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2019 DIGILAW 379 (UTT)

State of Uttarakhand v. Manoj Bisht

2019-06-20

ALOK KUMAR VERMA, RAMESH RANGANATHAN

body2019
JUDGMENT : ALOK KUMAR VERMA, J. 1. This is an application for condonation of delay and extension of time in filing of the instant Special Appeal, filed on 12.02.2019 under Rule 5 of Chapter VIII of Allahabad High Court Rules, 1952, against the Judgment and Order dated 29.08.2018, passed in Writ Petition (S/S) No. 1094 of 2013, Manoj Bisht and others Vs. State of Uttarakhand and others, which is barred by limitation of 134 days. 2. We have heard the learned counsel for the State and learned counsel for the respondents. 3. Learned counsel for the applicants/appellants (respondents in writ petition) submitted that the copy of Judgment and Order under Appeal dated 29.08.2018 was received at the Headquarter on 06.09.2018, through letter dated 04.09.2018 of the Joint Commissioner (Administration), State Tax, Rudrapur Region. The said Headquarter vide letter dated 13.09.2018 apprised regarding the same to the Government and thereby sought necessary directions in regard to the matter. The Deputy Commissioner, State Tax, Nainital vide letter dated 13.09.2018 provided the photocopy of the order dated 29.08.2018 to the Headquarter of the department, which was duly received at the Headquarter on 18.09.2018. When no directions were received from the State Government, the Headquarter of the State Tax Department again sent a reminder letter dated 25.09.2018 seeking directions from the Government. Vide letter dated 01.10.2018, the Headquarter of the State Tax Department sent the certified copy of the order dated 29.08.2018 to the Government and thereby sought necessary directions in regard to the matter. When no reply was given by the Government, the State Tax, Headquarter again wrote letters dated 10.10.2018 and 25.10.2018 seeking necessary guidelines. In furtherance of the aforesaid letters the Government vide letters dated 25.10.2018 and 02.11.2018 sought detailed report of the matter and thereby directed the Headquarter to send any officer, having knowledge of the matter. In furtherance of the letter of the Government, the Headquarter vide letter dated 09.11.2018, directed Mr. S.S. Tiruwa, Deputy Commissioner, State Tax Department to present before the Government along with complete records. Mr. S.S. Tiruwa, Deputy Commissioner, placed the record before the Government, who in turn forwarded the matter to the Law Department of the State Government. In furtherance of the letter of the Government, the Headquarter vide letter dated 09.11.2018, directed Mr. S.S. Tiruwa, Deputy Commissioner, State Tax Department to present before the Government along with complete records. Mr. S.S. Tiruwa, Deputy Commissioner, placed the record before the Government, who in turn forwarded the matter to the Law Department of the State Government. After presentation of the matter before the Law Department i.e. 09.11.2018, matter was referred for the perusal of records of Tax Department and for that purpose, thereafter matter was referred to Personnel Department on 03.12.2018 after due consideration, thereafter as soon as file came back from the Personnel Department, same was referred to Administrative Department on 18.12.2018 and thereafter file was again forwarded to the Law Department on 21.12.2018 and Law Department returned the file by granting the approval to prefer Special Appeal. The file was remitted back to the Tax Department on 08.01.2019. Thereafter Tax Department prepared the narrative after perusal of entire concerned record of the matter, thereafter without any loss of time concerned officer visited the office of District Government Counsel (Civil) Dehradun and after consultation with D.G.C. Narratives were approved by the D.G.C. on 22.01.2019. Thereafter, without any loss of time officer concerned reached to Nainital and submitted all relevant records before the office of the Chief Standing Counsel on 23.01.2019 and thereafter appeal is filed immediately without any further delay. 4. Per Contra, the learned counsel for the respondents submitted that respondents came to know on perusal of documents based on the information received under Right to Information Act, 2005 that initially the State Government wanted to assail the Judgment and Order dated 29.08.2018 by which certain provisions of Uttarakhand Surplus Employees Absorption Rules, 2011 where stuck down and a mandamus was issued to consider the case of the petitioners for absorption in the Commercial Tax Department w.e.f. 13.12.2001. The Additional Commissioner (Aministration) Mr. Mohammad Nazir, appellant No.7, who filed affidavit in support of delay condonation application along with Special Appeal, appears to have deliberately concealed the facts about proceedings of Personnel Department of the Government of Uttarakhand dated 22.10.2018, by which legal opinion was given by the Law Department to the effect that the judgment passed under appeal was legally correct. Mohammad Nazir, appellant No.7, who filed affidavit in support of delay condonation application along with Special Appeal, appears to have deliberately concealed the facts about proceedings of Personnel Department of the Government of Uttarakhand dated 22.10.2018, by which legal opinion was given by the Law Department to the effect that the judgment passed under appeal was legally correct. In view of the legal opinion of the Law Department, there may be no occasion for the State Government again sought the legal opinion of the Law Department and preferred Special Appeal. On 02.01.2019, the Contempt Court issued a notice to the Commissioner, State Tax, Uttarakhand, Dehradun in a Civil Contempt Case and only thereafter Special Appeal was managed to be filed in February, 2009. It is further submitted that no useful purpose would be served by condoning delay in the present Special Appeal in as much the present Special Appeal has become infructuous since judgment and order passed in the writ petition has been complied with and even order of consequential benefits has been issued on 28.02.2019. However, only a part of consequential benefit is left to be complied. The applicants have not explained the delay of two months and on this ground alone, delay in preferring the Special Appeal cannot be condoned. 5. Before we deal with the contentions, brief reference to the factual background is necessary, which is as follows :- The respondents-writ petitioners filed Writ Petition (S/S) No. 1094 of 2013 seeking a writ in the nature of Certiorari for quashing of Rule 5(4), 5(6) and 5(7) of Uttarakhand Surplus Employees Absorption Rules, 2011 and the order dated 12.04.2012: writ in the nature of Mandamus commanding respondents to consider the case of the petitioners for absorption in the Commercial Tax Department from 13.12.2001. The case of respondents-writ petitioners are that they were appointed under Dying-in-Harness Rules in the Department of Agriculture, Industry and Handicraft, Public Work (PWD) in the erstwhile State of U.P. on the post of Junior Assistant on the substantive basis and rendered their services from the inception to the satisfaction of the department concerned. In pursuance of the Government Order dated 02.05.2000 of the erstwhile State of U.P. the petitioners were declared as surplus in their respective departments and were attached to their respective District Magistrate till they have to be finally adjusted in any department. In pursuance of the Government Order dated 02.05.2000 of the erstwhile State of U.P. the petitioners were declared as surplus in their respective departments and were attached to their respective District Magistrate till they have to be finally adjusted in any department. In the year 2001 as many as 11 check posts of Commercial Tax Department were established by the State of Uttarakhand and the decision was taken that the surplus employees of other departments should be attached to the said check posts. The Commercial Tax Department vide its letter dated 03.01.2008 categorically recommended the absorption of petitioners in Commercial Tax Department from their date of attachment/joining in the department. The State Government under proviso to Article 309 of the Constitution of India framed the Absorption of Surplus Employees Rules, 2011. The Rule 5(4) provides that a person who is absorbed in the department would be treated to be an employee of the said department from the date of absorption and his seniority, promotion and other service benefits would be granted to him from the date of absorption. Rule 5(6) further provides that from the date of absorption a person would be placed under probation and after the completion of the said period the said employee would be confirmed. The office of Commercial Tax in absorbing the petitioners placed under probation of two years from the date of absorption treating the petitioners as new entrant in the service from the date of absorption which is manifestly arbitrary. 6. The Writ Petition was decided on 29.08.2018. It is held by the Judgment and Order under appeal that petitioners were required to be treated as substantially appointed in the Commercial Tax Department from their initial date of appointment and not from 12.04.2012, as fresh entrants. The writ petition was allowed and Rules 5(4), 5(6) and 5(7) of the Uttarakhand Surplus Employees Absorption Rules, 2011 were struck down and mandamus was issued to the respondents of the Writ Petition to consider the case of the petitioners for absorption in the Commercial Tax Department w.e.f. 13.12.2001, with all consequential benefits by applying the principle of severability. 7. The case of the applicants/respondents are that the writ petitioners are seeking their absorption in Commercial Tax Department from 13.12.2001, which cannot be done, as the petitioners were attached/adjusted in the Commercial Tax Department as per the letter dated 19.10.2001 which provides otherwise. 7. The case of the applicants/respondents are that the writ petitioners are seeking their absorption in Commercial Tax Department from 13.12.2001, which cannot be done, as the petitioners were attached/adjusted in the Commercial Tax Department as per the letter dated 19.10.2001 which provides otherwise. The Government letter dated 19.10.2001 specifically states that for conducting the work of the department, the surplus employees and the other departments are being attached/adjusted in the department and such type of employees would not be absorbed in the department. The Government promulgated the Uttarakhand Government Surplus Employees Absorption Rules, 2011 vide notification dated 22.12.2011 and according to the Rules 5(4), 5(6) and 5(7) the employee, who is being absorbed under the Rules would deemed to be absorbed from the date of order and not from any prior date. The petitioners were attached in the State Tax Department in the month of December, 2001, therefore, they cannot be absorbed in the department from 2001, as in the year 2001 they were simply attached in the department. 8. Section 5 of the Limitation Act, 1963 extends prescribed period of limitation in filing an application or an appeal except under the provisions of Order 21 of Civil Procedure Code, 1908 and gives power to the Court to admit the appeal or application after prescribed period. The contention of the learned counsel for the respondents is that initially Law Department of the State Government gave a positive and clear legal opinion that the judgment passed in the writ petition is legally correct and it would be appropriate for the concerned department to act in accordance with the judgment passed in the writ petition. The learned counsel for the respondents further submitted that the Judgment and Order dated 29.08.2018 has been complied with and only a part of consequential benefit is left to be complied. The learned counsel for the State has submitted that the judgment and order under appeal has been complied with subject to the decision which will be passed in the Special Appeal. 9. In the matter of the condonation of delay and extension of time in filing of the Special Appeal, the only condition is to be seen that whether the applicants had sufficient cause for not preferring the appeal within prescribed period. 9. In the matter of the condonation of delay and extension of time in filing of the Special Appeal, the only condition is to be seen that whether the applicants had sufficient cause for not preferring the appeal within prescribed period. Section 5 of the Limitation Act, 1963 confers on the court a discretion which is to be exercised by it in the way in which the judicial power and discretion ought to be exercised upon principles. It is well settled that "sufficient cause" has to be construed liberally so as to advance the cause of justice and not the cause of technicalities unless the applicants are guilty of gross negligence or inaction in prosecuting the matter. The true guide is whether the applicants have acted with due diligence. 10. What constitute "sufficient cause" cannot be laid down by hard and fast rules. In Shakuntala Devi Jain Vs. Kuntal Kumari, 1969 (1) SCR 1006 , the Hon'ble Apex Court has held that unless want of bonafides of inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned. In New India Insurance Com. Ltd. Vs. Shanti Misra, Adult, AIR 1976 page 237, the Hon'ble Apex Court has held that discretion given by Section 5 should not be defined or crystallised so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause" should receive a liberal construction. In Perumon Bhagvathy Devaswom Vs. Bhargavi Amma, (2008) 8 SCC 321 , the Hon'ble Apex Court has held that the words "sufficient cause" in Section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bonafides, deliberate inaction or negligence on the part of the appellant. In Civil Appeal No. 4669 of 2019 Bhivchandra Shankar More Vs. Balu Gangaram More, the Hon'ble Apex Court on 07.05.2019, has held in para No. 15, "It is fairly well settled law that "sufficient cause" should be given liberal construction so as to advance sustainable justice when there is no inaction, no negligence nor want of bonafide could be imputable to the appellant." 11. In the case of State of Bihar Vs. In the case of State of Bihar Vs. Kameshwar Prasad Singh (2000)9 SCC 94 the Hon'ble Apex Court had taken a liberal approach for condoning the delay in case of Government, to do substantial justice. In State (NCT of Delhi) Vs. Ahmed Jaan, 2008(14) SCC 582 , it was held that it is axiomatic that decisions are taken by officers/agencies proverbially at a slow pace and encumbered process of pushing, the files from table to table and keeping it on table for considerable time causing delay - intentional or otherwise - is a routine. Considerable delay of procedural red-tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default, no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in justice - oriented approach rather than the technical detection of sufficient cause for explaining every days' delay. In the event of decision to file appeal, needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or an application since he is a person legally injured while State is an impersonal machinery working through its officers or servants. 12. Keeping in view of the importance of the questions of law involved in this matter, and after perusal of the ground urged in the affidavit and the submissions put forth by the applicants for condonation of delay, and on the facts and circumstances of the case, we are satisfied that sufficient cause exists for the delay. According to us, the explanations offered are plausible and deserve to be accepted. Therefore, we are inclined to condone the delay subject to payment of costs which we fix at Rs.9,000/-00 (i.e. Rs.500/- to each of the respondent-writ petitioners), to be paid within a period of two weeks from today. The delay is condoned subject to the payment of aforesaid amount as costs. After making the payment, receipt thereof shall be filed before this Court alongwith an affidavit. 13. The delay is condoned subject to the payment of aforesaid amount as costs. After making the payment, receipt thereof shall be filed before this Court alongwith an affidavit. 13. Post this matter after two weeks.