1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 6379 OF 2010 Neeta Devidas Badgujar age 30 years, occ. nil r/o Near Wagh Bulding, Raj Tailor Balajipura, Amalner Tq. Amalner, Dist. Jalgaon. .. PETITIONER VERSUS 1 Chairman Meerai Bahu Udeshiya Vikas Sanstha Pailad, Shri Sharad Murlidhar Netkar age 45 years, occ. advocate r/o Prabuddha Housing Society Kacheri Road, Amalner Tq. Amalner, Dist. Jalgaon. 2 Head Master Meerai Bahu Udeshiya Vikas Sanstha’s Rajashree Shahu Prathamik Vidya Mandir Pailad, Tq. Amalner Dist. Jalgaon. 3 Deputy Director of Education Nashik Region, Nashik Apang Ekatma Shikshan Yojna Kakashya, Nashik, Dist. Nashik. .. RESPONDENTS WITH WRIT PETITION NO. 6419 OF 2010 2 Shobha Narayan Badgujar age 35 years, occ. nil r/o Amalner, Tq. Amalner Dist. Jalgaon. .. PETITIONER VERSUS 1 Chairman Meerai Bahu Udeshiya Vikas Sanstha Pailad, Shri Sharad Murlidhar Netkar age 45 years, occ. advocate r/o Prabuddha Housing Society Kacheri Road, Amalner Tq. Amalner, Dist. Jalgaon. 2 Head Master Meerai Bahu Udeshiya Vikas Sanstha’s Rajashree Shahu Prathamik Vidya Mandir Pailad, Tq. Amalner Dist. Jalgaon. 3 Deputy Director of Education Nashik Region, Nashik Apang Ekatma Shikshan Yojna Kakashya, Nashik, Dist. Nashik. .. RESPONDENTS Mr. Girish Rane, advocate for the petitioner. Mr. R.M. Deshmukh, advocate for respondent nos. 1 and 2. ===== CORAM : R. M. BORDE, J. DATE : 5 th OCTOBER, 2010. ORAL JUDGMENT : 3 1 Heard. 2 Rule. Rule made returnable forthwith. With the consent of the parties, the petition is taken up for final disposal at admission stage. 3 In both the petitions application tendered by the petitioners / teachers requesting for condonation of delay in preferring appeal to the School Tribunal came to be turned down in view of the order passed on 1-4-2010 and the said order rejecting the applications seeking condonation of delay is subjected to challenge in these petitions. 4 Petitioners contend that they were appointed by the school management for a period of two years commencing from the year 2006 to 2008 as against the clear vacancy. The services of the petitioners were approved by the competent authority. After completion of period of initial appointment, the petitioners were not confirmed in service nor any further order came to be issued. They continued in employment until November 2008. However, by issuing oral order the management prohibited them from attending the school. It is further contended by the petitioners that they persuaded the matter with the management by extending request for 4 issuance of order of continuation, however, the requests made by the petitioners were not considered. It is also their contention that for a considerable period they were informed by the management that their request for continuation is under active consideration. However, there were no orders issued by the management and the teachers were also prohibited from attending the school and as such they decided to approach the tribunal. In approaching the tribunal, there is delay of about 11 months and in the circumstances noted above, the petitioners / teachers requested the tribunal to condone the delay. On receipt of the applications by the petitioners, the tribunal issued notices to the management, however, the management failed to appear in the proceeding and did not resist the applications. The tribunal however, proceeded to reject the application holding that no case has been made out and that the delay has not been properly explained. 5 I have perused the applications as well as the impugned order passed by the tribunal and heard arguments advanced by respective counsel for the parties. Mr. R. M. Deshmukh, learned counsel for the management has tendered affidavit in reply wherein it is contended that the cause shown for preferring the appeal late is not convincing and the 5 tribunal was justified in rejecting the applications. Reliance is placed by the petitioners on the judgment in the matter of Collector, Land Acqusition, Anantnag and another vrs. Mst. Katiji and others reported in AIR 1987 Supreme Court 1353 wherein the Apex Court has instructed to adopt liberal approach in the matters relating to condonation of delay. Apex Court has observed thus : 1 Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2 Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3 “Every day’s delay must be explained” does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay ? The doctrine must be applied in a rational common sense pragmatic manner. 4 When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non- deliberate delay. 5 There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant doe snot stand to benefit by resorting to delay. In fact he runs a serious risk. 6 6 It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. . It is also observed by the Apex Court that a justice oriented approach be adopted when sufficient cause for condonation of delay is demonstrated, the case shall be considered favourably. 6 The tribunal, however, has placed reliance on the judgment delivered by learned Single Judge of this court in the matter of The Executive President and others vrs. Bhaskar Bhagwat Yadav and others reported in 2001(1) Bom.C.R. 159. Considering the facts of the reported matter, delay of 3 years was not condoned by the court holding that no sufficient cause has been shown. Reliance placed on the reported judgment by the tribunal is misplaced. Learned counsel for the respondent has resisted the applications placing reliance on the judgment in the matter of Mahendra Wasudeo Muley vrs. Shamkimata Shikshan Va Krida Prasarak Mandal and others reported in 2009(6) Bom.C.R. 435. Considering the facts of the case, the learned Single Judge of this court deemed it appropriate not to entertain the application seeking condonation of delay of 5 years. Reliance is also placed on a judgment in the matter of Haji Abdul Razak Yasim Patel vrs. 7 Bara Imam Masjid Trust reported in 2006(1) Bom.C.R. 776, for advancing argument that as the appeal is decided by the school tribunal, Nasik, the principal seat of High Court shall have jurisdiction. The argument is required to be referred only for the purpose of its rejection. Admittedly, the matter arises out of the area coming under the territorial jurisdiction of this bench. Both the matters pertain to Jalgaon district which falls within the territorial jurisdiction of this bench. As such, Aurangabad Bench shall have jurisdiction to entertain the petition. 7 The tribunal ought not to have rejected the application seeking condonation of delay and ought to have accepted the un-controverted contentions raised by the petitioners in the application. There was no resistance to the applications tendered by the petitioners as the management even after causing appearance chose to keep away from the proceeding. The order issued by the tribunal rejecting the applications seeking condonation of delay, in such circumstances, is erroneous and liable to be set aside. In the result, the petitions are allowed. Order passed by the tribunal on 1-4-2010 in Misc. Application Nos. 63/2009 and 64/2009 are quashed and set aside. Appeals tendered by the respective petitioners shall be taken up for consideration and the tribunal shall proceed to decide the 8 same in accordance with provisions of law. Rule made absolute accordingly. In the facts and circumstances of the case, there shall be no order as to costs. 8 Pending civil application, if any, does not survive and stands disposed of. ( R. M. BORDE, J.) dyb/office/wp6379.10.odt