# State of U.P. & Ors v. Harikesh Singh

- **Citation:** (2022) 3 ILRA 762
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-05-28
- **Case number:** Special Appeal Defective No. 23 of 2019
- **Bench:** Rajesh Bindal, C.J. Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-harikesh-singh-48237
- **Pages:** 7

## Headnote

(A) Civil Law - Constitution of India,
1950 - Article 226, - High Court Rules
Chapter VIII Rule 5 - Intra Court
Appeal - being aggrieved order of writ
court
-
imposing
cost
upon
appellant/respondents - Appeal filed
after beyond limitation period - the
Govt.
Machinery
being
impersonal,
caused delay about 287 days - it is
settled law that delay in filing of appeal
should
be
genuine,
bonafide
&
unintentional - thus, instant appeal
deserves to be dismissed on the ground
of delay and latches. (Para - 14, 15, 16)

(B) Civil Law - Constitution of India,
1950 - Article 226, - High Court Rules
Chapter VIII Rule 5 - Intra Court
Appeal
-
Delay
caused
due
to
casualness of St. officers whom are
paid salaries from the St.-Exchequers -
in getting certified copy of the order of
writ court - applied in April, laying
pending till December, thereafter after
seeking permission filed appeal after
287 days - at every stage casual
approach has been done by the St.
authorities and they cannot be allowed
to sit idle or sleep over the files -
responsibility needs to be fixed against
whom are fails to perform their duties -
they
should
accountable
for
their
inactions - as such direction issued -
whatever amount is to be paid to the
respondent in terms of the order of writ
court, same shall be recovered from the
guilty officials by holding a proper
inquiry - file a compliance affidavit also
by the next date. (Para - 15, 16)

(C) Civil Law - Constitution of India,1950 -
Article 226, - High Court Rules Chapter VIII
Rule 5 - Intra Court Appeal - while
dismissing the defective appeal - direction
issued to the Ld. Advocate General, Chief
Secretary & Home Secretary of Govt. of UP -
in every case which decided by court, against
St. - certified copy thereof, should be applied
for, immediately and it should be sent to the
department along with opinion as to whether
the case is fit for filing of Appeal or not, with
clear instruction about expiry of limitation
period - not on the request made by the
Department - process could be done online
by using advance technology. (Para - 17)

Appeal dismissed. (E-11)

List of Cases cited: -

## Text

762 INDIAN LAW REPORTS ALLAHABAD SERIES
ground that the posts in question were lying
vacant since long and had to be deemed to have
been surrendered under Regulation-20 in
Chapter-II of the Regulations under the Act of
1921. It is well settled law that the validity of
any order has to be judged on the basis of the
reasons mentioned in the order itself and
reasons to support an order cannot be
afterwards. As the order dated 07.08.2009 does
not make any mention of the posts in question
not being available to be filled up as per the
provision contained in Regulation-20 in
Chapter-II of Regulations under the Act of
1921, the aforesaid provision cannot be pressed
into service for validity of the order dated
07.08.2009.

19. The Hon'ble Single Judge has dealt
with this ground and has held that an
unsuccessful candidate Mohd. Nazeem Khan
had given a representation to the Director and in
the order dated 19.02.2010 passed on the
representation of Sri. Nazeem Khan, the
Director has recorded his satisfaction that the
selections were held by a duly constituted
selection committee after due approval of the
competent authority, and he accorded approval
to the selection of Sri. Nazeem Khan.

20. Along with the counter affidavit filed
by the D.I.O.S. Copy of a letter dated
12.01.2009 issued by the D.I.O.S. has been
annexed which states that he had got an enquiry
conducted by the Assistants Accounts Officer
regarding the existence of the aforesaid vacant
posts and after obtaining a report from him
regarding
availability
of
vacant
posts,
permission was granted to publish an
advertisement for conducting selection for
appointment to the aforesaid posts. Therefore,
from the record produced by the D.I.O.S.
himself, it appears that he had recorded
satisfaction about existence of the vacant post
after getting an enquiry conducted in this
regard. Morever, the order dated 19.02.2010
passed by the Director puts a seal of approval
upon the entire selection process.

21. In these circumstances, refusal of the
D.I.O.S. to accord approval to the selection of
respondent nos. 2 and 3 namely, Sri. Mueez
Ahmad and Sri. Mohd. Suhaib Hasan who
were also selected in the same selection process,
is apparently arbitrary and unreasonable.

22. We find that the judgment and order
dated 28.05.2019 passed by the Hon'ble Single
Judge is based on an appropriate appreciation of
facts of case as well as the law applicable to it
and there is no error or illegality in it so as to
warrant any interference with the same in this
intra-Court Appeal.

23. Both the appeals bearing Special
Appeal No. 185 of 2020 and Special Appeal
No. 340 of 2019 challenging the aforesaid
judgment and order dated 28.05.2019 passed by
the Hon'ble Single Judge in Writ Petition No.
4972 (S/S) of 2009 (Mueez Ahmad and another
vs. State of U.P. and another), lack merit and
are. accordingly, dismissed.

24. No order as to costs.
----------
(2022)03ILR A762
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.02.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE JASPREET SINGH, J.

Special Appeal Defective No. 23 of 2019
(In Writ Petition No. 1966 (Writ-A) of 2017)

State of U.P. & Ors. ...Appellants
Versus
Harikesh Singh ...Respondent

Counsel for the Appellants:
3 All. State of U.P. & Ors. Vs. Harikesh Singh
763
Sri H.Q. Rizvi, Standing Counsel, Advocate

Counsel for the Respondent:
Sri Amit Bose, Senior Advocate assisted by
Sri Abhishek Bose and Sankalp Dewari,
Advocates.

(A) Civil Law - Constitution of India,
1950 - Article 226, - High Court Rules
Chapter VIII Rule 5 - Intra Court
Appeal - being aggrieved order of writ
court
-
imposing
cost
upon
appellant/respondents - Appeal filed
after beyond limitation period - the
Govt.
Machinery
being
impersonal,
caused delay about 287 days - it is
settled law that delay in filing of appeal
should
be
genuine,
bonafide
&
unintentional - thus, instant appeal
deserves to be dismissed on the ground
of delay and latches. (Para - 14, 15, 16)

(B) Civil Law - Constitution of India,
1950 - Article 226, - High Court Rules
Chapter VIII Rule 5 - Intra Court
Appeal
-
Delay
caused
due
to
casualness of St. officers whom are
paid salaries from the St.-Exchequers -
in getting certified copy of the order of
writ court - applied in April, laying
pending till December, thereafter after
seeking permission filed appeal after
287 days - at every stage casual
approach has been done by the St.
authorities and they cannot be allowed
to sit idle or sleep over the files -
responsibility needs to be fixed against
whom are fails to perform their duties -
they
should
accountable
for
their
inactions - as such direction issued -
whatever amount is to be paid to the
respondent in terms of the order of writ
court, same shall be recovered from the
guilty officials by holding a proper
inquiry - file a compliance affidavit also
by the next date. (Para - 15, 16)

(C) Civil Law - Constitution of India,1950 -
Article 226, - High Court Rules Chapter VIII
Rule 5 - Intra Court Appeal - while
dismissing the defective appeal - direction
issued to the Ld. Advocate General, Chief
Secretary & Home Secretary of Govt. of UP -
in every case which decided by court, against
St. - certified copy thereof, should be applied
for, immediately and it should be sent to the
department along with opinion as to whether
the case is fit for filing of Appeal or not, with
clear instruction about expiry of limitation
period - not on the request made by the
Department - process could be done online
by using advance technology. (Para - 17)

Appeal dismissed. (E-11)

List of Cases cited: -

1. Postmaster General & ors. Vs Living Media
India Ltd. & anr. ( 2012 Vol. 3 SCC 563),

2. St. of M.P. & ors. Vs Bherulal (2020 vol. 10
SCC 654),

(Delivered by Hon'ble Rajesh Bindal, C.J.)

1. The present intra court appeal has
been filed against the order dated February 5,
2018 passed by the learned Single Judge by
which the writ petition was allowed.

2. The appeal is accompanied by an
application seeking condonation of delay. The
period of delay has not been mentioned in the
application, however, as calculated by the
Registry, the period is 287 days.

3. The learned counsel for the
applicant/appellant submitted that after the
copy of the order was received, the file had to
be dealt with at number of stages before the
final decision is taken and the appeal was
filed. The Government Machinery being
impersonal, the delay has occurred. The case
otherwise is quite meritorious and the order
passed by the learned Single Judge deserves
to be set aside.

4. On the other hand, learned counsel
for the respondent no. 1 submitted that
there is hardly any explanation given for
764 INDIAN LAW REPORTS ALLAHABAD SERIES
seeking the condonation of delay. Similar
grounds have already been discarded by the
Hon'ble Court Supreme Court in the case of
Postmaster General and Others Vs.
Living
Media
India
Limited
and
Another, (2012) 3 SCC 563. Hence,
condonation of delay on such grounds is
not permissible. He also referred to an
order passed by the Hon'ble Supreme Court
in the case of State of Madhya Pradesh
and Others Vs. Bherulal (2020) 10 SCC
654 whereby relying on the aforesaid
judgment of the Hon'ble Supreme Court in
Postmaster General and other's case
(supra), while dismissing the application
seeking condonation of delay, even cost
was imposed.

5. Heard learned counsel for the
parties
on
the
application
seeking
condonation of delay.

6. In the case in hand, the order
passed by the learned Single Judge is dated
05 February, 2018. A period of 30 days has
been provided for filing a Special Appeal
against the order passed by the learned
Single Bench, in case any of the party is
aggrieved. Casualness on the part of the
applicant/appellant is apparent as even the
application for supply of certified copy of
the order was filed on 28.04.2018 i.e. after
expiry of period of limitation to file appeal
and the same was not pursued thereafter as
it remained pending till December, 2018.

7. If the facts stated in the affidavit
filed in support of the application seeking
condonation of delay are considered, in
paragraph no. 2 thereof, it is stated that
after receipt of the copy of the order dated
05.02.2018, as impugned in the present
appeal, the Senior Superintendent of Police,
Lucknow vide letter dated 27.02.2018
requested the learned Chief Standing
Counsel for applying for the certified copy
thereof. But the fact as is evident from the
certified copy placed on record is that it
was applied on 28.04.2018 i.e. more than
two months after the order was passed.
Subsequent thereto, vide letter dated
14.03.2018,
learned
Chief
Standing
Counsel was requested for his legal opinion
on the matter.

8. The fact remains that the copy of
the order dated 05.02.2018 was with the
Department and a request was made to the
learned
Chief
Standing
Counsel
for
applying for the certified copy thereof,
however, still in that letter, request was not
made for seeking opinion of the learned
Chief
Standing
Counsel.
The
communication was made two weeks'
thereafter. Reminders were sent to the
office of the Chief Standing Counsel on
04.04.2018,
20.04.2018,
10.05.2018,
11.06.2018
and
13.07.2018.
Meaning
thereby for a period of four months, the
matter remained pending with the office of
Chief Standing Counsel. Thereafter opinion
was given for filing a Special Leave to
Appeal against the order passed by the
learned Single Judge.

9.

On
27.04.2018,
Senior
Superintendent
of
Police,
Lucknow
requested learned Chief Standing Counsel
to re-examine the legal opinion rendered on
06.08.2018. The learned Chief Standing
Counsel opined that the case is fit for filing
the Special Appeal. Thereafter vide letter
dated 11.08.2018, the matter was referred
to the Government for permission to file
appeal. Reminder was sent on 20.08.2018.
Thereafter
vide
communication
dated
31.08.2018, permission was granted by the
Government to file Special Appeal against
the order dated 05.02.2018 passed by the
learned Single Judge.
3 All. State of U.P. & Ors. Vs. Harikesh Singh
765

10. Vide letter dated 29.09.2018, the
Senior Superintendent of Police, Lucknow
requested the learned Chief Standing
Counsel to take steps for filing the Special
Appeal.

11. From a perusal of the aforesaid
facts stated by the applicant/appellant in the
affidavit filed in support of the application
seeking condonation of delay, it is evident
that the appellant/State-Authorities were
casual at different levels in dealing with the
matter. As to how an application filed by
the State seeking condonation of delay has
to be dealt with has invited attention of the
Courts on a number of occasions. Initially,
the view was that the State Machinery
being impersonal, the Courts should be
liberal in granting condonation of delay,
however, seeing the repeated inaction and
casualness in approach on the part of the
Authorities in filing the appeals after a
huge delay, the view had to be re-visited.

12. In Postmaster General and
others's case (Supra) considering the facts
of that case, which were similar to the case
in hand, the Hon'ble Supreme Court opined
that 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
aforesaid observation was made about a
decade
back
and
there
is
lot
of
technological advancements thereafter. But
apparently, the matters here are being dealt
with in the old fashion. Separate period of
limitation has not been provided for filing
appeals
by
the
State.
The
relevant
paragraphs from the aforesaid judgment are
extracted below:-

"27. It is not in dispute that the
person(s) concerned were well aware or
conversant
with
the
issues
involved
including
the
prescribed
period
of
limitation for taking up the matter by way
of filing a special leave petition in this
Court. They cannot claim that they have a
separate period of limitation when the
Department was possessed with competent
persons familiar with court proceedings. In
the 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.

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 the 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
766 INDIAN LAW REPORTS ALLAHABAD SERIES
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 miserably 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."

13. Recently, the Hon'ble Supreme
Court in Bherulal's case (Supra) again
considered the application filed by the State
seeking condonation of delay in filing the
Special Leave Petition. Similar arguments
were made in support of the application,
however, the same were rejected. Such type
of cases were termed as "certificate cases".
The application seeking condonation of
delay was dismissed subject to costs of ₹
25,000/-. Relevant paras nos. 4 to 8 thereof
are extracted below:-

"4. A reading of the aforesaid
application shows that the reason for such
an inordinate delay is stated to be only "due
to unavailability of the documents and the
process of arranging the documents". In
para 4, a reference has been made to
"bureaucratic
process
works,
it
is
inadvertent that delay occurs".

5. A preposterous proposition is
sought to be propounded that if there is
some merit in the case, the period of delay
is to be given a go-by. If a case is good on
merits, it will succeed in any case. It is
really a bar of limitation which can even
shut out good cases. This does not, of
course, take away the jurisdiction of the
Court in an appropriate case to condone the
delay.

6. We are also of the view that the
aforesaid approach is being adopted in
what we have categorised earlier as
"certificate cases". The object appears to be
to obtain a certificate of dismissal from the
Supreme Court to put a quietus to the issue
and thus, say that nothing could be done
because the highest Court has dismissed the
appeal. It is to complete this formality and
save the skin of officers who may be at
default that such a process is followed. We
have on earlier occasions also strongly
deprecated such a practice and process.
There seems to be no improvement. The
purpose of coming to this Court is not to
obtain
such
certificates
and
if
the
Government suffers losses, it is time when
the officer concerned responsible for the
same bears the consequences. The irony is
that in none of the cases any action is taken
against the officers, who sit on the files and
do nothing. It is presumed that this Court
will condone the delay and even in making
submissions, straightaway the counsel
appear to address on merits without
referring even to the aspect of limitation as
happened in this case till we pointed out to
the counsel that he must first address us on
the question of limitation.

7. We are thus, constrained to
send a signal and we propose to do in all
matters today, where there are such
inordinate delays that the Government or
State authorities coming before us must pay
for wastage of judicial time which has its
own value. Such costs can be recovered
from the officers responsible.

8. Looking to the period of delay
and the casual manner in which the
application has been worded, we consider it
appropriate to impose costs on the
petitioner State of Rs 25,000 (Rupees
twenty-five thousand) to be deposited with
the Mediation and Conciliation Project
Committee. The amount be deposited in
four weeks. The amount be recovered from
the officers responsible for the delay in
3 All. State of U.P. & Ors. Vs. Harikesh Singh
767
filing the special leave petition and a
certificate of recovery of the said amount
be also filed in this Court within the said
period of time."

14. Now coming to the pleadings of
the applicants/appellants in th present case.
We deem it appropriate to extract the
grounds. The same read as under:-

" 4. That the Law Department
vide Government Order dated 31.08.2018
granted permission for filing of the Special
Appeal against the impugned judgment and
order dated 05.02.2018 and the same has
been received vide letter dated 07.09.2018
of the State Government.

5. That the Senior Superintendent
of Police, Lucknow vide his letter dated
29.09.2018 requested the learned Chief
Standing Counsel, High Court, Lucknow
for taking appropriate action regarding
filing of the Special Appeal.

6. That the duly authorized
pairokar
alongwith
the
letter
dated
29.09.2018 contacted the office of the
learned Chief Standing Counsel, High
Court, Lucknow on 03.10.2018.

7. That the paper Book for
preparing Special Appeal was allotted to the
Standing Counsel on 25.10.2018 and on
being contacted by the pairokar same day, he
advised the pairokar to contact him again
alongwith the relevant necessary records and
explanations for the delay caused in filing the
Special Appeal. Accordingly, the Pairokar
contacted
the
Standing
Counsel
on
06.01.2019 and the Special Appeal along
with the Applications for interim relief and
condonation
of
delay
alongwith
their
respective affidavits have been drafted on the
same very date and the same is being filed
without any further delay.

8. That the delay in filing of the
Special Appeal is genuine, bonafide and
unintentional. The Special Appeal could not
be filed earlier as it took time in filing the
administrative formalities by following
certain norms and procedure of disciplined
and systematic performance of official
functions, which includes preparation of
office notes etc., after scrutinizing various
records, movement of files step by step
through different sections and to different
officers and lastly to the head of the
department and thereafter forwarding the
matter to the Administrative Department in
the Government for appropriate decision.
The similar procedure is adopted in the
Administrative
Department
also.
The
aforesaid process takes some time as it
depends
upon
so
many
factors/
circumstances, such as preparation of office
notes etc., as stated above, non-availability
of certain necessary informations, as stated,
non-availability of concerned officials/
officers, various holidays in between and
certain
unavoidable
and
unspoken
circumstances. It also took some time in
obtaining the requisite permission of the
law department and also in preparation of
the Special Appeal and its appendices."

15. In the case in hand as well, from
the facts as have been noticed above, we
find that at every stage there was casual
approach
of
the
State-Authorities
or
officials working therein, who are paid
salaries from the State Exchequer but they
fail to perform their duties. They cannot be
allowed sit idle or sleep over the files. They
are accountable for their actions/inactions.
In the case in hand, the position looks
otherwise. The files cannot be left to be
dealt with as if there is no limitation to file
appeals. The kind of explanation given in
support
of
the
application
seeking
condonation of delay is not acceptable in
terms of the law laid down by the Hon'ble
Supreme Court, hence, the application for
768 INDIAN LAW REPORTS ALLAHABAD SERIES
seeking condonation of delay is dismissed.
As a result of which the appeal also stands
dismissed.

16. However, before parting with the
order, we are also conscious of the fact that
the benefit of filing the delayed appeals
should not go to a litigant at the cost of the
State, with whom the officials may be in
connivance. The responsibility needs to be
fixed. In the case in hand, the appeal is
being dismissed only on the ground of
delay and latches, though it was found to be
a fit case for filing appeal by the different
Authorities of the State. We direct that
whatever amount is to be paid to the
respondent in terms of the order passed by
the learned Single Judge of this Court, the
same shall be recovered from the guilty
officials/officers by holding a proper
inquiry and the State shall not bear that
burden under any circumstances. This will
be a message to other officers in the State,
why
public
at
large,
who
are
the
contributors to the State-exchequer, should
be made to bear the burden of the inaction
by the different officers /officials in the
State, which is paid out of the tax
contributed by them.

17. The process of inquiry and
recovery of the amount shall be completed
within a period of four months from the
date of receipt of copy of the order and a
compliance report shall be submitted before
the Senior Registrar of this Court, at
Lucknow.

17. We also find it appropriate to record
here that from the affidavit filed in support of
the application seeking condonation of delay,
it is evident that the system being followed
after decision of cases needs to be re-visited.
Office of Advocate General should ensure
that after every case is decided by the Court,
certified copy thereof should be applied for,
immediately and not on the request made by
the Department. Immediately, on receipt of
the copy of the order, it should be sent to the
Department concerned along with the opinion
as to whether the case is fit for filing an
appeal or not alongwith suggested grounds,
instead of waiting for a letter from the
concerned Department seeking opinion.
Further, the letter should specifically state as
to the date on which the limitation to file an
appeal or availing any remedy against the
order expires. It has to be ensured that
opinion in the case alongwith copy of the
order reaches the concerned department well
before expiry of time for filing appeal and
that date should be specifically mentioned.
Benefit should be taken of technological
advancements and the process could be
online as well.

18. Let a copy of the order be sent to
the Chief Secretary and Home Secretary,
Government of U.P. for information and
compliance. In case compliance report is not
submitted within the period specified, the
matter shall be listed in the Court only for the
aforesaid purpose on July 18, 2022, otherwise
the appeal stands dismissed.
----------
(2022)03ILR A768
ORIGINAl JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.03.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE JAYANT BANERJI, J.

Writ Tax No.78 of 2022

Daujee
Abhushan
Bhandar
Pvt.
Ltd.,
Faizabad ...Petitioner
Versus
U.O.I. & Ors. ...Respondents