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Jagpal Singh Yadav v. Managing Director U.P.State Road T.C.& Another - SPECIAL APPEAL No. 498 of 2000 [2005] RD-AH 742 (15 March 2005)


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Court No. 32

Civil Misc. Delay Condonation Application No.     of 2000


                        Special Appeal No. 498 of 2000

State of U.P. and others  Vs.  M.B.Srivastava and Others


Hon.S.Rafat Alam J.

Hon. Vikram Nath J.

We have heard Sri Ran Vijai Singh learned Standing Counsel for the appellant and Sri P.K. Srivastava, Advocate for the respondents.

This is an application under section 5 of Limitation Act for condoning the delay of 197 days in filing the Special Appeal.

Learned Standing Counsel submitted that due to inadvertent mismanagement, the appeal could not be filed within time. He further submits that the controversy involved in the appeal is in respect of payment of one month extra salary to the ministerial staff of the police department for not availing leave on Second Saturday, Sunday and Gazetted Holidays, and this controversy is also involved in the Special Appeal No.469 of 2000 State of U.P. Vs. Dinesh Chand Srivastava and others wherein also the delay has already been condoned and the appeal is admitted and interim order has also been granted.

It is also contended that in the police department the ministerial staff who are doing duty regularly and have not availed gazetted holidays, Second Saturday and Sundays, one-month salary is given as honorarium as per Government Order of 1979. It is submitted that benefit of this G.O. is not admissible to those ministerial staff who are not required for duty on Second Saturday, Sunday and gazetted holidays. It is contended that the petitioner-respondents are not covered by the Government Order of 1979 as they form a separate class and cannot be equated to those ministerial staff who perform the duties on holidays also and are covered under the Government Order of 1979. Both the class of employees are not equal.

On the other hand learned counsel for the respondent vehemently opposed the application and submitted that a large number of writ petitions have been allowed and the petitioners therein have been granted benefit by the respondents and no special appeal has been preferred by the department. Thus the respondents should also be given the same benefit. Now the department cannot deprive rest of the employees who are the petitioners.

It is also submitted that delay in filing the appeal cannot be condoned unless satisfactory explanation is not given for such delay. It is further pointed out by the counsel for the respondents that in the affidavit filed in support of delay condonation application the explanation furnished is not at all satisfactory. Thus in absence of satisfactory explanation this Court cannot condone the delay. It is also pointed out that against one of the similar orders of the writ Court the matter went to the Apex Court at the instance of the State wherein the delay of three years was not condoned vide order dated 15.11.2002 in Special Leave Petition No.8910 of 2002.

It is true that the delay can not be condoned unless this Court finds some satisfactory explanation and further if it is found that non condonation of delay would result into failure of justice.

In the instant case since one of the appeal is pending for consideration in which similar question is involved, and also for the reason that the issue involved is of substantial importance for the entire ministerial staff of the police department in the State and further for the reason that the controversy involves a very heavy burden on the public exchequer, we are of the view that these appeals may also be heard and decided on merit.

The Hon'ble Apex Court in the case of State of Bihar and others versus Kameshwar Prasad Singh & another reported in JT 2000(5) SC page 389 considering its earlier judgments while condoning the delay of 679 days observed that technicalities of law cannot prevent the Courts to do substantial justice and undo illegalities. In the said case about 250 officers of the police department of the State of Bihar were likely to be affected. The Apex Court further observed as follows:

"The primary function of a Court is to adjudicate disputes between the parties and to advance substantial justice. The time limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. The object of providing legal remedy is to repair the damage caused by reason of legal injury. If the explanation given does not smack malafides  is not shown to have been put forth as a part of dilatory strategy, the court must show utmost consideration to the suit or.

Dismissing the appeals on technical grounds of limitation would not, in any way, advance the interests of justice but admittedly, result in failure of justice as the impugned judgments are likely to affect not only the parties before us, but hundreds of other persons who are stated to be senior than the respondents. The technicalities of law cannot prevent us from doing substantial justice and undoing the illegalities perpetuated on the basis of the impugned judgments."

Therefore, looking at all the aspects of the matter we are of the view that the delay in filing the appeal is liable to be condoned.

The application succeeds and is allowed.




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