State Of H. P. & Ors vs Punesh Kumar

Tarlok Singh Chauhan, J

The petitioners have questioned the impugned order passed by the learned erstwhile Tribunal on 05.09.2018 whereby the Tribunal allowed the

Original Application filed by the petitioner (respondent herein) and directed the respondents (Petitioners herein) to grant work charge status to the

applicant, provided, his case is found to be similar to that of Ashwani Kumar vs. State of Himachal Pradesh and Ors., decided on 30.06.2021 and

thereafter affirmed by this Court in CWP No. 3111 of 2016, State of H. P. & Ors. vs. Sh. Ashwani Kumar, decided on 10.05.2018.

As this petition had been filed after considerable delay, therefore, this Court on 02.03.2021, passed the following order:-

“Even though the petitioners have assailed the order passed by the erstwhile Tribunal as far as back on 05.09.2018. However, there is no

explanation whatsoever for the delay save and except certain cursory averments made in para-5 of the petition.

Mr. R. P. Singh, learned Deputy Advocate General prays for and is granted three weeks time to file supplementary affidavit.â€​

At this stage, it would be relevant to refer to para-5 of the petition, which reads as under:-

“5. That there has been some delay in filing the present writ petition. The judgment was rendered by the Hon’ble erstwhile Tribunal on

05.09.2018 and copy was received through various channels by the Superintending Engineer on 11.06.2019 and the Executive Engineer, IPH Division,

Arki received the copy from Superintending Engineer on 13.06.2019. The legal opinion wherein it was already advised to assail the judgment of

Hon’ble Tribunal by filing CWP in the Hon’ble High Court in all similar matters in term of opinion rendered vide letter No. IPH-A-E(3)-

189/2018 dated 28.02.2019. During the process of attempting and filing the CWP in the present matter the SLP in Ashwani Kumar’s case filed by

the respondents Public Works Department of State of H. P. was pending before the Hon’ble Supreme Court. The judgment in Ashwani

Kumar’s case since pertains to Public Works Department and the same was assailed by them before the Hon’ble Supreme Court in SLP the

authority authorized to file writ petition on behalf of respondents/State department i.e. Superintending Engineer, IPH Circle, Solan decided to wait for

the decision in Ashwani Kumar’s case as the Hon’ble Tribunal had decided the matter with directions subject to judgment in Ashwani

Kumar’s case attained finality and implemented by the respondents State. The matter in Ashwani Kumar’s case was decided by the

Hon’ble Apex Court on 22.07.2019. Thereafter, the judgment was referred by the concerned Public Works Department for examining the matter

at Govt. level in consultation with advisory Departments for necessary advice/opinion on 31.07.2019. Further the PW Department after having got

examined the matter at Law Department as well as Finance the same was also discussed in the meeting dated 06.03.2020 held under the

Chairmanship of Chief Secretary to the Govt. of H.P. also attended by the Ld. Advocate General, H.P., and it was decided to grant the benefit of

Ashwani Kumar’s case to its petitioner only, as a measure personal to him. It was also advised to assail all matters based on Ashwani

Kumar’s case in Review/CWP. The said decision of the Govt. was conveyed vide Secretary (PW) to the Government of H.P. letter No. PBW-

AE(1)-58/2018 dated 20.03.2020 to all the departments and further conveyed vide Engineer-in-Chief, IPH Department Shimla letter No. 222-25 dated

20.06.2020 to the Chief Engineer (Shimla Zone) IPH Department and others. Further decision was taken at Zonal office level vide proceeding of

meeting dated 16.07.2020 and conveyed vide letter dated 23.07.2020. After receipt of above directions, the Writ Petition has been attempted by the

competent authority i.e. Superintending Engineer, IPH Circle, Solan in consultation  with legal cell (Shimla Zone) and the draft was examined in legal

cell, Shimla Zone on 27.11.2020 and thereafter the proposed draft of Writ Petition vetted by the Ld. Addl. Advocate General on 02.12.2020. Thus, the

delay occurred in filing the writ petition was not intentional but due to aforesaid reasons which is bonafide, hence, deserves to be condoned and may

kindly be condoned and the writ petition may be accepted in the interest of justice.â€​

The petitioners have now filed a supplementary affidavit, wherein, they have tried to explain the delay, the relevant portion whereof reads as under:-

“3. That the respondents never submitted copy of judgment/order dated 05.09.2018 to the petitioners/competent authority in the department.

However, the copy of judgment dated 05.09.2018 has been received through various channels by the Superintending Engineer, Jal Shakti Circle, Solan

on 11.06.2019, who further referred the same to the Executive Engineer, Jal Shakti Division, Arki, where the petitioners were working.

That the matter was examined in the office of Executive Engineer JSV, Division Arki, who as per rules of business in the government referred the

case for further legal opinion of government/higher office to the Superintending Engineer, IPG Circle Solan. The Superintending Engineer, Jal Shakti

Solan noticed that in a similar situated matter, another Executive Engineer, Jal Shakti Division, Karsog had ascertained the status of Ashwani

Kumar’s case from concerned Public Works Department to which Sh. Ashwani Kumar belongs to wherein vide District Attorney to Engineer-in-

Chief, PWD letter dated 27.10.2018, it was intimated that judgment in Ashwani Kumar case was assailed by the PW Department before the

Hon’ble Apex Court in SLP and the same was pending adjudication. Further, in number of cases which were decided on the basis of Ashwani

Kumar’s case, Engineer-in-Chief had referred the matter alongwith other cases for advice of government/law department with a view to assail

the judgment in the Hon’ble High Court by filing Civil Writ Petition vide his letter dated 19.01.2019.

That as submitted in para- 4 the matter in Ashwani Kumar’s case was still pending adjudication in SLP filed by the Appellant State PW

Department which has been finally decided by the Hon’ble Apex Court on 22.07.2019.

That in the judgment passed by the erstwhile Hon’ble Tribunal, the case had to be considered, if the same had attained finality or implemented.

Therefore, on the request of his Superintending Engineers, the Chief Engineer, Mandi Zone replying respondent Department in a similar situated

matter had again taken up the matter with the Engineer-in-Chief, HPPWD on 04.10.2019 to convey the latest implementation status of the judgment in

Ashwani Kumar’s case by the said Department.

That the Joint Director (Law) O/o Engineer-in-Chief, PWD vide letter No. 6012-13, dated 24.10.2019 conveyed that the Govt. vide letter dated

03.10.2019 had issued directions to calculate the financial implications and matter was under consideration at Department Level.

That the PW Department after having got examined the matter of Law Department as well as in Finance Department the same was also discussed

in the meeting dated 06.03.2020 held under the Chairmanship of Chief Secretary to the Govt. of H.P., also attended by the Ld. Advocate General,

H.P. wherein it was decided to grant the benefit of Ashwani Kumar’s case to its petitioner only, as a measure personal to him. It was also

advised to assail all matters based on Ashwani Kumar’s case in Review/CWP. Copy of proceedings of meeting is annexed as Annexure SA-1.

That the said decision of the Govt. was conveyed vide Secretary (PW) to the Government of H.P. letter No. PBW-AE(1)-58/2018 dated

20.03.2020. However due to COVID-19 pandemic the above decision of the government could only be conveyed further on 20.06.2020 vide

Engineer-in-Chief, IPH Department Shimla letter No. 222-25 dated 20.06.2020 to the Chief Engineer (Shimla Zone) IPH Department, Shimla and

others.

That upon receipt of government opinion in the matter supra the Chief Engineer, Shimla Zone conveyed the same to the Superintending Engineer

who further conveyed it to the Executive Engineer, Arki in the month of 7/2020. However, when reminded again by the higher office, the Executive

Engineer Arki collected the record of the case and thereafter he took the matter with his Superintending Engineering, Jal Shakti Circle, Solan. The

Superintending Engineer, Solan further prepared the draft reply in consultation with Legal Cell of the Department and the draft was examined in Legal

Cell, Shimla Zone on 27.11.2020 and thereafter the proposed draft of Writ Petition vetted by the Ld. Addl. Advocate General on 02.12.2020 and fair

filed on 24.02.2021.â€​

A perusal of the affidavit would clearly reveal that there is a delay at every stage and except mentioning the dates of the receipt of the file and

decision taken therein, there is no explanation as to why such delay has occurred. Though, it is stated by the Department that the delay was due to

some unavoidable circumstances and genuine difficulty, but the fact remains that from day one, Department or the person/persons concerned have not

evinced diligence in prosecuting the matter to this Court by taking appropriate steps.

It is not in dispute that the person(s) concerned were well aware or conversant with the issue involved including the concept of delay and latches

for taking up the matter by way of filing a writ before this Court. As repeatedly held by the Hon’ble Supreme Court that they cannot claim a

separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In 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 us.

As per the Supplementary Affidavit, it would be noticed that the decision at the highest level was already taken by the petitioners in the meeting

held on 06.03.2020 under the Chairmanship of the highest administrative/executive authority of the State i.e. Chief Secretary to the Government of

Himachal Pradesh, which meeting was also attended by the Law Officer of the State, namely, the Advocate General. Yet, this instant petition came to

be filed only on 24.02.2021 nearly after one year of such meeting. The inter se consultation process of the Department cannot be a never ending

process and permitted to go beyond a reasonable limit, more particularly, when the decision already stands taken at the highest level.

We are fully conscious of the fact that we are dealing with the writ petition for which there is no prescribed period of limitation nonetheless the

principle of delay and latches equally apply to these cases.

Even while filing this petition, the petitioners had taken it for granted that this petition would be entertained as a matter of right without any question

being raised regarding the delay and latches or else there should have at least been slightest whisper in the writ petitions and in the prayer(s) to this

effect seeking condonation of delay and latches.

It is more than settled that in absence of plausible and acceptable explanation merely because the wing of the government happens to be the party,

the same cannot be done mechanically, especially when there is negligence, inaction or lack of bonafide exhibited by the petitioners.

The Hon’ble Supreme Court has repeatedly deprecated the practice of the Government / Boards /University(ies) moving the Court(s)

belatedly only by way of formality.

The Hon’ble Supreme Court in Special Leave Petition (Civil) No(s). 13348 of 2020, titled as The State of Madhya Pradesh & Anr. vs.

Chaitram Maywade, decided on 27.10.2020, observed as under:-

“The State of Madhya Pradesh continues to do the same thing again and again and the conduct seems to be incorrigible. The Special Leave

Petition has been filed after a delay of 588 days. We had an occasion to deal with such inordinately delayed filing of the appeal by the State of

Madhya Pradesh in SLP(C) D. No. 9217/2020-State of Madhya Pradesh & Ors. vs. Behru Lal in terms of our order dated 15th October, 2020.

We have penned down a detailed order in that case and we see no purpose in repeating the same reasoning again except to record what are stated to

be the facts on which the delay is sought to be condoned. On 05.01.2019, it is stated that the Government advocate was approached in respect of the

judgment delivered on 13.11.2018 and the Law Department permitted filing of the SLP against the impugned order on 26.05.2020. Thus, the Law

Department took almost about 17 months’ time to decide whether the SLP had to be filed or not. What greater certificate of incompetence would

there be for the legal Department!

We considered it appropriate to direct the Chief Secretary of the State of Madhya Pradesh to look into the aspect of revamping the legal Department

as it appears that the Department is unable to file appeals within any reasonable period of time much less within limitation. These kinds of excuses, as

already recorded in the aforesaid order, are no more admissible in view of the judgment in Office of the Chief Post Master General & Ors. vs. Living

Media India Ltd. & Anr.-(2012) 3 SCC 563.

WE have also expressed our concern that these kinds of the cases are only “certificate cases†to obtain a certificate of dismissal from the

Supreme Court to put a quietus to the issue. The object is to save the skin of officers who may be in default. We have also recorded the irony of the

situation where no action is taken against the officers who sit on these files and do nothing.â€​

Similar reiteration of law can also be found in another judgment of the Hon’ble Supreme Court in Special Leave Petition (Civil) Diary No(s).

971/2020, titled as The State of Uttar Pradesh & Anr. vs. Prem Chandra, decided on 27.11.2020, wherein it was observed as under:-

“We have set out the aforesaid facts to show the callous manner in which these proceedings have gone on. The fact that the matter should have

gone on for two decades before the Tribunal in case of a labour dispute is itself a travesty of justice. That the petitioner takes its own time to assail the

same before the High Court is the next stage and finally it has taken them almost three years to get this petition before the Supreme Court.

The application for condonation of delay is a usual one showing the file moving from one place to the other. The reliance again on different judgments

including Collector, Land Acquisition, Anantnag & Anbr. vs. Mst. Katiji & Ors. - (1987) 2 SCC 107 is followed by referring to judgments of the

different vintage, if one may say so. There is complete non-reference to the judgment in the case of Office of the Chief Post Master General & Ors.

vs. Living Media India Ltd. & Anr. (2012) 3 SCC 563. It is the latter judgment which sets out the position after technology has come to the aid of the

Governments.

We have had opportunity to deal with such matters and have extended cautions to the State Governments not to come to this Court only to obtain the

certificate of dismissal what we have called as “certificate casesâ€, so as to put the quietus to the matter and absolve the officers of the

responsibility of not having performed their duties. A detailed discussion in this behalf is in SLP(C) Diary No. 9217/2020- State of Madhya Pradesh &

Ors. vs. Bherulal decided on 15.10.2020. It appears that the cautions extended from time to time are falling on deaf ear. If the petitioners feel that the

period of limitation prescribed by the Legislature is not sufficient, given their inefficiencies and incompetence, then it is for them to persuade the

Legislature to change the Law of Limitation so far as applicable to the Government concerned. Till the Law remains, it must be applied as it stands.

We also find that no action is ever taken against the personnel responsible for the delay and to save their skin, these special leave petitions are filed

wasting judicial time.

We are thus, not inclined to let go the matter at this and do consider appropriate, as in the other cases, to impose costs on the petitioners for having

wasted judicial time.

Not only this, the Hon’ble Supreme Court has repeatedly reiterated that government cannot take the plea of differential treatment in matters of

condonation of delay. As a matter of fact, the Hon’ble Supreme Court very recently in case of SLP(C) Diary No(s). 19059 of 2020, titled as

Deputy Conservator of Forests vs. Timblo Irmaos Ltd. & Ors., decided on 18.12.2020, refused to differentiate between the government and private

party in the matter of belatedly approaching the Court without sufficient cause. The relevant portion whereof reads as under:-

“A perusal of the impugned order shows that once again a reference has been made, as in similar cases of delay by the State to the judgment of

this Court in the case of Collector, Land Acquisition, Anantnag & Anr. vs. Mst. Katiji & Ors., AIR 1987 SC 1353. A claim was also made that the

petitioner should not suffer for the fault of the counsel.

The High Court opined that such substantial delay could not be condoned by mere shifting the blame on the counsel as the parties are required to keep

track of the matter and there is negligence despite numerous opportunities.

We have dealt with the issue of Government authorities in approaching courts belatedly as if the Statute of Limitation does not exist for them. While

referring to some reasons given for insufficiencies, we observed that the parties cannot keep on relying on judicial pronouncements for a period of

time when technology had not advanced and a greater leeway was given to the Government, (Collector, Land Acquisition, Anantnag & Anr. (supra).

This situation no more prevail and this position had been elucidated by the judgment of this Court in office of the Chief Post Master General & Ors.

vs. Living Media India Ltd. & Anr. (2012) 3 SCC 563.

These aspects have been analyzed by us recently in SLP (C) No. D. 9217/2020-State of Madhya Pradesh & Ors. vs. Bheru Lal decided on

15.10.2020.

In the aforesaid judgment we have defined “certificate cases†the objective of which is only to put a quietus to the issue by recording that nothing

could be done because the highest Court had dismissed the appeal. We have repeatedly deprecated such practice and process. The irony is that

despite observations, no action was ever taken against officers who sit on the file and do nothing.

The matter is further aggravated in the present case and even the present petition is filed with a delay of 462 days and once again the excuse is of

change of counsel.

We have repeatedly deprecated such attempts of the State Governments to approach this Court only to complete a mere formality. Learned counsel

for the petitioner strenuously contends that there is valuable land involved. In our view, if it was so, then the concerned officers responsible for the

manner in defending this petition must be made to pay for it.

We are thus constrained to dismiss the petition as barred by time and impose cost of Rs. 15,000/- on the petitioner for wastage of judicial time. We put

it to the learned counsel that the cost would have been much greater but for the fact that a young counsel is appearing before us and we have given

considerable concession in the costs on that factor alone.

It is more than settled that condition precedent for condoning the delay is always the existence of sufficient cause. Whether the explanation

furnished for the delay would constitute sufficient cause or not would depend upon the facts of each case? It cannot be any straight jacket formula for

accepting or rejecting the explanation furnished by the parties seeking condonation of delay. Acceptance of explanation furnished should be the rule

and refusal an exception more so when no negligence or inaction or want of bonafide can be imputed to the defaulting party.

However, equally true the proposition that valuable right may accrue to the other party on account of delay or inaction of the opposite party.

As would be noticed from the explanation offered by the petitioners, there was no serious attempt whatsoever to ensure that the files are attended

and moved expeditiously from one desk to other. Not only inaction but there is a gross negligence on the part of the officials of the petitioners and at

the same time valuable right has accrued in favour of the respondent.

In view of the aforesaid discussion, we are of the considered view that this petition is barred by the principle of delay and latches and accordingly

the same is dismissed on this ground alone, so also pending application(s), if any.