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2025 DIGILAW 221 (HP)

Govt. of Himachal Pradesh v. Rakesh Thakur

2025-02-27

G.S. SANDHAWALIA, RANJAN SHARMA

body2025
JUDGMENT : G.S. Sandhawalia, C.J. The present appeal is barred by one year, eleven months and twenty days, as per report of the office. The learned Single Judge decided the issue on 22.11.2022, in CWPOA No.116 of 2019 directing that the writ petitioner-employee be regularized from the date he had completed eight years service against the post of Junior Engineer. On account of the delay we are not proceeding to examine the matter on merits. 2. A perusal of certified copy of judgment wouldgo to show that it was applied on 17.9.2024, almost two years post the decision. The State has averred that the judgment was downloaded from the website on 30.11.2022, and an explanation has sought to be given that record relating to 116 employees of various categories in the position under the Integrated Watershed Management Project [IWMP] and those engaged in Pre-IWMP was to be scanned and therefore, it took considerable time for gathering information and justification is sought till 06.08.2023. It has further been averred that the delay had not been occasioned deliberately or on account of malafide, though, it has been mentioned that the department has initiated disciplinary action against the erring official(s) who have caused delay in gathering, compiling and analyzing the information. No detail of any such action taken against which of the employee(s) has been mentioned to justify the delay of 666 days as held out by the State on account of long process of official channels. 3. After the due application of certified copy on 17.09.2024, the delivery of the same was made on 27.09.2024 and as per the averments made, the matter was then referred to Law Department for seeking opinion for filing LPA on 06.11.2024 and the LPA was filed on12.11.2024. 4. The above sequence of events would go on to show that for a period of almost two years even certified copy was not applied for and there is just a bare averment made that time was taken during 30.11.2022 to 06.08.2023 for gathering the requisite information and calculating financial liabilities, which is stated to be 14 crores and 13 Lakh. The above sequence of events would go on to show that for a period of almost two years even certified copy was not applied for and there is just a bare averment made that time was taken during 30.11.2022 to 06.08.2023 for gathering the requisite information and calculating financial liabilities, which is stated to be 14 crores and 13 Lakh. The said sequence of events would go on to show that certain liberty which can be given to the State cannot be as such misused to seek condonation when even certified copy was not applied for and therefore, the matter could not have been even processed at Government level. There is nothing on record to show that any legal opinion as such was taken or any action has been taken against the official(s), though a bald averment has been made. 5. The principles have been laid down by the Apex Court in Oriental Aroma Chemical Industries Ltd. vs. Gujarat Industrial Development Corporation and Anr. reported in (2010) 2 S.C.R. 1172 and Postmaster General and Ors. vs. Living Media India Limited and Anr. reported in (2012) 3 SCC 563 . The same reads as under: “25. We have already extracted the reasons as mentioned in the "better affidavit" sworn by Mr. Aparajeet Pattanayak, SSRM, Air Mail Sorting Division, New Delhi. It is relevant to note that in the said affidavit, the Department has itself mentioned and is aware of the date of the judgment of the Division Bench of the High Court in Office of the Chief Postmaster v. Living Media India Ltd. as 11.09.2009. Even according to the deponent, their counsel had applied for the certified copy of the said judgment only on 08.01.2010 and the same was received by the Department on the very same day. There is no explanation for not applying for certified copy of the impugned judgment on 11.09.2009 or at least within a reasonable time. The fact remains that the certified copy was applied only on 08.01.2010, i.e. after a period of nearly four months. 26. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the person in-charge has filed any explanation for not applying the certified copy within the prescribed period. The fact remains that the certified copy was applied only on 08.01.2010, i.e. after a period of nearly four months. 26. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the person in-charge has filed any explanation for not applying the certified copy within the prescribed period. The other dates mentioned in the affidavit which we have already extracted, clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned. Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps. 27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. 28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. 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.” 6. 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.” 6. Similarly in Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy reported in (2013) 12 SCC 649 , the principles were laid down as to the fact that non-pedantic approach has to be applied and that substantial justice being paramount and pivotal, the technical considerations should not be given undue and uncalled for emphasis. Further, it was held that liberal approach has to be kept in mind but it cannot be allowed a totally unfettered free play and the conduct, behaviour and attitude should be the relevant factors to be taken into consideration, though, the State may be given some acceptable latitude. The said principles read as under: 21. From the aforesaid authorities the principles that can be broadly be culled out are: 21.1. (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. 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. 21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. 21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. 21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8. 21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. 21.9. (ix) The conduct, behaviour 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. 21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. 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. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:- 22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring 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. 22.2 (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. 22.2 (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. 22.3 (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. 22.4 (d) The increasing tendency to perceive delay as a non serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters. 7. Accordingly, in view of the principles laid down by the Hon’ble Apex Court in judgments referred to supra, we do not find any plausible reason to allow this application. 8. The tendency of the State to file ‘Certificate Cases’ is noticed by the apex Court in State of Madhya Pradesh versus Bherulal (2020) 10 SCC 654 , and State of Orissa and others versus Sunanda Mahakuda (2021) 1 SCC 560. 9. In State of Uttar Pradesh and others versus Sabha Narain and others (2022) 9 SCC 266 , a three Judge Bench of the apex Court noticed the fact that the SLPs were being filed to save the skin of the officers who may have defaulted in following the due process of law. 10. In Pathapati Subba Reddy (died) by LRs and others vs. Special Deputy Collector (LA) 2024 SC OnLine SC 513, it was held that stale matters cannot be entertained to defeat the substantial law of limitation and Statute. 11. Accordingly, the application for condonation of delay is dismissed along with LPA No.61 of 2025. 12. Pending miscellaneous application(s), if any, shall stand disposed of.