# State of U.P v. Sanjeev Kumar Bajpai

- **Citation:** (2013) 3 ILRA 1322
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-10-26
- **Case number:** Special Appeal (D) No.780 of 2012
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-sanjeev-kumar-bajpai-42697
- **Pages:** 5

## Headnote

High Court Rules-Chapter VIII Rule-5-
Special Appeal-84 days delay-without
proper explanation-except discussionsfrom one table to another-held-court
should
not
condone
the
delay
on
personal
preception
and
predictionappeal dismissed on ground of delay
itself.

Held: Para-7
On
due
consideration
of
rival
submissions, we do not find satisfactory
explanation to condone the delay. The
time taken in the circulation of file from
table to table of the officials involved in
the process, thus cannot be condoned. It
appears that there has been no sincere
effort to challenge the order of the
learned Single Judge. Moreover, Hon'ble
the Apex Court in the case of Lanka
Venkateswarlu's case (supra) has held
that the courts do not enjoy unlimited
and unbridled discretionary powers to
condone the delay. The orders of the
High Court should not be based on
personal perceptions and predilection.

Case Law discussed:
(2011) 4 SCC 363

## Text

1322 INDIAN LAW REPORTS ALLAHABAD SERIES
did not scrutinize even the contents of the
complaint,
leave
aside
the
material
documents available on record. The learned
Magistrate truly was a silent spectator at the
time of recording of preliminary evidence
before summoning the appellants."

21. Thus, in view of the aforesaid
legal position, it is incumbent upon
Magistrates to ensure that the judicial
process should not be an instrument of
needless harassment. In complaint cases
no one is present to watch the interest of
prospective accused at initial stage.
Therefore, it is duty of the Magistrates to
ensure precise and fair enquiry in order to
arrive at reasonable conclusion. His
energetic participation at initial stage is
required in order to obviate or reduce
false implications. Impugned order does
not reflect required participation by the
Magistrate
before
summoning
the
revisionist to face the trial for the offence
under Section 138 of the N.I. Act.

22. In view of above, the criminal
revision is allowed. The impugned order
dated 26.10.2010 passed by learned Addl.
Chief Judicial Magistrate Ist, Firozabad in
Criminal Complaint Case No. 4251 of
2010 (Surendra Kumar Jain Vs Padam
Gupta) under Section 138 of Negotiable
Instruments Act 1881, P.S. Tundla,
District Firozabad is hereby quashed.

23. Office is directed to send the
copy of the order to learned court below
within a fortnight.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.09.2013

BEFORE
THE HON'BLE UMA NATH SINGH, J.
THE HON'BLE MAHENDRA DAYAL, J.
Special Appeal (D) No.780 of 2012

State of U.P.
 ...Appellant
Versus
Sanjeev Kumar Bajpai ...Respondent

Counsel for the Appellant:
C.S.C.

Counsel for the Respondent:
Sri Satya Narain Shukla

High Court Rules-Chapter VIII Rule-5-
Special Appeal-84 days delay-without
proper explanation-except discussionsfrom one table to another-held-court
should
not
condone
the
delay
on
personal
preception
and
predictionappeal dismissed on ground of delay
itself.

Held: Para-7
On
due
consideration
of
rival
submissions, we do not find satisfactory
explanation to condone the delay. The
time taken in the circulation of file from
table to table of the officials involved in
the process, thus cannot be condoned. It
appears that there has been no sincere
effort to challenge the order of the
learned Single Judge. Moreover, Hon'ble
the Apex Court in the case of Lanka
Venkateswarlu's case (supra) has held
that the courts do not enjoy unlimited
and unbridled discretionary powers to
condone the delay. The orders of the
High Court should not be based on
personal perceptions and predilection.

Case Law discussed:
(2011) 4 SCC 363

(Delivered by Hon'ble Uma Nath Singh, J.)

1. We have heard learned counsel
for parties and perused the pleadings of
special appeal.

2. The appeal arises out of the
judgment dated 10.07.2012 passed by
3 All] State of U.P. Vs. Sanjeev Kumar Bajpai
1323
learned Single Judge in Writ Petition
No.643 (SS) of 2008, whereby the writ
petition was disposed of with certain
directions. It appears from the office
report that filing of special appeal is
barred by 84 days delay. The explanation
given for delay as set out in the
application is as under:-

"That challenging the judgment and
order dated 10.07.2012 the special appeal
is being preferred. However, there is
some delay in filing the special appeal
which is not deliberate and is bonafide
and therefore the same is liable to be
condoned.

That the copy of the judgment and
order dated 10.07.2012 was received in
the office of the appellants on 16.07.2012
through a letter of counsel for the
petitioner/resondent.

That after receiving the copy of the
judgment and order under appeal the
same was placed for discussion and on
28.08.2012 the matter was referred to the
Law Department.

That on 28.08.2012 the file was
returned by the Law Department with a
direction that an officer well versed with
the matter be deputed to discuss the issue
with it.

That on 11.09.2012 discussion was
held
with
the
Special
Secretary,
Department of Law and Additional Legal
Remembrancer. After discussion the file
was returned with certain queries.

That on 11.09.2012 itself the queries
were replied.

That on 21.09.2012 the permission
was granted by the Law Department to
file the special appeal.

That thereafter it has taken some
time in processing the file and arranging
the relevant material and on 04.10.2012
the office of the learned Chief Standing
was requested to prepare and prefer the
special appeal."

3. In reply thereto, in the objection,
the respondent has stated as under:-

"That with regard to para 2 of the
affidavit it is stated that the special
appeal has been filed with a delay of 2.5
months while assuring the deponent all
the while that necessary order for
compliance of the judgment and order of
the Hon'ble Writ Court will be issued
shortly.

That the averment that the delay in
filing the special appeal is not deliberate
and is bona fide is prima facie untenable
from the averments in the affidavit itself
as is evident from the following-

(1) After receipt on 16.07.2012 of
certified copy of the impugned judgment
the same was placed for discussion on
28.08.2012 more than a month after its
receipt.

(2) After discussion on 28.08.2012,
the second discussion with the special
Secretary Law took place after 2 weeks on
11.09.2012.

(3) After grant of permission by the
Law Department on 21.09.2012 it took 2
weeks to request the Chief Standing
Counsel on 04.10.2012 to prefer the
special appeal.

(4) Thereafter it took more than 3
weeks to file the instant special appeal.

(5) The affidavit does not give any,
leave alone a valid, reason for the
inordinate delays at (1) to (4) above.
Evidently, there is no explanation for the
delay at various stages.

That in the absence of any, leave
alone satisfactory, justification for the
repeated delays at various stages the
prayer for condonation of delay in filing
1324 INDIAN LAW REPORTS ALLAHABAD SERIES
the special appeal is liable to be rejected
in terms of the law laid down on the
subjection by the Apex Court to the effect
that each days delay has to be explained,
as held in the following cases-

(i) AIR 1962 SC 361 (para 12)

(ii) AIR 1998 SC 2276

(iii) AIR 2011 SC 1199

That even otherwise, the application
for condonation of delay is liable to be
rejected as the appellant has no case on
merits also and the special appeal
appears to have been filed only to evade
compliance of the judgment of the Hon'ble
Writ Court for the second time.

That in this connection it is also
relevant that once the proceedings for
contempt of non-compliance the order of
this Hon'ble Court were deffered till the
disposal of the special appeal no.146 of
2005 against the judgment in the
deponent's earlier W.P. No.1920 (SS) of
2001,
the
appellants
herein
never
bothered to take any step for the disposal
of the said special appeal. Entertaining
this belated special appeal is likely to
deprive the deponent fruits of the 11 years
old
litigation.
The
application
for
condonation of unwarranted delay in
filing the instant special appeal is liable
to be rejected for this reason also."

4. In rejoinder thereto, the appellantState has made the following averments
which reads as :-

"That in reply to the averments made
in paragraph 3 of the counter affidavit it
is stated that the respondent is trying to
delay the disposal of the instant appeal as
when the matter was taken up 12.03.2013,
the counsel for the respondent did not
appear at the time to hearing and this
Hon'ble Court after hearing the counsel
for the appellants was pleased to issue
notice to the respondent.

That the contents of paragraphs 4 to
7 of the counter affidavit as stated are
denied and in reply thereto it is stated that
the delay in filing the appeal cannot in the
manner be said to be unexplained. In this
regard it is further stated here that the
explanation has been given in the affidavit
filed in support of the application for
condonation of delay. The hyper technical
objections being raised by the respondent
are not acceptable.

That the contents of paragraphs 8 to
16 of the counter affidavit are denied
being misconceived and misleading. In
reply thereto it is stated that Khaliullah
Khan
was
appointed
vide
Office
Memorandum dated 01.06.1988 against a
temporary post in pay scale of Rs.330-495
whereas the respondent was engaged in
the year 1999 on contract basis on a
consolidated salary for the purpose of
driving
a
new
vehicle
purchased
Uttaranchal Development Department.
Thus there cannot be any similarity
between the nature of engagement of 2
persons, one who was appointed on a post
in a pay scale and other appointed on
contract basis and not against any post
but to drive a vehicle purchased for
Uttaranchal Development Department.
Khali-Ullah Khan was appointed in the
year 1988 whereas the respondent was
appointed after 11 years of engagement of
Khali Ullah Khan in the year 1999 that
too on contract basis."

5. Learned counsel for State
submitted that the case of Shri KhaliUllah Khan is totally different from that
of the respondent. Learned counsel
submitted that Shri Khali-Ullah Khan was
appointed against a post of driver on
temporary
basis
in
the
pay
scale
3 All] State of U.P. Vs. Sanjeev Kumar Bajpai
1325
admissible to the Staff Car driver where
as the respondent was appointed on
contractual basis. Services of Shri KhaliUllah Khan were transferred along with
the post to State Estate Department
pursuant to a decision dated 20.01.2001
when
he
had
been
absorbed
and
confirmed. Moreover, his appointment
was against a regular salary head.

6. On the other hand, learned
counsel for private respondent, Shri S. N.
Shukla contends that this is a second
round of litigation against the respondent
a class-IV employee and working as a
driver.
The
explanation
given
for
condonation of 84 days' delay is contrary
to the ratio of judgment of Hon'ble the
Apex Court in the case of Lanka
Venkateswarlu (D) by L.Rs. Vs. State of
A.P. and Ors. (2011) 4 SCC 363. It is also
a submission of learned counsel for
respondent that filing of appeal, and that
too, in second round of litigation by the
State against a Class-IV employee who is
yet to find a regular source of his daily
bread and butter is also contrary to the
national litigation policy available on the
website of Ministry of Law, Government
of India.

7. On due consideration of rival
submissions, we do not find satisfactory
explanation to condone the delay. The
time taken in the circulation of file from
table to table of the officials involved in
the process, thus cannot be condoned. It
appears that there has been no sincere
effort to challenge the order of the learned
Single Judge. Moreover, Hon'ble the
Apex Court in the case of Lanka
Venkateswarlu's case (supra) has held that
the courts do not enjoy unlimited and
unbridled
discretionary
powers
to
condone the delay. The orders of the High
Court should not be based on personal
perceptions
and
predilection.
The
National Litigation Policy of Government
of India said to be available on the
website of Ministry of Law also does not
support the filing of appeals in service
matters where the case pertains to an
individual grievance without any major
financial
consequences.
The
policy
statement, as referred to herein above, is
also re-produced:-

"The following are the excerpts the
National Litigation Policy available on
the website of Ministry of Law:

Given that Tribunalisation is meant
to remove the loads from Courts,
challenge to orders of Tribunals should
be exception and not a matter of routine.

In Service Matters, no appeal will be
filed in cases where

(a) the matter pertains to an
individual grievance without any major
repercussion

(b) the matter pertains to a case of
pension or retirement benefits without
involving any principle and without
setting
any
precedent
or
financial
implications.

Further proceedings will not be filed
in service matters because the order of
the Administrative Tribunal affects a
number of employees. Appeals will not be
filed to espouse the cause of one section
of employees against another.

Proceedings will be filed challenging
orders of Administrative Tribunals only if

(a) There is a clear error of record
and the finding has been entered against
the Government

(b) The judgment of the Tribunal is
contrary to a service rule or is
1326 INDIAN LAW REPORTS ALLAHABAD SERIES
interpretation by a High Court or the
Supreme Court

(c) The judgment would impact the
working of the administration in terms of
morale of the service. The Government is
committed to file a petition or

(d) If the judgment will have
remaining implications upon order caries
or if the judgment involves huge financial
claims being made."

8. Thus, in view of all the aforesaid
discussions, we are not able to persuade
ourselves to accept the explanation for
delay in filing the appeal particularly in
the teeth of opposition on behalf of the
respondent who is said to be on road and
has not found any favourable response,
despite two rounds of litigation, said to
have ended in his favour.

9. The special appeal is thus
dismissed on the ground of delay.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.09.2013

BEFORE
THE HON'BLE RAJIV SHARMA, J.
THE HON'BLE Dr. SATISH CHANDRA, J.

Writ Petition No.1237 (SB) of 2005

Zila Panchayat Abhiyantran Sangh and
Anr. . .Petitioners
Versus
The State of U.P. & Ors. ... Opp. Parties

Counsel for the Petitioner:
Sri U.K. Srivastava , Dr. L.P. Mishra
Sri N.A. Siddiqui

Counsel for the Respondents:
C.S.C , Sri Aarohi Bhalla , Sri Abhishek
YadavSri Akhilesh Kalra, Sri G K Singh
Sri Gopal Kumar Srivastava, Sri M.A.
Siddiqui,Sri Prashant Chandra, Sri R.C.
Pandey, Sri Ramesh Chandra Pandey, Sri
Ramesh Pandey

Constitution of India, Art. 226-Writ petitionpublic interest litigation-in service matter
P.I.L. not maintainable-writ petition even
by Registered or unregistered Associationwithout resolution of members-can not be
filed-so in case of dismissal of petition could
have binding effect upon those membersnor the members unable to approach
Individually by reason of poverty, disability
on economically, disadvantageous positionnor a case where fundamental right of
members
of
association
effected-heldpetition not maintainable.

Held: Para-22
In view of the aforesaid facts and the
proposition of law laid down in Umesh
Chandra Vinod Kumar's case [supra] it can
safely be held that the writ petition at the
instance
of
an
association
is
not
maintianable where the association itself is
not affected by any order. In other words,
the members of such association may be
affected by an order and may have common
grievance, but for the purpose of enforcing
the rights of the members, writ petition at
the instance of such association is not
maintainable. Therefore, the petitionerAssociation has no locus standi to file this
writ petition.

Case Law discussed:
Umesh Chand Vinod Kumar Vs. Krishi Utpadan
Mandi Samiti and Ors.; (2011)5 SCC 464; 1968
AWR 844; (2007)5 SCC 580; (2006) 10 SCC 214.

(Delivered by Hon'ble Rajiv Sharma, J.)

1. Heard Mr.Umesh Kumar
Srivastava, learned Counsel for the Zila
Panchayat Abhiyantran Sangh, Mr.N.A.
Siddiqui,
learned
Counsel
for
Zila
Panchayat and Mr.Aarohi Bhalla, learned