# State of U.P. & Ors v. Khushnoor Khan & Ors

- **Citation:** (2021) 2 ILRA 742
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-17
- **Case number:** Civil Misc. Review Application No. 4 of 2021
- **Bench:** Devendra Kumar Upadhyay, Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-khushnoor-khan-ors-46798
- **Pages:** 7

## Headnote

A. Code of Civil Procedure, 1908-Section
114-application-condonation of delay in
filing review petition-rejection-the state
failed to file the review petition on time
and could not explain the reason of delay
of 1730 days-law of limitation binds
everyone including the Government-the
approach of the State all along has been
casual and that of manifest negligencewhen the matter was referred to the
Finance
Department,
the
reasons
indicating the delay for that period is not a
satisfactory explanation. (Para 1 to 20)
2 All. State of U.P. & Ors. Vs. Khushnoor Khan & Ors.
743
The petition is dismissed. (E-5)

List of Cases cited:-

## Text

742 INDIAN LAW REPORTS ALLAHABAD SERIES
Statute itself, the litigant should first
approach the Statutory Appellate Authority
before approaching the High Court in writ
jurisdiction.

20. In this case, the petitioners' rights
and liabilities have been determined under
the U.P.Z.A. & L.R. Act, now replaced
with U.P. Revenue Code, and a statutory
remedy has already been provided in the
Schedule attached to the said Statute.

21. This Court does not find from the
order of the Additional Commissioner
(Judicial) impugned in this case that gross
injustice has resulted for this Court to
exercise its extraordinary jurisdiction of
judicial
review
as
the
Additional
Commissioner (Judicial) while rejecting the
First Appeal of the petitioner, has observed
that consolidation operations have begun in
the village concerned and it shall be open
for
the
petitioner
to
approach
the
consolidation courts under the appropriate
sections of the Consolidation of Holdings
Act.

22. The effect of Section 5(2)(a) of
the Consolidation of Holdings Act has
been considered by Hon'ble Supreme
Court in the judgment rendered in Mool
Chand and others Vs. Deputy Director
of Consolidation and others ; 1995 (5)
SCC 631, held in paragraph 9 and 23 that
suits
or
proceedings
relating
to
declaration of right or interest in the land
lying in the consolidation area shall stand
abated. The Supreme Court had relied
upon its earlier decision in the case of
Ram Adhar Vs. Ram Roop Singh; 1968
(2) SCR 95; Chattar Singh and others Vs.
Thakur Pal Singh 1975 (4) SCC 457;
Satyanarayan Prasad Sah and others Vs.
State of Bihar and another 1980 Supp
SCC 474; Bibi Rahmani Khatoon and
others Vs. Harkoo Gope and others 1981
(3) SCC 173.

23. This writ petition is dismissed
on the ground of statutory remedy alone
being available to the petitioner.

24. It shall be open for the petitioner
to
raise
all
his
claims
before
the
Consolidation
Courts
under
the
Consolidation of Holdings Act.
----------
(2021)02ILR A742
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.02.2021

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAY, J.
THE HON'BLE MANISH KUMAR, J.

Civil Misc. Review Application No. 4 of 2021
In Service Bench No. 1701 of 2000

State of U.P. & Ors. ...Applicants
Versus
Khushnoor Khan & Ors. ...Respondents

Counsel for the Applicants:
C.S.C.

Counsel for the Respondents:
--

A. Code of Civil Procedure, 1908-Section
114-application-condonation of delay in
filing review petition-rejection-the state
failed to file the review petition on time
and could not explain the reason of delay
of 1730 days-law of limitation binds
everyone including the Government-the
approach of the State all along has been
casual and that of manifest negligencewhen the matter was referred to the
Finance
Department,
the
reasons
indicating the delay for that period is not a
satisfactory explanation. (Para 1 to 20)
2 All. State of U.P. & Ors. Vs. Khushnoor Khan & Ors.
743
The petition is dismissed. (E-5)

List of Cases cited:-

1. U.O.I .Vs Central Tibetan Schools Admin &
ors.,SLP (Civil )19846/2020

2. Office of the Chief Post Master General & ors. Vs
Living Media India Ltd & Anr.,( 2012) 3 SCC 563

3. Balwant Singh (Dead) Vs Jagdish Singh &
ors.,(2010) AIR SC 3043

4. St. of M.P. & ors. Vs BheruLal (2010) 10
SCC 654]

(Delivered by Hon'ble Manish Kumar, J.)

1. Heard Shri Raghvendra Singh,
learned Advocate General appearing for the
review applicants-State Authorities on the
prayer for condonation of delay in filing the
review petition and perused the records.

2. The State of U. P. seeks review of
the judgment and order dated 19.04.2016
passed by this Court in Writ Petition
No.1701 (S/B) of 2000 whereby the writ
petition was dismissed. There is a delay of
about 1730 days in filing the review
petition from the date of judgment under
review herein.

3. The judgment and order dated
19.04.2016 which is under review before us
was earlier challenged by the State of U. P.
by way of filing Special Leave Petition
No.7563 of 2017 with a delay of 252 days
and the same was dismissed on the ground
of delay by Hon'ble Supreme Court vide its
order dated 05.07.2017. Thus, from the
date Special Leave Petition was dismissed,
there is a delay of about 1335 days in
preferring the review petition.

4. Writ Petition No.1701 (S/B) of
2000 was filed by the State challenging the
judgment and order dated 08.10.1999
passed by the State Public Service Tribunal
whereby parity in pay scale was granted to
the respondents herein with the pay scale
made available to one Shri Sheo Kumar
Singh. The judgment of the Tribunal dated
08.10.1999 was based on an order dated
15.07.1998 passed by this Court in Writ
Petition No.3055 (S/S) of 1997 which was
filed by Shri Sheo Kumar Singh and Shri
Shafat Ali. This writ petition was finally
disposed of by this Court by means of the
order dated 02.11.2007 whereby the State
was directed to provide the petitioners of
the said writ petition, namely, Shri Sheo
Kumar Singh and Shri Shafat Ali all
service benefits and pay scale which were
available
to
them
while
they
were
discharging their duties on the post of
Electrician.

5. As noticed above, against the
judgment dated 19.04.2016 which is under
challenge in the review petition, the State
had filed the Special Leave Petition bearing
No.7563 of 2017 which was dismissed by
Hon'ble Supreme Court by means of the
order dated 05.07.2017 on the ground that
State had failed to give any justifiable
reasons to condone the delay of 252 days in
filing the said Special Leave Petition. It is
also noteworthy that the order dated
08.10.1999 passed by the Tribunal was
implemented by the State vide an order
dated 18.10.2017. After dismissal of the
Special Leave Petition by means of the
order
dated
05.07.2017
and
after
compliance of the order passed by the
Tribunal on 18.10.2017, this matter ought
to have been put at rest, however, now the
review petition has been filed after lapse of
a period of about 1335 days from the date
when the Special Leave Petition was
dismissed. As observed above, delay in
preferring this review petition from the date
744 INDIAN LAW REPORTS ALLAHABAD SERIES
of judgment under review is about 1730
days, whereas such delay from the date of
dismissal of Special Leave Petition is about
1335 days.

6. In the affidavit filed by the review
applicants-State certain explanation has
been sought to be given for such huge
delay in preferring this review petition.
However, on a conscious consideration of
the averments made in the application
seeking condonation of delay and the
affidavit filed in support thereof, what we
find is that the delay has not been
sufficiently explained; rather in the facts of
the case, what we conclude is that there has
been unjustifiable laches and callousness
on the part of the State in preferring this
review petition.

7. It has been stated in the application
seeking condonation of delay that the order
dated 19.04.2016 which is under review
was served upon the State on 02.05.2016
and thereafter the matter is said to have
been examined by the Director General,
Medical
and
Health
Services.
On
19.05.2016 the Joint Secretary of the State
Government in the Department of Finance
wrote a letter to the Principal Secretary of
the Medical and Health Department for a
meeting and thereafter on 31.12.2016 it
was decided to file Special Leave Petition.
The application further states that on
06.03.2017 the Directorate of Medical and
Health Services requested the Advocate on
Record to file Special Leave Petition and
accordingly the Special Leave Petition was
filed which, as already noted above, was
dismissed as it was filed with unexplained
delay of 252 days. The explanation given in
the
affidavit
filed
along
with
the
application for condonation of delay is that
after the judgment dated 05.07.2017
rendered by the Hon'ble Supreme Court in
Special Leave Petition bearing No. 7563 of
2017, the judgment and order dated
19.04.2016 order impugned in the present
petition was implemented by the State
Government
vide
its
order
dated
18.10.2017.

8. It has also been stated that other
similarly situated persons approached this
Court by filing writ petitions for granting
the parity or for extending the benefit of the
judgment and order dated 19.04.2016. The
judgments were passed by this Court
therein from time to time against which the
special appeals were preferred and the
same were also dismissed by this Court by
means of the orders dated 24.10.2019,
04.11.2019 and 05.11.2019 resulting in
huge financial burden on the State
exchequer. Thereafter the matter was
referred to the Finance Department of the
State
Government
in
the
month
of
December, 2020, after 1688 days, since the
date of judgment impugned in the present
review petition; after 1246 days from the
judgment dated 05.07.2017 passed by the
Hon'ble Supreme Court and after 393 days
from 05.11.2019 when the last decision
was given in the special appeal against the
judgment in the writ petition preferred by
the other persons.

9. The application whereby the delay
has been sought to be condoned further
makes averment to the effect that large
number of similarly circumstanced persons
started claiming parity in pay scale and
since
in
the
opinion
of
the
State
Government they were not entitled to the
same and it caused huge financial burden
on the State Exchequer, the matter was
referred to the Finance Department of the
State Government which in December,
2020 expressed certain discrepancies in the
order dated 19.04.2016 passed in Writ
2 All. State of U.P. & Ors. Vs. Khushnoor Khan & Ors.
745
Petition No.1701 (S/B) of 2000 parity of
which had been claimed in successive writ
petitions. The application further states that
the State Government after deliberations
vide letter dated 11.01.2021 requested the
learned Chief Standing Counsel for filing a
petition seeking review of the judgment
and
order
dated
19.04.2016
and
accordingly this review petition has been
filed.

10. Learned Advocate General taking
the Court to aforementioned submissions
made in the affidavit filed in support of the
application seeking condonation of delay in
filing the review petition has submitted that
delay
is
genuine,
bona
fide,
and
unintentional. He has further submitted that
review petition could not be filed as it took
time
in
completing
the
administrative
formalities by following certain norms and
procedure of disciplined and systematic
performance of official functions, including
preparation of office notes etc., scrutinizing
various records, movement of files step by
step through different sections and lastly
referring the matter to the Head of the
Department. Learned Advocate General has
further argued that this process takes some
time as it depends upon so many factors and
circumstances, such as preparation of office
notes, non-availability of certain necessary
information, non-availability of concerned
official/officers, various holidays and certain
unavoidable and unspoken circumstances.
His further submission is that since large
number of employees are claiming parity in
pay scale on the basis of judgment dated
19.04.2016 which is under review herein, the
same is causing huge financial burden on the
State Exchequer and accordingly it was felt
imperative to file the instant review petition.

11. We have given our conscious and
serious consideration to the submissions
made by the learned Advocate General,
however, what we find is that the delay and
laches in preferring the review petition are
not satisfactorily explained. The reasons as
argued by the learned Advocate General
rather are, in fact, manifestation of
callousness and non-seriousness on the part
of the officials and officers of the State
Government. What has been stated in para
24 of the affidavit filed in support of the
application seeking condonation of delay
reflects proverbial bureaucratic red tapism
wherein the review applicants-State has
attempted to take shelter in the usual
functioning
of
the
administrative
machinery. We find it appropriate to extract
para 24 of the affidavit filed in support of
the application seeking condonation of
delay which is as under:

"24. That the delay in filing of the
Review Application is genuine, bonafide
and unintentional. the Review Application
could not be filed earlier as it took time in
completing 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, non-availability
of concerned official/officers, various
746 INDIAN LAW REPORTS ALLAHABAD SERIES
holidays
in
between
and
certain
unavoidable and unspoken circumstances.
It also took time in obtaining the requisite
permission of the law department and also
in preparation of the Review Application
and its appendices. "

12. Hon'ble Supreme Court time and
again has not only expressed words of
caution in respect of casual manner in
which the State Authorities approach the
Courts without any plausible ground for
condonation of delay but has even
counselled the State Authorities in this
regard. Regard may be had at this juncture
to the latest pronouncement made by
Hon'ble Supreme Court on 04.02.2021
while
dismissing
the
Special
Leave
Petition (Civil) Diary No(s). 19846/2020,
Union of India vs. Central Tibetan
Schools Admin & Ors. The Hon'ble
Supreme Court dismissed the Special
Leave Petition, which was preferred with
the delay of 532 days from the date of
rejection of restoration application and
6616 days from the date of original order
and made certain observations are quoted
below:

"We have heard learned Additional
Solicitor General for some time and
must note that the only error which
seems to have occurred in the impugned
order is of noticing that it is not an
illiterate litigant because the manner in
which the Government is prosecuting its
appeal reflects nothing better! The
mighty Government of India is manned
with large legal department having
numerous officers and Advocates. The
excuse given for the delay is, to say the
least, preposterous.

We
have
repeatedly
being
counselling through our orders various
Government
departments,
State
Governments
and
other
public
authorities that they must learn to file
appeals in time and set their house in
order so far as the legal department is
concerned, more so as technology assists
them. This appears to be falling on deaf
ears despite costs having been imposed
in number of matters with the direction
to
recover
it
from
the
officers
responsible for the delay as we are of the
view that these officers must be made
accountable. It has not had any salutary
effect and that the present matter should
have been brought up, really takes the
cake!"

13. In the case of Central Tibetan
Schools Admin & Ors. (supra) while
observing that the appellant therein had
approached the Court in casual manner
without any cogent ground for condonation
of delay, Hon'ble Supreme Court has
referred to the cases of Office of the Chief
Post Master General & Ors. vs. Living
Media India Ltd. & Anr., reported in
[(2012) 3 SCC 563] and also the case of
Balwant Singh (Dead) vs. Jagdish Singh
& Ors, reported in [AIR 2010 SC 3043].
Relevant extract of the said judgment in the
case of Central Tibetan Schools Admin &
Ors. (supra) runs as under:

" In this behalf, suffice to refer to
our judgment in the State of Madhya
Pradesh & Ors. v. Bheru Lal [SLP [C]
Diary
No.9217/2020
decided
on
15.10.2020] and The State of Odisha &
Ors. v. Sunanda Mahakuda [SLP [C]
Diary
No.22605/2020
decided
on
11.01.2021]. The leeway which was given
to the Government/public authorities on
account of innate inefficiencies was the
result of certain orders of this Court
which came at a time when technology
had not advanced and thus, greater
2 All. State of U.P. & Ors. Vs. Khushnoor Khan & Ors.
747
indulgence was shown. This position is no
more prevalent and the current legal
position has been elucidated by the
judgment of this Court in Office of the
Chief Post Master General & Ors. vs.
Living Media India Ltd & Anr.- (2012) 3
SCC 563. Despite this, there seems to be a
little change in the approach of the
Government and public authorities. "

14. In the case of Living Media India
Ltd. & Anr. (supra) Hon'ble Supreme
Court noticed the advancement in modern
technology and observed that the claim of
seeking condonation of delay 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. In the said case, it was further
observed by Hon'ble Apex Court that all
the government bodies, their agencies and
instrumentalities need to be informed that
unless they have reasonable and acceptable
explanation for delay, there is no need to
accept usual explanation that the file was
kept pending for several months/years due
to considerable degree of procedural red
tape in the process.

15. Paras 28 and 29 of the judgement
in the case of Living Media India Ltd. &
Anr. (supra) are extracted hereinbelow:

"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 everyone under the same
light and should not be swirled for the
benefit of a few."

16. Similarly, the Hon'ble Apex Court
in the case of State of Madhya Pradesh
and others vs. Bherulal, reported in
[(2020) 10 SCC 654] has held that the law
of limitation undoubtedly binds everybody
including the Government and unless the
government authorities, their agencies and
instrumentalities
have
reasonable
and
acceptable explanations for the delay and
there was bona fide efforts on their part,
there is no need to accept the usual
explanation in the garb of procedural red
tape of process. The condonation of delay
is an exception and should not be used as
anticipated benefits for the Government.

17. When we examine the explanation
of delay of 1730 days in filing the review
petition from the date of judgment dated
748 INDIAN LAW REPORTS ALLAHABAD SERIES
19.04.2016 which has been sought to be
reviewed and delay of 1335 days from the
date of dismissal of Special Leave Petition
on 05.07.2017, what we find is that the
State has once again sought shelter in usual
slow
pace
of
State
machinery
in
preparation of office notes, movement of
files, non-availability of certain necessary
information, non-availability of concerned
officials/officers etc. The said explanation
cannot be said to be sufficient in view of
the law laid down by Hon'ble Apex Court
in the case of Living Media India Ltd. &
Anr. (supra). The State while seeking
condonation of delay in this case has gone
even to the extent of taking ground of
certain "unavoidable" and "unspoken"
circumstances. In our considered opinion
such
"unavoidable"
and
"unspoken"
circumstances cannot be taken shelter of to
claim condonation of delay in approaching
the Courts. In fact the course adopted by
the State in preferring the review petition
reflects gross negligence and inaction
which in our considered opinion cannot be
said to be bona fide. We are aware that a
liberal view needs to be adopted by the
Courts to advance substantial justice.
However, in the facts and circumstances of
this case, what we find is that the approach
of the State all along has been casual and
that of manifest negligence. As observed by
Hon'ble Apex Court in the case of Living
Media India Ltd. & Anr. (supra), law of
limitation binds every one including the
Government.

18. From the date date of judgment till
dismissal of Special Leave Petition by the
Hon'ble Apex Court on the ground of delay
of 252 days, the same period cannot be
reconsidered by this Court for condoning the
delay. From the date of dismissal of Special
Leave Petition i.e. on 05.07.2017 till
December, 2020 when the matter was
referred to the Finance Department, the
reasons indicating the delay for that period is
not a satisfactory explanation for delay in
filing this review petition. The reasons
indicated in the affidavit are only the details
of filing of the writ petitions by the other
similarly situated persons and the judgment
in the special appeals. During that period the
review applicants were not stopped by any
provision or law to file the review petition.

19. Considering the fact that the State
has grossly failed to offer any proper
explanation for huge delay other than
mentioning different dates on which notes
were prepared and files have been moving
from one desk to other and from one officer
to other, in our opinion the explanation
furnished are neither sufficient nor acceptable
to condone such a huge delay.

20. In the light of the discussions made
above, the review petition fails and is hereby
dismissed on the ground of delay.

21. Before parting with the case, we
may express our solemn hope and trust that
the State authorities shall in future be guided
by the law laid down by Hon'ble Supreme
Court in the case of Living Media India Ltd.
& Anr. (supra) and in the case of Central
Tibetan Schools Admins & Ors. (supra).
----------
(2021)02ILR A748
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.01.2021

BEFORE

THE HON'BLE IRSHAD ALI, J.

Service Single No. 1135 of 2009

Ramkesh Verma & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents