1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3272 OF 2007 Narayan Kashinath Ghule Age 50 yrs., Occu – Service, R/At : A/203, Kapaleshwar Apartments, Kacheri Road, Karjat, District – Raigad, PIN – 410 201. ..... Petitioner V/s. 1. Adijan Vidya Prasarak Mandal Rahul Hospital, Taluka Karjat, District Raigad. A Society Registered under the Societies Registration Act, through its Chairman Shri Manohar Rajaram Raut, Address : As above. 2. Head Master Manniya Raut Vidya Mandir, Kashele, Taluka Karjat, Dist. Raigad. 3. Shri Siddharth Arjun Pradhan, Adult, Occu – Service, R/At : Saikaruna Apartments, Building No.5, Block No.407, Sainagar, Dahiwadi, Tal. Karjat, Dist. Raigad. 4. Education Officer (Secondary Section), Raigad Zilla Parishad, Alibag, District Raigad. ...... Respondents Mr.N.V.Bandiwadekar, Advocate, for the Petitioner. Mr.N.P.Deshpande, Advocate, for Respondent No.1. 2 Mr.A.M.Joshi, Advocate, for Respondent Nos.2 & 3. Mr.S.K.Chinchlikar, AGP for Respondent No.4. CORAM : P.B.MAJMUDAR, J. DATED : JULY 24, 2008. P.C. 1. By filing this petition, the petitioner has challenged the order passed by the School Tribunal, Pune, dated 23-03-2007 in Appeal No.36 of 2004. The aforesaid appeal was filed by the appellant challenging his supersession in the matter of appointment as Head Master of the School. The case of the appellant before the Tribunal was that respondent No.1 runs two schools, one at Kashale and other at Diksal. It is the case of the petitioner that he was appointed as Assistant Teacher in the High School at Kashale on 04-07-1983 and at the relevant time when he approached the Tribunal, he was senior most teacher as per the seniority list maintained by respondent No.1. It is the case of the petitioner that respondent No.3 was appointed as Head Master on 09-04-2001. The said appointment was challenged by one Mr.Suresh Daulat More, on the ground that he was senior most teacher and that he was superseded by respondent No.3 and therefore, the promotion of respondent No.3 was challenged by Mr.Suresh More, by filing an appeal bearing No.131 of 2002. Said Mr.More expired on 21-08-2004. 3 2. It is the case of the petitioner that after the death of Mr.More, the petitioner was senior most teacher and therefore, his claim is required to be considered as Head Master and the respondent No.3 being junior to him, could not have been continued as Head Master. It is also the case of the petitioner that since Mr.More was senior to him, the petitioner at that time, had not challenged the decision of the management appointing Respondent No.3 as Head Master. However, since Mr.More died, the appellant approached the Tribunal on the ground that he being senior most teacher in the School, his claim is required to be considered by the Management for the said post. The Tribunal after hearing both the sides, came to the conclusion that the application is time-barred as it is not preferred within a period of limitation and on the aforesaid ground, the appeal is dismissed. 3. The aforesaid order of the Tribunal is impugned at the instance of the petitioner who was the original appellant before the Tribunal. The learned counsel for the petitioner submitted that the appeal of the petitioner was within limitation as after death of Mr.More, the appellant became eligible for appointment to the post of Head Master. Till Mr. More was alive, there was no cause of action available to the appellant to challenge the promotion of respondent No.3, as admittedly Mr.More was senior to him. After the death of Mr.More, which took place on 21-08-2004, the 4 petitioner preferred an application before the Management requesting for appointment on the Post of Head Master on 08-09-2004. The said application was not decided by the management and the petitioner was constrained to file an appeal on 21-10-2004. Under these circumstances, the appeal was within limitation. 4. The learned Advocate for the respondent No.1, on the other hand, submitted that the petitioner should have filed substantive application for condonation of delay, in which he could have explained the circumstances with a prayer to condone the delay, but without there being any application for condonation of delay, the Tribunal was justified in dismissing the appeal. 5. I have heard the learned counsel appearing in the matter. I have also gone through the impugned order of the Tribunal. It is true that the petitioner herein had not filed appeal in the year 2001 when respondent No.3 was promoted as Head Master. However, the case of the petitioner is that at the relevant time Mr.More was alive and since he had already filed an appeal, the petitioner could not have filed the appeal at that stage, as Mr.More was senior as per the senior list. It is submitted that in view of the death of Mr.More in the year 2004, the petitioner became eligible for being considered as Head Master, as he was senior most teacher after the death of Mr.More and that is how the cause of action arose after the death of 5 Mr.More and the appeal was within time. 6. However, in my view, the petitioner should have filed substantive application for condonation of delay. Considering the said aspect, I agree with the submissions of Mr.Joshi, the learned Advocate for Respondent Nos.2 & 3 that the matter should be remanded back by directing the petitioner to file application for condonation of delay. The petition is accordingly allowed by setting aside the impugned order and remanding the matter back to the Tribunal. The petitioner is given liberty to file application for condonation of delay within a period of four weeks from today before the Tribunal. The Tribunal shall decide such application after hearing both the sides and delay application should be decided within a period of two months thereafter. In case the Tribunal condones the delay, the appeal may be decided latest within a period of six months thereafter. It is clarified that it will be open for the respondent No.3 to contest the application for condonation of delay as well as appeal on all available points in accordance with law and the question about condonation of delay is to be decided by the Tribunal after hearing the concerned parties. It is further clarified that this Court has not expressed any opinion on any of the points sought to be raised in the matter and all the points are kept open for Tribunal's consideration. The petition is accordingly allowed to the aforesaid extent. No costs. 6 ( P.B.MAJMUDAR, J. )