Allahabad High Court
State Of U.P. And 4 Others vs Sita Ram on 18 May, 2022
Author: Rajesh Bindal
Bench: Rajesh Bindal
HIGH COURT OF JUDICATURE AT ALLAHABAD Chief Justice's Court Serial No. 3 IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD *** SPECIAL APPEAL DEFECTIVE No. - 155 of 2022 (O & M) (Arising out of Writ-A No. 38054 of 2016) State of U.P. and others ...Appellants Through:- Mr. Chandan Kumar, Standing Counsel v/s Sita Ram ...Respondent Through:- Mr. Harindra Prasad, Advocate Coram: HON'BLE RAJESH BINDAL, CHIEF JUSTICE HON'BLE J.J. MUNIR, JUDGE ORDER
1. The present intra-Court appeal has been filed by the State impugning the order dated July 30, 2019. Along with the appeal appeal, an application has been filed seeking condonation of delay in filing thereof. The period for which the delay is sought to be condoned is not mentioned in the application. However, as calculated by the Registry, it comes to 948 days, i.e., more than two years and seven months.
2. Learned counsel for the applicants/appellants, while trying to make out a case for condonation of huge delay of more than two years and seven months in filing the appeal, referred to the affidavit filed in support of the application seeking condonation of delay. He submitted that it was on account of bureaucratic set up and impersonal machinery which resulted in delay in filing the present appeal. One of the reasons is also Covid-19 pandemic. The submission is that the case otherwise is meritorious. The learned Single Judge has allowed the prayer for change of date of birth at the fag end of the career of the respondent-employee which is totally in contravention of judgments of Hon'ble the Supreme Court. Reliance is placed on the judgment of Hon'ble Supreme Court in Bharat Coking Coal Limited and others Vs. Shyam Kishore Singh (2020) 3 SCC 411, wherein relying on the earlier authorities on the issue, it was observed:
"9. This Court has consistently held that the request for change of the date of birth in the service records at the fag end of service is not sustainable."
3. In view of above, it is submitted that the present appeal being meritorious, the delay in filing the appeal be condoned and the appeal be allowed.
4. On the other hand, learned counsel for the respondent submitted that the applicants/appellants in the present appeal cannot take shelter of Covid-19 pandemic as the period of filing the appeal expired much prior to the imposition of first lockdown in March, 2020. The impugned order was passed by learned Single Judge on July 30, 2019. A perusal of the aforesaid contents of the affidavit, filed in support of the application seeking condonation of delay, shows that the file was dealt with at different levels as if there is no period prescribed for filing the appeal and it would be filed by the State at its pleasure.
5. Heard learned counsel for the parties and perused the paper-book.
6. Before the arguments of the parties could be heard and dealt with, there being huge delay in filing the present appeal the application seeking condonation of delay is required to be dealt with first.
7. The following table will show the dates and events after passing of the order by this Court and the action taken by the different departments of the State till such time the present appeal was filed:
Sl.No. Date Event
1. 30.07.2019 Learned Single Judge allowed the writ petition.
2. 28.08.2019 Petitioner requested Executive Engineer, Irrigation Division, Firozabad for compliance of the order of learned Single Judge.
3. 18.09.2019 Executive Engineer, Irrigation Division, Firozabad sought direction from Chief Engineer, Department of Irrigation and Water Resources, U.P. Lucknow for compliance of the order passed by learned Single Single Judge.
4. 04.10.2019 Chief Engineer, Department of Irrigation and Water Resources, U.P., Lucknow directed the Executive Engineer, Irrigation Division, Firozabad for seeking legal opinion from the office of Chief Standing counsel, High Court, Allahabad for filing review application.
5. 15.11.2019 Chief Engineer, Department of Irrigation and Water Resources, U.P., Lucknow sent reminder to Executive Engineer, Irrigation Division, Firozabad for seeking legal opinion from Chief Standing Counsel, High Court, Allahabad for filing review application.
6. 18.12.2019 Executive Engineer, Irrigation Division, Firozabad sought the legal opinion in the matter from Chief Standing Counsel, High Court, Allahabad.
7. 23.12.2019 Executive Engineer, Irrigation Division, Firozabad informed Chief Engineer, Department of Irrigation and Water Resources, U.P., Lucknow that legal opinion has been sought from Chief Standing Counsel for filing the special appeal.
8. 08.01.2020 Executive Engineer, Irrigation Division, Firozabad submitted narrative (facts of the case) and legal opinion to the office of Superintending Engineer, Drainage Division, Aligarh requesting for approval of narrative.
9. 10.01.2020 Superintending Engineer, Drainage Division, Aligarh requested Chief Engineer (Ganga) Department of Irrigation and Water Resources, U.P., Meerut for seeking approval for filing special appeal in the matter.
10. 10.01.2020 The Chief Engineer (Ganga) Department of Irrigation and Water Resources, U.P., Meerut sought permission from Chief Engineer (West), Stage-1, Department of Irrigation and Water Resources, U.P., Meerut for filing special appeal in the matter.
11. 11.01.2020 The Chief Engineer (West), Stage-1, Department of Irrigation and Water Resources, U.P. Meerut requested Chief Engineer (Complaint), Department of Irrigation and Water Resources, U.P. Lucknow for filing special appeal in the matter.
12. 25.02.2020 Chief Engineer (Legal Cell), Department of Irrigation and Water Resources, U.P. sought permission from Under Secretary, Department of Irrigation and Water Resources, Anubhag-7, U.P. Shasan, Lucknow for filing the special appeal in the matter.
13. 17.07.2020 The Under Secretary, Department of Irrigation and Water Resources, Anubhag-7, U.P. Shasan, Lucknow requested Engineer-in-Chief, Head of Department, Department of Irrigation and Water Resources, U.P., Lucknow for filing intra-Court appeal in the matter.
14. 30.07.2020 Executive Engineer, Irrigation Division, Firozabad sought legal opinion from District Government Counsel, Firozabad in the matter.
15. 25.08.2020 Chief Engineer (Ganga), Department of Irrigation and Water Resources, U.P., Meerut directed Executive Engineer, Irrigation Division, Firozabad for proper examination of all points given in the opinion of Chief Standing Counsel.
16. 02.09.2020 Executive Engineer, Irrigation Division, Firozabad submitted all papers/documents to the office of Chief Engineer (Ganga), Department of Irrigation and Water Resources, U.P., Meerut for seeking permission for filing intra-Court appeal.
17. 22.01.2021 Chief Engineer, Karmik asked Executive Engineer, Department of Irrigation, Firozabad for further proceedings of the matter.
18. 23.01.2021 Executive Engineer, Irrigation Division, Firozabad requested Chief Engineer, Department of Irrigation and Water Resources, U.P., Lucknow to seek the permission from the State for filing special appeal in the matter.
19. 25.01.2021 Chief Engineer, Ganga, Department of Irrigation and Water Resources, U.P., Meerut directed Executive Engineer, Irrigation Division, Firozabad to provide all information about the case.
20. 16.06.2021 Chief Engineer, Karmik vide reminder directed Executive Engineer, Department of Irrigation, Firozabad for further proceedings of the matter.
21. 18.06.2021 Executive Engineer, Irrigation Division, Firozabad requested Chief Engineer, Department of Irrigation and Water Resources, U.P. Lucknow for seeking permission for filing the special appeal in the matter.
22. 12.01.2022 Executive Engineer, Irrigation Division, Firozabad requested Chief Engineer (Ganga), Department of Irrigation and Water Resources, U.P., Meerut for seeking permission from the State for filing special appeal in the matter.
23. 31.01.2022 Chief Engineer (Coordinate Legal Cell) Department of Irrigation and Water Resources, U.P. requested Under Secretary, Department of Irrigation and Water Resources, Anubhag-7, U.P. Shasan, Lucknow for granting permission to file intra Court appeal in the matter.
24. 28.03.2022 Permission for filing intra-Court appeal was granted and in furtherance thereof Special Secretary and Additional Legal Remembrancer, Uttar Pradesh, Lucknow requested Chief Standing Counsel, High Court, Allahabad for filing intra-Court appeal in the matter.
25. 04.04.2022 Under Secretary, Department of Irrigation and Water Resources, Anubhag-7, U.P. Shasan, Lucknow informed Engineer-In-Chief, Head of Department, Department of Irrigation and Water Resources, U.P. Lucknow about permission letter dated 28.03.2022.
26. 08.04.2022 The office of Chief Standing Counsel allotted the file to Sri Chandan Kumar, Standing Counsel, High Court, Allahabad, who prepared the appeal.
27. 09.05.2022 After being prepared, the special appeal was presented.
8. A perusal of the aforesaid contents of the affidavit show that after the writ petition was allowed by learned Single Judge on July 30, 2019, for a period of about five months, i.e., upto December 23, 2019, the matter remained pending for seeking legal opinion as to whether order passed by learned Single Judge is required to be challenged or complied with. Thereafter, till March 28, 2022 the matter remained pending for approval by the competent authority for permission to file appeal against order passed by learned Single Judge. After the permission to file intra-Court appeal was granted, the Special Secretary and Additional Legal Remembrancer, Uttar Pradesh, Lucknow requested Chief Standing Counsel, High Court, Allahabad for filing intra-Court appeal in the matter, who in turn allotted the file to Sri Chandan Kumar, Standing Counsel, High Court, Allahabad on April 8, 2022, who prepared the appeal and thereafter the same was presented on May 9, 2022, i.e., after expiry of the period of limitation even if counted from the date the permission to file the appeal was granted.
9. The contents of the affidavit, which have been summarized above, show that officers of the department at different levels have not been vigilant enough to pursue the case in hand. Where the limitation to file the appeal is merely 30 days from the date of order in addition to the time spent in obtaining the certified copy thereof, firstly the matter remained pending only for seeking opinion by the Chief Standing Counsel as to whether review petition should be filed. It is apparent from the record that the decision was taken by the State Government on March 28, 2022. However, the present appeal was presented on May 9, 2022, i.e., 42 days thereafter.
10. The legal issue as to how an application filed by the State seeking condonation of delay has to be dealt with has invited attention of the Courts on a number of occasions. Initially, the view was that the State Machinery being impersonal, the Courts should be liberal in granting condonation of delay, however, seeing the repeated inaction and casualness in approach on the part of the authorities in filing the appeals after a huge delay, the view had to be revisited.
11. In Postmaster General and Others Vs. Living Media India Limited and Another, (2012) 3 SCC 563 considering the facts of that case, which were similar to the case in hand, the Hon'ble Supreme Court opined that 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 aforesaid observation was made about a decade back and there is lot of technological advancements thereafter. But apparently, the matters here are being dealt with in the old fashion. Separate period of limitation has not been provided for filing appeals by the State. The relevant paragraphs from the aforesaid judgment are extracted below:-
"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.
29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.
30. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay."
12. Recently, the Hon'ble Supreme Court in State of Madhya Pradesh and Others Vs. Bherulal (2020) 10 SCC 654 again considered the application filed by the State seeking condonation of delay in filing the Special Leave Petition. Similar arguments were made in support of the application, however, the same were rejected. Such type of cases were termed as "certificate cases". The application seeking condonation of delay was dismissed subject to costs of ₹ 25,000/-. Relevant paras nos. 4 to 8 thereof are extracted below:-
"4. A reading of the aforesaid application shows that the reason for such an inordinate delay is stated to be only "due to unavailability of the documents and the process of arranging the documents". In para 4, a reference has been made to "bureaucratic process works, it is inadvertent that delay occurs".
5. A preposterous proposition is sought to be propounded that if there is some merit in the case, the period of delay is to be given a go-by. If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the jurisdiction of the Court in an appropriate case to condone the delay.
6. We are also of the view that the aforesaid approach is being adopted in what we have categorised earlier as "certificate cases". The object appears to be to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue and thus, say that nothing could be done because the highest Court has dismissed the appeal. It is to complete this formality and save the skin of officers who may be at default that such a process is followed. We have on earlier occasions also strongly deprecated such a practice and process. There seems to be no improvement. The purpose of coming to this Court is not to obtain such certificates and if the Government suffers losses, it is time when the officer concerned responsible for the same bears the consequences. The irony is that in none of the cases any action is taken against the officers, who sit on the files and do nothing. It is presumed that this Court will condone the delay and even in making submissions, straightaway the counsel appear to address on merits without referring even to the aspect of limitation as happened in this case till we pointed out to the counsel that he must first address us on the question of limitation.
7. We are thus, constrained to send a signal and we propose to do in all matters today, where there are such inordinate delays that the Government or State authorities coming before us must pay for wastage of judicial time which has its own value. Such costs can be recovered from the officers responsible.
8. Looking to the period of delay and the casual manner in which the application has been worded, we consider it appropriate to impose costs on the petitioner State of Rs 25,000 (Rupees twenty-five thousand) to be deposited with the Mediation and Conciliation Project Committee. The amount be deposited in four weeks. The amount be recovered from the officers responsible for the delay in filing the special leave petition and a certificate of recovery of the said amount be also filed in this Court within the said period of time."
13. For the reasons mentioned above, in our opinion no case is made out for condonation of huge delay of more than two years and seven months in filing the present appeal. Hence, the application for condonation of delay is rejected and the appeal, accordingly, being barred by limitation is also dismissed.
14. Similar issue came up for consideration before a Division Bench of this Court in Special Appeal Defective No. 23 of 2019 (State of U.P. and others vs. Harikesh Singh) (Lucknow Bench) where certain directions were issued to streamline the court cases and check delays in filing appeals etc. Relevant para 17 thereof is extracted below :-
"17. We also find it appropriate to record here that from the affidavit filed in support of the application seeking condonation of delay, it is evident that the system being followed after decision of cases needs to be re-visited. Office of Advocate General should ensure that after every case is decided by the Court, certified copy thereof should be applied for, immediately and not on the request made by the Department. Immediately, on receipt of the copy of the order, it should be sent to the Department concerned along with the opinion as to whether the case is fit for filing an appeal or not alongwith suggested grounds, instead of waiting for a letter from the concerned Department seeking opinion. Further, the letter should specifically state as to the date on which the limitation to file an appeal or availing any remedy against the order expires. It has to be ensured that opinion in the case alongwith copy of the order reaches the concerned department well before expiry of time for filing appeal and that date should be specifically mentioned. Benefit should be taken of technological advancements and the process could be online as well."
15. However, on account of inaction by the authorities at different levels in the State, the State exchequer should not be made to suffer as a result of an order passed by learned Single Judge of this Court which is claimed to be contrary to law laid down by Hon'ble the Supreme Court in Bharat Coking Coal Limited's case (supra), in our view an inquiry is required to be conducted by Secretary, Irrigation Department to fix the responsibility of the officer(s)/official(s) concerned, who have slept over the file as a result of which huge delay occurred in filing the present appeal. The amount which is required to be paid to the respondent on account of change in date of birth, which according to the State was not permissible to him as he could not get the date of birth changed at the fag end of his career, be recovered from him/them after affording due opportunity of hearing. Such an amount shall not be reimbursed by the State to those officer(s)/official(s) under any circumstance.
16. This Court is constrained to pass such order for the reason that repeatedly in the Court the appeals are being filed by the State after huge delay as if no one is responsible for taking care of litigation which otherwise also results in causing huge loss to the State exchequer besides wasting precious time of the Court which is already flooded with the cases and majority of them are on account of inaction or wrong action by the State.
17. Copy of this order shall be sent to the Chief Secretary of the State of Uttar Pradesh and Secretary, Department of Irrigation for information and compliance.
(J.J. Munir) (Rajesh Bindal)
Judge Chief Justice
Allahabad
18.05.2022
P.Sri./Manish Himwan
Whether the order is speaking : Yes/No
Whether the order is reportable : Yes√/No