State of J & K vs T. Gyalpo

N. Paul Vasanthakumar, C.J. - This application is filed by the State seeking condone delay of 1 year and 340 days in preferring the appeal.

The reason stated in the application seeking condonation of delay is that the judgment of the learned Single Judge was passed on 22.01.2013

and the counsel appointed, namely, Additional Advocate General, had not appeared and argued the matter, hence the department did not know

about the order passed. It was only on 06.11.2013 that a copy of the judgment along with representation was received from the writ petitioner by

the Home Department and the Home Department requested the Director General of Policed on 21.01.2014 to report about the outstanding

achievements/citations of the writ petitioner on the anti-militancy front, to consider his claim for out of turn promotion as Dy.S.P and also to give

comments. The Police Headquarters on 21.05.2014 sent its response, not recommending the officer for his out of turn promotion. The matter was

again considered and as per Government Order No. 308-Home of 2014 dated 03.07.2014 the claim of the respondent for regularization as

Deputy Superintendent of Police from 1997 was found devoid of any merit. The Law Department was consulted for filing appeal and by letter

dated 03.12.2014 sanction was accorded for filing appeal by engaging the Additional Advocate General to conduct the appeal. Thereafter the

grounds of appeal were drafted and the appeal was filed.

The application/averments made in the application were opposed by the respondent by filing objections, stating that another Government

counsel, Mr. Shuja, appeared in the writ petition and argued the matter at length, whose name is also reflected in the judgment of the learned Single

Judge, therefore, the government was aware of the decision rendered on 22.01.2013. Regarding the lack of knowledge about the order before

06.11.2013, it is stated that the respondent made a representation with copy of the judgment to the Commissioner/Secretary to Government of

J&K, Home Department and the Director General of Police and the Director General of Police has addressed a letter to the Principal Secretary to

Government of J&K, Home Department on 17.04.2013. The letter of the 2nd applicant to the Is' applicant is also filed along with the objections.

Therefore, the contention of the applicants that till November, 2013 they were not aware of the judgment is contrary to the records and a false

affidavit has been filed by the applicants. It is further stated that the appeal time prescribed under Rules being 60 days, the said period expired on

22.03.2013, thus the application seeking condone delay is without any basis and by suppression of facts.

The learned Additional Advocate General reiterated the contentions raised in the application seeking condone delay.

Mr. B.A. Bashir, learned senior counsel appearing for the respondent submitted that the averments/submissions made by the applicants are

contrary to records as per the objections filed by the respondent .

It is true that while considering the application seeking condone delay, a liberal approach should be made, however, if in a given case the delay

is unreasonable and false affidavit is filed, the courts ought to be very strict in allowing such application for condonation of delay. In the facts and

circumstances of this case the applicants have not shown sufficient cause for not filing the appeal within 60 days and the only contention raised that

the counsel has not argued for the applicants, is contrary to the order passed by the learned Single Judge wherein the presence of the Government

Advocate is noted. The receipt of the copy of the judgment along with representation from the respondent followed by the letter addressed by the

2nd applicant to the 1st applicant is also proved. In such circumstances no case is made out to condone the delay and the application is dismissed.

Since the appeal is not maintainable due to rejection of the application seeking condone delay, the appeal preferred against the order of the

learned Single Judge cannot be entertained and the same is dismissed.

No costs.