1 901-wp-2060-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2060 OF 2011 Shri Dilip Sukhdev Patil ] Near Vidhyashram Hostel, ] Dhamankar Naka, ] Bhiwandi, Dist. Thane. ] .. Petitioner. V/s. 1.The President/Chairman, ] Siddhivinayk Shikshan Prasarak ] Mandal, a Regd. Trust, having its ] office at New Rajaram Wadi, ] Kjhindi Pada, Darga Road, ] Bhandup (W), Mumbai 400 078. ] 2 The Head Master, ] Raja Ram Sheth Vidhyalaya ] New Rajaram Wadi, Khindi Pada ] Darga Road, Bhandup (West) ] Mumbai 400 078. ] 3 The Education Inspector ] (North Zone), Yashodhan, 2nd floor, ] R.C.Chemburkar Marg, Chembur, ] Mumbai 400 071. ] 4 The Dy. Director of Education ] (Higher Secondary) Gr. Mumbai ] Jawahar Bal Bhavan, Netaji Subhash ] Road, Near Charni Road Railway ] Station, Mumbai 400 004. ] 2 901-wp-2060-11 5 The Presiding Officer, ] School Tribunal, Mumbai Region ] at Mumbai. ] .. Respondents. Mr.Vishwasrao S. Deokar, Mr. Rajesh Jadhav and Ms. Ujjawala Waychal, for the Petitioners. Mr. Shaikh Nasir Masih, Sagar P. Batavia and Mr. A.G.Kothari, for Respondent Nos.1 and 2. Mr. S.D.Rayrikar, A.G.P. for Respondent Nos.3 and 4. CORAM : K.K.TATED, J. DATE : 8th APRIL, 2011. JUDGMENT:- 1 Heard learned counsel for the parties. 2 Rule. 3 By consent, matter taken up on board for final hearing at the admission stage. 4 By this Petition under Articles 226 and 227 of the Constitution of India, the Petitioner challenges the order dated 21st April, 2009 passed by the learned Presiding Officer, School Tribunal, Bombay rejecting Petitioner’s application below Ex. 1 for condonation of delay in filing appeal under section 9 of M.E.P.S. Act. 5 A few facts of the matter are as under. 3 901-wp-2060-11 6 The Petitioner initially was appointed as Assistant Teacher in the year 1998 and at the time of termination, he was working as Head Master in Respondent No.2 school. The Petitioner was prevented from signing muster roll from 16th June, 2008 and, therefore, he approached the School Tribunal under M.E.P.S.Act for reinstatement. As there was delay in filing the said appeal of 33 days, he preferred application for condonation of delay. Application for condonation of delay and affidavit filed on 18th August, 2008. In the said application, the Petitioner explains delay of 33 days in filing the appeal. It is stated in the said affidavit that Applicant was advised first to settle the matter with the Management and it resulted in the delay. On this ground, he filed application for condonation of delay of 33 days. 7 The Respondent-Management filed their affidavit in reply, opposing the same on the ground that the Petitioner had joined some other school since January, 2008 itself and he himself abandoned the job. They further raised objection for condonation of delay on the ground that Petitioner made false statement in his application for condonation of delay. 8 Considering the submission made before the Tribunal, the Tribunal rejected the Petitioner’s application for condonation of delay mainly on merits of main appeal. The Tribunal held that in the 4 901-wp-2060-11 application for condonation of delay, at some places, Petitioner stated that he prevented from signing muster roll from 6th June, 2008 and at some places from 16th June, 2008. The Tribunal also considered the affidavit in reply filed by the Management that the Petitioner jointed some other school. 9 Heard both the parties at length. 10 The learned counsel appearing on behalf of Respondent Nos.1 and 2 submits that the present Petition suffers from delay and latches inasmuch as no proper explanations comes forward for challenging the impugned order dated 21st April, 2009. He submits that the Tribunal rejected Petitioner’s application for condonation of delay on 21st April, 2009 and the Petitioner has filed the present Petition on 17th February, 2011. So, the delay in filing Petition is of more than 18 months. He, further submits that during this period, they already appointed some other person and other person’s appointment is duly approved by the Education Officer. If the present application is allowed, the person who is already appointed as Asstt. Teacher will be affected. The learned counsel appearing on behalf of Respondent Nos.1 and 2 further submits that the Petitioner is gainfully employed in the other school i.e. Omega High School, Khindipada, Mulund (West) from January, 2008. Not only that, during pendency 5 901-wp-2060-11 of this litigation, the Petitioner continued to be employed in other school. These facts are disclosed by the Respondent Nos.1 and 2 in their affidavit in reply dated 31st March, 2011. On this ground, the learned counsel appearing on behalf of Respondent Nos.1 and 2 submits that the Petitioner failed to make out any case for condonation of delay and, therefore, Writ Petition to be dismissed with costs. 11 I perused the affidavit in reply filed by the management. It is to be noted that though Respondent in their reply raised several grounds for rejection to the Petitioner’s application for condonation of delay, but nowhere they stated when they prevented Petitioner from signing muster roll and/or when they terminated his services. In affidavit in reply filed by them before this Court as well as in the reply filed before the Tribunal, they failed to disclose the exact date of termination of the Petitioner from services nor they stated any date since when Petitioner failed to attend on duty. In the present case, the Petitioner filed application for condonation of delay in filing appeal under section 9 of M.E.P.S.Act as against alleged termination dated 16th June, 2008. The Tribunal instead of considering the reasons for condonation of delay in filing appeal, decided Petitioner’s application for condonation of delay on merits of the appeal itself which is usually 6 901-wp-2060-11 not permissible in law. In any case, the Apex Court in the matter of Collector, Land Acquisition, Anantnag and another v/s. Mst. Katiji and Others reported in AIR 1987 SC page 1353 held that ordinarily a litigation does not stand to benefit by lodging an appeal late. Para 3 of the said judgment reads as under:- “ The legislature has confirmed the power to condone the delay by enacting under section 5 of the Indian Limitation Act, 1963 till the High Court will not dispose off the appeal on merits after affording the reasonable opportunity of hearing both the sides.” After going through the application dated 18th August, 2008 filed by the Petitioner for condonation of delay of 33 days, I am satisfied that the Petitioner made out sufficient cause for condonation of delay. 12 It is to be noted that the Petitioner in para nos.11 and 12 explains the delay in filing present Writ Petition. It is specifically stated that because of financial difficulties, he could not file the Writ Petition and approached this Court soon after the impugned order dated 21st April, 2009 was passed by the Trial Court. Considering the reasons disclosed by the Petitioner in para nos.11 and 12, I am satisfied that the Petitioner explains the latches in approaching this Court. 7 901-wp-2060-11 13 Considering the above circumstances and facts of the matter, I am of the opinion that the Tribunal committed error in rejecting the application for condonation of delay. Application filed by the Petitioner for condonation of delay in Appeal under section 9 of M.E.P.S.Act dated 18th August, 2008 is allowed. 14 School Tribunal, Mumbai is directed to register the Appeal and decide the same on merits. 15 Writ Petition is disposed off accordingly. (K.K.TATED, J.)