UT of J&K and Ors vs Girdhari Lal

Rajnesh Oswal, J

This is an application, seeking condonation of delay in filing the appeal against the Judgment dated 01.05.2024, passed by the learned writ Court, whereby the writ petition bearing WP(C) No. 2352/2019, preferred by the original respondent, substituted by his legal heirs, has been allowed.

The condonation of delay is being sought on the ground that after the Judgment was rendered by the learned writ Court, vide communication dated 08.05.2024, instructions were sought to proceed further in the matter and applicant No. 5, vide communication dated 30.12.2024, approached the Department of Finance to take up the matter with Law Department for legal opinion. Vide U.O. dated 05.02.2025, the Law Department opined to prefer LPA against the Judgment dated 01.05.2024 (supra).

The Registry has reported that there is a delay of 325 days in preferring the appeal against the Judgment dated 01.05.2024. Perusal of the application reveals that the applicant No. 5, after issuance of communication dated 08.05.2024, approached the Department of Finance for requisite instructions vide communication dated 30.12.2024, meaning thereby that the applicants remained in passive mode for more than 7½ months and did not take any follow up action to assail the Judgment dated 01.05.2024 passed by the learned writ Court in WP(C) No. 2352/2019.

The diligence of the applicants in availing the remedy of appeal within the prescribed period is evident from the fact that this application has been filed against a dead person, as the respondent-Girdari Lal had died during the pendency of the writ petition and was substituted by his legal representatives as mentioned in the title of the Judgment impugned.

Though some latitude can be granted to the applicants being ‘The State’, provided there is merit in the case of the applicants.

We have examined the Judgment dated 01.05.2024, passed by the learned writ Court and we find that the learned writ Court after taking note of the Judgments of the Hon’ble Supreme Court of India in “State of Punjab and Others Vs. Rafiq Masih, AIR 2015 SC 696 and Thomas Daniel Vs. State of Kerala and Ors., 2022 LiveLaw (SC) 438” and the Judgment of the Coordinate Bench of this Court in “UT of J&K and Ors. Vs. Deshbir Singh and Anr.”, has held the action of the applicants to effect recovery of allowances drawn by the original respondent during his service as bad in law, while leaving the applicants free to fix the pension of the original respondent on the basis of last pay drawn after deduction of the benefits under SRO 59 of 1990. The applicants may be right in submitting that the original respondent was not entitled to the benefit in terms of SRO 59 of 1990, but it is not the case of the applicants that such benefit was drawn by the deceased employee on account of any ‘fraud or misrepresentation” during his service. The learned writ Court has rightly held the action of the applicants in respect of recovery of excess payment made to the respondent as bad in law.

Even on merits, the applicants have no case at all, as such no leniency can be shown to the applicants, while considering the issue of condonation of delay. This Court has examined the merits of the claim of the applicants, while considering the issue of condonation of delay, in light of the Judgment of the Hon’ble Supreme Court of India in Inder Singh Vs. The State of Madhya Pradesh, 2025 LiveLaw (SC) 339.

In view of above, we do not find any reason to condone the delay in filing the misconceived appeal, therefore, this application is dismissed. As a corollary to the dismissal of the application, the accompanying appeal is also dismissed on the above lines.