1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 7681 OF 2008 Punamchand Eknath Bhairav Age 34 years, Occ. Service (Nil) R/o. Artjhe (B), Tq. Shirpur, District Dhule ...Petitioner Versus 1 Shri N.C. Patil, The Chairman, Shri Deopur Vidhayak Samitee, Dhule, District Dhule 2 Shri Gurudatt Vidhayala Varul Ghusare Tal. Shindkheda, District Dhule 3 The Head Master, Shri Gurudatt Vidyalaya Varul Ghusare Tal. Shindkheda, District Dhule 4 The Education Officer (Secondary) Zilla Parishad, Dhule ...Respondents ..... Mr. P. B. Patil, advocate for the petitioner Mr. K.T. Shirurkar h/f Mr. S.R. Kolare, advocate for respondents advocate for respondent Nos.1 to 3. Mr. T.S. Lodhe Patil, AGP for respondent No.4 ..... CORAM : S. S. SHINDE, J. DATE OF RESERVATION : 25.08.2009 OF JUDGMENT DATE OF PRONOUCNEMENT : 31 .08.2009 OF JUDGMENT 2 ORAL JUDGMENT:- 1 Heard. Rule. Rule made returnable forthwith. By consent of the learned counsel for the respective parties, the matter is taken up for final hearing. 2 This petition is filed challenging the judgment and order dated 27.8.2008 passed by the Presiding Officer, School Tribunal, Nashik in delay condonation application filed in appeal No. 16 of 2001. 3 It is the case of the petitioner that since June, 1994 the petitioner is serving as Assistant Teacher in the school run by respondent No.1. In the academic year 2000-2001, the petitioner had been to the school, for joining his duty, when the school was opened in the month of June, 2000, but he was not allowed to resume the duty by respondent Nos. 1 to 3. They orally refused the petitioner to resume duty. The petitioner was told by respondent Nos. 1 to 3 to wait for some period as they wanted to make compliance for getting approval from Education department. It is further case of the petitioner that on 1.5.2001, respondent No.3 orally informed the petitioner that his services are permanently terminated. 3 4 The petitioner challenged the oral termination order by filing appeal before the School Tribunal, Nashik. It is further case of the petitioner that in fact there was no delay from the date of communication from oral termination, but there was delay of 11 month and 22 days from the date of refusal by respondent Nos. 1 to 3 to allow the petitioner to joint the services/duties on 1.6.2000, therefore, the petitioner filed application for condonation of delay alongwith the appeal. The said application for condonation of delay has been rejected by the School Tribunal, Nashik on 27.8.2008. Hence, this petition. 5 Learned counsel appearing for the petitioner submitted that it is the case of the management that the services of the petitioner are terminated orally. The counsel further submitted that when the petitioner went to the school to join duty in the academic year 2000-2001, in the month of June, 2000, he was not allowed to resume the duty. Respondent Nos. 1 to 3 told the petitioner to wait for some period as they wanted to get approval from Education Department. It is the specific case of the petitioner that due to instructions from respondent Nos. 1 to 3 to wait for some time, being an employee of the respondent institute, the petitioner with legitimate expectation and with a hope of approval to his services, abided by the instructions of respondent Nos. 1 to 3. Learned counsel further submitted that the petitioner continued to insist the respondent management from time to 4 time for allowing him to join the services. The petitioner was not aware about the intention of respondent Nos 1 to 3 that they will refuse the petitioner to continue in the service. Learned counsel, therefore, submitted that petitioner was told by respondent Nos. 1 to 3 on 1.5.2001 that his services are permanently terminated. The petitioner then inquired with the President of the respondent management and it was told that he has been removed from service. It is the case of the petitioner that the Head Master has issued experience certificate to the petitioner. Learned counsel further invited my attention to Exh.”A” of the petition and has submitted that the certificate itself shows that the petitioner was in continuous service of the respondent till 2000. Learned counsel further submitted that the right of appeal of the petitioner is a valuable right and the School Tribunal was not justified in rejecting his application for condonation of delay in filing appeal. Learned counsel further submitted that no any written termination order has been issued by the respondent management to the petitioner and his services are terminated orally on 1.5.2001. According to learned counsel, in fact there was no delay in filing appeal but the petitioner was not allowed to join the duty from June, 2000 and therefore, he filed application alongwith the appeal by counting the period from refusal of allowing him to join the duty from June, 2000 till filing of appeal. Learned counsel would submit that in real sense if the oral termination is of 1.5.2001, the appeal filed by the petitioner is within limitation. 5 Learned counsel further submitted that even assuming without admitting that there was delay in filing appeal, the satisfactory and plausible explanation was offered in the application for condonation of delay and on that ground delay in filing appeal ought to have been condoned by the School Tribunal. The right of appeal of the petitioner cannot be taken away merely on technicalities by rejecting the application for condonation of delay which results into dismissal of appeal and therefore, learned counsel would submit that this petition may be allowed. 6 Learned counsel appearing for the contesting respondents vehemently opposed the petition and invited my attention to the findings recorded by the Presiding Officer, School Tribunal, while rejecting the application for condonation of delay. Learned counsel further submitted that since there was inordinate delay in filing the appeal, the Tribunal has rightly rejected the application for condonation of delay. Therefore, he submitted that, no interference is warranted under Article 227 of the Constitution of India. 7 After hearing counsel for the respective parties and after perusal of the judgment and order passed by the School Tribunal, I am of the considered view that the Tribunal has erred in not appreciating the contention of the petitioner. The Tribunal in para 10 of the order has 6 observed that no single document is produced on record by the applicant to substantiate his contention. In fact, this observation of the School Tribunal is wholly unwarranted for the simple reason that, there was no any document which was required to be submitted on record. The termination of the petitioner is oral termination and no written termination order is issued by the respondent management. It is not clear from observation of the Presiding Officer, School Tribunal in para 10 that which documents are expected to be filed on record. It appears that the School Tribunal has made general observation in para 10 and has not specifically referred to the averments in the application for condonation of delay. The Tribunal has adverted the contentions of the petitioner that, the petitioner was under false promises and assurances given by the respondent management that they are obtaining the approval from the Government authorities for his services. However, the Tribunal has not accepted the explanation offered by the petitioner. 8 In fact the petitioner has not benefited by any manner or no malafides can be attributed on the part of the petitioner causing delay in filing appeal against his own termination. The party, which is in desperate need of service/job, would not cause delay in filing of appeal in normal course, and by delaying proceedings cannot obtain benefit, rather would put to the loss himself, therefore, the contention of the petitioner that he was under bonafide impression and under legitimate expectation that the respondent Nos. 1 and 3 are taking approval to 7 his services and that they will continue the petitioner in the service and therefore, there was delay in filing appeal deserves to be accepted. 9 This Court, in the case of Sandeep s/o Hiralal Netke Vs. State of Maharashtra and others reported in 2008 (2) Mh. L. J. 494, had an occasion to consider the some what similar situation, as arises in the present petition and this court has observed in para 12 that, “It is well settled by the catena of the decisions of the Apex Court that a litigant should be allowed to prosecute his remedy of its own merits and not thrown out on technicalities, as the same furthers the cause of substantial justice.” The Court has further observed in para 11 that, “Petitioner had made representation to the Deputy Director of Education and Vocational Training, and he was waiting for reply, some time was consumed for the said process,” therefore, the Court has observed that the petitioner can be said to be entitled to the legitimate expectation that he ultimately gets relief from the said authority. 10 In the instant case also, as rightly contended by the counsel for the petitioner that the petitioner was told by respondent Nos. 1 to 3 that the petitioner should wait till the respondent Nos. 1 to 3 take necessary approval from Education Department for his services. The petitioner was in desperate need of service/job has no option but to wait for the instructions of respondent Nos. 1 to 3. Therefore, the petitioner was under legitimate expectation. The School Tribunal has 8 not considered and appreciated the contents of the application for condonation of delay and therefore, the order passed by the School Tribunal deserves to be quashed and set aside. There is one more important reason to set aside the impugned order is that the impugned order results into dismissal of appeal. Here it is to be noted that the right of appeal of the party is a valuable right, hence, the impugned order passed by the Presiding Officer, School Tribunal, Nashik is quashed and set aside. Application allowed. Delay, in filing appeal by the petitioner before the School Tribunal, Nashik is condoned. The appeal, if not registered, be registered and the Presiding Officer, School Tribunal, Nashik is directed to proceed to decide the appeal within six months from today, on its own merit. 11 In the result petition is allowed. Rule made absolute with no order as to costs. *****