1 7-wp-6873-2010.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6873 OF 2010 Shri Savarkar R. Dongare .. Petitioner. V/s. The State of Maharashtra & Others .. Respondents. Mr. A. M. Joshi, for the Petitioner. Mr. P.G. Sawant, 'B' Panel, for Respondent No.1. Mr. S.S. Deshmukh i/b. Mr. S. J. Rairkar, for Respondent No.2. Mr. S.S. Pakale i/b. Mr. Kirankumar Phakade, for Respondent No.3. CORAM : K.K.TATED, J. DATE : 29th JULY, 2011. P.C.: 1 Heard the learned counsel for the Parties. 2 By this Petition, under Articles 226 and 227 of the Constitution of India, the Petitioner-Original Applicant challenges the order dated 28th May, 2010 passed by the learned Presiding Officer, School Tribunal, Pune in Misc. Civil Application No.29 of 2009 for condonation of delay in filing Appeal under Section 9 of the Maharashtra Employees of Private Schools 2 7-wp-6873-2010.sxw (Conditions of Service), Regulation (herein after referred to as “the said Act”) Act, 1977. 3 The Petitioner-Original Applicant filed Appeal under Section 9 of the said Act, for setting aside and/or quashing promotion given to the Respondent No.4- Shri Revanna T. Pawar to the post of Head Master with effect from 1st June, 2003. The said Appeal was filed in the year 2009. As there was delay in filing the Appeal, the Petitioner preferred application for condonation of delay. The said application was rejected by the learned Presiding Officer, School Tribunal, Pune by impugned order dated 28th May, 2010, holding that the Petitioner failed to make out sufficient cause for condoning the delay of more than six years. Hence, present Petition. 4 The learned counsel appearing for the Petitioner submits that the learned Presiding Officer, School Tribunal, Pune erred in coming to the conclusion that the Petitioner failed to make out sufficient cause for condonation of delay. He submits that on 2nd June, 2003, though the Petitioner gave no objection for appointing Respondent No. 4 as a Head Master, immediately thereafter, in the year 2009, he wrote a letter to the Education Officer, withdrawing his consent. In spite of withdrawing his consent, the Education Officer gave approval to the appointment of Respondent No.4 as a Head Master. He submits that actually the cause of 3 7-wp-6873-2010.sxw action arose in the year 2009 when the Education Officer granted approval to the appointment of Respondent No.4 as a Head Master and, therefore, there was no delay in filing Appeal under Section 9 of the said Act. He further submits that the Tribunal ought to have held that the Respondent- Management failed to follow the mandatory provisions of Rule 3 of Maharashtra School Tribunal Act, 1981. He submits that as per Rule 3, it is mandatory that no objection of a teacher should be given before the Education Officer only. If this rule is not followed, no objection given by the teacher cannot be considered at the time of appointing other person as a Head Master. He submits that as per Rule 3 (6) of the said Rules, the Petitioner or any other person who feels that the promotion given to the person as a Head Master or Assistant Head Master is not as per Rules can make grievance to the Education Officer / Administrative Officer and those authority have right to cancel the said promotion in consonance with the Rules. He further submits that in various judgments of this Court, it is held that the requirement of obtaining waiver from the other senior teacher before the Administrative Officer/ Education Officer which is provided under Rule 3 is a mandatory provision. The said mandatory provisions are not followed by the Respondent-Management. He further submits that the Division Bench of this Court has now held that the limitation prescribed under Section 9 of the said Act, is 30 days for challenging termination or reduction in rank is not applicable to the cases of supersession. Therefore, 4 7-wp-6873-2010.sxw the learned Presiding Officer erred in coming to the conclusion that the Petitioner failed to make out sufficient cause for condonation of delay. On the basis of these submissions, the learned counsel appearing for the Petitioner states that the impugned order passed by the Tribunal is liable to be set aside and the application filed by the Petitioner for condonation of delay in preferring Appeal under Section 9 of the said Act deserves to be granted. 5 On the other hand, the learned counsel appearing for Respondent Nos.1 to 3 vehemently opposed the present Petition on the ground that the Petitioner failed to make out sufficient cause for condonation of delay. 6 The learned counsel appearing for Respondent No.3 states that the Petitioner himself has given no objection on 2nd June, 2003 for appointing Respondent No.4 as a Head Master. Pursuant to the said no objection, they prepared seniority lists in the year 2002-03, showing Respondent No.4 as a Head Master and the Petitioner as Assistant Teacher. The said seniority list was circulated to all the Assistant Teachers, Teachers, Staff of the institution. The Petitioner also signed on the said seniority list as required under the law. It shows that the Petitioner was well aware that Respondent No.4 was appointed as a Head Master in the year 2002-03 itself 5 7-wp-6873-2010.sxw and in spite of that, the Petitioner failed to raise any objection till the year 2009. First time in the year 2009, he wrote a letter to the Education Officer, raising objection. For this six years, the Petitioner had not pointed out any reason why he remained silent in respect of the appointment of Respondent No.4 as a Head Master. Therefore, the Tribunal has rightly held that the Petitioner failed to make out sufficient cause for condonation of delay. He further submits that though the Division Bench of this Court held that limitation of 30 days as prescribed under Section 9 of the said Act is not applicable, if, the superannuation is challenged under Section 9 of the said Act, but the Division Bench held that the condonation of delay will depend upon facts and circumstances of each case, if challenged within the reasonable period. In that judgment, our High Court held that even three years cannot be treated as the reasonable period for challenging the action of management. Therefore, there is no substance in the present Petition and the same is liable to be dismissed. 7 It is to be noted that though both the Counsel relied on judgment passed by this Court, they failed to produce a copy of the same. 8 I have gone through the impugned order passed by the learned Presiding Officer, the application filed by the Petitioner for condonation of delay, seniority list prepared by the Respondent-Management for the year 6 7-wp-6873-2010.sxw 2002-03 and other correspondence on record. It is to be noted at the time of considering the application for condonation of delay, it is not necessary to go into the merits of the matter. First it is to be considered whether the Applicant shows sufficient cause for condonation of delay. In the present case whether Respondent-Management followed the mandatory provisions as prescribed under the said Rules or not, that cannot be considered at this stage. 9 In the present case, admittedly, the Petitioner gave no objection by his letter dated 2nd June, 2003 relinquishing his right to the post of Head Master. Thereafter, the Respondent-Management prepared the seniority list in the year 2002-03 in which Respondent No.4 was shown as a Head Master and Petitioner as Assistant Teacher. The said seniority list was circulated to all the persons including the Petitioner, who signed on the said document. This shows that the Petitioner was well aware that Respondent No.4 – Shri Revanna T. Pawar was appointed as a Head Master from the year 2002-03 and in spite of that, he failed to take appropriate steps thereafter immediately. He filed Appeal under Section 9 of the said Act before the School Tribunal, Pune, in the year 2009 and preferred application for condonation of delay. Even in the application for condonation of delay, the Petitioner has not explained the delay for filing the Appeal from the year 2003 to 2009. 7 7-wp-6873-2010.sxw 10 Considering these facts, I do not find any reason to interfere with the impugned order passed by the learned Presiding Office, School Tribunal, Pune, rejecting Petitioner’s application for condonation of delay. 11 Hence, Writ Petition is dismissed. 12 No order as to costs. (K.K.TATED, J.)