Himachal Pradesh High Court
Between:- R To vs State Of H.P. (1994) 2 Suppl. 316 on 30 March, 2022
Bench: Tarlok Singh Chauhan, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 29th DAY OF MARCH, 2022
.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE SANDEEP SHARMA
CIVIL WRIT PETITION NO. 7822 OF 2021
1.
Between:- r to
THE STATE OF H.P. THROUGH
PRINCIPAL SECRETARY (PW) TO
THE GOVT. OF H.P., SHIMLA.
2. THE ENGINEER-IN-CHIEF,
HPPWD, NIRMAN BHAWAN,
NIGAM VIHAR, SHIMLA-2.
3. THE SUPERINTENDING
ENGINEER, HPPWD 14TH
CIRCLE ROHROO, DISTT.
SHIMLA, H.P.
4. THE EXECUTIVE ENGINEER,
HPPWD DIVISION ROHROO,
DISTT SHIMLA, H.P.
...PETITIONERS
(BY SH. ASHOK SHARMA, A.G.
WITH SH. VINOD THAKUR, SH.
SHIV PAL MANHANS, ADDL.
A.GS., SH. YUDHBIR THAKUR,
DY. A.G. AND SH. RAJAT
CHAUHAN, LAW OFFICER.)
AND
SMT. LAKSHMI DEVI WIFE OF
LATE SH. BALA DUTT, RESIDENT
OF VILLAGE CHIUNI, P.O.
LOWER KOTI, TEHSIL ROHROO,
DISTT. SHIMLA, H.P.
...RESPONDENT
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2
(SH. V. D. KHIDTTA, ADVOCATE,
FOR THE RESPONDENT.)
.
This Petition coming on for order on this day, Hon'ble Mr.
Justice Tarlok Singh Chauhan, passed the following:-
ORDER
The petitioners have questioned the impugned order dated 27.02.2018, whereby the erstwhile learned Tribunal allowed the Original Application filed by the petitioner (respondent herein) for regularizing the services of her deceased husband on completion of eight (8) years in terms of the judgment rendered by the Hon'ble Supreme Court in Mool Raj Upadhaya vs. State of H.P. (1994) 2 Suppl. 316.
2. Since, this petition has been filed after a considerable delay, therefore, this Court on 14.12.2021, passed the following order:-
"Petitioners seek to assail the order passed by the learned erstwhile Tribunal on 27.02.2018. There is virtually no whisper in the petition as to what prevented the petitioners from assailing this order within a reasonable period.
Therefore, let supplementary affidavit to this effect be filed within eight weeks.
List on 08.03.2022."
3. The petitioners now have filed supplementary affidavit wherein they have tried to explain the delay, the relevant portion whereof reads as under:-
::: Downloaded on - 30/03/2022 20:25:14 :::CIS 3"2. That in this behalf it is respectfully submitted that the copy of impugned judgment/order dated 27.02.2018 passed by erstwhile H.P. Administrative Tribunal in OA No. .
6072/2016 was supplied to the petitioner department vide letter No. 16-1/2016-I Addl. AG-12284, dated 05.05.2018 from the office of Ld. Addl. Advocate General, H.P. Since, the direction was issued to regularize the service of the deceased husband of respondent w.e.f. 31.03.1999, as such the o/o Executive Engineer was asked to supply the entire record vide letter No. PW-LC-OA No. 6072/2016-Lakshmi Devi-12077-79, dated 19.05.2018 for further examination. The record was supplied from the o/o Executive Engineer Division Rohroo to the o/o Engineer-in-Chief HPPWD vide letter No. PW-RD-EA-II-C. Case Laxmi Devi/2018-19-3237, dated 28.05.2018. Upon receipt of requisite record, the matter was referred to Government vide letter No. PW-LC-OA No. 6072/2016- Laxmi Devi-1700-02, dated 15.06.2018 for obtaining necessary advice/opinion of Law Department in respect of the impugned judgment dated 27.02.2018. The matter was examined at the Government level and vide letter No. PBW-AE(1)-67/2018, dated 25.07.2018, the petitioner department was advised that the impugned judgment is not fit for further agitation. Since in impugned judgment dated 27.02.2018, there was a direction to petitioner department for regularizing the deceased husband of the respondent upon completion of 8 years of service i.e. w.e.f. year, 1999, which in fact was contrary to the ratio of law laid down in Mool Raj Upadhaya case as well as the policies of the department, as such the matter was re- referred to Government vide letter No. PW-LC-OA No. 6072/2016-Laxmi Devi-3186, dated 09.08.2018 for further examination. The Government vide letter No. PBW-AE(1)- 67/2018 dated 03.10.2018 has directed the petitioner department to re-examine the matter on few points and ::: Downloaded on - 30/03/2022 20:25:14 :::CIS 4 thereafter re-refer the same for obtaining necessary advice. Subsequently, the matter was re-examined on the points as suggested by the Government and was re-
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referred to Government vide letter No PW-LC-OA No. 6072/2016-Laxmi Devi-3555-57, dated 15.10.2018. The matter was re-examined at the Government level and vide letter No PBW-AE(1)-67/2018 dated 30.11.2018, the petitioner department was advised that the impugned judgment dated 27.02.2018 is fIt for further agitation.
3. That the advice of Government was conveyed to Executive Engineer HPPWD Division Rohroo vide letter No. PW-LC-OA No. 6072/2016-Laxmi Devi-4866-68, dated 10.12.2018. IN the meantime, the respondent has filed COPC r No. 328/2019 before the Hon'ble Court for implementation of judgment/order dated 27.02.2018. Thereafter, the o/o Executive Engineer HPPWD Division Rohroo has processed the draft CWP against impugned judgment/order dated 27.02.2018 for its vetting from the o/o Ld. Advocate General, H.P. on 08.10.2019. The CWP was prepared and vetted in the o/o Engineer-in-Chief, HPPWD and further referred to Ld. Advocate General, H.P. vide letter dated 06.11.2019 through the official concerned. The CWP was vetted in the o/o Ld. AG, H.P. on 06.11.2019. It is worth to mention here that HPPWD Division Rohroo is one of the far flung area of Himachal Pradesh and also during December to February (winter season) it was covered with the snow at that time. The CWP was faired out, but do not file due to bad weather conditions, as transportation was affected. It is further submitted that during March, 2020 due to the pandemic Covid-19, the State was facing complete lockdown. Transportation was totally affected. Not only this in all the Government departments the officials were performing duties on rotation basis. Therefore, the case file remained without any action. It is further submitted that in HPPWD ::: Downloaded on - 30/03/2022 20:25:14 :::CIS 5 Division due to shortage of staff the dealing assistant was overburdened and was incharge of he establishment of field staff of about 450 workmen. Therefore, the issue of .
filing of CWP escaped his attention. The matter was come o the notice of the petitioner department, when the notice of COPC(T) transferred from the erstwhile Tribunal was receipt. Therefore, the CWP was immediately processed for its filing, and the same was also filed in October 2021. However, in order to justify the delay in filing the CWP the official concerned was issued show cause notice to explain the reasons on 07.03.2022 but the reply of the officials is yet to be received as the official concerned proceeded on earned leave w.e.f. 09.02.2022 to 11.03.2022 in connection with his ailing mother who is a heart patient. The CWP was also processed for its filing. But at that time the Registry in the Hon'ble Court has raised few objections in respect of the specification for font size, line spacing margins etc. because the Hon'ble Court vide No. HHC/Rules/Vol.V/97-I-16256-69, dated 03.08.2021 and has conveyed the new specification for font, size, line spacing, margins, etc. for filing of various reply(s)/petition(s) in the Hon'ble Court. After meeting out all the specifications as prescribed by the Hon'ble Court, the CWP was fled on October 2021 through the deponent. The reply to COPC was also filed before the Hon'ble Court on December 2021. Therefore, the reasons stated above for he delay in filing the CWP were neither intentional nor willful, but beyond the control of the deponent.
4. A perusal of the affidavit would clearly reveal that there is a delay at every stage and except mentioning the dates of the receipt of the file and decision taken therein, there is no explanation as to why such delay has occurred. Though, it is ::: Downloaded on - 30/03/2022 20:25:14 :::CIS 6 stated by the Department that the delay was due to some unavoidable circumstances and genuine difficulty, but the fact .
remains that from day one, Department or the person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps.
5. It is not in dispute that the person(s) concerned were well aware or conversant with the issue involved including the concept of delay and latches for taking up the matter by way of filing a writ before this Court. As repeatedly held by the Hon'ble Supreme Court that they cannot claim a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In 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.
6. The mere fact that there was inter se consultation process of the Department, the same cannot be permitted to go beyond a reasonable limit.
7. We are fully conscious of the fact that we are dealing with the writ petition for which there is no prescribed period of limitation nonetheless the principle of delay and latches equally apply to these cases.
8. Even while filing this petition, the petitioners had taken it for granted that this petition would be entertained as a ::: Downloaded on - 30/03/2022 20:25:14 :::CIS 7 matter of right without any question being raised regarding the delay and latches or else there should have at least been .
slightest whisper in the writ petitions and in the prayer(s) to this effect seeking condonation of delay and latches.
9. It is more than settled that in absence of plausible and acceptable explanation merely because the wing of the government happens to be the party, the same cannot be done mechanically, especially when there is negligence, inaction or lack of bonafide exhibited by the petitioners.
10. The r Hon'ble Supreme Court has repeatedly deprecated the practice of the Government / Boards /University(ies) moving the Court(s) belatedly only by way of formality.
11. The Hon'ble Supreme Court in Special Leave Petition (Civil) No(s). 13348 of 2020, titled as The State of Madhya Pradesh & Anr. vs. Chaitram Maywade, decided on 27.10.2020, observed as under:-
"The State of Madhya Pradesh continues to do the same thing again and again and the conduct seems to be incorrigible. The Special Leave Petition has been filed after a delay of 588 days. We had an occasion to deal with such inordinately delayed filing of the appeal by the State of Madhya Pradesh in SLP(C) D. No. 9217/2020- State of Madhya Pradesh & Ors. vs. Behru Lal in terms of our order dated 15th October, 2020.
We have penned down a detailed order in that case and we see no purpose in repeating the same reasoning again ::: Downloaded on - 30/03/2022 20:25:14 :::CIS 8 except to record what are stated to be the facts on which the delay is sought to be condoned. On 05.01.2019, it is stated that the Government advocate was approached in .
respect of the judgment delivered on 13.11.2018 and the Law Department permitted filing of the SLP against the impugned order on 26.05.2020. Thus, the Law Department took almost about 17 months' time to decide whether the SLP had to be filed or not. What greater certificate of incompetence would there be for the legal Department! We considered it appropriate to direct the Chief Secretary of the State of Madhya Pradesh to look into the aspect of revamping the legal Department as it appears that the Department is unable to file appeals within any reasonable period of time much less within limitation. These kinds of excuses, as already recorded in the aforesaid order, are no more admissible in view of the judgment in Office of the Chief Post Master General & Ors. vs. Living Media India Ltd. & Anr.-(2012) 3 SCC 563. WE have also expressed our concern that these kinds of the cases are only "certificate cases" to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue. The object is to save the skin of officers who may be in default. We have also recorded the irony of the situation where no action is taken against the officers who sit on these files and do nothing."
12. Similar reiteration of law can also be found in another judgment of the Hon'ble Supreme Court in Special Leave Petition (Civil) Diary No(s). 971/2020, titled as The State of Uttar Pradesh & Anr. vs. Prem Chandra, decided on 27.11.2020, wherein it was observed as under:-
::: Downloaded on - 30/03/2022 20:25:14 :::CIS 9"We have set out the aforesaid facts to show the callous manner in which these proceedings have gone on. The fact that the matter should have gone on for two decades .
before the Tribunal in case of a labour dispute is itself a travesty of justice. That the petitioner takes its own time to assail the same before the High Court is the next stage and finally it has taken them almost three years to get this petition before the Supreme Court.
The application for condonation of delay is a usual one showing the file moving from one place to the other. The reliance again on different judgments including Collector, Land Acquisition, Anantnag & Anbr. vs. Mst. Katiji & Ors. - (1987) 2 SCC 107 is followed by referring to judgments of the different vintage, if one may say so. There is complete non-reference to the judgment in the case of Office of the Chief Post Master General & Ors. vs. Living Media India Ltd. & Anr. (2012) 3 SCC 563. It is the latter judgment which sets out the position after technology has come to the aid of the Governments.
We have had opportunity to deal with such matters and have extended cautions to the State Governments not to come to this Court only to obtain the certificate of dismissal what we have called as "certificate cases", so as to put the quietus to the matter and absolve the officers of the responsibility of not having performed their duties. A detailed discussion in this behalf is in SLP(C) Diary No. 9217/2020- State of Madhya Pradesh & Ors. vs. Bherulal decided on 15.10.2020. It appears that the cautions extended from time to time are falling on deaf ear. If the petitioners feel that the period of limitation prescribed by the Legislature is not sufficient, given their inefficiencies and incompetence, then it is for them to persuade the Legislature to change the Law of Limitation so far as applicable to the Government concerned. Till the Law remains, it must be applied as it stands.
::: Downloaded on - 30/03/2022 20:25:14 :::CIS 10We also find that no action is ever taken against the personnel responsible for the delay and to save their skin, these special leave petitions are filed wasting judicial .
time.
We are thus, not inclined to let go the matter at this and do consider appropriate, as in the other cases, to impose costs on the petitioners for having wasted judicial time.
13. Not only this, the Hon'ble Supreme Court has repeatedly reiterated that government cannot take the plea of differential treatment in matters of condonation of delay. As a matter of fact, the Hon'ble Supreme Court very recently in case of SLP(C) Diary No(s). 19059 of 2020, titled as Deputy Conservator of Forests vs. Timblo Irmaos Ltd. & Ors., decided on 18.12.2020, refused to differentiate between the government and private party in the matter of belatedly approaching the Court without sufficient cause. The relevant portion whereof reads as under:-
"A perusal of the impugned order shows that once again a reference has been made, as in similar cases of delay by the State to the judgment of this Court in the case of Collector, Land Acquisition, Anantnag & Anr. vs. Mst. Katiji & Ors., AIR 1987 SC 1353. A claim was also made that the petitioner should not suffer for the fault of the counsel. The High Court opined that such substantial delay could not be condoned by mere shifting the blame on the counsel as the parties are required to keep track of the matter and there is negligence despite numerous opportunities.
We have dealt with the issue of Government authorities in approaching courts belatedly as if the Statute of ::: Downloaded on - 30/03/2022 20:25:14 :::CIS 11 Limitation does not exist for them. While referring to some reasons given for insufficiencies, we observed that the parties cannot keep on relying on judicial .
pronouncements for a period of time when technology had not advanced and a greater leeway was given to the Government, (Collector, Land Acquisition, Anantnag & Anr. (supra). This situation no more prevail and this position had been elucidated by the judgment of this Court in office of the Chief Post Master General & Ors. vs. Living Media India Ltd. & Anr. (2012) 3 SCC 563.
These aspects have been analyzed by us recently in SLP (C) No. D. 9217/2020-State of Madhya Pradesh & Ors. vs. Bheru Lal decided on 15.10.2020.
In the aforesaid judgment we have defined "certificate cases" the objective of which is only to put a quietus to the issue by recording that nothing could be done because the highest Court had dismissed the appeal. We have repeatedly deprecated such practice and process.
The irony is that despite observations, no action was ever taken against officers who sit on the file and do nothing.
The matter is further aggravated in the present case and even the present petition is filed with a delay of 462 days and once again the excuse is of change of counsel. We have repeatedly deprecated such attempts of the State Governments to approach this Court only to complete a mere formality. Learned counsel for the petitioner strenuously contends that there is valuable land involved. In our view, if it was so, then the concerned officers responsible for the manner in defending this petition must be made to pay for it.
We are thus constrained to dismiss the petition as barred by time and impose cost of Rs. 15,000/- on the petitioner for wastage of judicial time. We put it to the learned counsel that the cost would have been much greater but for the fact that a young counsel is appearing before us ::: Downloaded on - 30/03/2022 20:25:14 :::CIS 12 and we have given considerable concession in the costs on that factor alone.
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14. It is more than settled that condition precedent for condoning the delay is always the existence of sufficient cause.
Whether the explanation furnished for the delay would constitute sufficient cause or not would depend upon the facts of each case? It cannot be any straight jacket formula for accepting or rejecting the explanation furnished by the parties seeking condonation of delay. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bonafide can be imputed to the defaulting party.
15. However, equally true the proposition that valuable right may accrue to the other party on account of delay or inaction of the opposite party.
16. As would be noticed from the explanation offered by the petitioners, there was no serious attempt whatsoever to ensure that the files are attended and moved expeditiously from one desk to other. Not only inaction but there is a gross negligence on the part of the officials of the petitioners and at the same time valuable right has accrued in favour of the respondent.
17. In view of the aforesaid discussion, we are of the considered view that this petition is barred by the principle of ::: Downloaded on - 30/03/2022 20:25:14 :::CIS 13 delay and latches and accordingly the same is dismissed on this ground alone, so also pending application(s), if any.
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(Tarlok Singh Chauhan) Judge (Sandeep Sharma) th 29 March, 2022 Judge (sanjeev) r to ::: Downloaded on - 30/03/2022 20:25:14 :::CIS