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The Director of School Education, Chennai & Others v/s R. Paul Andrews & Others

    W.A.Sr.Nos. 102459, 102478 & 102520 of 2018 & CMP Nos. 19707, 19808 & 19121 of 2018

    Decided On, 15 November 2018

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE S. MANIKUMAR & THE HONOURABLE MR. JUSTICE SUBRAMONIUM PRASAD

    For the Appellants: C. Munusamy, Spl Government Pleader (Edn.). For the Respondents: Venkatramani, Sr. Counsel, R1, M/s. M. Muthappan, Advocate.



Judgment Text

Common Judgment:

S. Manikumar, J.

1. Instant WA Sr.Nos. 102459, 102478 and 102520 of 2018, are filed by the appellants against the common order made in W.P.Nos.15399 to 15406 of 2012 dated 19.06.2012, by which the writ Court, set aside condition No.3 in the individual orders of transfer dated 25.09.2009, which stated that the writ petitioners would be treated as junior most B.T.Assistants in School Education Service.

2. Perusal of the common order dated 19.06.2012 shows that the said order has been rendered taking note of a judgment of a Hon'ble Division Bench in A.Mani Vs. The Director of Elementary Education, College Road, Nungambakkam, Chennai and 5 others, reported in 2008 WLR 213 and other judgments. Vide common order dated 19.06.2012 in W.P.Nos.15399 to 15406 of 2012, writ Court, while setting aside condition No.3, in the individual orders of transfer, has further directed the Director of School Education, Chennai, 1st respondent herein, to place the writ petitioners, below the respective successful probationers, their immediate seniors, in accordance with law and that the Joint Director of School Education (Personnel) Chennai, 2nd respondent therein, has been directed to pass necessary orders to that effect, within a period of four weeks from the date of receipt of a copy of the common order.

3. Instant appeals have been filed with a huge delay. CMP Nos.19707 & 19808 of 2018 in WA Sr Nos.102459 & 102478 of 2018 respectively, have been filed to dispense with the production of the certified copy of the order dated 19.06.2012 made in WP Nos.15399 to 15406 of 2012. CMP No.19121 of 2018 in WA Sr.No.102520 of 2018, has been filed for condonation of delay of 2286 days in filing.

4. Reasons assigned in the supporting affidavits in CMP No.19121 of 201

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8 in WA Sr.No.102520 of 2018 are that the copy of the common order dated 19.06.2012, has been received by the department on 07.07.2012. On receipt of the copy of the order, learned Government Pleader, High Court, Madras, has been addressed by the Department, by a letter in RC.No.3761/A4/2012 dated 24.08.2012, to offer his opinion. Learned Special Government Pleader (Education), High Court, Madras in his letter OPN.No.429/2018/EDU dated 03.09.2018 offered his opinion that it is a fit case for filing an appeal. On receipt of the letter of the learned Additional Advocate General, High Court Madras, present appeals have been filed.

5. On this day, when the Civil Miscellaneous Petitions, filed for condonation of delay, came up for hearing, based on an order of the Hon'ble First Bench in WA No.2723 of 2012 dated 14.12.2012, Mr.C.Munusamy, learned Special Government Pleader (Education) submitted that though in the judgment reported in A.Mani Vs. The Director of Elementary Education, College Road, Nungambakkam, Chennai and 5 others, reported in 2008 WLR 213, a Hon'ble Division Bench of this Court has decided the issue in favour of the teachers, in the subsequent Hon'ble Division Bench Order, in WA.No.2723 of 2012 dated 14.12.2012, the issue relating to fixation of seniority of transferees, has been held in favour of the appellants herein, and therefore, sought for similar orders, after issuance of notice to the respondents / teachers, this Court is not inclined to undertake the said exercise, for the reason that there is a huge unexplained delay of 2286 days in filing the appeals, except to state in the supporting affidavits to the petitions filed for condonation, that the copy of the order has been received on 07.07.2012 and opinion sought for, in the year 2012, was responded only in 2018. Appellants / Education department, was in deep slumber from 2012 till 2018. Even taking it for granted that the department sought for an opinion in the year 2012, there is no diligence. W.A.No.2723 of 2012, has been disposed of on 14.12.2012. Appellants could have filed the appeal immediately, after the decision made in WA No.2723 of 2012. Even that has not been done in this case. No valid reasons have been assigned for the huge delay of 2286 days. Sufficient cause has not been shown.

6. Besides, respondents would have already been placed in the respective seniority position, in the schools to which they were transferred and their rights would be affected, if there is any intervention to the common order made in W.P.Nos.15399 to 15406 of 2012 dated 19.06.2012, after a long lapse of time. More so, no materials have been placed before us that the teachers who would have been placed below the respondents in the seniority position have not expressed any grievance or sought for interference from this Court. Appellants have not neither shown diligence nor offered sufficient cause for condoning the huge delay of 2286 days. Reference can also be made to few decisions of the Hon'ble Supreme Court in the matter of condoning the delay.

7. No doubt sufficient must receive a liberal construction to advance substantial justice, but when there is gross negligence or inaction or lack of bonafides or lack of due diligence, on the part of the appellant, delay cannot be condoned for mere asking. In Sankaran Pillai vs. V.P.Venguduswami, reported in AIR 1999 SC 3060, the Hon'ble Supreme Court held that, http://www.judis.nic.in 6 "The question that is required to be seen is, what does the expression 'sufficient cause' means in subsection (4) of Section 11 of the Act? It is no doubt true that the expression 'sufficient cause' has to be liberally construed to do substantial justice between the parties. But the expression 'sufficient cause' necessarily implies an element of sincerity, bonafide, and reasonableness".

8. Inaction on the part of the appellant in not prosecuting the appeal from 2012 to 2018 for six years is apparent on the face of record. As per Wharton's Dictionary, diligence means,

"Care, of which there are infinite shades, from the slightest momentary though to the most vigilant anxiety; but the law recognies only three degrees of diligence:

(1) Common or ordinary, which men in general exert in respect of their own concerns; the standard is necessarily variable with respect to the facts, although it may be uniform with respect to the principle. (2) High or great, which is extraordinary diligence or that which very prudent persons take of their own concerns. (3) Low or slight, which is that which persons of less than common prudence or indeed of no prudence at all, take of their own concerns."

9. Due diligence, considered by the Hon'ble Supreme Court in Chander Kanta Bansal Vs. Rajinder Singh Anand, reported in (2008) 5 SCC 117, is extracted hereunder:-

"16. The words "due diligence" has not been defined in the Code. According to Oxford Dictionary (Edition 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (Eighth Edition), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edition 13A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs."

10. On the aspect of condonation of delay, reasons to be assigned, contents of the supporting affidavit, the Hon'ble Supreme Court, in Esha Bhattacharjee v. Raghunathpur Nafar Academy, reported in (2013) 12 SCC 649, has broadly culled out the principles of law to be considered in the matter of condonation and it is suffice to extract paragraph No.21 from Esha Bhattacharjee's case.

“21. From the aforesaid authorities the principles that can broadly be culled out are;

21.1. (i) There should be a liberal, pragmatic, justiceoriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

21.2. (ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining factsituation.

21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.”

11. Subsequently, after considering the Hon'ble Division Bench judgment of this Court in Tamilnadu Mercantile Bank Ltd., Vs. Appellate Authority, reported in (1990) 1 LLN 457 and decision of the Supreme Court in Esha Bhattacharjee v. Raghunathpur Nafar Academy, reported in (2013) 12 SCC 649, in H.Dohil Constructions Company Private Limited V. Nahar Exports Limited and Another, reported in 2015(1) Supreme Court cases 680, Hon'ble Supreme Court, at paragraph Nos.23 and 24, held as follows:

“23. We may also usefully refer to the recent decision of this Court in Esha Bhattacharjee [Esha Bhattacharjee v. Raghunathpur Nafar Academy, reported in (2013) 12 SCC 649], where several principles were culled out to be kept in Principles (iv), (v), (viii), (ix) and (x) of para 21 can be usefully referred to, which read as under: (SCCpp.658-59)

“21.4(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

21.9 (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weight the scale of balance of justice in respect of both parties and the said principle cannot be given a total go-by in the name of liberal approach.

21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

24. When we apply those principles to the case on hand, it has to be stated that the failure of the Respondents in not showing due diligence in filing of the appeals and the enormous time taken in the refiling can only be construed, in the absence of any valid explanation, as gross negligence and lacks in bonafides as displayed on the part of the Respondents. Further, when the Respondents have not come forward with proper details as regards the date when the papers were returned for refiling, the non-furnishing of satisfactory reasons for not refiling of papers in time and the failure to pay the Court fee at the time of the filing of appeal papers on 06.09.2007, the reasons which prevented the Respondents from not paying the Court fee along with the appeal papers and the failure to furnish the details as to who was their counsel who was previously entrusted with the filing of the appeals cumulatively considered, disclose that there was total lack of bonafides in its approach. It also requires to be stated that in the case on hand, not refiling the appeal papers within the time prescribed and by allowing the delay to the extent of nearly 1727 days, definitely calls for a stringent scrutiny and cannot be accepted as having been explained without proper reasons. As has been laid down by this Court, Courts are required to weigh the scale of balance of justice in respect of both parties and the same principle cannot be given a go-by under the guise of liberal approach even if it pertains to refiling. The filing of an application for condoning the delay of 1727 days in the matter of refiling without disclosing reasons, much less satisfactory reasons only results in the Respondents not deserving any indulgence by the Court in the matter of condonation of delay. The Respondents had filed the suit for specific performance and when the trial Court found that the claim for specific performance based on the agreement was correct but exercised its discretion not to grant the relief for specific performance but grant only a payment of damages and the Respondents were really keen to get the decree for specific performance by filing the appeals, they should have shown utmost diligence and come forward with justifiable reasons when an enormous delay of five years was involved in getting its appeals registered.”

12. It is also useful to extract paragraph Nos.14 to 17 of the judgment in Tamilnadu Mercantile Bank's case.

“14. We are unable to agree with the reasoning of the learned Judge that no litigant ordinarily stands to benefit by instituting a proceeding beyond time. It is common knowledge that by delaying a matter, evidence relating to the matter in dispute may disappear and very often the party concerned may think that preserving the relevant records would be unnecessary in view of the fact that there was no further proceeding. If a litigant chooses to approach the Court long after the time prescribed under the relevant provisions of the law, he cannot say that no prejudice would be caused to the other side by the delay being condoned. The other side would have in all probability destroyed the records thinking that the records would not be relevant as there was no further proceeding in the matter. Hence to view a matter of condonation of delay with a presupposition that no prejudice will be caused by the condonation of delay to the respondent in that application will be fallacious. In our view, each case has to be decided on the facts and circumstances of the case. Length of the delay is a relevant matter to be taken into account while considering whether the delay should be condoned or not. It is not open to any litigant to fix his own period of limitation for instituting proceedings for which law has prescribed period of limitation.

17.... Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long time, it cannot be presumed to be non-deliberate delay, and in such circumstances of the case, he cannot be heard to plead that substantial justice deserved to be preferred as against technical considerations. We are of the view that the question of limitation is not merely a technical consideration. Rules of limitation are based on principles of sound public policy and principles of equity. It is a litigant liable to have a Damocles' sword hanging over his head indefinitely for a period to be determined at the whims and fancies of the opponent”

13. Dispense with petitions in CMP Nos.19707 & 19808 of 2018 in WA Sr.Nos.102459 & 102478 of 2018, are ordered. Registry is directed to number the delay excuse petitions in WA Sr.Nos.102459 & 102478 of 2018.

14. Following the guiding principles of Law, in the matter of condonation of delay and in the light of the above discussion, we are of the view that petitions filed for condoning the delay do not deserve any consideration. Accordingly, Civil Miscellaneous Petitions filed for condonation in WA Sr.Nos.102520, 102459 & 102478 of 2018 are dismissed. Writ Appeals in WA Sr.Nos.102459, 102478 and 102520 of 2018, are rejected at the SR stage. No Costs.
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