Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 122 (GAU)

State of Assam v. Bibekananda Talukdar

2017-01-27

AJIT SINGH, SUMAN SHYAM

body2017
JUDGMENT : Ajit Singh, J. Heard on admission. This is an application for condonation of delay of 412 days in filing writ appeal against the order dated 25.8.2016 passed by the learned Single Judge of this High Court whereby he has allowed non-applicant’s WP(C) No.758/2014. 2. By order under challenge, the applicant has been directed to up-grade the post held by non-applicant to the post of Senior Hindi Teacher of Adarsha Vidyapith High School, Barpeta and pay him graduate scale of pay associated with the post of Senior Hindi Teacher. The learned Single Judge has also directed the applicant to comply with the order within a period of three months from the date of its receipt. The order was admittedly passed in the presence of applicant’s counsel. 3. As there is delay of 412 days in filing the appeal against the order of learned Single Judge, we shall examine whether there is “sufficient cause” for condonation of such a huge delay. 4. The application for condonation of delay is filed by the applicant along with an affidavit of Sri Ramesh Chand Jain, Secretary, Government of Assam, Education (Secondary) Education, Assam. The relevant paragraph 2 of the application reads as under:- “2. That the applicant states that after passing of the said judgment on 25.08.2015, the applicant requested the Standing Counsel of the Department to prefer an appeal or review against the judgment and order dated 25.08.2015 but the earlier set of Standing Counsel appeared in the said case have changed and new set of Standing Counsel replaced the earlier one. In the process, the applicant did not get any information about the steps taken to challenge said judgment on 25.08.2015 from the earlier set of standing counsel. Accordingly the applicant communicated to the new set of Standing Counsel vide letter dated 26.08.2016 and again requested to prefer an appeal against the aforesaid judgment and order dated 25.08.2015. The counsel for the department after received of the letter dated 26.08.2016 immediately applied for certified copy of the judgment and order and the copy of the writ petition along with the annexure from the disposal section of the Hon’ble High Court. The counsel for the applicant got the certified copy of the order on 03.10.2016. The applicant further begs to state that there after all the relevant papers were forwarded to the Standing Counsel, Education Department (Secondary) for preferring the writ appeal. The counsel for the applicant got the certified copy of the order on 03.10.2016. The applicant further begs to state that there after all the relevant papers were forwarded to the Standing Counsel, Education Department (Secondary) for preferring the writ appeal. After receipt of all necessary documents, the Standing Counsel took some time for preparing the said writ appeal. In between the Puja Vacation start from 07.10.2016 and the concerned Standing Counsel was out of Station during the Puja Vacation. After getting all the documents, the Writ Appeal has prepared and on 24.10.2016 sent the copy of the Memo of Appeal along with the condonation of delay petition for singing the affidavit. In the process, there is delay of 4129- days in preferring the writ appeal.” 5. The decision of Supreme Court in Office of Chief Post Master General v. Living Media India Ltd. AIR 2012 SC 1506 is directly on the point. In this case there was a delay of 427 days in filing the appeal before the Supreme Court against the judgment of the High Court and the certified copy of the High Court Judgment was applied after four months with no explanation why it was not applied for within a reasonable time. The Supreme Court after examining other dates mentioned in the affidavit of the person-in-charge of the case to justify the delay found that there was delay at every stage with no explanation for the cause of delay. The Supreme Court also took serious note of the casual manner in which the Government departments are functioning showing virtually no respect to the law of limitation. And, while dismissing the appeal on the ground of delay, the Supreme Court has made the following observation:- “The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government. 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 effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The Government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for Government department. The law shelters everyone under the same light and should not be swirled for the benefit of a few.” 6. In yet another decision, the Supreme Court in Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai AIR 2012 SC 1629 has held that in cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and/or its agencies/instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest. 7. It is to be noted that although order dated 25.08.2015 under challenge was passed in the presence of applicant’s counsel; the application for its certified copy was made as late as on 03.10.2016 i.e. after 1 year. This fact is evident from the certified copy of the order filed along with the application for condonation of delay. No explanation is given by the applicant why application for obtaining certified copy was not made within a reasonable time. According to the applicant request was made to the counsel to prefer an appeal against the impugned order, but since the Standing Counsel was changed and a new set of Standing Counsel was appointed no information was received regarding the steps taken for filing the appeal and therefore vide communication dated 26.8.2016 new Standing Counsel was again requested to prefer an appeal. Apparently, the applicant did not take any effective steps for almost one year to file the appeal. If the applicant did not receive any information from its previous counsel regarding the appeal within a reasonable time, he should have been vigilant and ought to have approached the counsel and made necessary query instead of waiting for one long year. Not only this, although the certified copy was received on 03.10.2016, the appeal was filed on 18.11.2016 after more than one month. Not only this, although the certified copy was received on 03.10.2016, the appeal was filed on 18.11.2016 after more than one month. Though it is stated that the delay in filing the appeal is bonafide, the fact remains that from day one the authorities concerned have not evinced diligence in pursuing the matter by taking appropriate steps. The applicant has miserably failed to give any acceptable and cogent reason to condone the delay in filing the writ appeal required to be filed in the same High Court building. 8. Having regard to the above referred decisions of the Supreme Court in Office of the Chief Post Master General (supra) and Maniben Devraj Shah (supra) in the fact situation of the present case, we find no sufficient cause to condone the delay of 329 days. 9. The application is, accordingly, dismissed. In the result, the appeal also fails and is dismissed on the same ground of delay.