Gujarat High Court
Patel Rakeshkumar Dharamdas vs State Of Gujarat Through Secretary & 2 on 3 December, 2015
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/CA/7506/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 7506 of 2015
In MISC.CIVIL APPLICATION (STAMP NUMBER) NO. 1496 of 2015
In SPECIAL CIVIL APPLICATION NO. 1282 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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PATEL RAKESHKUMAR DHARAMDAS....Applicant(s)
Versus
STATE OF GUJARAT THROUGH SECRETARY & 2....Respondent(s)
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Appearance:
MR KB PUJARA, ADVOCATE for the Applicant(s) No. 1
MR. JANAK RAVAL, ASSISTANT GOVERNMENT PLEADER, for the
Respondent(s) No. 1-2
MS RV ACHARYA, ADVOCATE for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
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Date : 03/12/2015
ORAL JUDGMENT
1 Rule. Mr. Janak Raval, learned Assistant Government Pleader, waives service of notice of Rule for respondents Nos. 1 and 2. Ms. R V Acharya, learned advocate, waives service of notice of Rule for respondent No.3.
2 This application has been preferred for the condonation of the delay of 1464 days, that has occurred in filing Miscellaneous Civil Application, for the review of the judgment dated 06.05.2011, passed by this Court in Special Civil Application No. 1282 of 2011.
3 The present Civil Application has arisen in somewhat peculiar facts, which deserve to be noted, for clarity. The applicant had applied for the post of Art Teachers Diploma (ATD), VidyaSahayak, as a Physically Handicapped candidate, in response to an advertisement dated 21.04.2007, issued by respondent No.3, District Primary Education Officer, Bhavnagar Page 2 of 15 HC-NIC Page 2 of 15 Created On Thu Dec 10 00:06:52 IST 2015 C/CA/7506/2015 JUDGMENT District Panchayat. The applicant was the highest in merit in the Physically Handicapped category with ATD qualifications and, therefore, was entitled to be appointed to the post in question. It is the case of the applicant that one Mr. Dhandhla Dineshkumar Labhshankar, produced a bogus Disability Certificate and claimed to be appointed as a more meritorious candidate. However, the Selection Committee, suspecting the genuineness of the said Disability Certificate, after holding the Inquiry, filed a criminal complaint against him and cancelled his name from the merit list, on 13.08.2008. Even then, the applicant was not given appointment. The applicant made several representations and, ultimately, preferred Special Civil Application No. 1282 of 2011, before this Court. The said petition came to be allowed by this Court, vide CAV judgment dated 06.05.2011, whereby the respondents were directed to offer appointment to the applicant within one month. Accordingly, respondent No.3, issued an appointment order dated 03.06.2011 and the applicant joined his duties on the reopening of schools, on 13.06.2011.
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4 One Patel Rashmikaben Dahyabhai, was also
appointed as ATD VidyaSahayak, pursuant to the same advertisement under which the petitioner had applied, by an order dated 16.01.2008. He was placed in the regular payscale on the completion of five years' service, with effect from 17.01.2013. According to the applicant, he is also entitled to similar benefits of placement in the regular payscale. When the respondent authorities did not grant the applicant the said benefit, he preferred Special Civil Application No. 1109 of 2015, for the grant of the benefit of deemed date of appointment as 16.01.2008, and for placement in the regular payscale, with effect from 17.01.2013, at par with the said candidate. During the hearing of the said petition, the Court indicated that in the earlier petition, being Special Civil Application No. 1282 of 2011, the applicant had prayed for the appointment with all consequential benefits as if the appointment was given along with other candidates and, therefore, the second petition may not be maintainable on the ground of constructive res judicata. The applicant withdrew the second petition with a view to taking recourse to the appropriate Page 4 of 15 HC-NIC Page 4 of 15 Created On Thu Dec 10 00:06:52 IST 2015 C/CA/7506/2015 JUDGMENT remedy of filing a review petition in Special Civil Application No. 1282 of 2011. The applicant has filed the review petition. However, there is a delay of 1464 days in filing the same. Hence, the present application for condonation of delay. 5 Mr. K.B.Pujara, learned advocate for the applicant, has submitted that though the applicant had prayed for the relief of appointment and consequential benefits in Special Civil Application No. 1282 of 2011, however, while allowing the petition and directing the respondent authorities to give appointment to the applicant, no mention has been made by this Court regarding the consequential benefits, which have neither been allowed nor denied. The applicant could have taken recourse to the remedy of filing a review application at that stage. However, the applicant chose to file another petition, which was withdrawn with a view to filing a review application. Hence, the bonafides of the applicant are clear and he is seeking the same remedy which he could have taken earlier. In the meanwhile, delay has occurred.
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6 It is submitted that, it is not as though the
applicant has been negligent in pursuing the matter. The explanation for the delay is that the applicant was pursuing another remedy by way of the petition, which was ultimately withdrawn. Therefore, as the entire facts are before the Court, it cannot be said that the explanation is not a bonafide or sufficient one.
7 It is next submitted that the present application may not be thrown out on the ground of delay, as the case of the applicant is that, on merits, the prayers made by him were not fully addressed by the Court in the judgment sought to be reviewed. Besides, no prejudice would be caused to the respondents if the application is allowed. As there is no lack of bonafides, no gross negligence and a proper explanation, in the form of the facts on record has been given the delay may be condoned and the application allowed.
8 In support of his submissions, learned counsel for the applicant has placed reliance upon the Page 6 of 15 HC-NIC Page 6 of 15 Created On Thu Dec 10 00:06:52 IST 2015 C/CA/7506/2015 JUDGMENT following judgments:
1) Executive Officer, Antiyur Town Panchayat Vs. Arumugam (Dead) By Legal Representatives reported in (2015) 3 SCC 569
2) H Dohil Constructions Company Private Limited Vs. Nahar Exports Limited and Another reported in (2015) 1 SCC 680.
9 The application has been contested by Mr. Janak Raval, learned Assistant Government Pleader appearing for respondents Nos. 1 and 2, on the ground that there is no explanation for the delay of 1464 days that has occurred in filing the review application. According to him, this Court may not condone the delay for which no proper explanation has been preferred. 10 Ms. R V Acharya, learned advocate for respondent No.3, has also opposed the present application by submitting that the remedy of filing a review application was very much open to the applicant after this Court rendered the judgment dated 06.05.2011, in Special Civil Application No. 1282 of 2011. The Page 7 of 15 HC-NIC Page 7 of 15 Created On Thu Dec 10 00:06:52 IST 2015 C/CA/7506/2015 JUDGMENT applicant did not choose to avail of this remedy, but filed another petition, which came to be withdrawn. In any case, if the applicant was dissatisfied with the judgment of this Court, he could have filed a Letters Patent Appeal as well. Distinguishing the judgment in the case of H Dohil Constructions Company Private Limited Vs. Nahar Exports Limited and Another (Supra) cited by the learned counsel for the applicant, it is submitted by Ms. Acharya that in that judgment, a First Appeal was pending. However, in the present case, the writ petition has been disposed of, therefore, the said judgment may not be applicable on the facts of the present case.
11 This Court has heard learned counsel for the respective parties at length, perused the averments made in the application, as well as the entire material on record.
12 From a scrutiny of the material on record it appears that the delay in filing the review application has occurred due to the pursuit of a wrong remedy, that is, filing a second writ petition, Page 8 of 15 HC-NIC Page 8 of 15 Created On Thu Dec 10 00:06:52 IST 2015 C/CA/7506/2015 JUDGMENT instead of an application for review, after the pronouncement of the judgment sought to be reviewed. The second petition, being Special Civil Application No. 1109 of 2015, was permitted to be withdrawn, vide order dated 20.04.2015, and the application for review was preferred thereafter.
13 The case of the applicant is that while rendering the judgment in Special Civil Application No. 1282 of 2011, which is sought to be reviewed, this Court did not either accept, or reject the prayer for consequential benefits made by the applicant. It was only when another ATD VidyaSahayak was given the benefit of placement in the regular payscale, in the year 2013, that the applicant realized that he had been left out and the said benefit was not granted to him. However, instead of preferring a Miscellaneous Civil Application at that point of time, the applicant took recourse of the filing of another petition. 14 The delay that has occurred in the present case is not of such a nature that can be counted on the fingers. Neither is it a procedural delay. Moreover, Page 9 of 15 HC-NIC Page 9 of 15 Created On Thu Dec 10 00:06:52 IST 2015 C/CA/7506/2015 JUDGMENT the delay does not appear to have occurred due to the negligence, or carelessness of the applicant in the pursuit of his remedy. It appears that the applicant realized, only in the year 2013, that he was not granted the benefits granted to other ATD Vidya Sahayaks, which he had presumed would be granted to him, after being granted appointment by this Court. The applicant was pursuing a remedy which, according to him, was not the correct one. He, later on, withdrew the second petition and filed a review application, though belatedly. Whether it can be concluded that the delay, so caused, though large, has not been sufficiently explained, is the issue to be decided by this Court.
15 At this stage, reference may be made to the dicta of the Supreme Court laid down in Executive Officer, Antiyur Town Panchayat Vs. Arumugam (Dead) By Legal Representatives (Supra). The relevant paragraph is herein quoted herein below:
"4 As held by this Court in State of Nagaland v. Lipok Ao, the Court must always take a justice oriented approach while considering an application for condonation of delay. If the Court is convinced that there had been an attempt on the part of the government officials or public Page 10 of 15 HC-NIC Page 10 of 15 Created On Thu Dec 10 00:06:52 IST 2015 C/CA/7506/2015 JUDGMENT servants to defeat justice by causing delay, the court, in view of the larger public interest, should take a lenient view in such situations, condone the delay, howsoever huge may be the delay, and have the matter decided on merits".
16 The plea of the applicant is that he is constrained to file the application for review, as the prayer made by him for consequential benefits, has not been addressed by the Court and is required to be decided, in view of the fact that the respondents have not granted him the benefits that have been granted to other persons appointed under the same advertisement. 17 The applicant has now taken recourse to the remedy which he could have availed of, after the judgment sought to be reviewed was pronounced. In the meanwhile, he pursued another remedy of filing a petition and then withdrew it. The entire sequence and chronology of events does not reveal any gross negligence or carelessness on the part of the applicant in pursuing the matter. The explanation for the delay is, therefore, evident from the record itself. In this view of the matter, this Court would prefer to adopt a justiceoriented approach rather than circumvent the remedy available to the applicant Page 11 of 15 HC-NIC Page 11 of 15 Created On Thu Dec 10 00:06:52 IST 2015 C/CA/7506/2015 JUDGMENT on strictly technical considerations, taking into consideration the factual aspects of the case. 18 In the case of H Dohil Constructions Company Private Limited Vs. Nahar Exports Limited and Another (Supra), referring to a judgment in the case of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy ((2013) 12 SCC 694), the Supreme Court has held as below:
"23 We may also usefully refer to the recent decision of this Court in Esha Bhattacharjee where several principles were culled out to be kept in mind while dealing with such applications for condonation of delay. Principles (iv), (v),(vii),(ix) and (x) of para 21 can be usefully referred to, which read as under: (SCC pp.65859) 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.
* * * ".
21.8 (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 bot be attracted. That apart, the first one warrants strict approach whereas the second calls for a 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 Page 12 of 15 HC-NIC Page 12 of 15 Created On Thu Dec 10 00:06:52 IST 2015 C/CA/7506/2015 JUDGMENT weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total goby 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."
19 If the case of the applicant is considered in the light of the principles of law enunciated by the Supreme Court, as quoted hereinabove, it is clear that there is no lack of bonafides on the part of the applicant, in approaching this Court by way of the present application. The applicant has been continuously pursuing his remedy, whether appropriate, or not. It cannot, therefore, be said that the applicant has been grossly negligent in doing so and the delay has not been explained. The delay in filing the review application is not a delay in the conventional sense meaning that no action has been taken by the applicant in pursuing his remedy. Nor is it a delay that can be calculated from the date of the pronouncement of the judgment. The factual position on record is sufficient explanation for the delay, as the applicant had been pursuing his remedy at all stages. The case of the applicant, on facts, is different from Page 13 of 15 HC-NIC Page 13 of 15 Created On Thu Dec 10 00:06:52 IST 2015 C/CA/7506/2015 JUDGMENT other cases where the delay can be calculated and an explanation is required for the said time period. 20 Another relevant aspect of the matter is that no prejudice would be caused to the respondents if the present application is allowed. Neither is it the case of the respondents that they would suffer any prejudice. On a consideration of all the above aspects, this Court is of the view that the delay caused in the filing of the application for review deserves to be condoned, as it is not only the letter of the law, but also its spirit, that has to be kept alive.
21 It was submitted by Ms. R V Acharya, learned advocate for respondent No.3, that the judgment in H Dohil Constructions Company Private Limited Vs. Nahar Exports Limited and Another (Supra) would not be applicable as in that case, a First Appeal was pending whereas, in the present case, the petition has been disposed of. This distinction, on facts, has nothing to do with the legal principles pertaining to condonation of delay or the legal aspects discussed Page 14 of 15 HC-NIC Page 14 of 15 Created On Thu Dec 10 00:06:52 IST 2015 C/CA/7506/2015 JUDGMENT hereinabove.
22 Taking into consideration the entirety of the above facts and circumstances of the matter and in furtherance of the interest of justice, this Court passes the following order:
The delay of 1464 days is hereby condoned. The application is allowed.
23 Rule is made absolute, accordingly. There shall be no orders as to costs.
(SMT. ABHILASHA KUMARI, J.) Bimal Page 15 of 15 HC-NIC Page 15 of 15 Created On Thu Dec 10 00:06:52 IST 2015