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2017 DIGILAW 273 (JK)

State of J&K v. Nasreen Shamas

2017-06-06

M.K.HANJURA, RAMALINGAM SUDHAKAR

body2017
ORDER : HANJURA, J. 1. The State of J&K, through Commissioner Secretary to Government, Education Department, Civil Secretariat, has filed an application seeking the indulgence of this Court in condoning the delay of 211 days in filing the Appeal, inter alia, on the grounds that after the receipt of the copy of the order/judgement dated 10th March, 2016 by the Directorate of School Education, 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 Affairs, by the Commissioner Secretary to Government, Education Department, for its views and the Department of Law, Justice & Parliamentary Affairs, opined that an appeal be filed against the impugned order/judgement. 2. The applicant has proceeded to state that in this process, there was a delay of few months caused due to administrative exigencies. It has further been stated that the Department of Law, Justice & Parliamentary Affairs, accorded sanction for filing of LPA vide its letter No. LD(Lit)2016/48-Edu dated 05th October, 2016. After the receipt of the sanction from the Department of Law, Justice & Parliamentary Affairs, Mr. A.M. Mir, Dy.AG, appointed to file the LPA, swung into action and immediately called the record of the case and other documents from the Appellant, i.e. State of J&K. It has further been pleaded that the Appeal has an important bearing as far as the interests of the Appellant are concerned and in case the delay in filing of Appeal is not condoned, it will cause great prejudice to the State. 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. The application is buttressed with an affidavit. 3. The application is buttressed with an affidavit. 3. The contesting respondent – Smt. Nasreen Shamas, has resisted and controverted the application of the Appellant, chiefly on the ground that although the appellant has stated that the judgement was perused at different levels and the same was referred to the Law Department that directed the filing of appeal, yet there is nothing to state as to when the appellant was advised to file the Appeal. It has further been pleaded that the sanction for filing of Appeal was allegedly accorded on 05th October, 2016 but it is not stated as to when, after the order dated 05th October 2016, the counsel called the record and other documents. The application being cryptic and there being no ground, much less a sufficient one, for the Condonation of Delay, as such the application is liable to be dismissed. The respondent has further stated that in view of the judgement dated 02nd March, 2016, the Director, School Education, was obliged to appoint the respondent No.1 on the post of teacher within two weeks from the date the copy of order was served on him. He did not do so. He slept over the matter for a long time. The respondent No.1 was forced to file a contempt petition before the Court and the Court directed the respondent to file the Statement of Facts and Compliance Report. It is only to circumvent the order dated 07th October, 2016, passed in the Contempt petition that the appellant has filed the LPA against the judgement dated 02nd March, 2016, which, on the face of it, is not maintainable and is liable to be dismissed. In the end it has been urged that the appellant has no case on merits. The respondent No.1 has attained the age of 47 years and in case the judgement dated 02nd March, 2016 is tampered or tinkled, she will not be able to harvest the fruits of litigation. 4. Heard and considered. 5. It cannot be disputed that the Law of Limitation has to be applied with all its vigor and rigor as prescribed by the Statute. 4. Heard and considered. 5. 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 J&K 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 applicant or the appellant has to satisfy the Court that he/she has carved out a sufficient cause in seeking the indulgence of the Court for not preferring the Appeal or Application within the stipulated time. The State cannot, as a matter of rule, take umbrage under the plea that it has to be treated on a different pedestal in the matter of the extension of time for filing the Appeal/Application. No doubt, some latitude may be warranted to be given to the State promoting social justice but it cannot escape the liability of satisfying the Court that the Appeal was filed with due diligence. The Courts cannot come to the aid and rescue of the State where the application for condonation of delay does not spell out sufficient cause and the approach of the State, in making such application, is casual and cryptic. 6. In order to find out whether or not the appellant – State has been remiss and callous in seeking the condonation of delay in filing the LPA, it is reiterated here that the appellant has stated in the Application that the copy of the order/judgement was perused at various levels to satisfy itself whether the Appeal has or has not to be filed. It has also been stated that the entire record was sent to the Department of Law, Justice and Parliamentary Affairs, and the said Department accorded sanction to the filing of such Appeal. 7. Testing the application of the Applicant on the touch stone of the law, governing the subject, it will be profitable to quote paragraphs 7 & 8 of the law laid down in 2010 (4) JKJ 638 (HC), herein below, in verbatim : “7. 7. Testing the application of the Applicant on the touch stone of the law, governing the subject, it will be profitable to quote paragraphs 7 & 8 of the law laid down in 2010 (4) JKJ 638 (HC), herein below, in verbatim : “7. In the case P.K. Ramachandran v. State of Kerala, reported in AIR 1998 SC 2276 , the Apex Court, at paragraph 6 ruled as under : “Law of limitation may harshly affect a particular party but it has to be applied with all its rigor when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs.” 8. In another case, the Hon’ble Supreme Court, while deliberating upon the question of condonation of an inordinate delay of 264 days on an application preferred by the Government, has observed as under : “2. This special leave petition filed on November 16, 1993 is delayed by 264 days. For quite some time in the past this Court has been making observations as to the grave prejudice caused to public interest by appeals brought on behalf of the Government being lost on the point of limitation. Such observations have been made for over a few years in the past. But there seems to be no conspicuous improvement as is apparent in the present petition which is filed in November 1993. The explanation for the delay, had better bet set out in petitioner’s own words: …………………………………… …………………………………… 3. This explanation is incapable of furnishing a judicially acceptable ground for condonation of delay. After the earlier observations of this Court made in several cases in the past, we hoped that the matters might improve. There seems to be no visible support of this optimism. There is a point beyond which even the courts cannot help a litigant even if the litigant is Government which is itself under the shackles of bureaucratic indifference. Having regard to the law of limitation which binds everybody, we cannot find any way of granting relief. There seems to be no visible support of this optimism. There is a point beyond which even the courts cannot help a litigant even if the litigant is Government which is itself under the shackles of bureaucratic indifference. Having regard to the law of limitation which binds everybody, we cannot find any way of granting relief. It is true that Government should not be treated as any other private litigant, as indeed, in the case of the former the decisions to present and prosecute appeals are not individual but are institutional decisions necessarily bogged down by the proverbial red-tape. But there are limits to this also. Even with all this latitude, the explanation offered for the delay in this case merely serves to aggravate the attitude of indifference of the Revenue in protecting its common Interests. The affidavit is again one of the stereotyped affidavits making it susceptible to the criticism that the Revenue does not seem to attach any importance to the need for promptitude even where it affects its own interest.” 8. Applying the ratio of the law laid down above to the instant case, there has been a reckless delay of 211 days in filing the LPA 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 bona fides on the part of the State but in the instant case the appellant took his own time to formulate an opinion that the Appeal has to be filed. It has nowhere been stated that he was, at all, prevented earlier to take such a decision. It has also not been stated anywhere in the application as to when and where the order/judgement dated 10th March, 2016 of this Court was perused and how much time was taken by the Department of Law to accord sanction for filing the Appeal. It was incumbent for the applicant to do so to bring home the argument that the State did not adopt dilatory tactics and that every action taken had the semblance of fairness attached to it. The law laid down in AIR 2011 SC 1237 enunciates this principle and it lays down as follows : “……..3. It was incumbent for the applicant to do so to bring home the argument that the State did not adopt dilatory tactics and that every action taken had the semblance of fairness attached to it. The law laid down in AIR 2011 SC 1237 enunciates this principle and it lays down as follows : “……..3. This appeal emanates from the judgement of the Division Bench of the Gauhati High Court (High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh) in Misc. Case No. 1569 of 2007 in W.A. No. 72020 of 2006. The appeal filed by the Union of India was dismissed by the High Court because of inordinate delay of 239 days. The Division Bench of the High Court, while dismissing the appeal, has observed as under : “We have gone through the contents of the petition. The delay occurred because of the respondents took their own sweet time to reach the conclusion whether the judgement should be appealed or not. It is not that they were prevented by any reason which is beyond their control to take such a decision in time. Even otherwise, on merits of the case also it does not appear to have any tenable ground of appeal. In the circumstances, we do not see any merits in this petition.” 4. We have also gone through the condonation of delay application which was filed in the High Court. In our considered view, the High Court was fully justified in dismissing the appeal on the ground of delay because no sufficient cause was shown for condoning the delay. ……………….. 6. The Union of India ought to have been careful particularly in filing this Civil Appeal because the Division Bench, by the impugned order, has dismissed the appeal before it on the ground of delay. It is a matter of deep anguish and distress that majority of the matters filed by the Union of India are hopelessly barred by limitation and no satisfactory explanations exist for condoning inordinate delay in filing those cases.” 9. Resort can also be had to an elaborate and a lucid judgement of Hon’ble the Supreme Court, reported in (2013) 12 SCC 649 , the relevant excerpts of which are as under : “………..21.2. Resort can also be had to an elaborate and a lucid judgement of Hon’ble the Supreme Court, reported in (2013) 12 SCC 649 , the relevant excerpts of which are as under : “………..21.2. (ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. 21.9. (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. 21.10. (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. ……………… 21.12. (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. 21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 22.1 (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. ……………….. 31. 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.” 10. Risking repetition, what is stated here is that the State has been negligent in prosecuting its 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 to cap it all, recourse has been had to the leisure and pleasure in moving the application. 11. 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 to cap it all, recourse has been had to the leisure and pleasure in moving the application. 11. Viewed in the context of what has been said and done above, we are of the considered opinion that the State has failed to explain the delay of 211 days in filing the Appeal. Consequently, the application for Condonation of Delay, in filing the Appeal, is rejected and the Letters Patent Appeal (LPA) shall stand dismissed as barred by time.