Dismissed

District Collector / Magistrate District Azamgarh and Another v. Dharmendra Kumar

Allahabad HC9 Jul 2024SPLAD/427/2024

Case brief

AI extract

What is this about?

A special appeal filed 1537 days late by the Department was dismissed. The Court rejected the delay condonation application, holding that bureaucratic processes and seeking legal opinions do not constitute sufficient cause, citing precedent on state diligence.

What the court decided

AI extract

District Collector / Magistrate District Azamgarh… — Service and Employment | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:111706-DB

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Court No. - 29

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Case :- SPECIAL APPEAL DEFECTIVE No. - 427 of 2024

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Appellant :- District Collector / Magistrate District Azamgarh And Another Respondent :- Dharmendra Kumar Counsel for Appellant :- Abhishek Srivastava,Ratan Deep Mishra Counsel for Respondent :- Gulab Chandra Tiwari,Hari Prakash Tiwari,Rajesh Tripathi

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Hon'ble Mahesh Chandra Tripathi,J. Hon'ble Prashant Kumar,J.

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Heard learned counsel for the appellants and Ms. Antima Rai, Advocate holding brief of learned counsel for the respondent.

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The present special appeal is filed with inordinate delay of 1537 days.

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The instant intra-court appeal is preferred against the judgement and order dated 28.01.2020 passed by learned Single Judge in Writ A No.21785/2017 (Dharmendra Kumar vs. District Collector/Magistrate and another), wherein, not only learned Single Judge has quashed the order dated 22.03.2017 passed by District Basic Education Officer, Azamgarh but also held that the appellants are entitled to be engaged as a Part-time Instructor. Conclusively, the writ was allowed with cost of Rs.1,00,000/- upon the respondents, which will be paid to the petitioner. Learned Single Judge has further observed that the copy of order dated 28.01.2020 be sent to the Principal Secretary, District Basic Education to take appropriate action against the erring authority/respondents.

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A Delay Condonation Application is filed alongwith affidavit, which is sworn by Shri Sameer s/o Shri Nand Jee Yadav, presently posted as District Basic Education Officer, Azamgarh. For ready reference, the reasons assigned in the affidavit filed in support of Delay Condonation Application is reproduced as under:-

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"1. That the Deponent is presently posted as District Basic Education Officer, District Azamgarh and has been duly instructed and authorized to file the present affidavit in the present Special Appeal and as such is fully well acquainted with facts of the case as understood from the perusal of the records of the present case.

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2. That the present Special Appeal has been preferred assailing the validity and veracity of the Judgement and Order dated 28.1.20202 passed by Hon'ble Mr. Justice Ashok Kumar, J. passed in Civil Misc. Writ Petition (A) No. 21785 of 2017, Dharmendra Kumar Vs. District Collector/Magistrate & Another.

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3. That Appellant Department by his letter dated 29.02.2024 sought legal opinion from the office of Chief Standing Counsel, High Court, Allahabad.

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4. That thereafter, the office of Chief Standing Counsel, High Court, Allahabad gave opinion for filing Special Appeal in the matter vide letter dated 04.03.2024.

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5. That Special Secretary & Additional Legal Remembrancer by his letter dated 11.03.2024 gave permission and requested to the office of Chief Standing Counsel, High Court, Allahabad for filing special appeal in the matter.

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6. That Deputy Secretary, Uttar Pradesh Shasan by his letter dated 12.03.2024 requested to the office of Chief Standing Counsel, High Court, Allahabad for filing Special Appeal in the matter.

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7. That District Basic Education Officer, Azamgarh by his letter dated 29.03.2024 requested to the office of Chief Standing Counsel, High Court, Allahabad for drafting and filing of Special Appeal against the judgment and order of Learned Single Judge.

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8. That there is no deliberate or intentional delay in filing the present Special Appeal.

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9. That the office of Chief Standing Counsel by his allotment order allotted the file to, Standing Counsel, High Court Allahabad prepare the special appeal against the judgment and order dated 28.01.2020 passed by Hon'ble Single Judge.

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10. That the Special Appeal has been prepared and is being filed.

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11. That there is no deliberate or intentional delay in filing the present special appeal.

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12. That the delay in filing the Special Appeal is neither deliberately nor intentional, but the delay which is occurred is procedural delay, hence, the delay in filing of Special Appeal may be condoned by this Hon'ble Court and the delay may not come into the way of justice."

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In the entire affidavit no plausible and acceptable explanation has been given in the aforementioned paragraphs as to why the requisite/prompt action could not be taken for filing the appeal since passing the order dated 28.01.2020 till 29.02.2024. Only the reason assigned is that the appellant-department had sought legal opinion from the office of Chief Standing Counsel, High Court Allahabad, which was provided vide letter dated 20.03.2024 by the office of Chief Standing Counsel and thereafter the Special Secretary & Additional Legal Remembrancer by his letter dated 11.03.2024 gave permission and requested to the office of Chief Standing Counsel, High Court, Allahabad for filing special appeal in the matter. Lateron the District Basic Education Officer, Azamgarh by letter dated 29.03.2024 requested the office of Chief Standing Counsel, High Court Allahabad for drafting and filing of Special Appeal against the judgement and order dated 28.01.2020. Prima facie there is negligence and deliberate inaction on the part of appellant-respondent in instituting the present intra-court appeal and the affidavit also lacks bona-fide, therefore, liberal concession cannot be accorded to the appellant-respondent.

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We have proceeded to examine the record and perused the aforementioned reasons, which are assigned alongwith Delay Condonation Application, we find that no plausible explanation is furnished. It cannot be claimed that the appellants could be accorded special priviledge and have separate period of limitation, moreso when the Department was possessed with competent persons familiar with the court proceedings. The order was passed by Learned Single Judge after giving an opportunity to the appellants/respondents and the order was also passed in the presence of learned Standing Counsel. Moreover, while passing the order dated

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28.01.2020, the Court has further directed that the order be sent to the concerned Principal Secretary for taking appropriate action and cost of Rs.1 lac was also imposed upon the respondents. The Government Authorities are under special obligation to protect the majesty of the Court and to perform their duties with due diligence and sincerity. Moreover filing of an appeal is a statutory right and not a natural right, hence exemptions provided under the Limitation Act is subject to reasonableness and cannot be claimed as a matter of right.

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In the case of Principal Commissioner of Income Tax vs. M/s National Fertilizers Ltd., ITA 401/2023 & CM No. 37496/2023 , dated 23.08.2023, the Delhi High Court warned the Income Tax Department on delay in filing an appeal under section 260 A of the Income Tax Act, 1961 and directed them to avoid snail pace work style even with a click of the mouse age. The Court viewed that the applicant failed to explain sufficient cause for a delay of 498 days in filing the appeal and dismissed the condonation application.

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In the case of State of Madhya Pradesh And Others Vs. Bherulal reported in (2020)10 SCC 654 , the Apex Court held that unavailability of documents and the process of arranging the documents and bureaucratic process works cannot be a ground to condone the delay in filing of an appeal by the State. The delay of 663 days was not condoned and the SLP was dismissed with a cost of Rs. 25,000/-.

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In the case of S.S. Balu Vs. State of Kerela , the Apex Court has observed that "it is also well-settled principle of law that 'delay defeats equity'....." It is now a trite law that where the writ petitioner or appellant approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and latches.

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Considering the above catena of judgement, we do not find any good reason to accept the delay condonation application as the explanation for delay in filing the appeal is unreasonable. Accordingly, the same stands rejected and consequently the appeal also fails and the same stands dismissed .

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Order Date :- 9.7.2024 A. Pandey

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Digitally signed by :- ANAND PANDEY High Court of Judicature at Allahabad

District Collector / Magistrate District Azamgarh and Another v. Dharmendra Kumar

Case brief

What is this about?

What the court decided

District Collector / Magistrate District Azamgarh and Another v. Dharmendra Kumar

Case brief

What is this about?

What the court decided

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