# State of U.P. and another v. Ram Kishun and others

- **Citation:** (2007) 1 ILRA 242
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-10-26
- **Case number:** Civil Misc. Writ Petition No.58649 of 2006
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-and-another-v-ram-kishun-and-others-40845
- **Pages:** 6

## Headnote

Constitution
of
India-Art.
226-Writ
petition-challenging the order passed by
District Judge-delay about 2 years 124
days-explain given-the file run from one
place to another table-in the case of
government the court should be liberalheld-a bald averment without showing
sufficient cause-before court the private
and government litigants be given equal
treatment-petitioner
can
not
be
entertained on highly belated stage.

Held: Para 10

In my opinion, these averments are
insufficient for the Court to hold that
sufficient cause was made out by the
petitioner for condoning the delay and
for the Court to entertain a petition
beyond the stipulated period. In the
opinion of the Court, on the basis of a
bald averment, sufficient cause has not
1 All] State of U.P. and another V. Ram Kishun and others
243
been explained and therefore, the Court
is not inclined to give any kind of latitude
to the State Government. Consequently,
the Court is not inclined to entertain this
writ petition at this belated stage.
Case law discussed:
1996 SCC (3)-132, J.T. 1996 (7) SC-204, 1998
(7) SCC-123, J.T. 2000 (5) SC-389, 1969 (1)
SCR-1006, 1979 (4) SCC-365, 1969 (2) SCC770, 1981 Supp. SCC-72, 1982 (3) SCC-366,
1984 (4) SCC-661, J.T. 1987 (1) SC-537, 1987
(2) SCC-107, 1987 Supp. SCC-339, J.T. 1988
(1) SC-524, J.T. 1992 (Supp.) SC-496, 1993
(1) SCC-572, 1993 Supp. (1) SCC-487, 1994
Supp. (2) SCC-507, 1995 Supp. (1) SCC-37,
1996 (3) SCC-132

## Text

242 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
33. Therefore, it is evident that
subordinate legislation cannot override
the statutory rules nor can it curtail the
content and scope of the substantive
provision for or under which it has been
made.

For the reasons and the conclusions
drawn
hereinabove,
our
answer
to
Question No. 1 is:

"An unadvertised vacancy cannot be
filled up from amongst the candidate who
has been selected in any previous
selections and to that extent we declare
that the pronouncement of the learned
Single Judge in the case of Savita Gupta
Vs. State of U.P. & Ors., 2004 (2)
UPLBEC 2739, does not lay down the
law correctly and is hereby overruled."

and to Question No.2 is :

"The U.P. Secondary Education
Services Selection Board constituted
under the U.P. Act No.5 of the 1982
cannot, with the aid of the Government
Order dated 12th March, 2001, order any
adjustment in respect of a vacancy, which
has been intimated and notified but not
advertised".

Shri Pradeep Verma, learned counsel
for the petitioner states that the petitioner
does not stake any claim further against
the post in D.A.V. College, Varanasi for
the reason that the said post has already
been filled up and he, therefore, prays that
the
writ
petition
be
dismissed
as
withdrawn.

34. It is a settled legal proposition
that the Court answering the reference
should not decide the case on merit and
after answering the question, the matter
should be sent back to the appropriate
Bench
for
proper
adjudication/final
disposal in the light of law laid down
therein. As in the instant case, the
petitioner does not want to press the
petition, no purpose would be served,
sending the matter back to the Court
concerned. The petition is accordingly
dismissed as withdrawn.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.10.2006

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.58649 of 2006

State of U.P. and another ...Petitioners
Versus
Ram Kishun and others ...Respondents

Counsel for the Petitioners:
Sri Shiv Nath Singh (Addl.S.C.)

Counsel for the Respondents:

Constitution
of
India-Art.
226-Writ
petition-challenging the order passed by
District Judge-delay about 2 years 124
days-explain given-the file run from one
place to another table-in the case of
government the court should be liberalheld-a bald averment without showing
sufficient cause-before court the private
and government litigants be given equal
treatment-petitioner
can
not
be
entertained on highly belated stage.

Held: Para 10

In my opinion, these averments are
insufficient for the Court to hold that
sufficient cause was made out by the
petitioner for condoning the delay and
for the Court to entertain a petition
beyond the stipulated period. In the
opinion of the Court, on the basis of a
bald averment, sufficient cause has not
1 All] State of U.P. and another V. Ram Kishun and others
243
been explained and therefore, the Court
is not inclined to give any kind of latitude
to the State Government. Consequently,
the Court is not inclined to entertain this
writ petition at this belated stage.
Case law discussed:
1996 SCC (3)-132, J.T. 1996 (7) SC-204, 1998
(7) SCC-123, J.T. 2000 (5) SC-389, 1969 (1)
SCR-1006, 1979 (4) SCC-365, 1969 (2) SCC770, 1981 Supp. SCC-72, 1982 (3) SCC-366,
1984 (4) SCC-661, J.T. 1987 (1) SC-537, 1987
(2) SCC-107, 1987 Supp. SCC-339, J.T. 1988
(1) SC-524, J.T. 1992 (Supp.) SC-496, 1993
(1) SCC-572, 1993 Supp. (1) SCC-487, 1994
Supp. (2) SCC-507, 1995 Supp. (1) SCC-37,
1996 (3) SCC-132

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Sri S.N. Singh, the learned
Additional
Chief
Standing
Counsel
appearing for the petitioners.

2. The petitioners have challenged
the judgment dated 16.3.2004 passed by
the District Judge, Kushi Nagar. There is
a delay of two years and 124 days in
approaching
the
writ
Court.
The
explanation for condoning the delay has
been averred in paragraph-18 of the writ
petition which stated that the department
sought permission for filing the writ
petition and, in that regard, the file had to
pass from one table to another table and,
therefore, that it took some time in
granting
the
permission.
The
said
paragraph further stated that the Court
should take a lenient view, while
condoning the delay, in the cases filed on
behalf of the State Government.

3. The State Government is not
above the law and that it cannot be treated
differently from that of a common
litigant. The law applies equally to all,
including the State Government. The
doctrine of equality before law demands
that all litigants including the State, as a
litigant, should be equally treated and that
the law should be administered in an even
handed manner. The law of limitation is
the same for a common litigant as well as
for the State Government. A common
litigant has to arrange for the requisite
expenses and make arrangement for his
boarding and lodging. He also has to
choose an advocate of his choice. These
are time consuming process, but the same
has to be done within a stipulated period.
On the other hand, the State Government
has all the requisite infrastructure to file a
writ petition as early as possible. Merely,
because the State Government is an
impersonal machinery does not mean that
the Government can work at its own pace
and leisure.

4. Section 5 of the Limitation Act,
extends the period of limitation in filing
an application or an appeal and gives a
power to the Court to admit the appeal or
an application after the prescribed period.
The only condition is, that the applicant or
the appellant satisfies the Court that he
had sufficient cause for not preferring the
appeal or making the application within
the
stipulated
period.
Though,
the
Limitation Act is not applicable in a writ
jurisdiction, nonetheless, the principles
can be applied and the Court can decline
to entertain a writ petition, on the ground
of laches, if sufficient cause is not shown.

5. What constitutes "sufficient
cause" cannot be laid down by any hard
and fast principle. The discretion given to
the Court cannot be defined or crystallised
in a rigid rule of law. The Supreme Court
in a number of cases has observed that the
expression "sufficient cause" should be
construed liberally if it finds that the
litigant
had
acted
with
reasonable
244 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
diligence in pursuing the matter. If the
Court finds that there was lack of
bonafide or negligence on the part of the
party, the application was liable to be
refused.

6. In State of Haryana Vs.
Chandra Mani and others, (1996)3
SCC 132 the Supreme Court held that
even though the Court should adopt a
liberal approach in condoning the delay,
the law of limitation was required to be
administered in an even handed manner
and that a litigant, including the State,
should be accorded the same treatment,
though certain amount of latitude was
permissible to be given to the State
Government on account of its impersonal
machinery and the inherited bureaucratic
methodology. Similar view was held by
the Supreme Court in the case of The
Special Tehsildar, Land Acquisition,
Kerla Vs. K. V. Ayisumma, JT 1996(7)
SC 204 wherein the Supreme Court held
as follows:

"It is true that Section 5 of the
Limitation Act envisages explanation of
the delay to the satisfaction of the Court
and in matters of Limitation Act made no
distinction between the State and the
citizen. Nonetheless adoption of strict
standard
of
proof
leads
to
grave
miscarriage of public justice. It would
result in public mischief by skilful
management of delay in the process of
filing the appeal. The approach of the
Court would be pragmatic but not
pedantic."

7. In N. Balakrishnan Vs. M.
Krishnamurthy, (1998)7 SCC 123, the
Supreme Court held as under :

"It is axiomatic that condonation of
delay is a matter of discretion of the court.
Section 5 of the Limitation Act does not
say that such discretion can be exercised
only if the delay is within a certain limit.
Length of delay is no matter, acceptability
of the explanation is the only criterion.
Sometimes delay of the shortest range
may be uncondonable due to a want of
acceptable explanation whereas in certain
other cases, delay of a very long range
can be condoned as the explanation
thereof is satisfactory. Once the court
accepts the explanation as sufficient, it is
the result of positive exercise of discretion
and normally the superior court should
not disturb such finding, much less in
revisional jurisdiction, unless the exercise
of discretion was on wholly untenable
grounds or arbitrary or perverse. But it is
a different matter when the first court
refuses to condone the delay. In such
cases, the superior court would be free to
consider the cause shown for the delay
afresh and it is open to such superior court
to come to its own finding even
untrammeled by the conclusion of the
lower court.

The reason for such a different stance is
thus:

The primary function of a court is to
adjudicate the dispute between the parties
and to advance substantial justice. The
time limit fixed for approaching the court
in different situations is not because on
the expiry of such time a bad cause would
transform into a good cause.

Rules of limitation are not meant to
destroy the rights of parties. They are
meant to see that parties do not resort to
dilatory tactics, but seek their remedy
promptly. The object of providing a legal
1 All] State of U.P. and another V. Ram Kishun and others
245
remedy is to repair the damage caused by
reason of legal injury. The law of
limitation fixes a lifespan for such legal
remedy for the redress of the legal injury
so suffered. Time is previous and wasted
time would never revisit. During the
efflux of time, never causes would sprout
up necessitating newer persons to seek
legal remedy by approaching the courts.
So a lifespan must be fixed for each
remedy. Unending period for launching
the remedy may lead to unending
uncertainty and consequential anarchy.
The law of limitation is thus founded on
public policy. It is enshrined in the maxim
interest reipublicae up sit finis litium [It is
for the general welfare that a period be
put to litigation]. Rules of limitation are
not meant to destroy the rights of the
parties. They are meant to see that parties
do not resort to dilatory tactics but seek
their remedy promptly. The idea is that
every legal remedy must be kept alive for
a legislatively fixed period of time."

8. The Supreme Court in State of
Bihar and others Vs. Kameshwar
Prasad Singh and Another, JT2000 [5]
SC 389 the Supreme Court after analysing
its earlier judgment held -

"After referring to the various
judgments
reported
in
New
India
Insurance Co. Ltd. v. Shanti Misra [1975
(2) SCC 840], Brij Inder Singh v. Kanshi
Ram [AIR 1917 PC 156], Shakuntala
Devi Jain v. Kuntal Kumari [1969 (1)
SCR 1006], Concord of India Insurance
Co. Ltd. v. Nirmala Devi [1979 (4) SCC
365], Lala Mata Din v. A. Narayanan
[1969(2) SCC 770 ], State of Kerala v.
E.K. Kuriyipe [1981 Supp. SCC 72],
Milavi Devi v. Dina Nath [1982(3) SCC
366], O.P. Kathpaliav.Lakhmir Singh
[1984(4)
SCC
66],
Collector,LandAcquisition v. Katiji [JT
1987 (1) SC 537 = 1987 (2)SCC 107],
Prabha v. Ram Prakash Kalra [1987 Supp.
SCC339],G. Ramegowda, Major v. Spl.
Land Acquisition Officer [JT1988(1) SC
524 =1988(2) SCC 142], Scheduled Caste
Coop. Land Owning Society Ltd. v.
Union of India [ JT 1990 (4) SC 1= 1991
(1) SCC 174], Binod Bihari Singh v.
Union of India [JT 1992 (Supp.) SC 496
=1993(1) SCC 572], Shakambari & Co. v.
Union of India [ 1993 Supp. (1) SCC487],
Ram Kishan v. U.P.S.R.TC. [1994 Supp.
(2) SCC 507] and Warlu v. Gangotribai
[1995 Supp. (1) SCC 37] ; this Court in
State of Haryana v. Chandra Mani & Ors.
[UT 1996(3) SC 371 = 1996(3) SCC 132 ]
held :

"It
is
notorious
and
common
knowledge that delay in more than 60
percent of the cases filed in this Court be
it by private party or the State- are barred
by limitation and this Court generally
adopts liberal approach in condonation of
delay finding somewhat sufficient cause
to decide the appeal on merits. It is
equally common knowledge that litigants
including the State are accorded the same
treatment and the law is administered in
an even-handed manner. When the State
is an applicant, praying for condonation
of delay, it is common knowledge that on
account of impersonal machinery and the
inherited
bureaucratic
methodology
imbued with the note- making, file
pushing, and passing -on-the buck ethos,
delay on the part of the State is less
difficult to understand though more
difficult to approve, but the State
represents
collective
cause
of
the
community. It is axiomatic that decisions
are
taken
by
officers/agencies
proverbially at slow pace and encumbered
process of pushing the files from table to
246 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
table and keeping it on table for
considerable
time
causing
delay
intentional or otherwise- is a routine.
Considerable delay of procedural red-tape
in the process of their making decision is
a common feature. Therefore, certain
amount of latitude is not impermissible. If
the appeals brought by the State are lost
for such default no person is individually
affected but what in the ultimate analysis
suffers, is public interest. The expression
'sufficient cause' should, therefore, be
considered with pragmatism in justiceoriented process approach rather than the
technical detention of sufficient case for
explaining every day's delay. The factors
which are peculiar to and characteristic of
the functioning of pragmatic approach in
justice-oriented process. The court should
decide the matters on merits unless the
case is hopelessly without merit. No
separate standards to determine the cause
laid by the State vis-a-vis private litigant
could be laid to prove strict standards of
sufficient case. The Government at
appropriate level should constitute legal
cells to examine the cases whether any
legal principles are involved for decision
by the courts or whether cases require
adjustment and should authorise the
officers to take a decision to give
appropriate permission for settlement. In
the event of decision to file the appeal
needed prompt action should be pursued
by the officer responsible to file the
appeal and he should be made personally
responsible for lapses, if any. Equally, the
State cannot be put on the same footing as
an individual. The individual would
always be quick in taking the decision
whether he would pursue the remedy by
way of an appeal or application since he is
a person legally injured while State is an
impersonal machinery working through
its officers or servants."
9. To the same effect is the
judgment of this Court in Special
Tehsildar, Land Acquisition, Kerala v.
K.V. Ayisumma [JT 1996 (7) SC 204
=1996 (10) SCC 634].

In Nand Kishore v. State of Punjab
[JT 1995 (7) SC 69=1995(6) SCC 614]
this
Court
under
the
peculiar
circumstances of the case condoned the
delay in approaching this Court of about
31 years. In N. Balakrishnan v. M.
Krishnamurthy [JT 1998 (6) SC 242
=1998(7) SCC 123] this Court held that
the purpose of Limitation Act was not to
destroy the rights. It is founded on public
policy fixing a life span for the legal
remedy for the general welfare. The
primary function of a Court is to
adjudicate disputes between the parties
and to advance substantial justice. The
time limit fixed for approaching the court
in different situations is not because on
the expiry of such time a bad cause would
transform into a good cause. The object of
providing legal remedy is to repair the
damage caused by reason of legal injury.
If the explanation given does not smack
malafides or is not shown to have been
put forth as a part of dilatory strategy, the
court must show utmost consideration to
the suitor. In this context it was observed:

"It is axiomatic that condonation of
delay is a matter of discretion of the court.
Section 5 of the Limitation Act does not
say that such discretion can be exercised
only if the delay is within a certain limit.
Length of delay is no matter; acceptability
of the explanation is the only criterion.
Sometimes delay of the shortest range
may be uncondonable due to a want of
acceptable explanation whereas in certain
other cases, delay of a very long range
can be condoned, as the explanation
1 All] Smt. Ranju V. State of U.P. and others
247
thereof is satisfactory. Once the court
accepts the explanation as sufficient, it is
the result of positive exercise of discretion
and normally the superior court should
not disturb such finding, much less in
revisional jurisdiction, unless the exercise
of discretion was on wholly untenable
grounds or arbitrary or perverse. But it is
a different matter when the first court
refuses to condone the delay. In such
cases, the superior court would be free to
consider the cause shown for the delay
afresh and it is open to such superior court
to come to its own finding even
untrammeled by the conclusion of the
lower court."

10. In view of the aforesaid, it is
clear that the State Government being an
impersonal machinery and because of its
bureaucratic methodology imbued with
the note-making, file pushing and passing
-on-the buck ethos, certain amount of
latitude is required provided it shows
sufficient cause. In the present case,
sufficient cause which has been alleged is
that the file had to travel from one table to
another and consequently, in the cases
relating to the State Government, the
Court should take a liberal approach.
Necessary details are lacking in this
regard. Nothing has been stated or
brought on the record as to when the
permission was sought from the higher
authority for filing a writ petition. No
details have been given as to how the
delay occurred from one table to another
table. Merely by making a bald statement
that the delay occurred because of the
movement of the file from one table to
another does not come within the
parameter of the words "sufficient cause"
for the court to exercise its discretion and
condone the delay. If there had been a
delay at the behest of some officer or
employee, some responsibility should
have been fixed upon that officer or
employee
concerned,
but
no
such
allegation has been made. Further the
averment that the court should take a
lenient view in matters relating to the
State Government is a clear indication
that the State Government thinks that it is
above the law and that it can get away
with anything. In my opinion, these
averments are insufficient for the Court to
hold that sufficient cause was made out
by the petitioner for condoning the delay
and for the Court to entertain a petition
beyond the stipulated period. In the
opinion of the Court, on the basis of a
bald averment, sufficient cause has not
been explained and therefore, the Court is
not inclined to give any kind of latitude to
the State Government. Consequently, the
Court is not inclined to entertain this writ
petition at this belated stage.

11. The writ petition is dismissed on
the ground of laches.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.10.2006

BEFORE
THE HON'BLE K.N. OJHA, J.

Criminal Revision No. 5775 of 2006

Smt. Ranju

...Revisionist
Versus
State of U.P. and others ...Opposite Parties

Counsel for Revisionist:
Sri Prashant Kumar Singh

Counsel for the Opposite Parties:
A.G.A.

Code
of
Criminal
Procedure-section-
156(3)-Rejection
of
complaint-No