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2018 DIGILAW 197 (GUJ)

COMMISSIONER OF SCHOOLS v. JAYPRAKASH RAMESHCHANDRA THAKER

2018-01-22

BIREN VAISHNAV, M.R.SHAH

body2018
JUDGMENT : M.R. SHAH, J. 1. Present application under Section 5 of the Limitation Act has been preferred by the applicants herein – original respondents requesting to condone the huge delay of 600 days in preferring the Letters Patent Appeal against the impugned judgment and order passed by the learned Single Judge in Special Civil Application No.5267/2015. 2. There is a huge delay of 600 days in preferring the Letters Patent Appeal. Considering the averments made in the application, as such, we were not satisfied and we were of the opinion that the huge delay of 600 days has not been sufficiently and properly explained, and therefore, at the request of Shri Dhawan Jayswal, learned Assistant Government Pleader, the matter was adjourned to today so as to enable the applicants to file additional affidavit further explaining the delay. However, even considering the additional affidavit dated 22/01/2018, affirmed by the Principal Secretary, Education Department, Gandhinagar, we are of the opinion that as such there is a gross delay and /or negligence on the part of the concerned Department of the office of the Commissioner of School. From the averments made in the additional affidavit, it appears that after the impugned judgment and order was passed by the learned Single Judge dated 25/02/2016, concerned District Education Officer, Bharuch addressed various communications to the Director of School between 28/04/2016 to 03/02/2017. However, despite the aforesaid communications and the request made by the District Education Officer, Bharuch to grant permission to prefer Appeal, no decision at all was taken. It appears that thereafter as the impugned judgment and order passed by the learned Single Judge was not complied with, original petitioner preferred Miscellaneous Civil Application No.354/2017 to initiate appropriate proceedings against the concerned original respondents under the provisions of the Contempt of Courts Act for non-compliance of the judgment and order passed by the learned Single Jude passed on February, 2016. Even vide communication dated 18/02/2017, the then Deputy Director of Education, Gandhinagar communicated to the Secretary, Education Department to obtain appropriate order from the State Government to avoid any further action under the Contempt of Courts Act. Despite the above, no steps were taken to prefer the Appeal and the Appeal came to be filed on 22/11/2017 and that too after the contempt proceedings were initiated. Despite the above, no steps were taken to prefer the Appeal and the Appeal came to be filed on 22/11/2017 and that too after the contempt proceedings were initiated. At this stage, it is required to be noted that in the contempt proceedings even the State appeared. From the additional affidavit tendered today, delay between 25/02/2016 till 18/02/2017 has not been explained at all. In paragraph 5, it is stated that the Under Secretary, Education Department has written D.O. Letter dated 01/04/2017 to the Director of School and informed that necessary action will be required to be taken against the concerned erring and responsible Officer. Nothing is on record to show that any further steps have been taken. Be that as it may. The fact remains that no Appeal was preferred till November, 2017. The case demonstrates gross negligence on the part of the concerned Department. Under the circumstances, considering the decision of the Hon’ble Supreme Court in the case of Post Master General and Others Vs. Living Media India Limited and Another reported in (2012) 3 SCC 563 as well as the decision of the Hon’ble Supreme Court in the case of State of Uttar Pradesh Through Executive Engineer and Another Vs. Amar Nath Yadav reported in (2014) 2 SCC 422 and more particularly, when the huge delay of 600 days has not been sufficiently and properly explained and as observed hereinabove, there is a gross negligence on the part of the State in not preferring the Appeal within the period of limitation despite having drawn the attention by the concerned District Education Officer, Bharuch as far as back in the month of April, 2016, we are of the opinion that the present application for condonation of huge delay of 600 days deserves to be dismissed. Under the circumstances and for the reasons stated hereinabove, present application stand dismissed. The prayer requesting to condone the huge delay of 600 days is hereby rejected. In view of dismissal of Civil Application for condonation of delay, Letters Patent Appeal (Stamp) No.2568/2017 and Civil Application (Stamp) No.16006/2017 stand dismissed.