1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5714 OF 2009 Ruqayya D/o. Mohammad Yusuf Ansari Age 55 years, Occ. Nil r/o. Village Borgaon (Sarwani) Talka Sillod, Dist.Aurangabad. .. Petitioner/s Versus 1] The State of Maharashtra through its Secretary, School Education Department, Mantralaya, Mumbai-32. 2] The Education Officer (Secondary) Zilla Parishad, Aurangabad. 3] Manganshah Education Society Borgaon (Sarwani), Taluka Sillod, Dist. Aurangabad, through its Secretary. 4] The Head Master, Inam-Ul-Ullum 2 Urdu High School, Borgaon (Sarwani), Taluka Sillod, Dist. Aurangabad. Respondent/s. --- Mr. M.S. Choudhari, , Advocate for petitioner. Mr. Hemant Surve, Advocate for respondent No.3. CORAM : B.R. GAVAI,J. DATE : 18th November, 2009. ORAL ORDER :- 1] Rule. Rule made returnable forthwith. Heard by consent. 2] By way of present petition, the petitioner challenges the order dated 11th November, 2008,vide which the application filed by the present petitioner for condonation of delay in filing the appeal challenging the oral termination came to be rejected. 3] According to the petitioner, the petitioner was not permitted to be continued in the school run by the respondent NO.3 society w.e.f. 1st September, 2006. According to the petitioner, there was a delay of 4 months in filing the appeal. The reasons given in the application were that, the petitioner was not paid the salary for the period from 1st September, 2006 due to the rivalry between the two groups in the management. It is specifically submitted in the application that the petitioner was not having funds so as to 3 initiate the legal proceedings. It is stated that the petitioner had arranged for loan from her relatives and after getting the loan, an appeal alongwith the application for condonation of delay came to be filed. The learned Tribunal has found that the periods specified in the application regarding condonation of delay was not properly calculated. The learned Tribunal, therefore, found that no sufficient cause has been made out by the applicant for condonation of delay and, therefore, the application was rejected. 4] Being aggrieved by the rejection of the application, the present petition. Shri Choudhary, learned counsel appearing for the petitioner submits that the learned Tribunal has erred in rejecting the application for condonation of delay. He submits that the specific ground was regarding the financial status of the petitioner and taking into consideration this aspect of the matter, the learned Tribunal ought to have allowed the application. 5] Shri Surve, learned counsel appearing on behalf of the respondent/management submits that the petitioner was never in service of the respondents. she was related to the earlier Chairman and that though she is residing at Barhanpur, record was fabricated to show that she was working in the school. He further submits that the learned Tribunal has given sufficient reasons for rejecting the application, relying on the judgment of the Apex Court and hence, no interference is warranted. 4 6] In so far as the first contention of the respondents that the petitioner was not working in the respondent No.4 school is concerned, though the same is not relevant for the purpose of adjudication of the present petition, inasmuch as, the court is not expected to go into the merits of the matter at the stage of condonation of delay, it would be relevant to refer to the observations of the Division Bench of this court in W.P. No. 3093/2007 dated 8th April, 2008. In the said petition the petitioner was required to approach this court for payment of salary between 1st December, 1996 and 31st August, 2006. A specific stand was taken by the present respondent there also, that the petitioner was not in service. However, the court, on the basis of the material placed on record and the enquiry report submitted by the Deputy Education Officer ( Secondary) Zilla Parishad, Aurangabad has negatived the contention and held that the respondent (present petitioner) was in service for a period between 2nd December, 1996 to 29th August, 1997 and from 11th August, 1998 till the end of the academic year 2005-06. In that view of the matter, the contention raised by the respondent, in this respect is without substance. However, it is to be noted that in view fo the disputed question, as to whether the salary was, in fact, paid to the respondent or not, this court declined to interfere in the petition and relegated the petitioner to the remedy available to him in law, except for the period between September, 2004 and31st August, 2006. This court found, on the basis of the material on record, that the petitioner has been able to establish that from September, 2004 till 31st August, 2006, she had not been paid the salary and directed 5 payment of salary within six months. 7] No doubt, the learned Tribunal has relied on the judgment of the Apex Court, while rejecting the application. However, it is to be noted that the length of the delay is not the relevant consideration for allowing or rejecting the application of condonation of delay. The learned tribunal has utilized major portion of the order in discussing whether the delay was 4 months, 5 months or 7 months and as to why the petitioner did not amend her application. The petitioner has specifically stated in the petition that she was under financial constraint on account of non-payment of salary and only after she received loan from her relatives, she was in a position to file the appeal. The stand of the petitioner is fortified by the observations of the Division Bench of this Court in W.P. No. 3093/2007. This court was required to issue directions to the respondent management to make payment of salary to the petitioner. In view of this position, it could not be said that the grounds raised in the application that the applicant was not in a position to file the appeal within the stipulated period on account of financial constraint since she did not receive the salary, can be said to be incorrect. 8] As already discussed hereinabove, the length of delay is not material but what the court is required to find out is, as to whether the appeal could not be preferred within limitation due to any “sufficient cause”. It is now well settled law that while condoning the delay, the court should take a 6 pragmatic view, rather than a pedantic view. The term “sufficient cause” has to be construed liberally. 9] As already discussed hereinabove, the cause for not filing the appeal within the prescribed period of limitation was paucity of funds on account of non-payment of salary by the management to the petitioner. As such, I find that the petitioner has made out a “sufficient cause” for condonation of delay. 10] In that view of the matter, the impugned order dated 11th November, 2009 is quashed and set aside. The application filed by the present petitioner for condonation of delay in filing the appeal is allowed. The learned Tribunal to decide the appeal on its own merits. [B.R. GAVAI,J.] Grt/-