West Bengal Board of Secondary Education &Ors. vs Charu Chandra Karmakar & Ors.

Amrita Sinha, J.:-

CAN 11265 of 2015

(1) This is an application under Section 5 of the Limitation Act, 1963 filed by the West Bengal Board of Secondary Education praying for condonation

of delay of 1853 days in preferring the appeal.

CAN 3943 of 2018 This is an application under Section 5 of the Limitation Act, 1963 filed by the State of West Bengal praying for condonation of

delay of 2833 days in preferring the appeal.

The order under appeal was passed on 17-09-2010 by a learned single judge of this court in WP No- 15595 (W) of 2007. The operative part of the

order under appeal reads as follows:-

“Thus, having regard to the facts and circumstances of the case and the above decided authorities, the impugned order dated 02.04.2001 (annexure

“P-10â€), and order dated 13.10.2006 (annexed “P-13â€) are set aside and the 2nd respondent herein, namely the West Bengal Board of

Secondary Education is directed to grant recognition of the said Junior High School within a period of four weeks from the date of communication of

this order.

Needless to mention, however, that once such recognition is granted, the 7th respondent herein, namely the District Inspector of Schools (S.E.), Malda

will regularize the respective appointments of the petitioner Nos. 1 and 8 to 15 and as a natural consequence thereof, the petitioners will be entitled to

their salaries including the salary in arrears and the other benefits from the date of their respective approvals. This order for payments is to be

implemented within a further period of four weeks from the grant of recognition. The above order is to be treated to be mandatory by the concerned

respondents herein.

The application being CAN 2430/09 is allowed. Leave is granted to add the applicant as writ petitioner No. 16.â€​

(2) The order under appeal was an ex-parte one. It is the specific case of the appellants that the writ petition was filed in the year 2007 and no notice

was served on the Board intimating that the matter would be taken up for final hearing on 17-09-2010.

(3) It is the further case of the appellants that as the order was passed exparte they were not aware of the said order. The concerned education

department intimated the said order to the appellants vide their letter dated 04-09-2012. The appellants vide their letter dated 21-01-2013 requested the

Education department to forward a copy of the aforesaid order as the same was not available in their records.

The order was communicated to the appellants by the learned advocate of the writ petitioners/respondents vide his letter dated 07-05-2013. It is only

after receipt of a copy of the said order that the appellants got the knowledge of the same.

(4) Upon getting knowledge of the said order the appellants vide their communication dated 24-06-2013 sought the views of the education department

as regards compliance of the said order. Since there was no response from the department the appellants sent further reminders vide letters dated 21-

08-2013 and 28-01-2014.

(5) The education department vide their letter dated 03-02-2014 informed the appellants that the State Government had already taken a decision to

prefer an appeal against the impugned order and judgment and that a learned State Advocate had been engaged to take steps for preferring appeal.

(6) The learned advocate of the writ petitioners/respondents vide his letter dated 24-07-2015 forwarded a photocopy of the certified copy of the

impugned order and requested the appellants to comply the same failing which necessary orders will be prayed for initiating contempt proceedings

before this Hon’ble Court.

(7) On receipt of the said letter the appellants issued a further letter dated 0308-2015 to the Secretary, School Education department enquiring about

the fate of the appeal filed by the State government.

(8) By a forwarding letter dated 26-08-2015 the learned advocate of the writ petitioners/respondents communicated the order dated 07-08-2015

passed in the contempt proceedings filed by the writ petitioners/respondents alleging noncompliance of the order dated 17-09-2010.

(9) Having no other alternative the appellants decided to prefer the instant appeal against the impugned order in the second week of September 2015.

In the third week of September 2015 the appellants instructed their learned advocate to take steps for filing appeal and made application for obtaining

the certified copy of the impugned order on 29-09-2015 which was made ready for delivery on 13-

10-2015. The appeal was ultimately filed by the West Bengal Board of Secondary Education on 15-10-2015. In the process there has been a delay of

1853 days in preferring the appeal. The State of West Bengal made application for obtaining the certified copy on 8th June, 2018 and the same was

made ready for delivery on 20th June, 2018 and memorandum of appeal was filed by the State of West Bengal on 21st June, 2018. Thus there has

been a delay of about 2833 days in preferring the appeal. In the application for condonation of delay the appellant State submitted that there had been

no intentional delay/laches and/or negligence on their part in preferring the appeal and the reasons for delay was beyond their control.

(10) The appellants relied on the judgments ofDhiraj Singh vs. State of Haryana &Ors. reported in (2014)14 SCC 127, Executive Officer, Antiyur

Town Panchayat vs. G. Arumugamreported in (2015)3 SCC 569, B.S. SheshagiriSetty and Others vs. State of Karnataka &Ors. reported in(2016)2

SCC 123,State of Haryana vs. Chandra Mani &Ors. reported in (1996) 3 SCC 132and(2014)3 CLJ 271and tried to convince the court that for the

purpose of providing substantial justice to the parties the appeal should be admitted and disposed of on merits. It has been submitted that there is

enough merit to interfere with the order impugned and such a meritorious case should not be thrown out of the zone of consideration only on the

ground of delay. It has been further argued that the delay was primarily due to procedural lapses and the same may not be treated as intentional

and/or deliberate.

(11) It has been strenuously submitted that by the impugned order the appellants had been directed to grant recognition to a school which does not

have any existence at all. The District Level Inspection Team had inspected the school in question on more than one occasion and submitted report

each time rejecting the prayer for recognition of the school.

(12) It was further submitted that the three member committee formed by the appellants in compliance of the order passed by this Hon’ble Court

had visited the school and submitted report before the appellant Board. The President of the Board upon hearing the submissions of the writ

petitioners/respondents and upon perusal of the report of the committee rejected the prayer for recognition of the school by giving reasons. The said

rejection was under challenge before the learned trial judge. In spite of availability of all the papers the learned Trial judge disposed of the case

without proper appreciation of the documents annexed with the writ petition.

(13) On the other hand the writ petitioners/respondents submitted that there is no reason whatsoever mentioned in the application seeking condonation

of the delay. It is submitted that the writ petitioners/respondents are serving the said school as organizing teachers since its inception in 1984 and had

been rendering service at a very paltry sum which is received from the students and wellwishers. It has been submitted that there is no other school in

the vicinity and the school in question had been imparting education to the children of the locality who mainly belong to the schedule castes and tribes.

(14) The writ petitioners/respondents relied on the judgments ofState of U.P. &Anr. vs. Amar Nath Yadav reportd in (2014) 2 SCC 422,Amalendu

Kumar Bera&Ors. vs. State of West Bengal reported in (2013) 4 SCC 52, State of West Bengal vs. Goutam Kumar Dutta reported in (2017)1 CHN

(CAL) 397, D. Gopinathan Pillai vs. State of Kerala &Anr. reported in(2007) 1 WBLR (SC) 726 in support of their case. It had been submitted that

merely because the appellant is the State, delay in filing the appeal should not be mechanically considered in the absence of sufficient cause. Without

“sufficient cause†the delay should not be condoned on sympathetic ground. The learned advocate for the writ petitioners/respondents

distinguished the cases relied upon by the appellants and submitted that the same were passed on different set of facts and the same are in no way

applicable in the facts and circumstances of the instant case.

(15) Heard elaborate submissions made on behalf of both the parties. Now the questions that arises for consideration before the court are;

(i) Whether the appellants are entitled to an order condoning the delay inpreferring the appeal in the absence of any plausible reason explaining the

same?

(ii) Whether the delay on the part of the writ petitioners/respondents to communicate the ex-parte mandatory order to the appellants can be considered

as “sufficient causeâ€​ for allowing the application for condoning the delay of the appellants in preferring the appeal?

(iii) Should a meritorious case be shut out due to the callous and negligent act of a few of the officers of the State resulting in gross miscarriage of

justice?

(iv) Should the State suffer due to the indolent officers who knowingly or unknowingly aided and abated in the delay in preferring the appeal within

time?

(16) The reasons put forward by the appellants in their application seeking condonation of the delay are far from satisfactory. Apart from mentioning a

couple of dates the appellants have not mentioned any plausible reason which resulted in the delay. Though the order was an ex-parte one even then

after knowing about the order as far back as on 3rd. January, 2012 the appellants took nearly forty five months to prepare the memorandum of appeal.

The appeal was ultimately filed on 15th. October 2015. No reason, far less ‘sufficient reason’ has been shown for condoning the said delay.

(17) At the same time it is seen that the writ petitioners/respondents in spite of obtaining an ex-parte mandatory order in their favour did not

communicate the same to the appellants for a considerable period of time. The order dated 17-092010 was communicated only on May 2013. The

delay in communicating the order of the Court for such a long time raises genuine doubts in the mind of the court as regards the bona fide intention of

the writ petitioners/respondents to prosecute their case. More so when the case of the writ petitioners/respondents is that the school in question is

functioning since 1984 and since then they are pursuing their claim to get recognition of the same. In such a case the writ petitioners/respondents

ought to have communicated the mandatory order of the court immediately and with all promptness.

(18) It seems that the writ petitioners/respondents intentionally and deliberately did not inform the respondents about the date of final hearing of the

writ petition, obtained an ex parte order in their favour and also did not communicate the same to the authorities in due time. By doing so the writ

petitioners/respondents adopted a calculated move and undertook a risk in getting the impugned order executed by filing contempt proceedings beyond

its statutory period of limitation. The writ petitioners/respondents did not inform the appellants about the filing of the contempt case. The writ

petitioners/respondents vide their letter dated 24-07-2015 deliberately tried to mislead the appellants and gave an impression that unless the order of

the learned single judge was complied then proceedings for contempt would be initiated against them, when in fact contempt proceedings had been

initiated way back in 2013. It is only on receipt of a copy of the order passed in the contempt proceedings in 2015 did the appellants wake up from

their deep slumber and took steps to file the appeal.

(19) It is true that the appellant West Bengal Board of Secondary Education being an independent statutory body was not bound to wait for any signal

or permission from the State for preferring the appeal. The direction was upon the appellants to grant recognition to the school within a specified time.

The order passed by the court was a mandatory one. Had the appellants been aggrieved by the said order they ought to have preferred appeal the

moment they got the knowledge of the same. Instead of taking steps for preferring appeal the appellants wrote a letter to the State Government

seeking its views as regards compliance of the said order and simply went off to sleep. The appellants failed to appreciate that the orders passed by

the court are meant to be obeyed and complied with in its true perspective. The orders are not meant for gathering dust lying on the table. They are

also not meant to be ignored by moving the file from one table to the other or from one department to the other without complying the same.

(20) We do not want to comment on the merits of the appeal at this stage, but prima facie it appears that the legality of the order is required to be

gone into, especially in view of the fact that though the reasons for rejecting the prayer of the writ petitioners/respondents for recognition of the school

in question had been mentioned in the order impugned before the Court below, the learned trial judge did not give any reason for setting aside the

same. Moreover the judgments relied upon by the learned trial judge to arrive at a conclusion and pass the said impugned order are based upon

completely different set of facts and the same ought not to be made applicable in the instant case.

(21) The writ petitioners/respondents on the other hand in spite of obtaining an order for recognition of the school as well as for approval of their

services remained silent, did not communicate the order and allowed the statutory period of the appeal to expire only with a view to get a walkover in

the contempt proceeding. The negligent act of the officers of the appellants came as an aid and assistance to the writ petitioners/respondents. The

State ought not to suffer due to the irresponsible acts and action of some of its officers who bring disgrace and disrepute to the State. The inaction on

the part of the officers to take appropriate steps at the proper time interferes with the process of dispensation of justice.

(22) A division bench of this court in the case reported in 2017 (1) CHN (CAL) 397 (supra) observed that, “Lethargy has crept in the law

department of the State because it was sometimes given grace by the Supreme Court by condoning delay where question of public benefits was

involved but now delay is being sought for the Court by the State in every case by giving certain dates, without even explain the delay/laches which

may have occurred due to some exceptional circumstancesâ€​.

The court further observed that, “We find that the Government advocates/officials in the instant case did not discharge their duties diligently and

with commitment for preferring the appeal within the time prescribed under law, however, on the contrary they were sitting tight over the file for no

reason which is now being sought to justify before us.

 The concerned officials of Law Department of the State are not functioning properly and that most of the cases are being preferred in the Court

after they barred by considerable period of time under law. This mindset of their officials is to be attended to by the Government, for it requires radical

change in the functioning in so far the law department of the State is concerned. There is no indication either in the delay condonation application of

this appeal or any other place as to what action has been taken against the erring officials of the Government who had not performed their duties in

timeâ€​.

(23) The copy of the order passed in the above case was directed to be forwarded by the Chief Secretary, Government of West Bengal for taking

remedial measures.

(24) The aforesaid order was passed in November 2016 but it seems that the officers of the State are yet to come out of their inertia of rest and it is

high time that they are made accountable for their irresponsible acts that lead to substantial loss of the Government.

(25) The Hon’ble Supreme Court in the case of State of Nagaland -vsLipokAoreported in (2005) 3 SCC 752 held that, “The Court must

always take a justiceoriented approach while considering an application for condonation of delay. If the court is convinced that there had been an

attempt on the part of the government officials or public servants to defeat justice by causing delay, the court, in view of the larger public interest,

should take a lenient view in such situations, condone the delay, howsoever huge may be the delay, and have the matter decided on meritsâ€​.

(26) We opine the same. We are convinced that in the instant case there has been a deliberate attempt to defeat justice in more ways than one. Law

cannot be evaded or defeated by delay. Granting recognition to a school and approving appointment to the teachers de hors the Rules is not

permissible in law. Back door appointments ought not to be legalized by orders of court. Moreover dismissing the application for condoning the delay

will result in granting undue benefit in favour of the writ petitioners/respondents. It is settled law that what cannot be done directly cannot be done

indirectly.

(27) From the tenor of the above authorities pronounced by the SupremeCourt, the court is entitled to take a liberal approach in applications under

Section 5 of the Limitation Act, 1963 to prevent grave injustice, to promote substantial justice and public interest, to prevent failure of justice by

nonconsideration of a meritorious case, and to overcome the dishonesty of a section of government officials delaying appeals. One must presume that,

ordinarily, a person does not gain anything by delaying an appeal.

(28) In this case the court below had based its order on the erroneousreasoning that since the earlier administrative decision refusing recognition had

been set aside by this court and the matter remanded back to the authorities for re-consideration, it followed that the consideration would be in favour

of the writ petitioners. In our opinion, the respondents had not been able to conclusively show that the school in question was eligible for recognition.

Whether the courts below could directly order recognition or could only direct consideration for recognition, on the guidelines issued by it is a question

that needs to be gone into in the appeal. In this case the order of the trial court was not served on the competent authority within time. There is no

proper explanation for the delay, pointing a finger at the government officials for deliberately delaying the appeal.

(29) Invoking the above principles of the Supreme Court the delay in preferringthe appeal is condoned. The applications for condonation of delay

(CAN 11265 of 2015) and (CAN 3943 of 2018)are allowed. The department is directed to register the appeals.

List the application for stay (CAN 11269 of 2015) together with the appeals (FMA 4639 of 2015 and MAT 571 of 2018) after a fortnight.

The learned Registrar General High Court at Calcutta is directed to forward a copy of this order to the Chief Secretary, Government of West Bengal,

the Learned Advocate General and the Legal Remembrancer for necessary action.

(30) Urgent certified photocopy of this judgement, if applied for, be supplied to the parties or their advocates on record expeditiously on compliance of

usual legal formalities.