Bhaskar Bhattacharya, CJ.

1. This is an application for condonation of delay of 428 days in filing a Letters Patent Appeal preferred against an order dated 27^th December 2011 passed by a learned Single Judge of this Court in Special Civil Application No. 12613 of 2011 by which the learned Single Judge set aside an order dated 25th September 1992 denying higher pay scale to the respondent with effect from 30th January 1990 and directed the appellants herein to grant the first higher pay scale to the respondent with effect from 30th January 1990 along with other consequential benefits within a period of three months from the receipt of the order.

2. The case made out by the appellants in the application for condonation of delay may be summed up thus:-

[a]. The judgment was passed by the learned Single Judge on 27^th December 2011 and the certified copy of the said order was received on 28th February 2012 by the department concerned and the delay occurred mainly because of administrative reasons.

[b]. The office of the Collector thought it fit to file a Letters Patent Appeal challenging the aforesaid order passed by the learned Single Judge, and, therefore, the same was forwarded for sanction and approval to the Revenue Department on 23rd January 2012. The Revenue Department by its letter dated 14th February 2012 demanded the information of service book and other records of the respondent and the office of the Collector, by its letter dated 2^nd March 2012 forwarded the information to the Revenue Department.

[c]. The Legal Department provided the sanction to file Misc. Civil Application for extension of time to the Revenue Department by its letter dated 22nd March 2012. The office of the Collector, by its letter dated 29th March 2012, sought for certain information from the Revenue Department in regard to the communication made between the Finance Department and the Revenue Department. The Revenue Department by its letter dated 10th April 2012 asked the office of the Collector to file Misc. Civil Application for extension of time for compliance of the order and the office of the Collector by its letter dated 10th April 2012 instructed the office of the Government Pleader to file a Misc. Civil Application for extension of time. On 12th April 2012, the concerned officer came to file the Misc. Civil Application for extension of time being Misc. Civil Application No. 1594 of 2012 which was filed on 17th May 2012 and the same was listed before the learned Single Judge on 27th June 2012 and on that date, the learned Single Judge granted extension of time. The office of the Collector, by its fax message dated 28th June 2012 intimated the State Government in regard to the order dated 27th June 2012 passed in the Misc. Civil Application No. 1594 of 2012 for extension of time.

[d]. The State Government, by its communication dated 29th June 2012 informed the Office of the Collector to file a Letters Patent Appeal against the judgment and the office of the Collector by its communication dated 30th June 2012 intimated the office of the Government Pleader to file Letters Patent Appeal.

[e]. The office of the Government Pleader, by its letter dated 13^th July 2012 asked for certain information to file Letters Patent Appeal and also sent some draft and required documents. The office of the Collector, by its communication dated 19th July 2012 sent the information and documents as required by the office of the Government Pleader.

[f]. Thereafter, the officers of the applicant-Department forwarded papers to the office of the Government Pleader and after necessary discussions, the memo of the Letters Patent Appeal was prepared. It appears from the memorandum of the Letters Patent Appeal that the appeal was preferred on 26th March 2013 along with the application for condonation of delay.

3. The above application is opposed by the respondent and the objections taken by the respondent may be summed up thus:

(i). On one hand, the applicants have preferred Letters Patent Appeal challenging the order dated 27th December 2011 whereas, on the other, the very applicants have preferred Misc. Civil Application No. 1594 of 2012 on May 17, 2012 seeking extension of time for compliance of the order passed by the learned Single Judge, and the said application was allowed by the learned Single Judge vide order passed on 27th June 2012 granting time of six weeks to comply with the directions contained in the order dated 27th December 2011.

(ii). Therefore, once the applicants have applied for grant of additional time for compliance of the order of the learned Single Judge, the applicants are estopped from challenging the said order.

(iii). There is no satisfactory explanation for condonation of such huge delay of 428 days.

(iv). The respondent has retired in June 2012 and is awaiting for the benefits of higher pay scale which had accrued to him on 30th January 1990 as he had completed 9 years of service on that date.

(v). The respondent had first approached Gujarat Civil Services Tribunal by way of Appeal No. 510 of 1992 for the said prayer which was allowed by the Tribunal vide order dated 15th December 1994 and had directed the authorities to pay the Higher Pay Scale to the respondent with effect from 30th January 1990.

(vi). The said order, however, was challenged by the State authorities by preferring Special Civil Application No. 5266 of 1995 which was allowed by the learned Single Judge vide order dated 22^nd July 2011 only on the ground of lack of jurisdiction.

(vii). Thereafter, the respondent preferred Special Civil Application No. 12613 of 2011 seeking a direction to grant first higher grade scale with effect from 30th January 1990 which has been allowed.

4. When this Civil Application for condonation of delay came up for hearing before this Bench on 1st July 2013, on the prayer of learned Assistant Government Pleader, Ms. Pathak, we granted liberty to file supplementary affidavit explaining the reason for preferring the appeal notwithstanding the fact that the appellants themselves prayed for extension of time for compliance of the order and also for explaining the delay from July 2012 till March 2013 on condition of payment of costs of Rs.3000/- to the opponent.

5. Pursuant to such liberty, on behalf of the applicants, one Vinod Rao [IAS], Collector, Vadodara, who had earlier filed the affidavit in support of the application for extension of time for compliance of the order of the learned Single Judge, has filed an additional affidavit on 20th July 2013 wherein the following explanation has been given:-

[a]. Certified copy of the impugned order dated 27th December 2011 was received by the applicants on 28th February 2012. In the interregnum period, the applicants had, vide communication dated 23rd January 2012 addressed a letter to the Revenue Department seeking approval for preferring Letters Patent Appeal, and the Revenue Department, vide communication dated 14th February 2012, called for certain information pertaining to the respondents along with his service book. Such details were submitted by the office of the Collector on 2nd March 2012.

[b]. The Revenue Department, vide communication dated 10th April 2012 informed the applicants that since the issue in the present case would have far reaching effects in future which might affect the State Exchequer as well as the policy, further time would be required for discussion and consultation with other departments and hence, it would not be possible to give approval immediately and, therefore, it would be necessary to file an application for extension of time.

[c]. Accordingly, vide letter dated 10th April 2012, the papers were handed over to the office of the Government Pleader for preferring an application for extension of time and, thus, the Misc. Civil Application No. 1594 of 2012 for extension of time was preferred and the learned Single Judge, vide order dated 27th June 2012, extended the time.

[d]. In the meanwhile, on 29th June 2012, a communication was received from the office of the Revenue Department giving approval for preferring Letters Patent Appeal against the impugned judgment and order and vide communication dated 30th June 2012, intimated the Government Pleader’s office to file the appeal.

[e]. Thereafter, the papers were handed over to the concerned Assistant Government Pleader for preparation of the memorandum of appeal and the concerned Assistant Government Pleader called for certain instructions vide communication dated 13th July 2012 which were provided by the office of the Collector on 19th July 2012. The memorandum of appeal as well as Civil Application for stay was prepared by the concerned Assistant Government Pleader but thereafter, since there was delay in preferring the appeal, the concerned Assistant Government Pleader called for explanation with respect to the delay from the office of the applicants. On 8th January 2013, the concerned Assistant Government Pleader was instructed and thereafter on 11th January 2013, forwarded a chronology of the events and grounds for delay in preferring the appeal to the office of the Government Pleader. The concerned Assistant Government Pleader thereafter called for further explanation for delay from the office of the applicants and by communication dated 7th February 2013, the office of the Collector forwarded further details to the office of the Government Pleader. Thereafter, the memo of the Civil Application for condonation of delay was prepared by the concerned Assistant Government Pleader and the same was sent to the office of the applicants for affirmation.

6. After hearing the learned counsel for the parties and after going through the materials on record, we find that after the order dated 27th December 2011 impugned in this appeal was passed, the application for certified copy was filed on 5th January 2012 and the same was ready for delivery on 9th January 2012. Thus, the appellants are entitled to have deduction of 5 days’ time for obtaining the certified copy. Thus, the last date for preferring the appeal, after taking benefit of Section 12 (2) of the Limitation Act would expire on 31st January 2012 whereas the appeal was actually filed on 30^th March 2013 and it appears that the affidavit in the application for condonation of delay was sworn on 20th March 2013.

7. We have already pointed out above that in the meantime, the applicants filed Misc. Civil Application No. 1594 of 2012 for extension of time of three months for compliance of the impugned order, and by order dated 27th June 2012 passed therein, the learned Single Judge granted time of six weeks to comply with the directions contained in the impugned order, with a rider that no further time would be granted on any ground.

7.1 However, as stated in the affidavit filed on behalf of the applicants, on 29th June 2012, a communication was received from the office of the Revenue Department giving approval for preferring Letters Patent Appeal against the impugned judgment and order and vide communication dated 30th June 2012, the appellants intimated the Government Pleader’s office to file the appeal which, as stated above, was in fact filed in the Registry of this Court on 30th March 2013 – after almost 9 months from the date of handing over papers to the learned Advocate for preferring the appeal.

8. From the above facts, it appears that the office of the Government Pleader took about 9 months’ time in preparing the memorandum of appeal and the Civil Applications for stay and condonation of delay. Peculiarly, in this case, being fully conscious that the appeal had already been barred by limitation and that no further extension of stay of the order impugned would be given as pointed out in the order dated June 27, 2012, the instructions for filing application for condonation of delay was allegedly taken in the month of January 2013 which is an instance of negligence and laches of the worst form.

9. The question, therefore, that arises for consideration is whether the appellants, after praying for extension of time to comply with the directions of the High Court and after having received benefit of extension of time to comply with the same, can be said to have acted bona fide and without any laches and negligence in preferring the appeal particularly when the application for extension of time of compliance was not filed on the ground that an appeal would be preferred but was filed on the ground that the order impugned would be complied with.

10. We are, however, conscious that the right of appeal being a statutory remedy, there is no estoppel against law and even after getting the benefit of undertaking to comply with the order, one’s right to prefer appeal against such order is not lost (see P. R. Deshpande v. Maruti Balaram Haibatti reported in AIR 1998 SC 2979), but when a litigant does not act with bona fide motive and at the same time, due to inaction or laches on its part, the period of limitation for filing the appeal expires, such lack of bona fide and gross inaction and negligence are the vital factors which should be taken into consideration while considering the question of condonation of delay.

11. It appears from record that if we accept the case of the appellants made out in the application for condonation of the delay and the subsequent affidavit to be true, on the date of filing the application for extension of time before the learned Single Judge, the appellants were quite alive to the position that the time to prefer appeal had already expired and they were allegedly waiting for the approval of the higher authority for preferring an appeal. However, in spite of such fact, in the application for extension of time, no plea was taken that it was really in the process of filing an appeal which was already barred by limitation and they prayed for time to comply with the order subject to the decision of such appeal. On the other hand, the appellants gave an impression that they could not comply with the order as the applicants have to follow some procedure based on the Government Resolution and Rules and on the basis of such application for extension of time for complying with the order, the learned Single Judge extended the time.

12. Misc. Civil Application No. 1594 of 2012 by which the appellants prayed for extension of further period of three months for compliance of the order passed by the learned Single Judge dated 27th December 2012, was filed on the plea as mentioned in paragraphs 3 and 4 of the application, which are quoted below verbatim et literatim:

"3. The present applicant has received the above mentioned order on 28th February 2012 and hence time to comply with the direction is comes to end on 28th May 2012. The applicant further submitted that for compliance of direction issued by this Hon’ble High Court the applicant has to follow some procedure based on the Government Resolution and Rules."

"4. This Hon’ble Court was pleased to extend the time for further three month to comply with the order passed by the Hon’ble High Court (Coram: Hon’ble Mr. Justice Anant S. Dave)."

"13. After considering the above application being Misc. Civil Application No. 1594 of 2012, the learned Single Judge passed the following order:"

"Heard learned AGP for the applicants-original respondents and learned advocate for the opponent-original petitioner."

"By this application, the applicants have prayed for extension of 3 months time to comply with the order dated 27.12.2011 passed in Special Civil Application No.12613 of 2011 mainly on the ground of administrative difficulties. Having heard learned advocates for the parties and considering the overall facts and circumstances of the case, I am inclined to grant 6 weeks time from today to comply with the directions contained in order dated 27.12.2011 passed in Special Civil Application No.12613 of 2011. It is made clear that no further time will be granted on any ground."

"14. On consideration of the above stance taken by the appellants, we are of the opinion that the appellants having prayed before the learned Single Judge for passing an order of extension on the plea that they would comply with order, the factual pleas taken in this application for condonation of delay cannot be said to be bona fide on the face of record as even after getting extension for 6 weeks, the appellants neither complied with the same nor did they file any appeal till March 26, 2013."

15. In the application for condonation of delay, no explanation is given as to why the applicants changed from their earlier stance of compliance of the order. We have already pointed out that it is also not a case where the appellants in the past prayed for extension of time on the ground that they intended to prefer an appeal before the Division Bench.

16. The appellants were well aware of the fact that the period of limitation is 30 days for preferring a Letters Patent Appeal. Therefore, when the papers were handed over to the office of the Government Pleader for filing the application for extension of time for compliance, they were quite alive to the fact that already there was delay in filing an appeal but in spite of such fact, at that time, they did not feel the necessity of instructing the Government Pleader to prepare the memorandum of appeal and the application for condonation of delay although the certified copy of the order impugned was in their possession from the early part of January, 2012. In such circumstances, there was no justification of further more than 9 months’ delay in preferring the appeal along with the application for condonation of delay from 30th June, 2012 even if we accept the plea taken in the application for condonation of delay. In the application for condonation of delay or in the subsequent affidavit, there is no explanation as to why in spite of having the papers for filing appeal at least from June 30, 2012, such a long time was taken. In this type of matters, a reasonable explanation must be given in the connected civil application for condonation of delay. When the appellants approached the Government Pleader’s office for preferring the appeal after five months, there was no justification of taking further 9 months’ time and there is no explanation of the inordinate delay in preparing the memorandum of appeal and the civil applications for condonation of delay. We cannot lose sight of the fact that when the papers were given to the learned Government Pleader’s office to prefer appeal, the concerned Assistant Government Pleader was quite aware of the fact that the appeal was already barred by limitation and in such circumstances, we are not satisfied with the explanation that the learned Assistant Government Pleader thought it fit to call for explanation of delay only in the month of January 2013.

17. Law having prescribed a fixed period of limitation of 30 days for preferring the appeal, the Government cannot ignore the provisions of the period of limitation as it was never the intention of the legislature that there should be a different period of limitation when the Government is the appellant. In this connection, we may profitably refer to the following observations of the Supreme Court in the case of Office of the Chief Post Master General and Ors. v. Living Media India Ltd. and Anr reported in AIR 2012 SC 1506 while considering the case of condonation of delay of 427 days, 1 day less than the period involved in this case:

"12. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government."

"13. In our view, it is the right time to inform all the Government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The Government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for Government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay."

"18. While arriving at the above findings, the Supreme Court took into consideration 10 earlier decisions of the Supreme Court dealing with the question of condonation of delay where the Government or its instrumentality is a party claiming condonation."

19. On consideration of the above materials on record, we are of the view that the appellants failed to prove sufficient cause for condonation of the delay in filing the appeal. We, consequently, dismiss the application of condonation of delay.

19.1. The appeal is thus dismissed as barred by limitation.

19.2. In view of dismissal of the appeal itself the connected civil application has become infructuous and is disposed of accordingly.

19.3. In the facts and circumstances of the case, there will be, however, no order as to costs.