in the scale of Rs. 1640-2900 with effect from 1. 1. 86 was required to be revised accordingly. The learned single Judge also held that the petitioner was entitled to the arrears of salary commencing from 1. 1. 86 and any amount paid to the petitioner by way of special allowance shall be adjusted against the amount, which may be found to be due and payable. However, no interest was granted. Further direction was issued that the exercise of revising the pay of the petitioner shall be completed within a period of 4 weeks from the date of the order i. e. from 3. 3. 2000 and the payment of the amount of difference of salary was to be paid within a period of 4 weeks thereafter. With the directions, as above, the Special Civil Application was allowed and the rule was made absolute. ( 3 ) AGAINST this judgment and order dated 3. 3. 2000,letters Patent Appeal was filed on 23. 11. 2000. The Appeal, as was filed on 23. 11. 2000, was not accompanied with any Application for condonation of delay. It appears that the Application for condonation of delay was prepared on 27. 11. 2000 and the same was filed on 22. 12. 2000. We called upon the learned AGP to show as to why the application for condonation of delay was not filed alongwith the Appeal and the only explanation, which has been given, is that the Officers of the Department were not called upon to explain the delay at the time when the Appeal was filed and they were told later on that the delay was required to be explained for filing the application for condonation of delay. The requirement of law is that any time barred appeal must be accompanied by an Application for condonation of delay, because it is known at the time of filing of the Appeal itself that the Appeal is time barred. ( 4 ) IN the Civil Application, it has been stated that certified copy of the impugned order of the learned single Judge was applied for immediately after the judgment dated 3. 3. 2000. It has been then stated in the further affidavit that in fact the certified copy was applied for on 14. 3. 2000 and the same was ready on 2. 5. 2000 and was received by the office of the Government Pleader on 2. 5. 2000 as is mentioned in Para 3 of the subsequent affidavit in support of the Application for condonation of delay dated 20. 1. 2001. However, as per the contents of para 2 of the Civil Application for condonation of delay, certified copy of the judgment and order was received by the Commissionerate of Schools on 26. 4. 2000 and the District Education Officer, Junagadh had already received it on 15. 4. 2000. It has been then sought to be explained that 26. 4. 2000 must be the date on which the writ of the court may have been received by the Commissionerate of Schools and 15. 4. 2000 is the date on which the certified copy of the judgment had been received by the District Education Officer, Junagadh as the same was supplied by the original petitioner. In any case, on 2. 5. 2000 certified copy had been received by the Office of the Government Pleader. Thereafter, the matter has been dealt with as under:-9. 5. 2000 Asst. Government Pleader gave his opinion. 23. 5. 2000 The District Education Officer, Junagadh proposed to prefer the Letters Patent Appeal. 29. 5. 2000 The proposal as was prepared by the District Education Officer, Junagadh on 23. 5. 2000 was received by the Director of Higher Education. 5. 6. 2000 A note was prepared in the Directorate of Higher Education to file the Appeal. 7. 6. 2000 The file was cleared by the Senior Superintendent and on the same date, the Joint Director had approved it. 12. 6. 2000 This proposal was forwarded to the Education Department. 14. 6. 5. 6. 2000 A note was prepared in the Directorate of Higher Education to file the Appeal. 7. 6. 2000 The file was cleared by the Senior Superintendent and on the same date, the Joint Director had approved it. 12. 6. 2000 This proposal was forwarded to the Education Department. 14. 6. 2000 The proposal was received by the Education Department and on the same date it was marked by the Section Officer to the concerned Branch. 16. 6. 2000 It was sent to the Asst. Section Officer by the Clerk in the concerned Branch. 5. 7. 2000 The noting was submitted by the Asst. Section Officer and file was cleared on the same date i. e. 5. 7. 2000 by the Section Officer, Under Secretary and the Addl. Secretary. On this day i. e. 5. 7. 2000 itself the proposal for filing Letters Patent Appeal was forwarded to the Legal Department9. 7. 2000 It was received by the Legal Department. 10. 7. 2000 The Assistant Section Officer put the note on the file. 11. 7. 2000 The note was approved by the Deputy Secretary and Secretary. 12. 7. 2000 Letter was sent to the typing section. 13. 7. 2000 It was submitted to the concerned Deputy Secretary. 13. 7. 2000 The concerned Deputy Secretary was not available upto 18. 7. 2000 and the letter was signed by another Deputy Secretary. 19. 7. 2000 It was forwarded to the State Solicitor Shri H. C. Patel and the Education Department with instructions to file Letters Patent Appeal. 20. 7. 2000 The sanction letter was received by the Registry Branch of the Education Department and on the same day it was handed over to the concerned Branch dealing with the matter. 28. 7. 2000 The file was submitted by Assistant Section officer to the Section Officer and it was cleared on the same day by the Section Officer and the Under Secretary. 28. 8. 2000 The letter of sanction was forwarded to the Commissionerate of Schools and District Education Officer, Junagadh. 11. 9. 2000 The letter dated 28. 8. 2000 was received by the District Education Officer. 15. 9. 2000 The District Education Officer contacted the Government Solicitor and Addl. Government Pleader. Mr. H. C. Patel instructed the District Education Officer to supply the English translation of all the Government Resolutions and relevant literature. 18. 10. 11. 9. 2000 The letter dated 28. 8. 2000 was received by the District Education Officer. 15. 9. 2000 The District Education Officer contacted the Government Solicitor and Addl. Government Pleader. Mr. H. C. Patel instructed the District Education Officer to supply the English translation of all the Government Resolutions and relevant literature. 18. 10. 2000 The District Education Officer got the material translated into English and submitted the same. In the meantime on 10. 10. 2000 the work of the Government Solicitor was transferred to the office of the Government Pleader and, therefore, it become necessary to procure the original papers from Mr. H. C. Patel in order to supply the same to the office of the Government Pleader. 6. 11. 2000 The District Education Officer, Junagadh submitted the relevant papers to the office of the Government Pleader and the other necessary papers were supplied by the Commissionerate of Schools. 13. 11. 2000 Letters Patent Appeal was drafted. 23. 11. 2000 The Letters Patent Appeal was filed. ( 5 ) IN response to the rule of the Civil Application seeking condonation of delay, a further affidavit dated 20. 1. 2001 by one Shri K. A. Pota, Senior Superintendent was filed. This affidavit dated 20. 1. 2001 was replied by the petitioner through affidavit in reply dated 7. 3. 2001. The Joint Director of Education filed a further affidavit in rejoinder dated 20. 6. 2001 under the signatures of one Shri S. B. Dhobi. Thereafter, an affidavit in sur rejoinder dated 20. 7. 2001 was filed by the original petitioner, namely, Shri V. N. Joshi. ( 6 ) THIS Civil Application seeking condonation of delay of 235 days has been seriously contested. Learned AGP also addressed us on the merits of the case and submitted that whereas the applicant has a good case on merit, it may also be considered a ground for condonation of delay. We have also heard learned AGP with regard to the merits of the case. ( 7 ) HAVING heard learned counsel for the applicants, as stated above, having heard learned counsel for the respondent and having gone through the main Civil Application No. 12044/2000, affidavit in reply dated 8. 1. 2001 filed by the original petitioner alongwith certain documents, affidavit dated 20. 1. 2001 filed by Shri K. A. Pota, Senior Superintendent, affidavit in reply dated 7. 3. 1. 2001 filed by the original petitioner alongwith certain documents, affidavit dated 20. 1. 2001 filed by Shri K. A. Pota, Senior Superintendent, affidavit in reply dated 7. 3. 2001 filed by the petitioner, affidavit in rejoinder dated 20. 6. 2001 filed by one Shri S. B. Dhobi, Joint Director of Education and the affidavit in sur rejoinder dated 20. 7. 2001, we find that the case of the applicants put at its best in the facts of the present case is to give out the movement of the file from one office to another office and from one table to another table and the use of the days, as has been given hereinabove, does not seek to explain the delay. Giving out dates with regard to the movement of the file does not explain the delay and the period, which has been consumed between different dates. The certified copy of the judgment had been admittedly received on 2. 5. 2000. Even if we ignore the fact that the certified copy as supplied by the original petitioner had been received by the District Education Officer on 15. 4. 2000, 7 days were taken by the office of the AGP to give opinion i. e. 2. 5. 2000 to 9. 5. 2000. Thereafter, the District Education Officer has taken 14 days to prepare the proposal for preferring the Letters Patent Appeal from the date it was received by the Director of Higher Education on 29. 5. 2000. Yet another 7 days have been taken to put up the note on the file and 5 more days were taken in forwarding the proposal to the Education Department. Although it was received by the Education Department on 14. 6. 2000, the noting was submitted by Assistant Section Officer after 21 days and it was received by the Legal Department 4 days later. The matter then remained pending till 18. 7. 2000 for non availability of the concerned Deputy Secretary and it was on 19. 7. 2000 that the instructions were sent to the Solicitor for filing the Appeal. The time of nearly 8 days has been then consumed in making submission to the Section Officer by the Assistant Section Officer and in the typing section the matter has remained pending for a period of exactly one month. 7. 2000 that the instructions were sent to the Solicitor for filing the Appeal. The time of nearly 8 days has been then consumed in making submission to the Section Officer by the Assistant Section Officer and in the typing section the matter has remained pending for a period of exactly one month. After a period of 14 days, the letter was received by the District Education Officer and, thereafter, he contacted the office of the Government Solicitor and Additional Government Pleader after 4 days on 15. 9. 2000. Now the Additional Government Pleader asks the District Education Officer for English translation of the Government Resolutions and relevant literature on 15. 9. 2000 and, thereafter, he took a period of more than one month for submitting the translation in English. In the meantime the work of the Government Solicitor was transferred to the office of the Government Pleader and, therefore, time was consumed to procure the original papers from the Solicitor so as to make the same available to the office of the Government Pleader. Then it is stated that Diwali vacation commenced and it is on 6. 11. 2000 that the District Education Officer submitted the papers to the office of the Government Pleader. Yet the drafting of the Letters Patent Appeal has taken the period of 17 days i. e. from 6. 11. 2000 to 23. 11. 2000. In view of the aforesaid facts it is very clear that there is no reasonable and plausible explanation for the long and inordinate delay of 235 days in filing this Letters Patent Appeal. The delay remains unexplained. We are fully convinced in the facts of this case that it cannot be said that the applicants were prevented by any reasonable and sufficient cause from filing the Appeal within the period of limitation. This cannot be said to be a case of mere procedural delay,but it is a case in which the question of filing the Letters Patent Appeal has not been taken seriously and at different stages, much more time has been consumed than it was necessary and such time goes beyond all reasonable and settled norms. The casual and cursory approach with which the question of filing the Letters Patent Appeal was attended to is simply to be deplored. The casual and cursory approach with which the question of filing the Letters Patent Appeal was attended to is simply to be deplored. Besides this, we have not been able to persuade ourselves to condone the delay even on the basis of the submissions, which have been made by the learned AGP with regard to the merits of the case. Even if we approach the matter of condonation of delay very liberally and even after keeping in view the grounds of the administrative and procedural delay and the concession to be given on that ground, we do not find that this is a case in which the delay deserves to be condoned. The inaction and negligence in filing the time barred Appeal, without the Application for condonation of delay and after filing the time barred Appeal to wait for the Registry to raise objection on limitation and, thereafter, file the application for condonation of delay subsequently is certainly contrary to the requirements of law. The Appeal is invariably required to be accompanied by an Application seeking condonation of delay and in this case, no reasonable explanation, whatsoever, has also been given for not filing the Application for condonation of delay alongwith with Appeal and for filing it later on. ( 8 ) AFTER considering all the grounds, as above, we have no hesitation in holding that it is not at all a case in which it can be said that the applicants were prevented by any reasonable and sufficient cause. We do not expect that the delay of each and every day may be explained, but here is a case of delay of weeks and months without explanation or any ground, which can be said to be germane to make out a case for condonation of delay. Therefore, we find that this Application is devoid of any merit so as to condone the delay. This Civil Application No. 12044/2000 for condonation of delay is accordingly rejected. Rule is hereby discharged. ( 9 ) CONSEQUENTLY, the time barred Appeal cannot be entertained and the same stands dismissed as such. ( 10 ) SINCE the Application for condonation of delay has been rejected and the main Appeal has not been entertained on the ground of limitation, the Civil Application No. 12045/2000, which has been moved for stay, does not survive. The same also stands rejected. .