Gujarat High Court
Hetal Chirag Patel vs Gujarat Public Service Commission ... on 29 June, 2018
Author: Harsha Devani
Bench: Harsha Devani, A.S. Supehia
C/LPA/109/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION NO. 3 of 2018
IN F/LETTERS PATENT APPEAL NO. 36 of 2018
In SPECIAL CIVIL APPLICATION NO. 11163 of 2012
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CIVIL APPLICATION NO. 3 of 2018
IN F/LETTERS PATENT APPEAL NO. 95 of 2018
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CIVIL APPLICATION NO. 3 of 2018
IN F/LETTERS PATENT APPEAL NO. 96 of 2018
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CIVIL APPLICATION NO. 3 of 2018
IN F/LETTERS PATENT APPEAL NO. 97 of 2018
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CIVIL APPLICATION NO. 3 of 2018
IN F/LETTERS PATENT APPEAL NO. 98 of 2018
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CIVIL APPLICATION NO. 3 of 2018
IN F/LETTERS PATENT APPEAL NO. 99 of 2018
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CIVIL APPLICATION NO. 3 of 2018
IN F/LETTERS PATENT APPEAL NO. 100 of 2018
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CIVIL APPLICATION NO. 3 of 2018
IN F/LETTERS PATENT APPEAL NO. 101 of 2018
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IN F/LETTERS PATENT APPEAL NO. 102 of 2018
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IN F/LETTERS PATENT APPEAL NO. 103 of 2018
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IN F/LETTERS PATENT APPEAL NO. 104 of 2018
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IN F/LETTERS PATENT APPEAL NO. 105 of 2018
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IN F/LETTERS PATENT APPEAL NO. 106 of 2018
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IN F/LETTERS PATENT APPEAL NO. 107 of 2018
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C/LPA/109/2018 ORDER
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CIVIL APPLICATION NO. 3 of 2018
IN F/LETTERS PATENT APPEAL NO. 108 of 2018
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IN F/LETTERS PATENT APPEAL NO. 109 of 2018
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CIVIL APPLICATION NO. 3 of 2018
IN F/LETTERS PATENT APPEAL NO. 110 of 2018
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IN F/LETTERS PATENT APPEAL NO. 111 of 2018
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IN F/LETTERS PATENT APPEAL NO. 112 of 2018
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IN F/LETTERS PATENT APPEAL NO. 113 of 2018
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IN F/LETTERS PATENT APPEAL NO. 114 of 2018
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IN F/LETTERS PATENT APPEAL NO. 115 of 2018
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IN F/LETTERS PATENT APPEAL NO. 116 of 2018
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HETAL CHIRAG PATEL Versus STATE OF GUJARAT THRO SECRETARY ========================================================== Appearance:
MR MIHIR THAKORE, SENIOR ADVOCATE with MS MEGHA JANI for the PETITIONER(s) No. MR SN SHELAT, SENIOR ADVOCATE with MR MOHSIN KOREKA for the Proposed Respondent in CA No.1132/2018 in LPA (Stamp Number) No.113/2018 in SCA No.5758/2011 MR DC DAVE, SENIOD ADVOCATE with MR NIRAL MEHTA, for the Respondent in IA No.3/2018 in F/LPA No.95 of 2018. MR KB PUJARA, for the Respondent in IA No.3/2018 in F/LPA No.36 of 2018. MR ANSHIN H DESAI, SENIOR ADVOCATE with MR CHETAN PANDYA with PANKAJ CHAUDHARY for the Proposed Respondent in LPA (Stamp Number) No.113/2018 ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the RESPONDENT(s) No. Page 2 of 27 C/LPA/109/2018 ORDER MR DG SHUKLA for the RESPONDENT(s) G.P.S.C. MR GM JOSHI with MR ARAV GANDHI for the Respondent No.8 (Proposed Respondent) and MR RUTURAJ DESAI for the Respondent No.11 (Proposed Respondent) RULE SERVED for the RESPONDENT(s) No. RULE SERVED BY DS for the RESPONDENT(s) No. ========================================================== CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI and HONOURABLE MR.JUSTICE A.S. SUPEHIA Date : 29/06/2018 IA ORDER (PER: HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. By an order dated 24.1.2018 made in civil application for Leave to Appeal No.421 of 2018 and allied matters, a coordinate Bench of this court has granted leave to appeal to the applicants herein. It may be noted that the applicants have filed application for impleading certain persons as party respondents (hereinafter referred to as the "proposed respondents"). The proposed respondents are represented through their learned advocates, who have appeared and opposed these applications.
2. By these applications under section 5 of the Limitation Act, the applicants seek condonation of delay of 233 days caused in filing the corresponding letters patent appeals challenging the common judgment and order dated 21.4.2017 passed by the learned Single Judge in Special Civil Application No.11163 of 2012 and allied matters.
3. The case of the applicants as averred in the memorandum of application is that they were not impleaded in any of the writ petitions which came to be decided by the learned Single Judge on 21.4.2017 and that they were candidates who were Page 3 of 27 C/LPA/109/2018 ORDER appointed to the post of Deputy Superintendent of Police as per notification dated 6.5.2011. They joined their services in the year 2011 and have completed necessary training and are in line for the next promotion to the post of Superintendent of Police. The candidates up to Serial No.24 in the list of appointments dated 6.5.2011 have already been promoted by now. It is further the case of the applicants that five candidates who were also appointed by the order dated 6.5.2011 did not join their duties which resulted in those posts remaining vacant and that such posts were re-
advertised for selection in the year 2014. Thereafter pursuant to the impugned judgment and order the Government reallocated five candidates who were earlier appointed on other posts against those five seats as a consequence whereof such candidates would be posted above them in the seniority list. According to the applicants they had expected the Government to challenge the decision of the learned Single Judge and were shocked to hear about the five candidates being reallocated at Merit No.49, 54, 57, 58 and
130. Realising that the allocation of the five candidates to the post of Deputy Superintendent of Police would seriously prejudice them they immediately started collecting papers of the special civil applications, studied the judgment and the special civil applications and sought legal consultation and decided to file appeals. The papers of the petitions became available on 28.12.2017. Application for certified copy of the common judgment was made in Special Civil Application No.6057 of 2011 on 26.12.2017 and the said copy was delivered on 30.12.2017. Reading and understanding the judgment, going through various petitions and preparing memo of appeal in various applications took a considerable Page 4 of 27 C/LPA/109/2018 ORDER time. However, the application for delay has been filed with due promptness as early as possible.
4. Mr.Mihir Thakore, Senior Advocate, learned counsel with Ms. Megha Jani, learned advocate for the applicants in each of the applications, submitted that in this case there is a delay of 233 days in filing the letters patent appeal against the judgment and order dated 21.4.2017 passed by the learned Single Judge. It was submitted that firstly having regard to the facts of the case, the delay in filing the letters patent appeal is not so considerable; and secondly, that one of the factors that would weigh with the court while considering the question as to whether the delay deserves to be condoned is whether there is any merit in the appeals. Reiterating some of the facts set out in the memorandum of application, it was submitted that the applicants who came to be appointed to the post of Deputy Superintendent of Police pursuant to the notification dated 6.5.2011, have joined services and have completed necessary training and are now in line for promotion to the post of Superintendent of Police. The candidates up to Serial No.24 have been promoted and now it is the turn of the applicants to be so promoted. However, in the meanwhile, in view of the impugned judgment and order, on account of being reallocated at the above referred merits positions, the respondents-original petitioners who so far functioned on posts lower than the post held by the applicants, will be placed above them in the seniority list which will have the consequence of affecting their chances of promotion.
4.1 It was pointed out that in the impugned order the learned Page 5 of 27 C/LPA/109/2018 ORDER Single Judge has framed five issues. Issue No.5 which reads:
after giving such appointments from the impugned merit list dated 26.04.2011, at least 41 candidates have not joined service, which the State is refusing to make available to the candidates who are next in merit, on the basis of the same examination, though the claim of those meritorious candidates is within the notified and vacant posts. Whether this action of the State is sustainable and/or whether the claim of the petitioners should be accepted to the extent of notified vacant posts. It was submitted that it is the decision of the learned Single Judge on this issue which hurts the applicants most, inasmuch as, the learned Single Judge has directed that the posts that remained unfulfilled because of non-joining of candidate be offered to the next meritorious candidates in the recruitment in question which is contrary to rule 17 of the Gujarat Civil Services (Class -I and Class-2) Competitive Examination Rules, 2000 (hereinafter referred to as the "rules") as amended by notification dated 17.1.2009.
4.2 It was submitted that in the main writ petitions, the applicants had not been joined as parties and it was the State Government which was defending the writ petitions before the learned Single Judge. However, contrary to expectations that the State Government or GPSC would challenge the judgment, the applicants were shocked to learn in around the third week of December, 2017 that the Government had reallocated five candidates respectively as Deputy Superintendent of Police with all ancillary benefits like seniority, pay fixation, deemed date, etc. According to the learned counsel, the five candidates who since 2011, have functioned at lower posts then the post held by the Page 6 of 27 C/LPA/109/2018 ORDER applicants, would be posted in the seniority list above the applicants and the said candidates would for all times to come push back the applicants in the seniority list affecting their chances of promotion at every stage.
4.3 It was urged that the applicants were not impleaded as parties in any of the writ petitions and it is only when the applicants learnt about the order dated 8.12.2017 (Annexure A to the application) that the applicants realised that they were seriously prejudiced by the impugned judgment and order. The learned counsel also sought to draw attention of the court to the merits of the appeal, however at this stage of considering the application for condonation of delay, the court has not thought it fit to delve into the same.
4.4 The learned counsel for the applicants, accordingly, urged that the delay that has occasioned in filing the letters patent appeals having been sufficiently explained, deserves to be condoned in the interest of justice.
5. Vehemently opposing the applications Mr. D.C. Dave, Senior Advocate, learned counsel for the opponents-original petitioners submitted that for the purpose of condoning the delay that has occurred in filing the letters patent appeals, the applicants are required to establish that they were prevented by sufficient cause after the passing of the impugned order from preferring the appeal. It was submitted that in so far as satisfying the requirements of section 5 of the Act is concerned, the only contention is that the applicants were banking on the State Government to challenge the order and now that the State Government has accepted that order, the applicants have thought it fit to Page 7 of 27 C/LPA/109/2018 ORDER challenge the same. The attention of the court was invited to the order dated 24.1.2018 passed by the Coordinate Bench on the application for leave to appeal filed by the applicants wherein, it has been observed thus, "Their broad grievances are as under:
(i) Though they were affected parties, they were not joined in the writ petitions;
(ii) By the directions issued by the learned Single Judge they have been vitally affected in as much as the persons to be now appointed by virtue of such directions would rank senior to them;
(iii) After the learned Single Judge rendered the judgment on 21.04.2017, they expected the State Government to carry the issues in appeal. It is only when they realized that the State Government has accepted the judgment and has started acting on the same, they found it necessary to challenge the judgment of the learned Single Judge."
5.1 It was submitted that thus the applicants were well aware of the passing of the impugned judgment and order but did not challenge it at the relevant time as they expected the State Government to challenge the same. Reference was made to paragraph 3 of the impugned judgment and order, wherein the learned Single Judge has referred to a previous order dated 6.2.2011 passed in Civil Application No.6057 of 2011 wherein it has been, inter alia, observed thus, "it is clarified that any action taken by the respondent shall be subject to the final decision of the petition." It was submitted that it is an admitted position that the appointments of the applicants were subject to the final outcome of the petitions. Since the above condition was incorporated in the appointment orders, that right from the time of their appointments, the applicants were well aware of the fact that Page 8 of 27 C/LPA/109/2018 ORDER their appointments were subject to the result of the petitions, despite which they preferred to remain silent for thirty days after the passing of the impugned judgment and order which is the period of limitation for filing the letters patent appeal. Thus, the applicants not having taken any steps to file the appeal within the period of limitation, no sufficient cause has been made out for condoning the delay caused in filing the letters patent appeals. In support of such submission the learned counsel placed reliance upon the decision of the Supreme Court in the case of Pundik Jalam Patil v. Executive Engineer, Jalgaon Medium Project, (2008) 17 SCC 448, wherein the court held thus;
"18. The question for consideration is whether the averments disclosed any sufficient cause to condone the inordinate delay of 1724 days in filing the appeals.
19. In Ajit Singh Thakur Singh v. State of Gujarat, (1981) 1 SCC 495, this Court observed:
"6. ... 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 sufficient cause."
(emphasis supplied) This judgment squarely applies to the facts in hand.
20. The respondent beneficiary of the acquisition did not initiate any steps whatsoever before the expiry of limitation and no circumstances are placed before the Court that steps were taken to file appeals but it was not possible to file the appeals within time."
5.2 Reliance was also placed upon the decision of the Supreme Court in the case of Ajit Singh Thakur Singh v. State of Gujarat, (1981) 1 SCC 495, wherein the court has Page 9 of 27 C/LPA/109/2018 ORDER held that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows the 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 the limitation which may further delay the filing of the appeal. But that limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation.
5.3 The attention of the court was invited to the memorandum of the application, to submit that the averments made in the entire application are predominantly based on the merits of the case and that the delay caused in filing the letters patent appeal has not been properly explained. It was emphatically argued that the apprehension of the applicants that the impugned judgment and order may affect their seniority cannot be a ground for filing the appeal. According to the learned counsel, if it is the implication of the judgment that hurts the applicants, they can prefer appropriate proceedings in that regard; however, no case has been made out for condonation of delay that has occasioned in preferring the letters patent appeal.
5.4 The learned counsel also submitted that the applicants were well aware of the fact that their appointments were subject to the final decision on the special civil applications, Page 10 of 27 C/LPA/109/2018 ORDER nonetheless, at the relevant time they did not choose to be impleaded as parties. The applicants were, therefore, fence- sitters, who merely watched the proceedings but did not participate in the same. Reliance was placed upon the decision of the Supreme Court in the case of Shiba Shankar Mohapatra v. State of Orissa, (2010) 12 SCC 471, for the proposition that it is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that person approaching the court is guilty of delay and laches. The court exercising public law jurisdiction does not encourage agitation of stale claim where the right of the third parties crystallises in the interregnum.
6. Mr. S.N. Shelat, Senior Advocate, learned counsel appearing for some of a proposed respondent, submitted that the order of appointments of the applicants was passed on 6.5.2011, which was made subject to the final decision in the writ petitions. Therefore, the moment the order deciding the writ petitions was passed, the applicants were immediately affected by such decision and, hence, were required to challenge the same if they were aggrieved by it. To bolster such submission the learned counsel placed reliance upon the decision in the case of Bashiruddin Ashraf v. Bihar Subai Sunni Majlis-Awaqf, AIR 1965 SC 1206, wherein the court held thus, "6. The two appeals were heard together. The High Court by a common judgment delivered on December 21, 1960, dismissed the appeal of the appellant and accepted that of Maulvi Md. Shoeb. In dealing with the appeal of Maulvi Md. Shoeb the High Court pointed out Page 11 of 27 C/LPA/109/2018 ORDER that Section 32 of the Act was clear in conferring jurisdiction on the Majlis to make temporary appointment when there was a vacancy in the office of the Mutwalli and that the words in that section "subject to any order by the competent court" did not mean that there had to be either prior permission or subsequent assent before the appointment was complete. The High Court rightly pointed out that those words denoted that the appointment was to endure according to its tenor till an order to the contrary was passed by a competent court. This conclusion is so patently correct that we need say nothing more than this."
6.1 It was submitted that the appointment of the applicants endured according to the tenor of the appointment order till the writ petitions came to be decided, and the moment the order was passed on the writ petitions, it took effect and the applicants were automatically affected by it. Therefore, the applicants were required to challenge the order immediately after it was passed and, hence, the submission that the applicants thought it fit to challenge the order only when they learnt that it impacted them, does not merit acceptance. It was further submitted that the Government having accepted the decision of the learned Single Judge shows that the stand of the Government is that the vacancies still remain to be considered and, therefore, the delay does not merit the consideration.
7. Mr. G.M. Joshi, learned counsel appearing for some of the proposed respondents submitted that throughout the proceedings before the learned Single Judge, the applicants have sought to ride on the back of the Government and, therefore, they have to either swim or sink with the Government. It was contended that the applicants having chosen not to get themselves impleaded as parties in the writ Page 12 of 27 C/LPA/109/2018 ORDER petitions despite the fact that their appointments were clearly made subject to the decisions on the petitions, cannot now seek condonation of delay on the ground that they were not parties to the petitions. It was submitted that the applicants were issued orders subject to result of the petitions seven years ago. The judgment and order passed by the learned Single Judge is clear and unambiguous, and hence, they should not have waited till the implementation of the judgment. Thus, the specious plea advanced on behalf of the applicants may not be accepted.
8. Mr. Anshin Desai, Senior Advocate, learned counsel for the respondents, invited attention to the averments made in the memorandum of application to submit that the applicants have nowhere stated that their appointments were subject to the result of the petitions and have deliberately suppressed such fact.
9. Mr. K.B. Poojara, learned counsel appearing on behalf of one of the opponents has adopted the submissions advanced by the learned counsel for the respondents.
10. In rejoinder, Mr. Thakore submitted that it is not the case of the applicants that they did not file the appeal because the Government did not file the appeal. It was submitted that the impugned judgment and order give certain directions which are based on the decision of this court in the case of D.G. Dalal v. State of Gujarat, 2002 (2) GLR, 1011 which itself speaks of a wait list. These directions have been interpreted by the State Government in a manner that the opponents may get seniority over the applicants. It was submitted that there was delay of 184 days from the time the Government Page 13 of 27 C/LPA/109/2018 ORDER accepted and implemented the impugned judgment and order and that from 12th December onwards, the delay has been properly explained in the application. Reliance was placed upon the decision of the Supreme Court in the case of Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 SCC 649, wherein the court held thus:
"21. From the aforesaid authorities the principles that can 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. (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 Page 14 of 27 C/LPA/109/2018 ORDER 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 scrutinised 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. 22.3. (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."Page 15 of 27 C/LPA/109/2018 ORDER
10.1 According to the learned counsel, the fact that the appointments orders were subject to the result of the petition is irrelevant, inasmuch as thereafter further orders have been passed by the High Court, which have been accepted by the Government and the applicants are affected by the same. It was urged that the matter does not become irrelevant because the Government has accepted it and that it was under a bona fide belief that the order would not affect them in any manner and that it would only result in the five candidates being appointed, that the applicants had not thought it fit to challenge the same immediately. However, the manner in which the Government has interpreted the impugned judgment and order, which is a possible interpretation, the judgment and order adversely affects them, and hence, they are required to challenge the same. It was submitted that the delay caused in filing the appeal having been sufficiently explained, the delay may be condoned and the letters patent appeals be heard on merits.
10.2 It was further contended that the principles for condonation of delay which apply to a party to a decision may not apply to the applicants. According to the learned counsel, when the applicants are not parties to the judgment, the principle that they have to explain the delay from the day one of the judgment would not apply. It was submitted that the applicants came to know about the impact of the impugned judgment and order only in December, whereupon they immediately took steps for filing the letters patent appeals. It was urged that this is a reasonable explanation for the delay and there is no fraud or suppression nor is it the case of the other side that there is a deliberate act of delay. It was Page 16 of 27 C/LPA/109/2018 ORDER submitted that the factors that should weigh with the court while considering an application for condonation of delay should be different between a party and a non-party which would be based on how the judgment and order impacts the non-party.
11. In reply to the last contention, Mr. Shelat submitted that the perception of a party or non-party as regards the validity of the judgment would be from the day of knowledge and it is not the case of the applicants that they were not aware of the passing of the impugned judgment and order at the relevant time. Whereas Mr. Joshi submitted that the pleadings say that the applicants knew about the judgment but they waited for the State Government to file an appeal and that the contention that is now sought to be raised is a deviation from the original pleadings. It was submitted that from the averments made in the application it is evident that the applicants have come with the specific plea that they came to know about the judgment but waited for the State Government to challenge the same. Mr. Anshin Desai submitted that not only is the delay in filing the appeal deliberate, but that the suppression with regard to the fact that the appointments of the applicants were subject to the final outcome of the petitions is also deliberate. It was, accordingly, urged that delay caused in filing the appeals has not been sufficiently explained and hence, the delay does not deserve to be condoned.
12. It is in the backdrop of the aforesaid facts and submissions, that the court is required to examine the merits of the applications seeking condonation of delay.Page 17 of 27 C/LPA/109/2018 ORDER
13. In this case, there is a delay of two hundred and thirty three days (233 days) in preferring the letters patent appeals against the common impugned judgment and order dated 21.4.2017 passed by the learned Single Judge in the captioned special civil applications. From the facts and contentions noted hereinabove it is evident that the applicants were not parties to the main petition, but it is also an admitted position that the appointments of the applicants were subject to the outcome of the writ petitions. Therefore, the applicants had reason to believe that their appointments would be affected the moment a judgment was delivered in favour of the petitioners in the writ petitions. It is in this backdrop that the explanation put forth by the applicants is required to be examined.
14. From the cause put forth in the memorandum of application, for the delay in filing the appeals is that they were not impleaded in any of the petitions and that contrary to the expectations that the State Government and/or the GPSC would challenge the judgment by filing an appropriate letters patent appeal, the appellants were shocked to learn in around the third week of December, 2017 that the Government had reallocated five candidates at Merit No.49, 54, 57, 58 and 130, who were earlier allotted to the posts of Mamlatdar, Section Officer, Sachivalaya, Mamlatdar, Mamlatdar & Taluka Development Officer respectively as Deputy Superintendents of Police with all ancillary benefits like seniority, pay fixation, deemed date etc. According to the applicants, it is upon learning about the manner in which the impugned judgment and order would impact them, that they Page 18 of 27 C/LPA/109/2018 ORDER immediately took steps for challenging the impugned judgment and order by filing letters patent appeal. It is the case of the applicants that they came to know of the impact of the impugned judgment and order only when the order dated 8.12.2017 came to be passed by the State Government appointing five candidates to the post of Deputy Superintendent of Police and that the delay that has occasioned subsequent to the said order has been sufficiently explained.
15. These letters patent appeals have been presented on 9.1.2018, that is, after a period of about one month from the date of passing of the order dated 8.12.2017. Thus, if it is only the delay between 8.12.2017 to 9.1.2018 which is to be taken into consideration for the purpose of considering the delay caused in filing the letters patent appeal, it can be said to have been sufficiently explained. However, a major part of the delay is from the date of the impugned judgment and order dated 21.1.2017 till 8.12.2017, when the State Government passed the order appointing the original petitioners to the post of Deputy Superintendent of Police.
The question that therefore arises for consideration is whether the applicants were justified in not challenging the impugned judgment and order at the relevant time when it came to be passed.
16. As noticed earlier, in the appointment orders of the applicants, it had been clearly stated that their appointments were subject to the final decision of the writ petitions. Therefore, all along, the applicants were aware that the final decision in the writ petitions would impact their Page 19 of 27 C/LPA/109/2018 ORDER appointments. Under the circumstances, as soon as the applicants learnt about the impugned judgment and order having been passed in favour of the original writ petitioners, they would have known that it would in some manner impact their appointments. However, it appears that the applicants who were not parties to the writ petitions nor had they sought to get themselves impleaded in the writ petitions, waited for the State Government to do the needful and to challenge the impugned judgment and order.
17. It is the case of the applicants that cause of action for challenging the judgment and order passed by the learned Single Judge arose when they came to know about the manner in which it impacted them. In the opinion of this court, the challenge to the validity of a judgment does not depend upon the manner in which it is subsequently interpreted by the parties or how it ultimately impacts a particular party. A judgment is either erroneous right from the inception or not at all. If according to the applicants the impugned judgment and order is erroneous, the cause of action to challenge the same arose right from the day it came to be delivered and the fact that they came to know how it was likely to affect them only after it was actually implemented by the Government cannot be considered to be the starting point for computing the period of limitation. Thus, it appears that applicants who were well aware of the impugned decision did not seek to challenge it under the belief that the State Government and/or the GPSC would challenge it. Therefore, at the relevant time the applicants did not have any interest in challenging the same. Thus, the applicants permitted the period of limitation to elapse without Page 20 of 27 C/LPA/109/2018 ORDER taking any steps to challenge the impugned judgment and order. In fact within the period of limitation, the applicants did not even decide to challenge the impugned judgment and order. It was only much after the period of limitation was over and the State Government sought to implement the said order by issuing the order dated 8.12.2017 that the applicants suddenly became vigilant about their rights and sought to challenge the impugned judgment and order.
18. At this juncture it may be germane to refer to the decision of the Supreme Court in the case of Pundlik Jalam Patil v.Executive Engineer (supra), wherein it has been held thus:
"18. The question for consideration is whether the averments disclosed any sufficient cause to condone the inordinate delay of 1724 days in filing the appeals.
19. In Ajit Singh Thakur Singh v. State of Gujarat this court observed :
"6. ...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 sufficient cause."
(Emphasis supplied) This judgment squarely applies to the facts in hand.
20. The respondent beneficiary of the acquisition did not initiate any steps whatsoever before expiry of limitation and no circumstances are placed before the court that steps were taken to file appeals but it was not possible to file the appeals within time.
21. Shri Mohta, learned senior counsel relying on the Page 21 of 27 C/LPA/109/2018 ORDER decision of this court in N. Balakrishnan v. M. Krishnamurthy submitted that length of delay is no matter, acceptability of explanation is the only criterion. It was submitted that if the explanation offered does not smack of mala fides or it is not put forth as part of dilatory tactics the court must show utmost consideration to the suitor. The very said decision upon which reliance has been placed holds that the law of limitation fixes a life span for every legal remedy for the redress of the legal injury suffered. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of Limitation is thus founded on public policy. The decision does not lay down that a lethargic litigant can leisurely choose his own time in preferring appeal or application as the case may be. On the other hand, in the said judgment it is said that court should not forget the opposite party altogether. It is observed :
"11. ...It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time."
22. In Ramlal v. Rewa Coalfields Ltd. this court held that:
"In construing Section 5 of the Limitation Act, it is relevant to bear in mind two important considerations. The first consideration is that the expiration of period of limitation prescribed for making an appeal gives rise to right in favour of the decree holder to treat the decree as binding between the parties and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause of excusing delay is shown discretion is given to the court to condone the delay and admit the appeal. 'It is further necessary to emphasis that even if the sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a Page 22 of 27 C/LPA/109/2018 ORDER sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by section 5. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage the diligence of the party of its bona fides may fall for consideration."
(emphasis supplied)
19. Thus, in Ajit Singh Thakur Singh (supra) the Supreme Court has held that no event or circumstance arising after the expiry of limitation can constitute sufficient cause, whereas in the facts of the present case, the applicants seek to contend that it is on account of an event that arose much after the expiry of the period of limitation, namely the allocation of the five candidates to the post of Deputy Superintendent of Police by an order dated 8th December, 2017, that cause of action arose for them to challenge the impugned judgment and order dated 21st April, 2017. In the light of the principle enunciated in the above decision, the events that transpired after the expiry of the period of limitation cannot constitute sufficient cause. In Pundlik Jalam Patil v.Executive Engineer (supra) the Supreme Court has held that in construing section 5 of the Limitation Act, it is relevant to bear in mind two important considerations. The first consideration is that the expiration of period of limitation prescribed for making an appeal gives rise to a right in favour of the decree- holder to treat the decree as binding between the parties and the legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. As noted earlier, in this case, the State Government has not implemented the impugned judgment and order immediately and has passed the order dated 8th December, 2017 much Page 23 of 27 C/LPA/109/2018 ORDER after the period of limitation had expired, thereby granting sufficient time to any party aggrieved by the impugned judgment and order to challenge the same. However, it is only when the judgment and order is sought to be implemented, that the applicants have thought it fit to challenge the same and disturb the legal right that has accrued in favour of the original petitioners.
20. The contention that the principles which may apply to a party to a decision may not apply to the applicants as they were not parties to the writ petitions, does not merit acceptance for the reason that the period of limitation would required to be computed from the date of knowledge of the parties regarding the passing of the impugned judgment and order and not from the date of knowledge about how it impacted the applicants. At the cost of repetition, it may be stated that it is not the case of the applicants that they were not aware of the passing of the impugned judgment and order immediately after the time when it came to be delivered, but it is their categorical case emerging from the averments made in the memorandum of application that they had expected the State and/or GPSC to challenge the judgment by filing an appropriate letters patent appeal. The contention that the applicants not being parties to the writ petition, their case should be considered differently may have come to their aid provided the applicants were not aware that their appointments were subject to the result of the petition and were further not aware of the passing of the impugned judgment and order, and, therefore, could not challenge it within the period of limitation. However, neither of the circumstances is present in this case so as to warrant taking Page 24 of 27 C/LPA/109/2018 ORDER of a liberal view in favour of the applicants.
21. Insofar as decision of the Supreme Court in the case of Esha Bhattacharjee v. Raghunathpur Nafar Academy (supra), on which reliance has been placed by the learned counsel for the applicants, it may be noted that the said decision also lays down that the concept of liberal approach has to encapsulate conception of reasonableness and it cannot be allowed totally unfettered free play. In case of inordinate delay, the same warrants strict approach. 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 the parties and the said principles cannot be given total go by in the name of liberal approach. In the facts of the present case, the original petitions were filed sometime in the year 2012, challenging the non-appointment of the original petitioners pursuant to the recruitment process. By the impugned judgment and order dated 21.4.2017, relief has been granted to the said petitioners. The judgment and order dated 21.4.2017 has been sought to be implemented much later, that is, after a period of almost eight months from the date of the passing of the impugned judgment and order and it is at this point of time that the applicants have sought to challenge the impugned judgment and order. Under the circumstances, the conduct, behaviour and attitude of the applicants relating to their inaction and negligence are relevant factors which cannot be given a go by in the name of a liberal approach.
Page 25 of 27 C/LPA/109/2018 ORDER22. Having regard to the totality of the facts and circumstances of the present case, it cannot be said that the applicants who were well aware of the passing of the impugned judgment and order but waited till the same came to be implemented to ascertain the manner in which it impacts them and thereafter sought to challenge the same, can be said to have been diligent in availing of the remedy of the appeal. In the opinion of this, the averments made in the application seeking condonation of delay in filing the appeals do not show any acceptable cause much less sufficient cause to exercise discretion in favour of the applicants. Thus, by the explanation put forth by the applicants for seeking condonation of delay of 233 days, it cannot be said that delay that has occasioned in filing the letters patent appeals has been sufficiently explained.
23. In the absence of sufficient cause being shown, no case is made out for condoning the delay caused in filing the letters patent appeals. The applications, therefore, fail and are accordingly rejected with no order as to costs.
24. In light of the fact that the delay in filing the letters patent appeals has not been condoned, the letters patent appeals would not survive and stand disposed of accordingly.
25. At this stage, Mr. Thakore, learned counsel for the applicants has requested that the interim relief granted vide order dated 1.5.2018, be extended for some time to enable the applicants to approach the higher forum. Such request is vehemently opposed by the learned counsel for the opponents. Considering the fact that such relief was granted on an application for condonation of delay, the court is not Page 26 of 27 C/LPA/109/2018 ORDER inclined to accept the request made by the learned counsel for the applicants. The interim relief granted by the order dated 1.5.2018, therefore, stands vacated.
26. Registry to place a copy of this order in each matter.
(HARSHA DEVANI, J) (A. S. SUPEHIA, J) K.K. SAIYED Page 27 of 27