Punjab-Haryana High Court
The State Of Haryana And Others vs Ranjeet Singh on 6 November, 2012
Bench: A.K. Sikri, Rakesh Kumar Jain
LPA No.1641 of 2012 (O&M).doc -1-
LPA No.1642 of 2012 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
LPA No.1641 of 2012 (O&M)
Date of Decision: 06.11.2012
*****
The State of Haryana and others
. . . .Appellants
Versus
Ranjeet Singh
. . . . Respondent
*****
LPA No.1642 of 2012 (O&M)
*****
The State of Haryana and others
. . . .Appellants
Versus
Parma Nand and others
. . . . Respondents
*****
CORAM: HON'BLE MR.JUSTICE A.K. SIKRI, CHIEF JUSTICE
HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
*****
Present: Mr.B.S. Rana, Addl. A.G. Haryana.
*****
RAKESH KUMAR JAIN, J.
This order shall dispose of two appeals bearing LPA No.1641 of 2012 titled as "The State of Haryana and others Versus Ranjeet Singh" arising out of CWP No.10316 of 1991 (for short 'Ist appeal) and LPA No.1642 of 2012 titled as "The State of Haryana and others Versus Parma Nand and others" arising out of CWP No.2523 of 1991 (for short 'IInd appeal'), as both the appeals have been filed being LPA No.1641 of 2012 (O&M).doc -2- LPA No.1642 of 2012 (O&M) aggrieved against the order of the learned Single Judge dated 18.5.2011 in which a common question has been decided i.e. "whether the petitioners, who are peons having the qualification of Matric, are entitled to be promoted as Clerks from the dates when their juniors were promoted."
It is pertinent to mention that both the appeals have been filed along with an application under Section 5 of the Limitation Act, 1963 (for short 'the Act') as in the Ist appeal, the delay is of 390 days whereas in the IInd appeal, it is 389 days but the averments made in both the applications are same.
It is averred in the application that copy of the judgment dated 18.5.2011 passed by the learned Single Judge was received in the office of Financial Commissioner & Principal Secretary to Govt. of Haryana, Irrigation Department, Chandigarh, on 23.8.2011 and the same was also received in the office of Engineer-in-Chief on 24.8.2011. The Advocate General, Haryana vide Memo No.8363 dated 17.2.2012 and Legal Remembrancer, Haryana vide Memo No.16155/Co.2987/H/2010 dated 5.3.2012 informed the department that it is a fit case for filing appeal. On 5.3.2012, the office of Advocate General, Haryana, requested the office of the Engineer-in-Chief to depute some concerned official to attend their office alongwith some relevant documents. Thereafter, the case was processed and a letter was written to LR, Haryana on 24.4.2012 to issue instructions to the LPA No.1641 of 2012 (O&M).doc -3- LPA No.1642 of 2012 (O&M) Advocate General, Haryana, to file the appeal. It was thus, averred that as the case has passed various channels, the appeal could not be filed within time.
Since, the Court was not satisfied with the explanation given in the aforesaid application, therefore, counsel for the State took time to file detailed affidavit which was sworn on 31.10.2012 and filed in Court today. In this affidavit, it was admitted that copy of the judgement dated 18.5.2011 passed by the learned Single Judge was received in the office of Financial Commissioner & Principal Secretary to Govt. Haryana, Irrigation Department, Chandigarh, 23.8.2011. The order dated 18.5.2011 was put up by the Record Keeper on 8.9.2011 to the concerned dealing hand of NGE-I branch and vide nothing dated 13.9.2011 the concerned officer directed the Record Keeper to put up with the Court case file. After doing the needful, the file was re-submitted on 16.9.2011 and the concerned dealing hand processed the case on 26.9.2011 and proposed that Superintending Engineer, BWS Circle, Sirsa may be requested to pass speaking order on the basis of record and send the same to their office for vetting. The Superintendent/NGE-I marked the file to Establishment Officer on 27.9.2011 and vide noting dated 28.9.2011, Establishment Officer asked the Superintendent to speak. The case was discussed and the approval was accepted. Draft letter was submitted for approval on 3.10.2011 and after amendments, the letter was finally sent to Superintending LPA No.1641 of 2012 (O&M).doc -4- LPA No.1642 of 2012 (O&M) Engineer, BWS, Circle, Sirsa on 18.10.2011, the case file was resubmitted on 25.10.2011 and a reminder was issued on 9.11.2011. The Superintending Engineer, BWS, Circle, Sirsa vide letter dated 23.11.2011 requested for supplying copies of CWPs as no record was available in his office, which was supplied on 12.12.2011 and the reminder was issued on 3.1.2012 for implementing the orders of the Court. On 9.2.2012, the concerned Assistant reported that the case was discussed in the presence of Superintendent/NGE-I with Rajesh Kawatra, DAG, Haryana on 9.2.2012 who desired that before implementing the orders certain information/documents are required to be seen. Accordingly, vide letter dated 9.2.2012, Superintending Engineer, BWS Circle, Sirsa was requested to do the needful. Vide letter dated 14.2.2012, Superintending Engineer, BWS Circle No.II, Hisar supplied the required information and record. Further information was supplied vide letter dated 14.2.2012. After considering all the relevant record, finally A.G., Haryana gave his opinion vide letter dated 17.2.2012 that it is a fit case for filing LPA. The said letter was received in the office of Engineer-in-Chief on 28.3.2012, the case was then processed and the letter was written to LR, Haryana on 24.4.2012. As per discussion with LPA Branch on 29.5.2012, an affidavit and application alongwith supporting documents duly signed were sent in the office of Advocate General, Haryana on 1.6.2012, the same was vetted by AG Office on 6.6.12 and on the LPA No.1641 of 2012 (O&M).doc -5- LPA No.1642 of 2012 (O&M) directions of AG office, on 12.6.2012, the dealing hand of AG office had supplied a specimen of certificate for filing and the required certificate was filed on 18.6.2012. On 18.6.2012, the dealing hand of LPA Branch again requested that an affidavit for stay in both CWPs is required and the same affidavit in both the writ petitions was supplied on 28.6.2012. It is also averred that there was some objections raised by the Registry of the High Court on 19.7.2012 which wee removed and the appeals were re-filed.
We have perused the affidavit and have heard counsel for the appellant in this regard.
The question involved is very short and simple is "as to whether there is sufficient cause explained in the application for not preferring the appeal in time?"
The present appeals have been filed under Clause X of the Letters Patent, which finds mentioned in Volume V Chapter IX Part B of the Punjab and Haryana High Court Rules and Orders enabling an intra-court appeal for which the limitation is provided in Article 117 of the Act, which reads as under:
Description of Period of Time from appeal Limitation which period begins to run 117 From a decree Thirty The date or order of any days of the High Court to decree or LPA No.1641 of 2012 (O&M).doc -6- LPA No.1642 of 2012 (O&M) the same order Court According to the aforesaid provision of the Act, the time would begin to run from the date of the decree or order, 30 days would be available to file appeal against the order of the High Court to the same Court and according to Section 12(2) of the Act, in computing the period of limitation for filing an appeal the time spent in obtaining a copy of the order is excluded. In case the appeal is not filed within the prescribed period even after exclusion of the time spent in obtaining certified copy of the order, the time can be still extended if the appellant, preferring the appeal, satisfies the Court that he had sufficient cause for not preferring the appeal within prescribed time by making an application under Section 5 of the Act, which has been done in the present appeals by the appellants.
Admittedly, from the record we have found that the impugned order was passed on18.5.2011 whereas the certified copy was applied on 25.8.2011, after expiry of 99 days for which no explanation has been given in the affidavit which was filed along with the appeal and also subsequently tendered on 31.10.2012. Moreover, opinion has been given by the office of AG, Haryana and the LR, Haryana on 17.2.2012 and 5.3.2012 respectively, about the fitness of the case to be challenged by way of appeal.
LPA No.1641 of 2012 (O&M).doc -7-LPA No.1642 of 2012 (O&M)
The appellants had tried to take shelter of its lapse being estate under the guise of procedural delays.
In this regard, counsel for respondents has relied upon a recent decision of the Supreme Court in the case of "Office of the Chief Post Master General & Ors. Vs. Living Media India Ltd. & Anr." 2012(2) SCT 269, wherein the Apex Court while dealing with delay of 427 days in filing of SLP by the said instrumentality, has observed as under:-
"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 LPA No.1641 of 2012 (O&M).doc -8- LPA No.1642 of 2012 (O&M) us. 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 bonafide, 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.
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 bonafide LPA No.1641 of 2012 (O&M).doc -9- LPA No.1642 of 2012 (O&M) 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.
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 LPA No.1641 of 2012 (O&M).doc - 10 - LPA No.1642 of 2012 (O&M) liable to be dismissed on the ground of delay.
We have also considered the averments made in the affidavits and were utterly dismayed with the style and functioning of the appellants/department and also about their sensitivity about the Court cases because even the certified copy was not applied immediately within the period of limitation knowingly fully well that period to file appeal under Clause X of the Letters Patent is only 30 days. We just cannot place the explanation tendered by the appellants within the realm of "sufficient cause" to condon such a huge delay. Hence, the present applications for condonation of delay are hereby dismissed and as a consequence thereof, the appeals are also dismissed.
(A.K. SIKRI) (RAKESH KUMAR JAIN) CHIEF JUSTICE JUDGE NOVEMBER 06, 2012 Vivek