IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION VPH WRIT PETITION No.7201 OF 2008 Nilima S. Joshi Petitioner Vs. Mohan Bapurao Shinde & Ors. Respondents Mr. Girish Godbole with Ms. Manjiri S. Parasnis, for the petitioner. Mr. Suyog Londhe, for the respondent No.1. Ms. S. S. Bhende, AGP for the respondent No.5. CORAM : Dr. D. Y. CHANDRACHUD, J. DATED : 21st, November 2008. P.C. . Rule, by consent of the learned counsel, made returnable forthwith. Counsel appearing for the respondents waive service. By consent of the learned counsel, the matter is taken up for final hearing and final disposal. 2. The petitioner claims to have been duly appointed as an Assistant Teacher by the Third respondent on 30th June, 1990. On 22nd July, 2003 the petitioner was appointed as a Principal in a Marathi Medium School conducted by the Third respondent Management. According to the petitioner, approval to her appointment as Head Mistress was granted by the - 2 - Education Officer (Secondary), Zilla Parishad Thane on 1st January, 2004. The First respondent filed an appeal before the School Tribunal challenging his supersession on 1st August 2003 by the appointment of the petitioner herein as Headmistress. An application was filed for condonation of delay. The delay has been condoned by the impugned order of the School Tribunal dated 29th August, 2008. . Sub-sections (1), (2), and (3) of section 9 of the M.E.P.S. Act, 1977 read as follow: 9.(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whose services are otherwise terminated or who is reduced in rank, by the order passed by the Management; or (b) who is superseded by the Management while making an appointment to any post by promotion; - 3 - and who is aggrieved, shall have right of appeal and may appeal against any such order or supersession to the Tribunal constituted under section 8. (2) Such appeal shall be made by an employee to the Tribunal, within thirty days from the date of receipt by him of the order of dismissal, removal, otherwise termination of service or reduction in rank, as the case may be; Provided that, where such order was made before the appointed date, such appeal may be made within sixty days from the said date. (3) Notwithstanding anything contained in sub-section (2), the Tribunal may entertain an appeal made to it after the expiry of the said period of thirty days, as the case may be, if it is satisfied that the appellant has sufficient cause for not preferring the appeal within that period." - 4 - 3. Clause (a) of sub-section (1) of section 9 contemplates an appeal against dismissal, removal, termination or reduction in rank. Clause (b) to sub-section (1) to section 9 contemplates an appeal against supersession. Sub-section (2) provides a period of 60 days days for filing an appeal against an order of dismissal, removal, termination or reduction in rank. No period of limitation has been specifically provided for an appeal against an order of supersession while making an appointment to a post by promotion. The power to condone delay beyond the "said period of 30" days, therefore, refers to a case covered by Clause (a) of sub-section (1) in respect whereof a period of limitation has been prescribed. 4. The learned counsel appearing on behalf of the petitioner has drawn my attention to a judgment of a learned Single Judge of this Court in the Secretary, Secretary, Secretary, Shiroal Education Society, Wani Vs. Presiding Officer, Shiroal Education Society, Wani Vs. Presiding Officer, Shiroal Education Society, Wani Vs. Presiding Officer, School Tribunal, Aurangabad & Ors. School Tribunal, Aurangabad & Ors. School Tribunal, Aurangabad & Ors. (2000) II CLR 730 2000) II CLR 730 2000) II CLR 730. The learned Single Judge held that an appeal against an order of supersession is not governed by the period of limitation, prescribed in sub-section (2). However, as no period of limitation has been preescribed by the statute for filing an appeal before the Tribunal in the case of a supersession while making an appointment by - 5 - promotion, the general doctrine of delay and laches would apply in this regard. The learned Single Judge had held as follows- "Though there is no limitation prescribed under the statute for filing appeal to the Tribunal in 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." Hence, it is submitted that in the present case the question as to whether there was an unexplained delay on the part of the petitioner in preferring an appeal would have to be considered by the School Tribunal, which has not been done. 5. The order passed by the School Tribunal would show that the Tribunal proceeded on the basis that no specific period of limitation is prescribed for filing an appeal against an order of supersession. Though this is correct, the Tribunal has not considered the - 6 - observations in paragraph 12 of the judgment, which have been extracted hereinabove. Strictly speaking there was no reason for the First respondent to file an application for condonation of delay. An application for condonation of delay postulates that a period of limitation is prescribed by the statute and the statute empowers the Court to condone the delay for sufficient cause. 6. In so far as an appeal against supersession while making an appointment to a post by promotion is concerned, there is no specified period of limitation. As held in the judgment of the learned Judge of this Court, it is the general doctrine of delay and laches that would apply. This is a matter which would have to be considered at the hearing of the appeal. The Tribunal would have to consider as to whether the delay in the present case was of such a nature as would disentitle the First respondent to any relief. Moreover, even if Tribunal were to hold that the First respondent is not disentitled to any relief whatsoever, it would also have to consider as to whether, the relief should be appropriately modulated in the facts of the particular case. 7. In the circumstances, for the reasons aforesaid, - 7 - filing of an application for condonation of delay was not proper. The impugned order of the School Tribunal dated 29th August 2008 shall accordingly have to be set aside. However, it is clarified that while disposing of the appeal, the Tribunal shall hear the parties and determine as to whether the delay on the part of the 1st respondent in moving the appeal was of such a nature as would disentitle the 1st respondent to any relief. It would also be open to the Tribunal to determine as to whether and if so in what manner relief should be modulated. It is clarified that all the rights and contentions of the parties are kept open. The petition shall accordingly stand disposed of in theabove terms. Sd/- [ Dr. D.Y. CHANDRACHUD, J.]