1 D.B. Civil Special Appeal (Writ) No.385/2014 1 D.B. Civil Special Appeal (Writ) No.385/2014 State of Raj. & Ors. vs Rakesh Goyal & Ors. DATE OF ORDER
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4. h July 2014 HON’BLE MR. JUSTICE DINESH MAHESHWARI HON’BLE MR. JUSTICE BANWARI LAL SHARMA Dr. P.S. Bhati, AAG with Mr. S.S. Rathore, Asst. to AAG, for the appellants. Mr. R. S. Choudhary for the respondents. <><><> The appellants seek to maintain this intra-court appeal against the order dated 13.05.2013, as passed by the learned Single Judge of this Court in S.B. Civil Writ Petition No.7607/2012 whereby the learned Single Judge has upheld the objection of the present respondents (writ-petitioners) against de-fixation from the pay-scale of Rs. 37,400-67000 with academic grade pay of Rs. 9,000/-. The respondents, members of Rajasthan Technical Education Service under the Rajasthan Technical Education Service Rules, 1973 (for short, ‘the Rules of 1973’) submitted before the learned Single Judge that the promotion was accorded to them as Head of the Department and at the time of promotion, the pay scale applicable for the post held by them was Rs. 12,000-18,300, which was revised under the Rajasthan Civil Service (Revised Pay Scale for Government Polytechnic College Teachers, Librarians and Physical Training Instructors) Rules, 2010 (for short 'the Rules of 2010') to Rs. 37,400-67,000, with academic grade pay of Rs. 9,000/-. It was contended that the present appellants had illegally attempted to withdraw the fixation so made in the said pay scale of 2 D.B. Civil Special Appeal (Writ) No.385/2014 Rs. 37,400-67,000, with academic grade pay of Rs. 9,000/-. In the impugned order dated 13.05.2013, the learned Single Judge took note of the submissions on the part of the appellants that an amendment to the Rules of 2010 was under consideration and, therefore, the impugned changed in the fixation of pay was made. The learned Single Judge was of the opinion that the statutory right of the writ-petitioners could not have been denied merely on the count that some proposal for amendment in the Rules was under consideration and hence, allowed the writ petition holding the writ- petitioners entitled to be fixed in the pay scale prescribed for the post of Head of the Department/Assistant Directors i.e, of Rs. 37,400- 67,000, with academic grade pay of Rs. 9,000/-. Seeking to question the aforesaid order dated 13.05.2013, this intra-court appeal has been filed only on 11.02.2014. On the record, there are two certified copies of impugned order dated 13.05.2013. One, as applied for on 14.05.2013, which was received on 12.06.2013; and another one, as applied for on 04.03.2014 and received on 13.03.2014. The later certified copy is obviously of the date after filing of this appeal. It appears that the certified copy, as received on 12.06.2013, did not carry the signatures of the competent authority and hence, second one was obtained and filed. However, it appears that with reference to the certified copy received on 12.06.2013, the Office excluded 30 days spent in obtaining copy; and on that basis, carried out computation and found this appeal time-barred by 184 days. An application under Section 5 of the Limitation Act, seeking condonation of delay, has been filed by the appellants. Having regard to the circumstances, it appears appropriate to reproduce the 3 D.B. Civil Special Appeal (Writ) No.385/2014 contents of the said application as under:- 1. That the present special appeal is directed against the order dated 13.5.2013.
2. That the certified copy of judgment was applied on 14.5.2013 and it was delivered on 14.6.2013. Thereafter, opinion of Govt. Counsel was given on 25.6.2013.
3. That the matter was then moved to the Directorate, and then Govt., where the matter had undergone various process at different levels and finally a decision to file special appeal was taken vide order dated 17.1.2014. Thereafter order for appointment of Officer Incharge was issued by the Directorate on 21.1.2014.
4. That pursuant to the aforesaid sanction, factual submissions were prepared and contact was made with the office of Addl. Advocate General and as per his advise submissions for delay in the matter, legal and factual position of the case were prepared and in whose consultation, the special appeal has been prepared and is being filed today.
5. That delay in filing special appeal is bonafide one and due to processing the matter at different levels as said hereinabove. In the interest of justice and merits of the case, the delay in filing the present special appeal deserves to be condoned. It is therefore, prayed that this application may be allowed and delay caused in filing special appeal may kindly be condoned.”
. Reply to the said application has been filed on behalf of the respondents wherein, inter alia, it is asserted that in fact, the certified copy of the order dated 13.05.2013 was delivered to the appellants on or before 01.06.2013 and the Additional Advocate General sent his opinion to the appellants on 01.06.2013, for making compliance of the order dated 13.05.2013. Further proceedings in the Department/s have also been referred, including the note-sheets dated 18.07.2013, 23.07.2013, 16.08.2013, 30.08.2013 as also the letters dated 11.09.2013 and 30.10.2013. It is submitted that even though the Department had taken the decision not to file the appeal yet, the present appeal has been filed only to humiliate and harass the respondents. It is also submitted that the appellants have extended the benefit of pay scale of Rs. 37,400-67,000 to other employees, who are standing at par with the respondents. 4 D.B. Civil Special Appeal (Writ) No.385/2014 The learned counsel for the appellants has referred to the contents of the reply as filed by the respondents and submitted that from very submissions of the respondents, this much is evident that the matter was under active consideration and was being deliberated upon at different levels. Therefore, according to the learned counsel, it cannot be said that the appellants had been negligent in the matter or remained indolent. When the matter, according to the learned counsel, was under deliberation and different opinions were expressed at different levels, it cannot be said that filing of the appeal was not in contemplation . The learned counsel for the appellant has also attempted to submit that the appellants have a strong case on merits and the matter may be of wider ramifications and hence, this appeal deserves to be considered on merits while condoning the delay. Even when the aspect of condonation of delay is ordinarily examined from the liberal stand point, particularly when the litigant is the Government yet, it cannot be gainsaid that for the Government also, the requirement of due diligence cannot be ignored altogether; and some justified cause ought to be assigned which might be considered beyond reasonable control of the officers concerned. Hence, and irrespective of the reply filed by the respondents, it appears necessary to examine in the first place if a case for condonation of delay is made out with the appellant assigning sufficient cause for the delay that has occurred. This appeal against the order passed on 30.05.2013 has been filed only on 11.02.2014 i.e., after about nine months. The period of limitation provided for the intra-court appeal is 60 days. The certified copy accompanying the memo of appeal was indeed received on 5 D.B. Civil Special Appeal (Writ) No.385/2014 12.06.2014. The contents of the application seeking condonation of delay remain rather vague and incomplete and no particulars are forthcoming as to why it took more than the normal and reasonable time before the concerned authorities decided to file this intra-court appeal. The application is totally bereft of the relevant and material particulars and we are clearly of the view that the appellants are not entitled to seek condonation of delay on such an application without having given out necessary particulars. In the same continuity, we are clearly of the view that the appellants cannot file an incomplete application lacking in material particulars and then, try to make out some cause with reference to the reply submissions. Moreover, from the reply submissions, which have not specifically denied, it appears that there were two matters i.e., S.B. Civil Writ Petitions Nos. 6707/2012 and 12884/2012 for which, the opinion was given by the learned Additional Advocate General on 01.06.2013. Thus, the order as passed by this Court was definitely in the knowledge of the Department in the first week of the month of June 2013. We need not go into the questions as to who and at what level in the Department decided for filing the appeal or not filing the appeal but, from the material placed on record, it appears that as back as on 03.10.2013, the Department was even posted with the fact that contempt proceedings had been taken up in Contempt Petition No.481/2013 wherein, the writ-petitioners had stated grievance against non-compliance of the order dated 13.05.2013. It is not made out as to what diligent steps were taken by the appellants even after coming to know of the contempt petition way back in the month of October 2013. The appeal was filed only on 6 D.B. Civil Special Appeal (Writ) No.385/2014 11.02.2014, nearly four months even after noticing the contempt proceedings. In the overall comprehension of the matter, we are of the view that no sufficient cause is made out for condonation of delay in filing this appeal. The application seeking condonation of delay in filing the present appeal stands rejected. Consequently, the appeal is dismissed. (BANWARI LAL SHARMA),J.
(DINESH MAHESHWARI),J.
sudhir