Allahabad High Court
State Of U.P.Thru Secy.Deptt.Of ... vs Ram Milan Dubey And Ors. 784(S/S)2011 on 17 September, 2019
Bench: Pankaj Kumar Jaiswal, Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 1 Case :- SPECIAL APPEAL DEFECTIVE No. - 205 of 2016 Appellant :- State Of U.P.Thru Secy.Deptt.Of Revenue Lko.And Ors. Respondent :- Ram Milan Dubey And Ors. 784(S/S)2011 Counsel for Appellant :- C.S.C. Counsel for Respondent :- Rama Kant Dixit Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Jaspreet Singh,J.
Heard Sri Anil Kumar Vishen learned counsel for the State-appellants and Sri Rama Kant Dixit, learned counsel for the respondents on C.M.A. No.53474 of 2016 application for condoning the delay.
This special appeal has been filed by the State-respondents barred by 4 years, 7 months and 70 days along with memo of appeal application for condonation of delay supported by an affidavit has been filed wherein delay in filing the appeal has been explained in paragraph nos. 2 to 7 which reads as under:-
"2. That as regards the facts and circumstances under which the instant Special Appeal could not be filed earlier, it is relevant to submit here that certified copy of the Judgement and Order dated: 06.09.2011, passed by the Hon'ble Single Judge in Writ Petition No. 784 (S/S) of 2011 (Ram Milan Dubey and others Vs. State of U.P. and others) was served by the respondent alongwith application/ representation in the office of the District Magistrate, Amethi, who immediately referred the matter to the State Government.
3. That while the matter was under consideration, after five years, the respondent no.1 filed a contempt case thereafter in compliance of the order dated 06.09.2011, the District Magistrate, Amethi passed the order dated 29.08.2012 subject to the final decision in the Special Appeal proposed to be filed.
4. That under the identical circumstances, one Shri Dan Bahadur Singh, who was selected/engaged for the post of Seasonal Collection Amin and not for the police of Collection Amin. He joined in Tehsil Amethi and worked only for 26 days w.e.f. 05.06.1986 to 30.06.1986 and since thereafter he never worked, filed a Writ Petition No. 680 of 2015 (Dan Bahadur Singh Versus State of U.P. and others), in which the learned Single Judge passed the order dated 26.02.2015 against which the State Government filed an Special Appeal (Defective) No. 17 of 2016 (State of U.P. and others Vs. Dan Bahadur Singh) and this Hon'ble High Court vide Judgement and order 10.01.2016 has allowed the Special Appeal vide Judgement and order dated 10.01.2016 and the Writ Petition was dismissed.
5. That thereafter the District Magistrate, Amethi directed to file Special Appeals in all such identical matters. In pursuance of the directions issued by the State Government, the District Magistrate, Amethi vide letter dated 04.02.2016 a legal opinion was sought from the learned Chief Standing Counsel, High Court, Lucknow Bench, Lucknow who vide his letter dated 19.02.2016 recorded his opinion. Thereafter the matter was again placed before the State government. The State government referred the matter to the Law Department. The Law Department granted permission for filing of the present Special Appeal on 14.03.2016 and in pursuance of the same, the District Magistrate, Amethi vide letter dated 21.03.2016 requested the Chief Standing Counsel , High Court Lucknow Bench, Lucknow to take appropriate action for filing of the Special Appeal.
6. That the authorised pairokar contacted the office of the Chief Standing Counsel, High Court, Lucknow Bench, Lucknow on 29.03.2016 and the paper book for preparing Special Appeal was allotted to the Standing Counsel on 29.03.2016 and on being contacted by the pairokar same day, he advised the pairokar to contact him again on 02.04.2016 along with the relevant necessary record and explanation for the delay caused in filing the Special Appeal. The pairokar contacted the Standing Counsel on 02.04.2016 and the Special Appeal along with the applications for interim relief and condonation of delay along with their respective affidavits have been drafted on 13.04.2016 and 18.04.2016 and the same is being filed without any further delay.
7. That the delay in filing of the Special Appeal is genuine, bonafide and unintentional. The Special Appeal could not be filed earlier as it took time in filing the administrative formalities by following certain norms and procedure of disciplined and systematic performance of official functions which includes preparation of office notes etc. after scrutinizing various record, movement of files step by step through different sections and to different officers and lastly to the head of the department and thereafter forwarding the matter of the Administrative Department in the Government for appropriate decision. The similar procedure is adopted in the Administrative Department also. The aforesaid process takes sometime as it depends upon so many factors/circumstances, such as preparation of office notes etc., as stated above, non-availability of certain necessary informations, as stated, non-availability of concerned official/officers, various holidays in between and certain unavoidable and unspoken circumstances. It also took sometime in obtaining the requisite permission of the law department and also in preparation of the Special Appeal and its appendices."
Learned counsel for the respondent has submitted that bi-partite Judgement and order has been passed by the learned Writ Court after hearing the learned Standing Counsel for the State-respondents and the learned Writ Court relying upon the Judgement and order dated 19.08.2006 passed in Writ Petition No. 4031 (S/S) of 2001 (Pratap Narain Pandey Vs. State of U.P. and others) disposed of the writ petition that the writ petitioners are entitled to the benefit of the aforesaid Judgement.
Learned counsel for the State-appellants has submitted that the facts of the present case are entirely different, therefore, the respondents are not entitled to get the benefit of the Judgement and order dated 19.08.2006.
Per contra, learned counsel for the respondent has drawn our attention to paragraph nos. 21 to 25 of the writ petition and submitted that no specific reply has been given by the appellants in paragraph nos. 10 of the counter affidavit. He further submitted that in earlier round of litigation, no objection to the delay in filing of the writ petition was raised which went upto the Division Bench of this Court. Learned counsel further submitted that the case of the respondent is squarely covered by a recent Judgement of this Court rendered in Special Appeal Defective No. 208 of 2016 State of U.P. Vs. Yamuna Prasad Gupta dated 13.08.2019.
Perusal of the Judgement and order dated 13.08.2019 passed in Special Appeal Defective No. 208 of 2016 State of U.P. Vs. Yamuna Prasad Gupta shows that the aforesaid appeal was also barred by time. The order dated 13.08.2019 reads as under:-
"Heard Sri Q.H. Rizvi, learned Standing Counsel for all applicants/appellants and Sri Rama Kant Dixit, learned counsel for the respondent on the application for condonation of delay [C.M. Application No.53494 of 2016].
This appeal is barred by 3 years 6 months 30 days.
Learned Counsel for the applicants/appellants submits that in compliance of the order dated 26.9.2012, the then District Magistrate, Amethi passed an order dated 16.1.2013 granting benefit to the respondent subject to the final decision in the Special Appeal.
Thereafter, the State has filed a Special Appeal (Defective) No.17 of 2016, State of U.P. and others v. Dan Bahadur against the judgment of learned Single Judge dated 26.2.2015 on the ground that the respondent-writ petitioner was selected/engaged for the post of Seasonal Collection Amin, but he without explaining the delay of 29 years filed a writ petition in the High Court from the date of his disengagement and the Division Bench after considering the aforesaid has observed that the delay of 29 years in filing the writ petition was completely unexplained and set aside the judgment passed by the learned Single Judge dated 26.2.2015 and dismissed the writ petition by allowing the Special Appeal.
"Sri Q. H. Rizvi, learned Standing Counsel has further submitted that in the present case, the writ petitioner filed a writ petition after a period of eight years from the date of disengagement and the learned Writ Court without considering the facts of the present case passed an order only on the basis of an order passed in the case of Pratap Narain Pandey v. State of U.P. and others, Writ Petition No.4031 (SS) of 2001 by observing that the controversy involved in the present writ petition has already been settled by means of judgment and order dated 19.8.2006. Accordingly, the writ petition was disposed of finally vide impugned order dated 26.9.2012 by holding that the respondent-writ petitioner is also entitled to the benefit of the aforesaid judgment.
Sri Q. H. Rizvi, learned Standing Counsel has submitted that the cases of the present writ petitioner and Pratap Narain Pandey are distinguishable on facts and in view of the law laid down by the Division Bench in the case of Dan Bahadur Singh v. State of U.P., the respondent is not entitled for any benefit and prayed that the matter be remitted to the learned Writ Court for deciding afresh in accordance with law.
Learned Counsel for the respondent has disputed the aforesaid and has submitted that the respondent in the present Appeal was disengaged w.e.f. 16th August, 1993 but no written order had been given despite repeated demand. Therefore, the respondent made representations, the last representation was on 18th January, 1994, but no action was taken so immediately thereafter, he filed writ petition No.2189 (SS) of 1994, which has been decided by means of impugned order dated 26.9.2012. Therefore, the aforesaid judgment will not help in any way to the State and prays for dismissal of application for condonation of delay as well as the present Special Appeal.
Considering the aforesaid so also the fact that no counter affidavit was filed by the State in the writ petition nor any document in support of the grounds mentioned in the Special Appeal has been filed or annexed alongwith the Appeal to prove the facts mentioned in the appeal, we are not inclined to accept the prayer of the learned Counsel for the appellants/State. Even otherwise, the delay of 3 years 6 months 30 days has not been properly explained merely because the appellants were sleeping over in the matter and without examining the factum regarding applicability of Dan Bahasur Singh (supra) sought legal opinion on 4.2.2016 and thereafter after taking necessary permission from the Law Department filed the present Appeal in the year 2016.
On due consideration of the reasons assigned in the application for condonation of delay, we are of the view that the delay in filing the appeal beyond 3 years 6 months 30 days has not been properly explained and the application as well as appeal has no merit.
Accordingly, the application for condonation of delay [C.M. Application No. 53494 of 2016] is rejected.
Consequently, the Special Appeal is dismissed."
Considering the aforesaid that there was delay in filing the writ petition but the special appeal was dismissed being barred by time and in the instant case also, there is no proper explanation of more than four years and therefore, we are of the view that cause shown in paragraph nos. 2 to 7 of the affidavit filed in support of the delay condonation application which too has been quoted above is not sufficient and the application for condonation of the delay has no merit and is liable to be dismissed.
Accordingly, the C.M.A. No. 53473 of 2016 for condoning the delay is bereft of merit and is dismissed.
Consequently, the special appeal too has no merit and is dismissed.
[Jaspreet Singh,J.] [Pankaj Kumar Jaiswal,J.] Order Date :- 17.9.2019 S.Ali