1 W.P. No.5101.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 5101 OF 2011 Govind S/o Dasrao Chavan, Age 50 years, Occu. Nil, R/o Chatori, Tq. Palam, Dist. Parbhani. ..PETITIONER. VERSUS 1. Shri Sevadas Shikshan Prasarak Mandal Gandhinagar, Tq. Kandhar, Dist. Nanded, Through its Secretary, Shri Narayanrao Ramkishan Jadhav, Age 53 years, Occu. Service, R/o Gandhinagar, Kandhar, Dist. Nanded. 2. The Headmaster, Primary Ashram School, Bijewadi, Tq. Kandhar, Dist. Nanded. 3. The Divisional Social Welfare Officer, Latur Division, Latur. ..RESPONDENTS ... Shri K.D. Bade Patil , Advocate for petitioner Shri V.D. Gunale, Advocate for respondent Nos. 1 & 2 Shri R.P. Phatke, Addl. GP, for respondent /State 2 W.P. No.5101.11 CORAM :- S.V. GANGAPURWALA JJ. DATE:- 2nd August, 2011. ORAL JUDGMENT: Rule. Rule made returnable forthwith, with the consent of the parties taken up for final hearing. 2. The present petitioner was working as an Assistant Teacher with respondent No. 1-institution. The services of the petitioner were terminated by respondent No. 1 vide its order dated 22-06-1994. Aggrieved thereby, the petitioner preferred an appeal, invoking Section 9 of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act (“ The MEPS Act” for short) before the School Tribunal immediately. The respondent No.1-institution appeared and raised an objection to the maintainability of the appeal before the School Tribunal. Thereafter, the School Tribunal vide its Judgment and Order dated 22-03-2001, dismissed the appeal as not maintainable. The petitioner thereafter on 3 W.P. No.5101.11 20-04-2001 filed an appeal before the Divisional Social Welfare Officer i.e. the respondent No. 3, challenging the order of termination. Vide Judgment and Order dated 06-07-2009, respondent No. 3 allowed the appeal, on merits. The present respondent No.1- institution assailed the said Judgment by filing Writ Petition before this Court, bearing Writ Petition No. 7375/2009. This Court vide Judgment and Order dated 15-06-2010, allowed the said Writ Petition and remitted the matter back to respondent No. 3, with directions that the present petitioner should file an application for condonation of delay and respondent No. 3 shall consider the said application for condonation of delay on its own merits. After remand the present petitioner filed an application for condonation of delay. The said application is rejected by respondent No. 3, vide its order dated 11-05-2011. The petitioner has assailed the said order in the present Writ Petition. 3. Shri K.D. Bade Patil, learned counsel for the petitioner, submits that it was erroneous on the part of 4 W.P. No.5101.11 respondent No. 3 to reject the application for condonation of delay. The petitioner had made out a case and put- forth sufficient grounds for condonation of delay. According to the learned counsel, the petitioner was prosecuting in good faith and bonafide the remedy before a wrong forum i.e. the School Tribunal. After the School Tribunal held that the appeal before it is not maintainable, immediately within a one month, the petitioner preferred an appeal before respondent No. 3. It cannot be said that there was intentional delay in not filing the appeal before respondent No. 3. The learned counsel contends that respondent No. 3 has taken a hyper-technical approach, while rejecting the application for condonation of delay. The respondent No. 3 has not given proper reasons, while rejecting the said application. 4. Shri Gunale, learned counsel for respondent No. 1 - institution supports the order and submits that the respondent had taken the objection about the non- maintainability of appeal before the School Tribunal at 5 W.P. No.5101.11 the initial stage itself. After the objection was taken by the respondent, the petitioner at the relevant time should have immediately withdrawn the appeal filed before the School Tribunal, and filed it before respondent No. 3. There was lack of due diligence on the part of petitioner. The petitioner cannot get benefit of Section 14 of the Limitation Act. The learned counsel submits that in the mean time respondent No. 1- institution has appointed other employees, and their rights are also crystallized. The learned counsel contends that the concept of sufficient cause cannot be extended to such an extent so as to cause injustice to the other side. The learned counsel relies on the Judgment of the Apex Court in the case of Ramji Pandey and others V. Swaran Kali reported in AIR 2011 S.C. 489, and another Judgment of the Apex Court in the case of Balwant Sing (Dead) V. Jagdish Singh & Ors reported in AIR 2010 S.C. 3043. 5. The dates regarding the termination of the services of the petitioner, filing of the appeal before the School 6 W.P. No.5101.11 Tribunal immediately, after dismissal of the appeal on the ground of non-maintainability and due to lack of jurisdiction on 22-03-2001, thereafter, the petitioner filing an appeal before respondent No. 3 on 20-04-2001 are not disputed. The only bone of contention raised by the parties is the applicability of Section 14 of the Limitation Act to the facts of the present case. Prima dona consideration for applicability of Section 14 of the Limitation Act is that the litigant must be prosecuting remedy before wrong forum bonfide and in good faith. The petitioner was an Assistant Teacher in an Ashram school. The position in the year 1994 regarding the jurisdiction of the School Tribunal to entertain an appeal by a teacher working in an Ashram school was not clear. The Judgments were delivered by this Court i.e. after 1999 regarding the fact that the School Tribunal will have no jurisdiction to entertain the appeal filed by an Assistant Teacher working in an Ashram School. Even the Circulars and Government Resolutions were issued by the Government subsequently i.e. after the year 2000. 7 W.P. No.5101.11 In such circumstances, it cannot be said that the petitioner was prosecuting the remedy before the School Tribunal not in good faith or bonafide. Immediately after the School Tribunal gave a dictum that the appeal is not maintainable, within a period of one month the petitioner filed the appeal before respondent No. 3. As such, it cannot be said that the petitioner did not exercise due diligence while preferring an appeal before respondent No. 3. 6. The law laid down by the Apex Court in the case of Ramji Pandey and others V. Swaran Kali (referred supra) need not be dilated. The same is with regard to the facts in the said case. In the present case, as it is observed that the position of law as regards the maintainability of the appeal by an Assistant Teacher of an Ashram school before the School Tribunal was not crystallized, in such circumstances, the said remedy was prosecuted in good faith. It cannot be said that the benefit U/Sec. 14 of the Limitation Act would not be 8 W.P. No.5101.11 available to the petitioner. 7. For the above reasons, the Writ Petition is allowed, the impugned order dated 11-05-2011 passed by respondent No. 3, rejecting the application for condonation of delay. is quashed and set aside. The respondent No. 3 shall register an appeal, if it otherwise complies with all other legal requirements. Rule made absolute in above terms. However, there shall be no order as to costs. [S.V. GANGAPURWALA, J ] SDM* August-11