^a ^ C^r / 0''^ IN THE HON'BLE HIGH COURT OF CHHATTISGARH ATBILASPUR W.P. (S) N0. PETITIONER / • RESPONDENTS ^ 1] ^ ^ i^M/ / /s/ ^.^.7 (^M^ ... ^' o.^/ ^ /. ;<s'^' ^./ 3] 4] 5] 6] ^&^3 /2010 Rajeshwar Tirkey, S/o. Jhadiram, aged about 39 years, R/o. Sitapur, Surguja, District Surguja (C.G.) VERSUS State of Chhattisgarh, Through: Secretary, Tribal Welfare Department, D.K.S. Bhawan, Raipur, District Raipur (C.G.) District Election Officer-cum- Returning Officer, 01--Surguja (3T. ^l.^ff.), District Surguja (C.G.) Collector, Surguja, District Surguja (C.G.) Chief Executive Officer, Zila Panchayat, Surguja, District Surguja (C.G.) Block Education Officer, Sitapur, District Surguja (C.G.) Commissioner, Surguja Division, Ambikapur, District Surguja (C.G.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA AF^ HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION CS} No. 2843 of2010 ^ ;;,'i PETITIONER Rajeshwar Tirkey. RESPONDENTS VERSUS State ofChhattisgarh & Others. ^ Post for pronouncement ofjudgment & order on-^-./..day ofApril, 2011. Sd/- Satish K. Agnihotri Judge A<$/04/2011 ..,?^t^t^ '^' .: •••^ ^: ^'^r":-ih t HIGH COURT QF CHHATTI8GARH AT BILASPUR WRIT PETITION (S) No. 2843 of2010 PETITIONER RESPONDENTS Rajeshwar Tirkey. VERSUS State ofChhattisgarh & Others. WRIT PETITION UNDER ARTICLE. 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Asnihotri, J. Present: Shri Manoj Paranjpe, Advocate for the petitioner. Shri Y.S.Thakur, Deputy Advocate General with Shri Ajit Singh^ Panel Lawyer for the State/respondent No. 1 to 3, 5&6. -h\ (Delivered on ... ^°l.'. day ofApril, 2011) 1. Challenge in this petition is to the order dated 02.06.2010 (Annexure P/l)passed by the Commissioner, Surguja Division, Ambikapur, District Surguja, whereby the appeal ofthe petitioner was dismissed on the ground of delay holding that the appeal was not filed within a period of 45 days as prescribed under the provisions of Rule 25 of the Chhattisgarh Civil Services (Classification, Control & Appeal) Rules^ 1966 (for short (the Rules }\ but after a period ofabout four months. 2. The facts, in nutshell, are that the petitioner, while working as Head Master at Middle School, Bhithua, Tahsil Sitapur, District Surguja, was engaged in election work. On account of certain alleged irregularities committed by the petitioner, the District Election Officer imposed a penalty of withdrawal of one annual increment without cumulative effect by order dated 11.05.2009 •? •^ ^ (Annexure P/2). According to learned counsel for the petitioner, thereagainst^ a review application was filed before the District Election Officer on 25.05.2009. As the same was not decided.in time, the petitioner preferred an appeal on 14.09.2009 against the order dated 11.05.2009 (Annexure P/2), passed by the District Election Officer. The Commissioner, without considering the case on merits, dismissed the appeal holding that the same was barred by limitation and further, on the ground that there was no application for condonation of delay and no reasons have been stated therein. f 3, Shri Paranjpe, learned counsel appearing for the petitioner would rely on a decision of the Supreme Court in Union of India v, S.S.Gaurayya that pendency ofthe review application before the District Election Officer as sufficient reasons for condonation of delay in preferring the appeal. The Commissioner ought to have condoned the delay or afforded an opportunity of hearing to the petitioner to file an .application for condonation of delay. Shri Paranjpe would further submit that the Commissioner, without affording an opportunity of hearing to make an appropriate application explaining the sufficient reasons for condoning the delay., dismissed the appeal^ which is illegal and contrary to the statutory provisions of law. 4. On the other hand^ Shri Thakur, learned Deputy Advocate General with Shri Ajit Singh^ Panel Lawyer appearing for the State/respondent No. 1 to 3, 5 and 6 would submit that the District 1 2001 AIRSCW 5187(1) -^. <.< Election Officer passed the order imposing minor penalty of withholdmg one annual increment without cumulative effect for one year and the appeal preferred by the petitioner was admittedly beyond the period of45 days. The petitioner has not preferred any application for condonation of delay stating sufficient reasons to invite jurisdiction of the appellate authority under the proviso to Rule25oftheRules, 1966. Heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto. Rule 25 ofthe Rules, deals with the period oflimitation for appeal which clearly states that no appeal shall be entertained unless the same is filed within a period of 45 days from the date on which a copy of the order appealed against is delivered to the appellant. The proviso to Rule 25 of the Rules further provides that the appellate authority may entertain the appeal after the expiry ofthe said period, if it is satisfied that the appellant had sufficient cause for not preferring the appeal intime. There is no contemplation of there being a separate application for condonation ofdelay. Even otherwise, taking a pragmatic view, the appellate authority ought to have given one opportunity to the petitioner to file an application or affidavit explaining the reasons for delay. On perusal ofthe provisions ofRule 25 ofthe Rules, it is provided that an appeal shall lie within a pcriod of45 days from the date on which the copy of the order appealed against is delivered.to the appellant. It is not clear in this case asto when the petitioner ."'\.^ %;. received the copy ofthe order dated 11.05.2009 (Annexure P/2), or it was delivered thereafter. Thus, counting the period of limitation from the date ofpronouncement ofthe order is not relevant, but the date on which the same was delivered to the appellant, is relevant. The appellate authority has not considered all these issues before dismissing the appeal ofthe petitioner on the ground ofdelay. 9. It is well principle of law that first appeal is a valuable right ofthe appellant and the same should not be dismissed on technical ground. 10. The Supreme Court, in S.S.Gaurayya , held that delay of 253 days in consideration of application for clarification which was not disposed oftill the appeal before the order ofthe Single Judge was filed before the Division Bench, was sufficient and bona fide. Thus, the delay was condoned. 11. In State ofKerala v, M.G.Presanna , the Supreme Court obser^ed that delay in pursuing review can be held as bona fide prosecution of the case and the delay ought to have been treated as satisfactorily explained. 12. In view ofthe foregoing and for the reasons stated hereinabove, the impugned order dated 02.06.2010 (Annexure P/l) passed by the Commissioner, Surguja Division, Ambikapur, is quashed. Memo of appeal preferred before the appellate authority is restored to its original file. The petitioner is granted liberty to make an application explaining the delay in filing the appeal and the 2011 AIRSCW 1302 '^ • 5 appellate authority i.e. the Commissioner, is further directed to consider the same in accordance with law and thereafter, consider the case on merits, expeditiously. 13. Accordingly, the writ petition is allowed to the extent indicated above. 14. There shall be no order asto costs. Sd/- Satish K. Agnihotri Judge Amit