The court emphasized the need for a justice-oriented approach in adjudicating delay in filing appeals and clarified the limitations of appointment on compassionate grounds.

Biswanath Somadder, J.

In re: CAN 8867 of 2017

1. Let the affidavit-in-opposition filed on behalf of the respondent/writ petitioner in respect of the section 5 application be kept on record.

2. Upon perusing the section 5 application, it appears that there has been a delay of 358 days in preferring the appeal against the judgment and order dated 16th June, 2016, passed by a learned Single Judge in WP 29826 (W) of 2015 (Gautam Dalal v. The State of West Bengal & Ors.). After receiving the impugned judgment and order dated 16th June, 2016, the Joint Legal Remembrancer engaged a senior Government advocate on 7th September, 2016, to prefer an appeal. In paragraph 6 of the section 5 application, the following statement has been made:-

"6. That Mr. Jaharlal Dey, Learned Senior State Advocate have [sic; read, has] not preferred the said appeal. The department further contract [sic; read, contacted] with the learned Legal Remembrancer, West Bengal and request [sic; read, requested] to engaged [sic; read, engage] any other Learned Govt. Advocate for preferring an appeal it is most urgent."

3. Consequently another Government advocate was engaged to prefer the appeal on 5th July, 2017 and ultimately the appeal was filed on 13th July, 2017. As such, we notice that the period of delay of 358 days in preferring the appeal has occurred primarily due to negligence on the part of the Government advocate and also due to negligence and/or sheer callousness on the part of the office of the Legal Remembrancer of the State of West Bengal for not regularly following up with the Government advocate who was initially engaged.

4. Both parties have cited several judgments. On behalf of the applicants, the following judgments have been cited:

"(1) (2009) 15 SCC 177 (State of Jammu and Kashmir & Ors. v. Mohmad Maqbool Sofi & Ors.);

(2) (2015) 3 SCC 569 (Executive Officer, Antiyur Town Panchayat v. Arumugam (Dead) By Legal Representatives."

5. On behalf of the respondent/writ petitioner, the following judgments have been cited:-

"(1) (2012) 3 SCC 563 (Postmaster General & Ors. v. Living Media India Limited & Anr.);

(2) (2013) 4 SCC 57 (Union of India & Ors. v. Nripen Sarma)."

6. Each of the judgments cited is an authority for a proposition which has been laid down based on certain facts of that particular case. While adjudicating a section 5 application, the Court must always take a justice-oriented approach. If the Court is convinced that there has been an attempt on the part of the Government officials or public servants to defeat justice by causing delay or there has been negligence or callousness on the part of such Government officials or public servants, in view of larger public interest, the Court should take a lenient view of such situation and condone the delay howsoever huge it may be and have the matter decided on its merit.

7. In the instant case, as stated hereinbefore, the Joint Legal Remembrancer engaged a senior Government advocate to prefer an appeal as far back as on 7th September, 2016. However, that appeal was never made ready which resulted in the engagement of another Government advocate on 5th July, 2017. Consequently, the appeal was made ready and the Memorandum of Appeal was filed on 13th July, 2017.

8. We are of the view that in the facts of the instant case, the concerned authority of the State of West Bengal who was aggrieved by the impugned judgment and order dated 16th June, 2016, was not at all negligent. If there has been any negligence or callousness, it was on the part of the office of the Legal Remembrancer of the State of West Bengal as well as the senior Government advocate who was originally entrusted in filing of the appeal. For negligence of a few, the larger public interest of the State ought not to suffer.

9. While we allow the section 5 application upon holding that the delay of 358 days in filing of the appeal has been sufficiently explained, we direct the Chief Secretary to the State of West Bengal to cause a thoroug