Calcutta High Court
State Of West Bengal And Ors. vs Khalil Ali Sk. And Ors. on 12 September, 2007
Equivalent citations: 2007(4)CHN746
Author: Pranab Kumar Deb
Bench: Pranab Kumar Deb
JUDGMENT Pranab Kumar Deb, J.
1. This is an application under Section 5 of the Limitation Act for condonation of delay in preferring the appeal against the judgment dated 15.1.2004.
2. The respondent/writ petitioner joined in Pipulberia Junior High School on 01.02.1992 as a Peon. The writ petitioner claimed to have rendered uninterrupted service as an organizing non-teaching staff since the date of his joining in the school. Following the inspection of the school on 12.4.1991 by the District Level Inspection Team, the school was provisionally recognized as Four Class Junior High School with effect from 01.05.1994 in terms of Memo No. S/242/14/04/1999. The provisional recognition was to remain operative till 30.4.1997. Three years after the provisional recognition of the school as Four Class Junior High School, the school got permanent recognition with effect from 01.05.1994.
3. The prayer of the petitioner for approval of his appointment not having been considered, the respondent filed a writ application. In disposing of the aforesaid writ petition, the learned Single Judge directed the petitioner to make representation before the District Inspector of School (SE), Nadia and the District Inspector of School in turn was directed to dispose of the representation by passing a reasoned order. The District Inspector of School was also directed to make an enquiry through the competent officer to ascertain as to why the name of the petitioner was not incorporated in the enquiry report.
Acting on such direction, the writ petitioner submitted the representation before the District Inspector of School. The representation of the writ petitioner/ respondent was, however, rejected by the District Inspector of School.
4. Challenging the order of the District Inspector of School, the writ petitioner filed another writ petition before the Hon'ble Court. In disposing of the aforesaid writ petition, the learned Single Judge directed the Director of School Education to consider the prayer of the writ petitioner. Relying mainly on the circular dated 24.02.1995, the Director of School Education eventually rejected writ petition of the writ petitioner.
5. Challenging the order of the Director of School Education, the writ petition being W, P. No. 13213 (W) of 2003 was filed. Since nobody turned up on behalf of the respondent, the matter was heard exparte and by order dated 15.01.2004, the learned Single Judge directed the respondent No. 3 to issue appropriate order approving the appointment of the writ petitioner in the post of Group 'D' post within six weeks of communication of the order.
Challenging the aforesaid order, the Memo of Appeal was filed on 07.10.2004, together with separate application under Section 5 of the Limitation Act has also been filed for condonation of delay of 236 days in preferring the appeal.
6. Appearing on behalf of the appellants, Mr. Oli Mohammad, learned Counsel has submitted that the appellants had no idea about the initiations of the proceeding. It was only after receiving the copy of the judgment on 04.03.04 that the appellants were apprised of the contents of the judgment delivered by the learned Single Judge on 15.01.04. It is submitted that immediately onreceipt of the copy of the judgment, the District Inspector of School sent a proposal to the Director of School Education for preferring an appeal. The concerned dealing officer in the office of Director of School Education took just a little time in preparing draft proposal for appeal and it was then placed before the Director of School Education on 31.5.05 for his approval. On being convinced of the necessity of preferring an appeal, the Director of School Education made a prayer to the Legal Remembrancer, West Bengal with a request to him to obtain the certified copy of the impugned judgment. Meanwhile, the Principal Secretary of School Education Department, West Bengal also approved the draft proposal for preferring appeal, on 07.06. 2004. The matter was then referred to the Legal Remembrancer for his opinion. Accepting the proposal for preferring appeal, the appellant appointed the learned Counsel for the aforesaid purpose of preferring appeal.
7. Contending that there was no wilful delay or latches on the part of the respondent in preferring appeal, Mr. Oli Mohammad had submitted that procedural formalities consumed a little time and thus resulted delay of 236 days in preferring the appeal.
Stressing the stand that the Government is an impersonal machinery, Mr. Oli Mohammad has submitted that a little amount of latitude is expected in view of procedural hurdles standing in the way of the State in preferring the appeal. Mr. Oli Mohammad has also relied on the case of State of Haryana v. Chandra Mani and Ors. , to vindicate his stand that 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 application, while the State is an impersonal machinery is to work through its officers or servants.
8. Challenging the contention of the learned Counsel for the appellant 'that the delay has been properly explained. Mr. Ekramul Bari, learned Counsel representing the respondent/writ petitioner has submitted that in view of the lethargical attitude on behalf of the appellant, the application for condonation of delay should be rejected outright.
9. Drawing the attention of the order made in connection with the writ application, Mr. Bari has submitted that the order itself will reveal that notice had been given to the State Department from time to time, apprising it of the date of hearing. The appellants being well aware of the initiation of the writ proceeding, they must not be allowed to raise the plea that the writ petition was disposed of without any intimation to them.
10. Contending that there is provision for preferring appeal without the certified copy, Mr. Bari has submitted that there cannot be any justification for the inordinate delay in preferring the appeal. It is urged that the plea that the State has to work through its officials cannot be a cogent ground for ignoring the total inaction and indifference on the part of the appellants in preferring the appeal in time.
11. Claiming that the State is not entitled to receive more latitude in the matter of delay in preferring the appeal, Mr. Bari has submitted that unless the delay is properly accounted for, the inordinate delay on the part of the State cannot be condoned. Mr. Bari has relied on the case of State of U.P. and Ors. v. Vinod Prakash Tayal and Ors. reported in 1995 Supplementary 4 SCC 412, to strengthen his contention that more reliance on inter-department correspondence cannot advance the petitioner's case for the condonation of inodinate delay.
12. Going through the relevant orders passed in connection with the writ petition, we do find that the State was intimated from time to time about the initiation of the writ proceeding. It is not correct that the writ petition was disposed of without affording any opportunity to the appellant to controvert the submission of the writ petition. After the initial lethargy the State stirred into activities. On receipt the order of the learned Single Judge, steps were taken for obtaining certified copy of the impugned order. The opinion of the learned Legal Remembrancer was sought for. Some precious time was also consumed for preparing the draft application. It is not that the State remained in slumber all through. It did proceed in the right direction and action was taken in right earnest for preferring the appeal.
13. In State of Haryana v. Chandra Mani (supra), the Apex Court has highlighted that the Court should decide the matters on merits unless the case is hopelessly without merit. The appellants have challenged the appointment on the ground that appointment was made in violation of the recruitment rules. It is also the contention of the appellants that appointment had not been given against the sanctioned post either. These matters require disposal on merits. The delay having been properly accounted for and the issue requiring disposal on merits, the appeal should be admitted, condoning the delay.
14. In the result, the application being C.A.N. No. 9569 of 2004 under Section 5 of the Limitation Act for condonation of delay is allowed. Let the appeal be registered.
Debi Prasad Sengupta, J.
15. I agree.