Madhya Pradesh High Court
The State Of Madhya Pradesh vs Shri Naresh Kumar Sharma Judgement ... on 16 April, 2014
Writ Appeal No.1079/2013
16.4.2014
Shri Piyush Dharmadhikari, Government Advocate, for the
State/appellants.
Shri Sumit Kanojia, Advocate for the respondent.
Heard on admission.
This writ appeal by the State Government is directed against the order dated 1.3.2011, Annexure A-1, passed by the learned Single Judge of this High Court whereby he has allowed the respondent's Writ Petition No.737/2009(s).
By order under challenge the learned Single Judge has directed the appellants to examine the case of respondent in its own merit for grant of time bound promotion and after evaluating the claim in accordance with the scheme pass necessary order retrospectively with effect from the date he was entitled for same under the scheme with all consequential benefits. The learned Single Judge further directed that in case the respondent has retired the appellants will make consequential re-fixation of pay, revision of pay and post retiral dues.
Since there is enormous and inordinate delay of more than 2 ½ years in filing the appeal we shall examine whether there is any "sufficient cause" for the condonation of such a huge delay.
The application for condonation of delay filed by the State Government along with the affidavit of Officer-in-Charge of the case Shri R.K.Jain, Sel.GV. Lect. Civil, Kalaniketan, Polytechnic College, Jabalpur, reads as under:
That, in the instant case impugned order has been passed on 1.3.2011 and after the order was received opinion from the Law Department was sought which was received on 23.12.2011 and thereafter for evaluation of the individual cases ACRs of the respondent was sought to be obtained on 3.4.2012. Till this time there was no proposal for filing of appeal. It is submitted that thereafter the matter was sent to the GAD for its opinion as the ACRs were not available, therefore, further steps were sought and the Deptt. Of GAD on 8.8.2012 sent the file back to the Administrative Department. The GAD says to proceeding according to Promotion Rules. It is submitted that on 3.11.2012 for administrative approval the matter was sent to the Hon'ble Minister Incharge and thereafter the opinion of the Finance Department was obtained. It is submitted that on 14.4.2013 the file was sent to the Additional Chief Secretary, Finance and Addl.Chief Secretary, Technical Education discussed the matter on 19.7.2013 the Finance Department advised to place the matter before Cabinet. The Finance Department has opined that the Cabinet Decision was not intended to grant benefit to the officers like respondent. Therefore, according to Finance Department the benefit can not be granted and for this purpose the matter be placed before the cabinet so that the earlier direction of cabinet can be clarified. It is submitted that opinion of the Law Department was received on 27.7.2013.
Accordingly, administrative approval from the Hon'ble Minister for Technical Education was obtained. On 23.9.2013 the Finance Department granted consent to place the matter before cabinet and after preparation of the pricy by the administrative department the matter was got approved from the Finance Department. It is submitted that accordingly the matter is sent to the Cabinet after the approval of Hon'ble Finance Minister on 23.9.2013 and Chief Secretary forwarded the matter to Hon'ble Chief Minister on 25.9.2013.
That, it is respectfully submitted that a contempt petition 1677/2011 has also been filed by the respondent where this Hon'ble Court on 23.9.2013 directed to submit a compliance report, failing which the Court will have no option but to initiate a contempt proceeding against the respondent. The matter is posted for 28.10.2013.
The Director of Technical Education was asked by Law Officer as to for what purpose the matter isbeing placed before Cabinet. He upon instructions from Addl. Chief Secretary informed that the cabinet is clarifying its proposal to cabinet and to reject the benefits to officers like respondent. It is submitted that thereafter it was advised to the Addl.Chief Secretary that no such proposal can be placed before Cabinet for rejection on the same may go contrary to the direction of this Hon'ble Court. It is then the appellant department immediately decided to file writ appeal and, therefore, the permission from the Law Department was obtained on 01.10.2013.
That, the delay occurred in filing the present writ appeal is bonafide and the same is not deliberate and hence the same may kindly be condoned in the interest of justice. If the delay is not condoned then the State Govt. shall suffer irreparably. If the scheme which is not applicable to the respondent is applied to him then many other incumbents will claim the same benefits and the same would cause huge loss to the public exchequer. There are many other similar cases wherein also writ appeals are being filed.
That, in view of these submissions the delay caused in filing appeal is due to administrative procedural reasons. The delay occurred in filing writ appeal is bonafide and not intentional or deliberate. Therefore, Hon'ble Court may kindly be pleased to condone the delay occurred in filing appeal and hear the same on merits.
The recent decision of the Supreme Court in Office of the Chief Post Master General v. Living Media India Ltd. AIR 2012 SC 1506 is directly on the point. In this case there was a delay of 427 days in filing the appeal before the Supreme Court against the judgment of the High Court and the certified copy of the High Court judgment was applied after four months with no explanation why it was not applied for within a reasonable time. The Supreme Court after examining other dates mentioned in the affidavit of the person-in-charge of the case to justify the delay found that there was delay at every stage with no explanation for the cause of delay. The Supreme Court also took serious note of the casual manner in which the Government departments are functioning showing virtually no respect to the law of limitation. And, while dismissing the appeal on the ground of delay, the Supreme Court has made the following observation:
"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.
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 Government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."
In yet another recent decision, the Supreme Court in Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai AIR 2012 SC 1629 has held that in cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and/or its agencies/instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest.
In the case at hand, also although the order under challenge is dated 1.3.2011 application for its certified copy was made on 26.9.2013 i.e. after more than 2 ½ years with no explanation whatsoever why it was not applied for within a reasonable time. Also, all the dates mentioned in the affidavit clearly show that there is delay at every stage and except mentioning the dates, there is no explanation as to why such delay has occurred. Though it is stated that the delay in filing the appeal is bonafide, the fact remains that from day one the authorities concerned have not evinced diligence in pursuing the matter for filing the present writ appeal by taking appropriate steps. The State has miserably failed to give any acceptable and cogent reason to condone such a huge delay in filing the writ appeal required to be filed in the same High Court building and that too when the order under challenge was passed in the presence of Government Advocate.
Having regard to the above referred decisions of the Supreme Court in Office of the Chief Post Master General (supra) and Maniben Devraj Shah (supra) and the fact situation of the present case, we find no sufficient cause to condone the delay.
In the result, the appeal fails and is dismissed on the ground of delay.
(AJIT SINGH) (SUSHIL KUMAR GUPTA) JUDGE JUDGE ss