1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.1683 OF 2003 Vighnahar Dalit Sarvangin Vikas Mandal through Secretary. ...Petitioner. Vs. Smt. Ashalata Namdeo Dhoble. ...Respondent. .... Mr. N.V. Bandiwadekar for the Petitioner. Mr. R.M. Patne, AGP for Respondent No.2. ..... CORAM :DR.D.Y.CHANDRACHUD, J. April 24, 2008. P.C.: These proceedings arise out of the order dated 27th January 2003 passed by the Presiding Officer of the School Tribunal at Pune by which, the action of the First Petitioner in promoting the Second Petitioner to the post of Headmaster with effect from 8th June 1998 was quashed and set aside. The Tribunal directed the management which is represented by the First Petitioner herein to consider the claim of the First Respondent for appointment to the post of Headmaster. 2 The facts lie in a narrow compass. The Second Petitioner holds the qualification of B.Sc. and B.Ed., while the First Respondent holds the qualification of B.Com., M.A. and B.Ed. Both teachers were appointed on 7th June 1993. In the Seniority List of 1999, the Second Petitioner was shown at Sr.No. 6, while the First Respondent was shown at Sr. No.12. Aggrieved by the appointment of the Second Petitioner to the post of Headmaster, the First Respondent instituted an appeal before the School Tribunal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. The First Petitioner had promoted the Second Petitioner as Headmaster on 8th June 1998, while the appeal was filed on 4th January 2002. The Tribunal came to the conclusion that both the Second Petitioner as well as the First Respondent were duly qualified since they both hold the qualification prescribed for inclusion in Category “C” of Schedule F to the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. However, since the date of birth of the Second Petitioner was 2nd July 1970, while the date of birth of the First Respondent was 5th January 1959, the First 3 Respondent was senior in age to the Second Petitioner. Note 3 appended to Schedule F provides that in the case of teachers whose date of continuous appointment in one and the same category is common, the teacher who is senior in age will be treated as senior. On this ground, the Tribunal came to the conclusion that the First Respondent would rank senior to the Second Petitioner. However, the Tribunal was of the view that since there were other teachers who rank senior, both to the First Respondent and the Second Petitioner, their case would have to be considered in accordance with law. Counsel appearing on behalf of the Petitioner assailed the judgment of the Tribunal on the ground that there was an unexplained delay on the part of the First Respondent in filing the appeal before the School Tribunal. Now, sub-section (1) of Section 9 of the Act provides as follows : “(1) Notwithstanding anything contained in any law or contract for the time being in force, any employee in a private school,- -(a) who is dismissed or removed or whose services are otherwise terminated or who is reduced in rank, by the order passed by the Management; or 4 -(b) who is superseded by the Management while making an appointment to any post by promotion. and who is aggrieved, shall have a right of appeal and may appeal against any such order or supersession to the Tribunal constituted under Section 8: Provided that, no such appeal shall lie to the Tribunal in any case where the matter has already been decided by a Court of competent jurisdiction or is pending before such Court, on the appointed date or where the order of dismissal, removal, otherwise termination of service or reduction in rank was passed by the Management at any time before the 1st July, 1976.” The limitation of 30 days provided by Sub-section (2) is in respect of appeal against an order of dismissal, removal, “otherwise termination of service”, or reduction in rank. No specific period of limitation has been provided for challenging an order of supersession by the management while making an appointment to any post by promotion. This aspect has been duly considered in a judgment of this Court in The Secretary, Shiorai Education Society vs. The Presiding Officer, 2000(3) ALL MR 13, where it was held as follows: “The language used in sub-section (2) of Section 9, is absolutely clear, unambiguous and capable of conveying the only intention of the Legislature, i.e. to make sub- section (2) of Section 9 applicable only in respect of cases of dismissal, removal, otherwise termination of service or reduction in rank of the employee by the Management as 5 contemplated in sub-section 1(a) of Section 9. It is also clear that the Legislature never intended to include cases of supersession by the Management while making appointment to any post by promotion contemplated in sub section 1(b) within the ambit of sub-section (2) of Section 9. If the intention of the Legislature was to include aspect of supersession contemplated in sub section 1(b) within the ambit of sub section 2 then the word “supersession” must have been used in the body of sub-section (2) of Section 9 of the Act. In view of the intention of the Legislature as well as clear and unambiguous language used in the statute, the words “such appeal” mentioned in sub-section (2) of Section 9 can safely be construed to be referable only to contingencies mentioned in sub-section 1(a) of Section 9.” The Learned Single Judge, however, observed that though no limitation is prescribed against an order of supersession, an appeal must be preferred within a reasonable time: “Though there is no limitation prescribed under the statute for filing appeal to the Tribunal inc case of supersession by the Management while making appointment to any post by promotion, general doctrine of delay and laches would apply in this regard. It is the general rule that whenever limitation is not prescribed for filing appeal or revision, the aggrieved person is required to prefer the same within reasonable time.” Now, it is a settled principle of law that even if a statute does not prescribe any specified period of limitation, a challenge has 6 to be preferred within a reasonable period. Otherwise, settled rights are liable to be disturbed by the assertopm pf a belated and stale claim. Public policy militates against the agitation of stale claims in judicial proceedings. This is also founded on the doctrine of repose. An action which has been taken long before and which has been acquiesced in should not be allowed to be disturbed. In the Written Statement filed by the Petitioner before the School Tribunal, a specific defence was raised to the effect that there was an unexplained delay on the part of the First Respondent in moving the School Tribunal. Para 11 of the Written Statement reads as follows : 7 “The appellant who is well aware that that Respondent No.2 who was working as H.M. (Incharge) since 7.6.93 and the Respondent Management by observing and following the prevailing rule of law appointed/promoted the Respondent No.2 as H.M. in regular scale on and from 8.6.98. The Appellant has not challenged the said promotion from 8.6.98 till 4.1.2002 and the Appellant has filed the present appeal on 4.1.2002 i.e. after about 42 months and such appeal is not in time. The Appellant has not made out any reasons or grounds for the delay caused for filing this appeal. There is no application for condonation of delay and therefore, the appeal filed by the Appellant is liable for its dismissal.” There is merit in the submission which has been urged on behalf of the Petitioner that the Tribunal has completely failed to consider the question as to whether the First Respondent should have been granted any relief having regard to the delay of nearly three and a half years in moving the School Tribunal. The appointment of the Second Petitioner was made on 8th June 1998, while the appeal was filed on 4th January 2002. This aspect of the matter has not been considered by the School Tribunal at all. In these circumstances, it would be appropriate and proper to set aside the judgment of the School Tribunal and to remit the proceedings back to the Tribunal for fresh determination. 8 The petition is accordingly allowed. The order of the School Tribunal dated 27th January 2003 is quashed and set aside. The appeal shall stand restored to the file of the School Tribunal which shall pass fresh orders after hearing the parties and after duly considering the question as to whether there has been any unexplained delay on the part of the First Respondent in moving the Tribunal. However, it is clarified that it would be open to the First Respondent if she is so advised to file an additional affidavit before the Tribunal explaining the dealy. The petition shall stand disposed in the aforesaid terms. No order as to costs. ....