STATE OF W B Vs. SHYAMAPADA NASKAR

JUDGEMENT

(1.) This is in application for condonation of delay in filing the appeal. The delay is of 328 days. In support of the submission there is an affidavit of one Md. Sirajul Islam working in the Directorate of School Education, West Bengal in the post of Assistant Director. He claimed in that capacity that he knows all the facts which had been stated in the application.

(2.) In order to appreciate the contention and counter contention, some dates will have to be seen. The order impugned in this case was passed on 18th November, 2003 whereby certain directions were issued to the District Inspector of Schools to approve the services of the petitioner to the post of Assistant Teacher in History in the school within four weeks from the date of receipt of all papers from the authorities of the said school. It was, therefore, obvious that the School was directed to send its records to the District Inspector of Schools and it was only on that the District Inspector of Schools was to act. It seems that the State had obtained the plain copy of the order and after reading the said order the State authorities were under the impression that unless the school authorities send all the relevant papers to the office of the District Inspector of Schools nothing could be done. On 16th January, 2004 the school authorities sent all the papers and documents to the office of the District Inspector of Schools in terms of the orders of the Court and after receiving those papers the District inspector of Schools conceived the idea of filing the appeal and for that he requested the Legal Remembrancer, West Bengal to obtain the certified copy of the order, this was obviously in February, 2004. Thereafter, the District Inspector of Schools at the same time sent a proposal for preferring an appeal against the order to the Legal Remembrancer. It seems that thereafter the proposal of filing the appeal was processed by the Directorate and after getting formal approval from the State authorities the proposal reached the office of the Legal Remembrancer. That is the practice as pleaded by the State in this affidavit. In the present case even before the matter was processed by the Directorate, the District Inspector of Schools had already requested the Legal Remembrancer to apply for the certified copy for the simple reason that he had decided to recommend filing of appeal against the order. This application for issuance of certified copy ultimately came to be made on 16th March, 2004 and the certified copy was not made available even till the date when the appeal was actually filed on 11th October, 2004. Be that as it may, probably realising that the appeal was getting hopelessly late, a leave was obtained from the Court to file the appeal without the certified copy by the advocates who were engaged for that purpose. According to the affidavit the advocates were engaged by the order dated 25th March, 2004 and one Mr. Abhijit Banerjee of 'A' panel was engaged by the State with one junior of his choice. It is on 7th April, 2004 that the junior was also engaged, he being Mr. Saikat Banerjee. The advocates demanded the certified copy as without that certified copy ordinarily they could not have filed the appeal. The matter was then stuck up us the certified copy was not made available and ultimately it seems that several attempts were made to obtain certified copy. In paragraph 11 of the application for condonation of delay it is asserted that petitioner No. 3, District Inspector of Schools, had to return empty handed every time he came to the High Court for the certified copy. On this backdrop that the said advocates engaged advised o file the memorandum of appeal without the certified copy, that leave was obtained and ultimately the appeal was filed on 11th October, 2004. It is then pleaded in the application that the delay was caused on account of official acts which is a normal routine with the filing of appeals by the State.

(3.) Mr. Rabilal Moitra, learned counsel appearing for the State very painstakingly brought all these facts to our notice. He has also relied on a decision of the Supreme Court by three Judges' Bench in the case of State of Haryana v. Chandra Mani, reported in AIR 1996 SC 1623. He has very heavily relied upon paragraph 10 of that judgment wherein, according to the learned counsel, the delay at the instance of the State Government and the compulsion of the government have been appreciated by the Supreme Court in details.