District Magistrate, Rae Bareli vs Ashwini Kumar Mishra and Another

This special appeal by the State has been filed with a delay of more than 9 months. Normally, the delay in the matters of appeal filed by the State is leniently looked into and delay is condoned but where the facts do not make out any case and rather appear to be concocted and framed only to get the benefit of limitation, advantage can not be given simply because the cases are managed by the State machinery.

Writ petition from which the present special appeal has arisen was filed in year 1991. The respondent admittedly is a retrenched employee of Census Department. Seven employees retrenched in similar circumstances, were to be given appointment as per the Government Order issued by the State on April 22nd, 1991. This was not the sole circular/Government Order but several Government Orders/Circulars were issued from time to time for alternative employment of the employees retrenched from the Census Department. In pursuance of the said Government Order the name of the respondent was also forwarded by the State Government to all the District Magistrates and heads of the departments for absorption in service. Out of these seven persons three persons who were junior to the respondent were given alternative employment and were absorbed in pursuance of the Government Schemes and Circulars issued from time to tiem but the respondent was ignored. This compelled the respondent to approach the High Court wherein interim orders were also passed for considering his case and giving appointment on preference. Despite 16 years of pendency of the writ petition the State did not choose to file any counter affidavit. Consequently, when the matter was taken up for hearing on November 23, 2007 the learned Single Judge considering all the aspects of the matter allowed the writ petition and directed for accommodating the respondent in service by the District Magistrate in the Government Department or in any Local Authority.

Learned counsel for the appellant, Sri Alok Sinha, relied upon the affidavit for explaining the delay filed along with the application for condonation of delay.

The State was duly served and learned counsel for the appellant himself had argued the matter before the learned Single Judge. The order was dictated in his presence, therefore, the State fully knew the contents of the order passed by the learned Single Judge on November 23, 2007 itself.

It is not being disputed by learned counsel for the State that whenever an order is passed finally by the Court and against the State Government, opinion is to be given by the Chief Standing Counsel/Standing Counsel as to whether it is a fit case to challenge the order in a higher forum by filing appeal. That being so, responsibility lies upon the State to see that the certified copy of the order is applied for and appropriate opinion is given.

In the instant case, admittedly, the application for issuance of certified copy of the order was not applied by the State rather the respondent sent the copy of the judgment and order under appeal which was received in the office of the District Magistrate on 1.12.2007. The order is dated November 23rd, 2007. Nothing was done. Again the respondent sent reminder on February 23rd, 2008 alongwith copy of judgment and order and then third time he sent reminder on April 17th, 2008 which was brought to the notice of the District Magistrate again. No action was even then taken by the State to file the appeal. However, for explaining this inaction a plea has been raised that infact the copy of the writ petition was not traceable in the office of the Chief Standing Counsel nor with the department and, therefore, it was only on 20.6.2008 the certified copy of the judgment and order as well as the certified copy of the writ petition was applied.

We fail to appreciate that if the record of the writ petition was not available since beginning what prompted the State Government not to take the immediate action for having the certified copy of the writ petition which was available in the High Court particularly when the matter was argued by the State counsel and the State was fully aware of the outcome of the writ petition. The certified copy of the judgment and order was applied on 20.6.2008 i.e. much after the expiry of the period of limitation, but this delay remains totally unexplained. Even if the record of the writ petition was not available in the office of the Chief Standing Counsel, there was no reason for not applying for a certified copy of the order within the period of limitation so as to prove its bonafide in challenging the impugned order.

The action of the State Government in not applying even for the certified copy of the judgment and order for nine months despite repeated reminders along with the copy of the judgment and order having been sent by the respondent persuades us to hold that State was very casual and has conducted the case in a very light manner. Such explanation for not filing the appeal in time can hardly be appreciated nor this Court would show any indulgence for dragging a private person into litigation at the whim and fancy of the State.

In case, the State is serious in challenging the order it has to take every precaution which is supposed to be taken by an ordinary litigant. In any case, we will not like to allow the State to play with the fate of the litigant by choosing to file a special appeal whenever it wakes from its slumber. This appeal, is not one but one more added instance of the State''s casual approach in contesting the cases against the private individuals.

With the aforesaid explanation for condoning the delay, the appeal can not be entertained. We have also seen the merits of the appeal so as to satisfy ourselves that whether any gross injustice has been caused by the impugned order to the State so that the delay may be condoned, but we find that the order impugned does not suffer from any illegality so as to invoke our jurisdiction in special appeal, therefore, also we reject the application for condonation of delay and consequently the appeal also stands dismissed.

(Appeal dismissed)