JUDGMENT : N.V. Anjaria, J. The applicants are the State Government and its authorities who have filed the present Civil Application seeking condonation of delay in preferring the Second Appeal. The delay is of 202 days. 2. It is the case of the applicants in the Civil Application as well as in the supportive affidavit filed subsequently for explaining the delay, that after the judgment sought to be challenged was delivered by the District Court on 14th October, 2011, the Director of Education asked for opinion by forwarding the proposal on 09th March, 2012. It was stated that thereafter, on 16th March, 2012, the Deputy Section Officer forwarded the file to the Section Officer, which then sent for signature of the Under Secretary. The papers thereafter came to be transmitted to the Joint Secretary and on 21st March, 2012, they were forwarded to the Principal Secretary, who in turn forwarded to Deputy Secretary (Legal). Thereafter, on 13th April, 2012, the Legal Department accorded sanction to prefer Appeal. On 18th April, 2012, the office of the Government Pleader in the High Court was instructed to file the Appeal. 3. It was further stated by the applicants that when the papers reached the office of the Government Pleader, it became known that they were without certified copy of the judgment to be challenged. A telegram was then sent on 19th April, 2012, to the Department concerned for sending the certified copy. The certified copy was thereafter applied on 21st April, 2012. The same was received by the office of the Government Pleader at High Court on 10th May, 2012. The Second Appeal and Civil Application for condonation of delay were filed on 31.07.2012. 4. Learned Assistant Government Pleader Ms. Jyoti Bhatt submitted that it was on account of administrative procedure required to be undergone, that the time was consumed and the delay took place. She submitted that the same was not intentional. She relied on the decisions in Municipal Corporation of Ahmedabad through the Municipal Commissioner v. Voltas Limited and etc. [ 1995 (1) GLH 549 ], Improvement Trust, Ludhiana v. Ujagar Singh and Others[ (2010) 6 SCC 786 ] and State of Karnataka v. Y. Moideen Kunhi(dead) by Lrs. and Others [ AIR 2009 SC 2577 ].
She relied on the decisions in Municipal Corporation of Ahmedabad through the Municipal Commissioner v. Voltas Limited and etc. [ 1995 (1) GLH 549 ], Improvement Trust, Ludhiana v. Ujagar Singh and Others[ (2010) 6 SCC 786 ] and State of Karnataka v. Y. Moideen Kunhi(dead) by Lrs. and Others [ AIR 2009 SC 2577 ]. On the basis of the said decisions, learned Assistant Government Pleader submitted that for the purpose of condoning delay, technical approach should be avoided and sufficient cause should be liberally construed to do substantial justice. She submitted that in the Government machinery, passage of time was inherent before final decision to prefer the appeal is taken. 4.1. On the other hand, learned advocate for the respondent Mr. M.B. Gandhi opposed the prayer for condonation of delay inter alia by relying upon the contentions raised in the affidavit-in-reply dated 13th September, 2012, filed by the respondent. It was submitted that the judgment and order impugned in the Appeal was dated 14th October, 2011 and the certified copy of the judgment was applied on 21st April, 2012. He submitted that on that ground alone, delay was not required to be condoned. It was contended that the time gap between the date of decision to file the Second Appeal till the actual filing of the Second Appeal on 31st July, 2012 was not only of more than three months but was unexplained as well. It was submitted that this court, in the facts and circumstances, may not exercise the discretion to condone the delay. 4.2. In the said affidavit, it was additionally stated that respondent had filed Special Civil Application No. 384 of 1994 in connection with the subject matter praying for entitlements for his rendering services as a Reader in the College and also for pension for the entire period till reaching the age of 60 years. In the said petition, rejoinder was filed by the respondent on 11th December, 2011, and with that rejoinder, impugned judgment dated 14th October, 2011 was annexed. Learned advocate for the respondent, by referring to the said facts submitted that the applicants were parties in the said writ petition and thus were aware about the judgment dated 14th October, 2011.
In the said petition, rejoinder was filed by the respondent on 11th December, 2011, and with that rejoinder, impugned judgment dated 14th October, 2011 was annexed. Learned advocate for the respondent, by referring to the said facts submitted that the applicants were parties in the said writ petition and thus were aware about the judgment dated 14th October, 2011. Learned advocate further orally submitted that there were similar suit by another person one Achut Puskardas Mehta, but in that case, the department did not file the appeal, though both were similarly situated. 4.3. Learned advocate for the respondent relied on decision of this Court in State of Gujarat v. Dinesh Keshavlal Meheta [ 2007 (2) GLH 615 ] and highlighted that in that case delay of 115 days was also not condoned. Learned advocate thereby emphasised that it is not the length of the delay, but sufficiency of cause, which matters. He further relied on decision of the Apex Court in Office of the Chief Post Master General and others v. Living Media India Limit [ AIR 2012 SC 1506 ] and submitted with reference to the facts of this case that ground of administrative delay was only an excuse. 5. In Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai [ (2012) 5 SCC 157 ], for one more time as in umpteen number of judgments, the Apex Court took a look at the phrase "sufficient cause" occurring in Section 5 of the Limitation Act, 1908, observing as under: "What colour the expression "sufficient cause" would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his case, then it would be a legitimate exercise of discretion not to condone the delay." 5.1. It was observed that though liberal and justice oriented approach is to be adopted, it is also to be kept in mind that successful litigant has acquired rights on the basis of the judgment under challenge and has spent time pursuing the litigation.
It was observed that though liberal and justice oriented approach is to be adopted, it is also to be kept in mind that successful litigant has acquired rights on the basis of the judgment under challenge and has spent time pursuing the litigation. The Supreme Court held that High Court was not justified in condoning the delay. It was observed that though State instrumentality takes more time in decision making compared to others, that does not mean that despite negligent and lethargic attitude of its officers, delay should be condoned. 5.2. In Commissioner of Wealth Tax, Bombay v. Amateur Riders Club, Bombay [(1994) (supp.) 2 SCC 603], the Supreme Court refused to condone the delay of 264 days in filing SLP, wherein the ground urged was the time taken in movement of documents between the office concerned and the counsel. The Court held that the explanation furnished was not a judicially acceptable ground for condonation of delay, and stated further that there is a point beyond which even a court cannot help the litigant even if the litigant is Government which is itself under the shackles of bureaucratic indifference. 5.3. Again in Office of the Chief Post Master General(supra), the Supreme Court refused to accept the explanation for delay on the ground of impersonal machinery and inherent bureaucratic methodology. It stated that in view of the modern technology is being used and available, Department cannot take advantage of such ready-made explanations. The Apex Court warned in the following words; "In our view, it is the right time to inform all the Government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide efforts, there is no need to accept usual explanation that the file was dept pending for several months/years due to considerable degree of procedural red tape in the process. The Government departments are under special obligation to ensure that they perform their duties with diligence and commitment." 6. Turning to the explanation offered in the present case, in light of the above parameters set by the Apex Court, it was conspicuously noticed that judgment sought to be challenged was delivered on 14th October, 2011, however the certified copy was applied after moire than six months. In other words, even the certified copy was not applied within the period of limitation.
In other words, even the certified copy was not applied within the period of limitation. The limitation had already expired when the Departmental realised that certified copy was not available and the same was required to be obtained. When the telegram was sent by officer concerned for applying certified copy, the papers had reached Government Pleader's office for drafting and actual filing. The officers of the Department cannot disclaim the knowledge of proceedings, requirements and in particular the period of limitation within which, the appeal could be required to be preferred. 6.1. In Office of the Chief Post Master General(supra), it was appropriately observed by the Apex Court that the persons concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter before the higher court. In that case the certified copy of the High Court's judgment was applied for only after four months by the Postal Department, who had preferred SLP before the Supreme Court. 6.2. It may be true that in a given or special case, late applying of certified copy may have good reason to be condoned. But, ordinarily and in all normal cases, the act of applying certified copy immediately or at least within the period of limitation after deliverance of the judgment proposed to be challenged, is an important measure of litigant's vigilance. It is also a reflection of intention to carry the case in appeal and agitate for his rights. This much amount of vigilance is expected, whether it is a private individual or a Government department. Therefore, without making a rule of thumb, it can be safely stated that when the certified copy is not applied within the period of limitation, it suggests apathy and negligence on part of the litigant. In the present case, there is no explanation for time gap between 14th October, 2011 and 21st April, 2012. Given this conduct of not applying the certified copy till the papers reached the office of the Government Pleader at High Court, the explanation about time taken in exhausting different decisional stages turned out to be the lame excuse, judicially not acceptable.
Given this conduct of not applying the certified copy till the papers reached the office of the Government Pleader at High Court, the explanation about time taken in exhausting different decisional stages turned out to be the lame excuse, judicially not acceptable. Mere movement of files from one table to another and the stock ground of administrative procedure cannot furnish a good cause and a sufficient cause in all cases, unless the time consumed in the decision making process is shown to be bona fide. 6.3. Indolence on part of the applicants in the matter of preferring Appeal is further reinforced in view of uncontroverted fact that in the aforementioned writ petition filed by the respondent herein, certified copy of the judgment of the District Court sought to be impugned in the Second Appeal was placed on record of that petition as back as in December, 2011. The applicants herein who were respondents in the writ petition, were thus posted with knowledge. They were aware, yet they did not act in the matter. It was only after eight months that in July, 2012, Appeal and delay condonation Application was filed. The unexplained yawning gap between the date of judgment and applying of certified copy and the aforesaid aspect, is indicative of gross apathy and indolence on part of the applicants and its officers. 7. In the above view, no satisfactory explanation has been coming forth for the delay of 202 days. The sufficient cause is not made out. The Application is liable to be dismissed. Accordingly the same is dismissed. Rule is discharged. Appeal dismissed.