- (1.) HEARD learned counsel for the appellants on the application under Section 5 of the Limitation Act for condonation of delay of 680 days in filing the appeal as well as on merits.
(2.) THE Special Appeal is directed against order dated 24.03.2009 passed by Single Bench, whereby S.B. Civil Writ Petition No.1424/1995, filed by writ petitioners/ respondents, was partly allowed and respondents(present appellants) were directed to treat the service of the writ-petitioner from 28.12.1982 to 17.3.1986 as part of qualifying service for the purpose of grant of pension. So far as delay of 680 days in filing the appeal is concerned, the appellants, in their application under Section 5 of the Limitation Act, have tried to explain the same in para Nos. 2 to 4, which are reproduced as under :- "2. That the learned Single Judge passed the order on dated 24.03.2009 and the appellant filed the application for obtaining the certified copy of the order on dated 29.07.2010. The certified copy of the order has been given to the counsel of the respondents on dated 04.08.2010. Prior to 29.07.2010 the appellants applicants were not aware about the decision of the case. 3. That after obtaining the certified copy of the order the counsel for the appellant sent the same to the appellants. Since the Appellants are part and parcel of the union of India, the Judgment and the order dated 24.03.2009 has been examined at the different levels of the Appellants. Now the concerned authorities of the appellants has directed the appellants to file the Special Appeal against the order of learned Single Judge. That the delay which has been caused is due to process and procedure of the appellants department. The delay is bonafide one hence the same is liable to be condoned and the appeal is required to be heard and decided on its merit". 4. Above facts mentioned in the application make it clear that no proper or satisfactory explanation has been given for the delay from 24.03.2009 to 29.07.2010, except, that appellants were not aware about the decision of the case prior to 29.7.2010. It is also relevant to mention that certified copy of impugned order was received by appellants on 4.8.2010 and the appeal was filed on 4.4.2011. No proper or satisfactory explanation has been given for this period (4.8.2010 to 4.4.2011) also, except that delay is caused due to process and procedure of the department. It was a duty of the appellants to explain the delay properly. The application has been drafted in a very cursory manner. There is a delay of about 2 years in filing this appeal. Learned counsel for appellants does not dispute that notice of the writ petition was issued and respondents had already filed reply to writ petition before Single Bench, which has also been considered by Single Bench in the impugned order. Although the presence of counsel for respondents is not marked in the impugned order but reply and submissions of respondents were considered in the impugned order. Counsel for respondents (present appellants) has not filed an affidavit that he was not aware about impugned order dated 24.3.2009. In para 2 of the application, it has been averred that appellants-applicants were not aware about the decision of the case prior to 29.7.2010. In these circumstances, we are of the view that no proper or satisfactory explanation has been given so as to condone the inordinate delay of 680 days in filing the Special Appeal. The Honble Apex Court recently in Postmaster General & Ors. v. Living Media India Limited & Anr.,(2012) 3 SCC 563 did not condone the delay of even 427 days in filing the Special Leave Petition filed by the Postmaster General and others. The Honble Apex Court relied upon Pundlik Jalam Patil vs. Jalgaon Medium Project, (2008) 17 SCC 448 and other judgments of Honble Apex Court and held as under :- "28. 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 bona fides, 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. 29. In our view, it is the right time to inform all government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide 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 the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. 30. 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 miserable failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay. 31. In view of our conclusion on Issue (a), there is no need to go into the merits of Issues (b) and (c). The question of law raised is left open to be decided in an appropriate case. 32. In the light of the above discussion, the appeals fail and are dismissed on the ground of delay. No order as to costs." (emphasis supplied)
(3.) THAT apart, the Honble Apex Court in the case of CWT Versus Amateur Riders Club reported in 1994 Supp. (2) SCC 603, the Honble Apex Court observed thus: "3...... Having regard to the law of limitation which binds everybody, we cannot find any way of granting relief. It is true that the Government should not be treated as any other private litigant as, indeed, in the case of the former the decisions to present and prosecute appeals are not individual but are institutional decisions necessarily bogged down by the proverbial red tape. But there are limits to this also. Even with all this latitude, the explanation offered for the delay in this case merely serves to aggravate the attitude of indifference of the Revenue in protecting its common interests. The affidavit is again one of the stereotyped affidavits making it susceptible to the criticism that the Revenue does not seem to attach any importance to the need for promptitude even where it affects its own interest." Similarly in the case of S.S. Balu and Another Versus State of Kerala and Others reported in (2009) 2 Supreme Court Cases 479, the Honble Apex Court held that the delay defeats equity and relief can be denied on the ground of delay alone even though relief is granted to other similarly situated person who approached the court in time. The Honble Apex Court further observed, "it is now a trite law that where the writ petitioner approaches the High Court after a long delay, relief prayed for, may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates, who obtained the benefit of the judgment. As mentioned above, since there is no proper and satisfactory explanation of 680 days for not filing Special Appeal, therefore, we are of the view that no sufficient cause has been shown so as to condone the delay in filing the appeal. In these circumstances, the application under Section 5 of the Limitation Act deserves to be dismissed and the same is hereby dismissed. ;