1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7297/2009 Janabai d/o Narsing Utkar, Age : 38 years, Occu. Nil, R/o At.: Post : Adgaon Tq. Loha Dist. Nanded. . ..Petitioner. Versus 1. The President, The Gramin Shikshan Prasarak Mandal, At: Walandi Tq. Deoni, Dist. Latur. 2. The Secretary, The Gramin Shikhan Prasarak Mandal, At : Walandi, Tq. Deoni, Dist. Latur. 3. The Principal, Shri Balaji Vidyalaya, Walandi, Tq. Deoni Dist. Latur. 4. The Deputy Director of Education, Near Shau Chowk Tq and Dist. Latur. ...Respondents. ........ Shri Sanjay Kolhare, Advocate for petitioner. Shri K.M. Suryawanshi, A.G.P. for respondent No.4. CORAM : R.K. DESHPANDE, J Date : 23/06/2010 ORAL JUDGMENT:- 1 Heard. 2 Rule returnable forthwith. By consent of the parties, the petition is taken up for final hearing. 3 This writ petition challenges the judgment and order dated 30th June 2007 passed by the learned Presiding Officer School Tribunal, 2 at Latur, dismissing appeal No. 20/1997 (Old)/ Appeal No.152/2006 (New) challenging the order of termination from service. 3 The case of the petitioner before Tribunal was that she was orally terminated from service on 19/09/1997 and she filed the appeal before Tribunal on 29/09/1997 and hence, the same was within a period of limitation. The case of the management was that there was written order issued terminating the services of the petitioner on 29/03/1997. However, the appeal has been filed on 23/09/1997 which is delayed by the period of four months and hence, it should be dismissed on the ground that it is barred by limitation and more particularly when the application for condoning of delay has not been filed. 4 The Tribunal decided the appeal and dismissed the same on the ground that it is barred by limitation and on merits also. The Tribunal has held that the services of the petitioner were terminated by written order dated 29/03/1997 placed on record as Ex. R-1. The termination was made effective from 29/04/1997. Period of limitation expired on 29/05/1997 and hence, the appeal was barred by limitation. 5 Shri Kolhare the learned counsel appearing for the petitioner has relied upon judgment of this Court reported in 2004(3) Mh.L.J. 1078 Madhao s/o Somaji Sarode Vs. Jotiba Dhyan Upasak Shikshan Sanstha, Dudhala and others and urged that if it is revealed subsequent to filing of the appeal under section 9(1) of Maharashtra Employees of Private Schools (Conditions of Service) 3 Regulation Act, 1977 that the same was not presented within limitation, memorandum of appeal can not be rejected on the ground that it was not accompanied by an application for condonation of delay. It has further held that an opportunity has to be given to the appellant to seek condonation of delay. It has further been held that unless delay in entertaining the appeal is condoned, the adjudication on merits is not permissible. Similar view is taken in another judgment, delivered in Writ Petition No. 7381/2007 delivered on 3rd October, 2008. 6 As against aforesaid submissions, Shri V.D. Gunale leaned counsel appearing for respondents no.1 to 3 has urged that leave apart the fact that the appeal itself was barred by limitation, the instant writ petition has been preferred after laps of about two years. The judgment and order was passed by Tribunal on 30th June, 2007 and instant petition has been filed on 8th October, 2009. The delay in approaching this court has not been explained. He further supports the order passed by the Tribunal and has urged that the petitioner was adamant in not filing application for condonation of delay before School Tribunal. According to him, the contention of the petitioner that there was no order in writing, as alleged on 29/03/1997, but her services were orally terminated on 29/09/1997, has been rejected by the Tribunal. According to him, there is no statement made in the petition that the petitioner had shown his willingness to file an application for condonation of delay, even if it is assumed that the termination was effected on 29/03/1997 by written order. According to him, nothing 4 prevented to the petitioner from filing such application without prejudice to his right to contend that she was not served with the order of termination on 29/03/1997. 7 The judgment relied upon by the learned counsel for the petition, no doubt, lays down proposition that if subsequent to filing of appeal under section 9(1) of M.E.P.S. Act, it is revealed that the same was not presented within limitation, memorandum of appeal can not be rejected on the ground that it was not accompanied by an application for condonation of delay and the opportunity has to be given to the appellant to seek condonation of delay. It is nowhere the statement made in the petition that the petitioner had shown willingness to submit an application for condonation of delay without prejudice to his contention that there was delay caused in filing of appeal, as the order of termination dated 29/03/1997 was not served upon her. Even in the order of Tribunal, it is not observed that the petitioner has prayed for any such permission. The learned counsel for the petitioner submits that it is the duty of the Tribunal to call upon the petitioner to file an application for codonation of delay. However, such a plea can not be accepted nor it is supported by the judgments relied upon. If the petitioner is not willing to file an application for condonation of delay, the question of Tribunal asking and insisting upon the petitioner to file an application for condonation of delay by an order, is not contemplated. In view of this, the judgments relied upon by the learned counsel for the petitioner are of no avail, in the 5 facts of this case. 8 The Tribunal has decided the appeal on 30th June, 2007 itself. The present petition has been filed on 8th October, 2009. There is an inordinate delay in filing of the petition. The learned counsel for the petitioner has invited my attention to the averment made in para 20 of the petition which are re-produced below. “The petitioner submits that the the petition filed by petitioner is delayed. She has received certified coy on 23/07/2007, at the relevant time petitioner has appeared for the B. Ed. Examination. She has passed said examination in the month of June, 2008. Since petitioner is out of employment and no salary was paid to her in spite of interim relief granted by Hon’ble School Tribunal, she was going through financial crisis and obtaining loan from her relative for repeated time, she has approached this Hon’ble High Court.” 9 On the face of it, the explanation furnished is not acceptable. The delay of more than two years caused in filing instant petition has not been explained. It appears that the attitude of the petitioner seems to be lethargic in approaching before the Tribunal as well as before this Court. In view of this, no interference is called for in the judgment and order passed by the Tribunal in exercise of extra ordinary jurisdiction of this Court as well as under Articles no.226 and 227 of the Constitution of India. There is no substance in this petition. Therefore, petition is dismissed. 6 ORDER Writ petition is dismissed. Rule discharged. No order as to costs. [R.K. DESHPANDE, J.] tsk/wp7297.09