Gauhati High Court
State Of Manipur vs All Manipur Regular Post Vacancies ... on 15 March, 1995
Equivalent citations: AIR1996GAU1, AIR 1996 GAUHATI 1, (1995) 2 GAU LR 102 (1996) 1 CIVLJ 460, (1996) 1 CIVLJ 460
Author: P.K. Ghosh
Bench: P.K. Ghosh
JUDGMENT Baruah, J.
1. The above miscellaneous cases arising out of the above writ appeals involve similar questions of law and fact and, therefore, we dispose of all these misc. cases by a common judgment. In these misc. cases the applicant has filed applications for condonation of delay, if there be any, in preferring the appeals.
2. All these appeals were filed against a common judgment and order dated 15-12-92 passed by a learned single Judge in Civil Rule No. 77/92 and others. The judgment was delivered on 15-12-92. However, all the appeals were filed on 4-11-94. Therefore, there has been a delay of about 1 year 11 months. In the applications for condonation of delay, the applicant the State of Manipur, have stated, inter alia, that the Civil Rule No. 77/92 was filed by the respondent in the Writ Appeal No. 70/94.A common judgment and order was passed on 15-12-92 with direction to the State Government to appoint the teachers selected by the D.P.C. and, thereafter, the teachers who failed to qualify, within a period of six months from the date of lifting of ban imposed by Govt. The Secretary (Education) put up a note with a suggestion to prefer appeals against the said judgment before the appellate Court. On 18-2-93, Minister approved the note of the Secretary. Thereafter, official notes had been exchanged and series of meetings were held. Besides, efforts were made for approval of the proposal to prefer appeals by the Law Department.
3. On August 23, 1993, Secretary (Education) put up a note in his file that the Addl. Government Advocate expressed his reluctance to file the appeals. Situated thus, after various notes, on 3-11-93 a decision was taken to convene a meeting with the Advocate General. Secretary (Law and Addl. Government Advocate. However, the meeting could not be held as the file was somewhere else. In between many orders had been issued directing the Government Advocate to file the appeals. Thereafter, on 5-5-94 it was decided to engage another counsel (Mr. Ashok Potsangbam) to prefer those appeals. Besides, Secretary (Education) also put up a note indicating that he was threatened in this matter. Again on 20-5-94 Secretary (Law) also reported that he was threatened. Mr. Ashok Potsangbam, counsel engaged to prefer the appeals was also threatened. Another note was put by the Secretary (Education) on 15-6-94 that two unidentified persons had threatened him with dire consequence. 8A senior counsel also declined to accept the applicant's brief, when approached. By all these, the applicant have made an attempt to show that there had been several threes to the high officials including the Special counsel, a senior counsel refused to accept applicant's brief, when approached. Many of the employees of the applicant also did not co-operate in preferring the appeals. Even the Advocate General suggested for implementation of the impugned judgment though in the opinion of the Law Department the impugned judgment and order dated 15-12-92 needed reconsideration by an appellate Court. Because of these peculiar circumstances the applicant could not prefer the appeal within the period prescribed. According to the applicant, the facts and circumstances as stated, clearly show sufficient cause for which the applicant could not prefer the appeals in time. The applicant have further stated that a review was filed before the learned single Judge (Civil Review No. 821(T) of 1994) against the said judgment. The said review was disposed of rejecting the prayer for review by an order dated 20-9-94. However, the learned single Judge granted 15 days' time to prefer appeal.
4. We have heard Mr. A. Potsangbam, learned Special counsel appearing on behalf of the applicant and Mr. T. Nanda Kumar Singh, learned counsel appearing on behalf of some of the respondents.
5. Mr. Potsangbam, learned Special counsel appearing for the applicant submits before us that because of the anomalous situation the applicant could not prefer the appeal within time. Besides, Mr. Potsangbam has strenuously argued that the learned single Judge while disposing of the review application granted 15 days' time and within the said period all the appeals were filed. In that view of the matter the appeals cannot be said to be barred by limitation. The Special counsel has placed reliance on the following decisions :--
(1) AIR 1987 SC 1353, Collector, Land Acquisition, Anantnag v. Mst. Katiji.
(2) AIR 1988 SC 897, G. Ramegowda, Major etc. v. The Special Land Acquisition Officer, Bangalore.
(3) AIR 1990 SC 2059, Lt. Governor of Delhi v. Const. Dharampal.
6. Mr. T. Nanda Kumar Singh, learned counsel for the responoents submits before us that the appeals were hopelessly barred and in the applications for condonation, delay has not been properly explained. In the said applications the applicant failed to give explanation whatsoever for the period from the date of judgment till 18-2-93 when the Education Minister approved the note of the Secretary. This was done after the expiry of the period. There has been no mention whatsoever about the action taken by the applicant in respect of preferring appeals against the said judgment. As the applicant failed to explain the period from 15-12-92 till 18-2-93, the subsequent explanation would not be a ground for condonation of delay. Regarding other contention of the Special counsel that the learned single Judge had already granted 15 days' time and within that period the appeals were filed, has no relevance in the facts and circumstances of the case. For preferring an appeal there is a prescribed statutory period within which appeal has to be filed. Beyond that period it is not within the competence of the court to extend further time subject, however, to the provisions of Section 5 of the Limitation Act and that too only by the appellate Court.
7. Counsel appearing on behalf of other respondents have adopted argument of Mr. T. Nanda Kumar Singh.
8. On the rival contentions of the parties it is to be seen whether the applicant have made out a case under Section 5 of the Limitation Act. Section 5 of the Indian Limitation Act, 1963 confers power to condone delay if the applicant is successful in showing that he was prevented from preferring the appeal for sufficient cause. It is the sufficient cause which gives jurisdiction to a Court to condone the delay. Normally after the expiry of the period right to sue extinguishes and the other side acquires right which normally should not be disturbed. Only in case of proving a sufficient cause the applicant is entitled to continue the litigation further. The expression "sufficient cause" employed by the Legislature is elastic to enable the Court to apply the law in a meaningful manner.
9. In Collector, Land Acquisition, Anantnag v. Mst. Katiji, reported in AIR 1967 SC 1353, the Supreme Court held thus-
".....The expression 'sufficient cause' employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such liberal approach is adopted on principle as it is realized that:--
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. 'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk....."
10. In G. Ramegowda, Major etc., AIR 1988 SC 897 (supra), the Supreme Court held thus-
"In litigations to which Government is a party there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected; but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals.
The law of limitation is, no doubt, the same for a private citizen as for Governmental authorities. Government, like any other litigant must take responsibility for the acts or omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it."
Therefore, in assessing what constitutes a sufficient cause for the purpose of Section 5 it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Government decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red-tape in the process of their making. A certain amount of latitude is, therefore, permissible.
11. In Ajit Singh Thakur Singh v. State of Gujarat, reported in AIR 1981 SC 733, the Supreme Court had the occasion to deal with the matter regarding condonation. In that case the Supreme Court observed thus-
".....it is true that a party is entitled to wait until the last day of limitation for filing an appeal, but when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal, but that the limitations has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation. In the present case, there was no such cause, and the High Court erred in condoning the delay."
12. Again the Supreme Court in Government Andhra Pradesh v. Y. S. Parkash-rao, reported in (1982) 2 SCC 385, found that delay explained to be due to misunderstanding on the part of the Government officers but no affidavit of that officer submitted. In the absence of any matrial in support of the explanation for the delay, the Special Leave was dismissed as barred.
13. From the decisions of the Apex Court cited above, the law regarding condonation of delay can be summarised thus-
That the delay can be condoned if the applicant is successful in proving that the applicant failed to approach the Court within the time prescribed for sufficient cause. However, the Court should adopt a liberal and justice oriented approach. The expression "sufficient cause" referred to in Section 5 should receive a liberal construction so as to advance substantial justice and generally delays in preferring an appeal are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides can be imputed to the parties seeking condonation of delay. However, all will depend upon facts and circumstances. If some sufficient cause is shown during which the applicant because of certain circumstances failed to approach the Court in time, delay can be condoned. However, that does not mean that mere prayer for condonation of delay is enough. It is also true that while dealing with the matter of condonation, Court should not be overstrict and hyper technical and the approach should not be viewed in pedantic manner. Besides, the applicant must show that the applicant failed to prefer the appeal within the prescribed time as he was prevented by sufficient cause. If, however, applicant fails to show sufficient cause for not approaching the Court within the prescribed period the cause shown for the later period may not be relevant.
14. In the instant case the judgment was delivered on 15-12-92. The period prescribed for preferring the appeal is one month. But from the applications it appears that the applicant have not made any attempt to show why during the period prescribed they could not prefer appeals At least the applications are silent.
15. Mr. Potsangbam has placed before this Court certain records. He, however, has not been able to show from the records anything that during the period prescribed any action was taken for preferring the appeals. The story of threats and refusal to accept applicant's brief by the counsel, as narrated, are all long after the expiry of the period. From the above, we have no hesitation to come to conclusion that there was no sufficient cause which prevented th,e applicant to prefer the appeals within the prescribed time.
16. At the time of delivery of the judgment, learned Special counsel Mr. Potsangbam has produced one Additional Affidavit filed by the Deputy Secretary (Education). We see no reason why such affidavit has been filed at this time. The matter has been pending for quite long time. From the said Additional Affidavit it appears that certain file is not traceable. This cannot, in our opinion, be a ground for condonation of delay. All these only go to show sheer and total negligence on the part of the officers and employees of the applicant. On these grounds we are not inclined to condone the delay.
17. The next submission of Mr. Potsangbam is that all the appeals should be treated as filed within time inasmuch as the learned single Judge while disposing of the aforesaid review application granted 15 days' time and all the appeals were filed within that time, Under the rules, an appeal can be filed within a period of one month from the date of judgment. Delay in filing the appeal can be condoned by the appellate Court on showing sufficient cause. The Court passing the judgment or order has no jurisdiction to grant time for filing an appeal. Admittedly the appeal is to be decided by a Division Bench of this Court and if delay is required to be condoned, it can be condoned by a Division Bench of this Court and the learned single Judge who passed the impugned judgment had no jurisdiction to decide any point which is the subject-matter of the appeal. Even if the decision is right on merit, it is by a forum which is lacking in competence in regard to the subject-matter. Even a right decision by a wrong forum is no decision. It is non-existent in the eye of law and hence a nullity (See AIR 1987 SC 533).
18. In view of the above, this ground of Mr. Potsangbam also fails. There is no merit in the condonation applications and, accordingly, all the misc. cases are dismissed.
19. However, in the facts and circumstances of the cases, we make no order as to costs.