IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.916 of 2008 Chandra Kishore Mahto, Son of Late Haribansh Mahto, Resident of Village Charahuan, P.S. Kurhani, District Muzaffarpur. ------------- Appellant/Petitioner Versus 1. The State of Bihar. 2. The Bihar State Food and Civil Supplies Corporation Limited through its Managing Director, Sone Bhawan, Bir Chand Patel Path, Patna. 3. The Managing Director, the Bihar State Food and Civil Supplies Corporation Ltd., Sone Bhawan, Bir Chand, Patel Path, Patna. 4. Chief of Administration, the Bihar State Food Corporation Ltd., Patna. 5. Chairman-cum-Managing Director, State Food Corporation Ltd., Patna. 6. District Manager, State Food Corporation Ltd., Muzaffarpur. ------------ Respondents/Respondents ----------- For the Appellant :- Mr. B.K. Dubey, Adv. For the Respondents :- Mr. R.S. Pradhan, Sr. Adv. Mr. A.N. Rai, Adv. Mr. Kumar Alok, SC-19 Mr. Satyeshwar Prasad, AC to SC19 ---------- 4 23.04.2010 I.A. No. 6826 of 2008 Heard Mr. B.K. Dubey, learned counsel for the Appellant and Mr. R.S. Pradhan, learned senior counsel for the Bihar State Food and Civil Supplies Corporation Ltd. (hereinafter to be referred to as ‘the Corporation”) and Mr. Kumar Alok, learned Standing Counsel No.19 for the State. This is an application for seeking condonation of delay of 670 days in filing of the appeal. The only reason given in the petition for such condonation of delay 2 is that the petitioner had filed an application for modification of an order dated 13.12.2006 in CWJC No. 6723 of 2005, which got disposed of on 30.7.2008 whereafter in the light of the liberty given, he has filed the present appeal under Clause 10 of the Letters Patent. In the opinion of this Court, the said reason on the face of record cannot be sustained, inasmuch as, the impugned order dated 13.12.2006 in CWJC No. 6723 of 2005 was passed on 13.12.2006, whereby and whereunder, his prayer that while he had retired from service on 31.5.2005 after containing the prescribed age of superannuation of 58 years, he was yet entitled to be retained in the services of the Corporation because the State Government had taken a decision on 24.3.2005 for continuing the Government employees in service by extending their age of superannuation to 60 years ought to have been also adopted by the Corporation. Learned single Judge having noted that the Corporation had adopted the policy of the Government and had enhanced the age of superannuation with effect from 29.7.2006, which could not have covered the case of the appellant writ petitioner 3 by placing reliance on the judgment of this Court in the case of Kameshwar Mahto Vs. State of Bihar reported in 2005(4) PLJR 498, had dismissed the writ petition. This happens on 13.12.2006. After more than one and half years i.e. on 14.7.2008, the appellant had filed an application for modifying/recalling the order dated 13.12.2006 in CWJC No. 6723 of 2005 on the ground that on 17.1.2008 a Division Bench of this Court in L.P.A. No. 829 of 2007 had given relief to similarly situated persons as with regard to the benefit of enhancement of age from 58 years to 60 years. Such modification petition was rejected by the impugned order dated 30.7.2008 whereafter the present appeal was filed on 20.11.2008. It has to be noted that the appeal which under Clause 10 of the letters patent have to be filed within thirty days of the order in this case has been filed after more than 670 days on the plea of the petitioner availing the remedy of modification of petition vide MJC No. 1694 of 2008. In the normal circumstance, if there was continuity in the filing of the MJC application immediately after the order dated 13.12.2006 in the connected writ 4 petition, one could have understood the plea raised herein for condonation of delay, but once it is found that the miscellaneous application itself was filed after more than one year and seven months, it becomes clear that the time span by the petitioner in pursuing the modification MJC No. 1694 of 2008 at best could be from 14.7.2008 to 30.7.2008 i.e. 16 days in which the modification petition was rejected. There is no explanation of the appellant writ petitioner as with regard to the rest of the period i.e. 13.12.2006 to 30.07.2008 and again for the period 31.7.2008 to 19.11.2008. We, therefore, are of the view that there is no sufficient reason for condoning the delay. There is yet another facet to the whole issue, inasmuch as, the said modification petition was also wholly misconceived. Once the writ petition of the appellant writ petitioner was finally dismissed on 13.12.2006, the remedy to him was to file an appeal and not to avail any miscellaneous application as was held way back by the Apex Court in the case State of Uttar Pradesh Vs. Shri Brahm Datt Sharma & Anr. reported in AIR 1987 SC 943. We, 5 therefore, of the view that this miscellaneous application MJC No. 3582 of 2008 after one year and seven months was also purposely filed only to cause delay. Unfortunately, the time consumed in pursuing such modification petition, MJC No. 3582 of 2008 after only 16 days, we are not impressed with the submission of the learned counsel for the appellant writ petitioner that such period should be condoned because he was pursuing his application before the learned single Judge while seeking modification of the order. As noted above, the appellant writ petitioner has retired on 31.5.2005 and counsel for the Corporation informed that all his retirement benefit has already been paid, thus no useful purpose will be served by allowing the appellant writ petitioner to pursue his remedy against the impugned order in the writ petition as he has already gone beyond the age of 60 years on 31.5.2007. Now the petitioner has in fact completed 63 years of his life and should be happy with his retirement benefits. In this circumstance, we do not find any cause muchless sufficient cause for condoning this delay of 670 6 days in filing of the appeal and accordingly, I.A. No. 6826 of 2008 is dismissed. L.P.A. No. 916 of 2008 In view of the fact that we have rejected the prayer of the appellant writ petitioner for condoning delay in filing of the appeal, this appeal must also to be barred by limitation and is dismissed accordingly. Rishi (Dipak Misra, CJ.) (Mihir Kumar Jha, J.)