1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6459 OF 2009 Maratha Yuvak Mandal .. Petitioner Vs Vitthal Tukaram Chobe Ors .. Respondents I.A. Khairdi for the petitioner Nitin Jamdar & Vijay Killedar for respondent no. 1 CORAM : Smt. V.K. TAHILRAMANI, J. DATE : 3rd August,, 2009 P.C.: 1. Heard learned counsel for the petitioner and learned counsel for the respondent. 2. The petitioner is an Educational institution. In the year 2005, Respondent no. 1 came to be appointed as headmaster in a school run by the said institution. Thereafter, after inquiry, respondent no. 1, came to be terminated on 25th August, 2008. Being aggrieved thereby, respondent no. 1 approached the Education Officer (Secondary Jilha Rma wp6459-09.sxw 2 Parishad, Solapur) for setting aside the order of dismissal passed by the present petitioner. The Education Officer set aside the order of termination by order dated 5th January, 2009. Being aggrieved thereby, the petitioner filed writ petition no. 647 of 2009 before this Court wherein the order of Education Officer came to be challenged. By order dated 22nd January, 2009, the writ petition came to be allowed. This Court set aside the order of Education Officer dated 5th January, 2009 and liberty was granted to the respondent to approach the School Tribunal with an appeal under Section 9 of M.E.P.S. Act 1977. In the said order, this Court further directed that if such an appeal is filed within a period of 4 weeks, then the School Tribunal shall decide the same on its own merits. 3. Pursuant to the order of this court, respondent filed an appeal within four weeks, however the petitioner preferred an application praying therein that as the appeal was not within limitation, the appeal be dismissed. The said application was rejected, hence this writ petition. Rma wp6459-09.sxw 3 4. The learned counsel for the petitioner contended that as the petitioner was terminated on 25th August, 2008 and he has filed an appeal before the Tribunal on 18th February, 2009. The appeal was not within limitation and hence, the Tribunal could not consider the said appeal. The learned counsel for the petitioner submitted that there is gross delay in preferring the appeal and no sufficient reason has been shown by the respondent for the delay in preferring the appeal. He submitted that this fact has not been considered by the Tribunal in the present matter and the Tribunal has erroneously proceeded to decide the appeal without addressing itself on the issue of delay. 5. Mr. Khairdi submitted that the order of termination is dated 25th August 2008, thereafter, the respondent no. 1 approached the Education Officer only on 23rd December 2008. He submitted that at that stage also, there was delay and the delay has not been explained. He submitted that thereafter also, the delay has not been explained. The learned counsel for the petitioner further submitted that this Court has specifically stated in its order dated 22nd January, 2009 that : Rma wp6459-09.sxw 4 “On the issue of condonation of delay for filing the appeal, the period of pendency of proceeding before the Education Officer as well as before this court shall be taken in to consideration.” He submitted that the Tribunal has not considered the aspect of condonation of delay at all. 6. On perusal of order dated 22nd January, 2009, it is seen that this Court gave liberty to the respondent to file appeal before the School Tribunal and in the said order, it is specifically stated that : “If such an appeal is filed within a period of four weeks from today, we direct the School Tribunal to decide the same on its merit.” The date of the decision of writ petition no. 647 of 2009 is 22nd January 2009 and admittedly respondent no. 1 has filed the appeal before the Tribunal on 18th February 2009 i.e within the period stated by this Court. Looking to the fact that this Court has granted liberty to respondent no. 1 to prefer an appeal within four weeks and accordingly, respondent no. 1 has filed an appeal within the said time and looking to the fact that this Court has specifically stated in its Rma wp6459-09.sxw 5 order dated 22nd January, 2009 that the appeal shall be disposed of on merits, in my view, no fault can be found with the order of the Tribunal rejecting the application preferred by the petitioner wherein it was prayed that the appeal may be dismissed on the ground that it was not within limitation. 7. The learned counsel for the petitioner has placed reliance on the decision in the case of Rangosingh Vs Mohansingh reported in 2001- Pat-LJR-3-137,2001-AIR(SCW)0-2351. Reliance was placed on the following observations in the said decision: “There was no jurisdiction in the additional collector to allow that appeal. The appeal was liable to be dismissed on the ground of limitation. The board of revenue before which the question of limitation was agitated was of the view that though an application of condonation of delay was not filed the delay shall be deemed to have been condoned. This is patently erroneous. In this situation the High Court was right in setting aside the Judgment of the Addl. Collector as also board of revenue. We find no infirmity in the impugned judgment” The facts in the decision relied and the facts in the present case are quite different. In the present case, respondent no. 1 approached Rma wp6459-09.sxw 6 the Tribunal after liberty was given by this Court and within the time period specified by this Court. In this view of the matter, no error can be found in the order of the Tribunal whereby the application filed by the present petitioner came to be rejected. 8. No doubt, ideally a formal application for condonation of delay ought to have been preferred but looking to the fact that this court had directed the Tribunal to dispose of the matter on merits, the Tribunal has no choice but to proceed with the matter on merits. Hence, even if the matter is remanded back to be decided on the point of delay, the Tribunal would have no option but to condone the delay and thereafter to proceed to decide the matter on merits, which is exactly the step taken by the Tribunal. 9. This Court has specifically directed the School Tribunal to decide the matter on merits and it has also stated that if an appeal is filed within a period of 4 weeks, the Tribunal shall decide the matter on merits. Admittedly, the appeal has been filed within the period of 4 weeks, therefore, obviously, the School Tribunal, pursuant to the Rma wp6459-09.sxw 7 order of this Court would have to decide the matter on merits hence no fault can be found in the order of the Tribunal in rejecting the application of the petitioner. 10 . Writ petition is dismissed. (SMT. V.K. TAHILRAMANI, J) Rma wp6459-09.sxw