1 WP 2274/09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 2274 OF 2009 Pratibha d/o Balkrishna Sonawane, Aged 44 years, Occupation Nil, R/o. Plot No. 151, N – 5 (South), Sawarkar Nagar, CIDCO, Aurangabad Petitioner V E R S U S 1 Zilla Parishad, Aurangabad, Through its Chief Executive Officer Respondents 2 The Additional Divisional Commissioner, Aurangabad Division, Aurangabad Mr. Ajay T. Kanawade, Advocate, holding for Mr. S.B. Talekar, Advocate for the petitioner Mr. S.V. Shinde, Advocate for respondent No.1 Mr. N.H. Borade, AGP for respondent No.2 CORAM : A.V. NIRGUDE, J. DATED : 25th March, 2011 ORAL JUDGMENT : 1. At this stage, by consent of parties, the petition is disposed of by following order. 2. Rule. Rule made returnable forthwith. The facts leading to this petition, in short, can be narrated as under : 3. The petitioner was working as ‘Assistant Teacher’ in school run by Zilla Parishad Aurangabad. Prior to 2005, the petitioner remained absent without informing her superiors. Respondent No. 1 – Zilla Parishad issued show-cause-notice to her on 25th May, 2005, as to why she should not be compulsorily retired. Soon thereafter, the petitioner filed her reply to the show-cause-notice. She tried to explain her absence from duty. The Chief 2 WP 2274/09 Executive Officer of Zilla thereafter passed his order dated 25th July, 2005, and ordered compulsory retirement of the petitioner. This order was served on the petitioner on 5th August, 2005. 4. It is the case of the petitioner that on 6th August, 2005 her mother died. So she got emotionally disturbed for some time. She said, she engaged her Advocate to challenge the order passed by the Chief Executive Officer of Zilla Parishad, dated 25th July, 2005. But, she said, the Advocate did not take steps for quite some time. She then withdrew the papers from the said Advocate and then engaged another Advocate. She said, this second Advocate then filed for her a writ petition which was numbered as 3429 of 2007, on 11th April, 2007. This Court dismissed the writ petition on 9th April, 2008 giving liberty to the petitioner to file an appeal. The Court noted in the said order “if question of limitation does arise, the appellant authority shall take into consideration the period of the pendency of this petition from 11th April, 2007 till today”. 5. Indeed, the question of limitation did arise when the petitioner for the first time tried to file appeal before the Additional Divisional Commissioner, Aurangabad Division, Aurangabad. She filed the appeal on 23rd April, 2008 along with an application seeking condonation of delay. The appeal was admittedly delayed by about 907 days. The learned Additional Divisional Commissioner, Aurangabad Division, Aurangabad, dismissed the appeal, saying that the petitioner has failed to explain the delay. The learned Advocate appearing for the petitioner took a pertinent objection to the propriety of the order. He mentioned that the learned Additional Divisional Commissioner, who passed the impugned order, happened to be the wife of the learned Chief Executive Officer of Zilla Parishad. The petitioner has made this statement in the petition also and 3 WP 2274/09 this statement has not been denied by respondent No.2’s representative. The question therefore is, whether the learned Additional Divisional Commissioner - respondent No. 2 could have entertained the appeal against the order passed by her own husband. The learned Advocate for the petitioner has not shown this Court any Law on this subject. But, the learned AGP mentioned that similar situation arose on number of earlier occasions. Shri N.H. Borade, learned AGP informed this Court that at least in High Court, there is a practice that the Judges of High Court avoid in hearing appeals arising from Judgment/orders passed by their close relatives, such as brother etc. I think, the learned Additional Divisional Commissioner should have avoided to decide the appeal because it arose from her husband’s order. In view of this, the impugned order deserves to be set aside. Rule is made absolute, in terms of following order : ORDER 1. The impugned order dated 23rd October, 2008, stands set aside. 2. The appeal is remanded back to the learned Additional Divisional Commissioner, Aurangabad Division, Aurangabad, and the same shall not be heard and decided by Smt. Richa Bagla, I.A.S. 3. The petitioner is given liberty to file afresh affidavit giving grounds for condoning the delay. ( A.V. NIRGUDE, J. ) SRM/wp/2274/09/25/3/11ok