Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 433 (GAU)

State of Assam v. Gita Rani Kalita

2017-04-06

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT : Ajit Singh, J. Mr. D Saikia, learned Senior Additional Advocate General, Assam assisted by Mr. N Sarma learned standing counsel. Elementary Education for the applicants. Mr. RC Saikia and Mr. P. Khataniar, learned counsel for the respondent. Heard on admission. This is an application for condonation of delay of 475 days in filing writ appeal against the order dated 6.1.2015 passed by the learned Single Judge of this High Court whereby he has allowed non-applicant's WP(C) No.2738 of 2010. 2. The case of non-applicant was that vide order dated 4.12.1999 she was appointed as Assistant Teacher in the pay scale of Rs. 3130-6600/- per month plus other allowances as admissible which was also paid to her but suddenly payment of salary to her was stopped with effect from October, 2007. The learned Single Judge after hearing the non-applicant and the applicants by a detailed order dated 6.1.2015 directed the applicants to pay the current salary of the non-applicant in the pay scale of 3130-6600 as per revised pay with other admissible allowances as well as all her salary arrears with effect from October. 2007. 3. As there is delay of 475 days in filing the writ appeal against the order of the learned Single Judge. it is to be seen whether there is "sufficient cause" for condonation of such a huge delay. I he application for condonation of delay is 11 led by the applicants along with a.i affidavit of Shri Preetom Saikia, Commissioner and Secretary to the Government of Assam. Elementary (Education) Department, Dispur. The relevant paragraphs 4 to 12 of the application read as under: "4. That pursuant to the passing of the impugned order dated 06.01.2015 the Director, Education (Elementary) Department had requested the Senior Standing Counsel to file a review petition before the Hon'ble Court for review of the order dated 06.01.2015 passed in W. P( C) No.2738 of 2010. 5 That on 24.09.2015 a decision was taken to direct the Director of Elementary Education to comply with the orders of this Hon'ble Court and submit compliance report to the Government. 5 That on 24.09.2015 a decision was taken to direct the Director of Elementary Education to comply with the orders of this Hon'ble Court and submit compliance report to the Government. The Director, Education Elementary Department vide communications dated 07.09.2015 and 07.10.2015 had informed that the opposite party had never joined in the school in the year 1999 and was transferred out of the BTAD area in the year 2000 and that the Director had pleaded for filing of a review of the order dated 06.01.2015. Thereafter, the matter was forwarded by the Joint Secretary for obtaining views of the Senior Standing Counsel on 11.01.2016. 6. That the file was endorsed to the Senior Standing Counsel on 11.01.2016, however, due to unfortunate demise in the family of the Senior Standing Counsel the matter was not attended to immediately. By a letter dated 24.02.2016, the Director had again informed the deponent that no report on the proposal for review had been received by his office and thus the matter was again taken up with the Senior Standing Counsel. 7. That the deponent begs to state that as per the report and records maintained in the department, the opposite party was appointed illegally and she never joined in the school where she claims to have been appointed and her name did not figure in the selection list. Her transfer to the general area was also illegal and having received her salary from January to July, 2006 and from June 2007 to September, 2007 she did not receive any salary either prior to the said period or after September, 2007. 8. That the facts stated in the preceding paragraph was intimated to the Senior Standing Counsel, Education (Elementary) Department, and the Senior Standing Counsel, Education (Elementary) Department after perusing the records had offered his views that the department may file a writ appeal against the said impugned order and returned the concerned file to the office of the appellants. 9. That after obtaining the views from the office of the Senior Standing Counsel the matter of filing a writ appeal against the impugned Judgment and order dated 31.03.2016 was consulted in the Education (Elementary) Department in respect of filing of a writ appeal. 9. That after obtaining the views from the office of the Senior Standing Counsel the matter of filing a writ appeal against the impugned Judgment and order dated 31.03.2016 was consulted in the Education (Elementary) Department in respect of filing of a writ appeal. Pursuant to the said discussion the applicants have decided to file the concerned writ appeal as the matters relates to payment of a large amount of money to the opposite party, which, the opposite party is not entitled to in view of the grounds taken in the connected writ appeal. 10. That thereafter, the file was handed over to the office of the Senior Standing Counsel for drafting and preparing a writ appeal against the impugned Judgment and order dated 06.01.2015. Although, immediately thereafter the connected writ appeal was drafted and forwarded to the office of the deponent for vetting, however, due to some urgent official commitments the said writ appeal could not be finalized. Therefore, the instant application has been filed before this Hon'ble Court with a prayer to kindly condone the delay of 475 days in filing the connected writ appeal by the applicants by considering the facts and circumstances that have been narrated herein above. 11. That the deponent states that this Hon'ble Court may be pleased to condone the delay of 475 days on the part of the applicants as the grounds set forth in the connected writ appeal are good grounds for filing the said writ appeal. The deponent further begs to state that this Hon'ble Court may be pleased to condone the delay of 475 days in filing the connected writ appeal by considering the fact that the learned Single Judge had directed the applicants to pay a large amount of money to the opposite party as salary, for which, the opposite party is not at all entitled to. If the impugned Judgment and order dated 06.01.2015 is not interfered with by this Hon'ble Court by condoning the delay in filing the connected writ appeal, in that case, grave and serious prejudice will be caused to the State exchequer. As such, this Hon'ble Court may be pleased to condone the delay of 475 days on the part of the appellants/applicants in filing the connected writ appeal. 12. That this application is filed bona fide and in the interest of justice." 4. As such, this Hon'ble Court may be pleased to condone the delay of 475 days on the part of the appellants/applicants in filing the connected writ appeal. 12. That this application is filed bona fide and in the interest of justice." 4. The learned Senior Additional Advocate General has relied upon three decisions if the Supreme Court - (i) State of Haryana v. Chandra Mani (1996) 3 SCC 132 (ii) State of U.P. v. Harish Chandra (1996) 9 SCC 309 and (iii) Executive Officer; inliyur Town Panchayat v. G. Arumugam (2015) 3 SCC 569 in support of his submission for condoning the delay. He has also relied upon one decision of this Court rendered in State of Manipur v. A.K. Cycle and Allied Centre. 2008 (1) GL T 953. 5. In the case of State of Haryana v. Chandra Mani (supra) the Supreme Court condoned the delay of 109 days in tiling Letters Patent appeal by observing that certain amount of latitude within reasonable time is permissible having regard to impersonal bureaucratic set-up involving red-tapism. But the Supreme Court also observed that State should constitute legal cells to examine whether cases involve legal principles for decision by court or require adjustment at governmental level and officer concerned should be made personally responsible for the delay in filing the appeal. In the case at hand, as seen above, there is an enormous delay of 475 days in filing the appeal and there is nothing on record to suggest that any legal cell has been constituted by the State of Assam to examine whether the cases involve legal principles for decision by court or require adjustment at governmental level. Also there is nothing to even suggest that officers responsible for delay in filling the appeal have been made accountable. This decision therefore does not help the applicants. 6. In State of U.P. v. Harish Chandra (supra), the Supreme Court condoned the delay of 480 days having regard to the manner in which the bureaucratic process moves. In that case, the Supreme Court also took note of the fact that even private respondents were responsible for the delay of more than 2 years for seeking relief in the High Court. 7. In that case, the Supreme Court also took note of the fact that even private respondents were responsible for the delay of more than 2 years for seeking relief in the High Court. 7. But later, the Supreme Court in Office of Chief Post Master General v. Living Media India Ltd AIR 2012 SC 1506 has held that the claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modem technologies being used and available and that the law of limitation undoubtedly binds everybody including the Government In fact, this decision of Supreme Court is directly on the point. 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 a 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 modem 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." 8. 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." 8. 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. 9. The certified copy of the impugned order dated 6.1.2015 annexed with the memo of appeal reveals that application for same was made as late as on 25.5.2016 i.e. after 1 year 4 months. No explanation is given why application for obtaining certified copy was not made within reasonable time, more particularly, when the order was passed in the presence of learned counsel for the applicants. Not only this, it is stated in the application that a decision was taken to file review against the order of learned Single Judge, but when such decision was taken is not mentioned. And it is a fact that no review petition was ever filed. On the contrary, the application also states that on 24.9.2015 a decision was taken to direct the Director of Elementary Education to comply with the order of the Court and submit compliance report to the Government, but even this was not done on some pretext or the other. Though it is stated that the delay in filing the appeal is bona fide, the fact remains that from day one the authorities concerned have not evinced diligence in pursuing the matter by taking appropriate steps. The applicants have miserably failed to give any acceptable and cogent reason to condone the delay in filing the writ appeal which is required to be tiled in the same High Court building. The applicants have miserably failed to give any acceptable and cogent reason to condone the delay in filing the writ appeal which is required to be tiled in the same High Court building. 10. In Executive Officer, Antiyur Town Panchayat v. G. Arumugam (supra), the Supreme Court has held that if there was deliberate attempt by the Government officer to defeat justice by causing delay, the Court in view of larger public interest should condone the delay how so ever huge may be the delay. There is no such allegation in the present case regarding deliberate attempt by government officials to defeat justice. On the contrary, as seen above, a decision was taken on 24.9.15 by the State Government to direct the Director of Elementary Education to comply with the order of the Court and submit compliance report but sadly it was not done. In State of Manipur v. A.K.Cycle and Allied Centre (supra), the writ appeal filed by the State Government was withdrawn by the Government Advocate without any specific instructions and therefore, in such a situation, huge delay in filing review petition was condoned. Admittedly, nothing of such thing has happened in the present case. Therefore, both these cases are also of no help to the applicants. 11. Having regard to the above referred decisions of the Supreme Court in Office of the Chief Post Master General (supra) and Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai (supra), in the fact situation of the present case, we find no sufficient cause to condone the delay of 475 days. 12. The application is, accordingly, dismissed. In the result, the appeal also fails and is dismissed on the same ground of delay.