1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Letters Patent Appeal No. 109/2010 in WRIT PETITION NO. 5675/2004 [Ajabrao Tulsiramji Patinge .vs. Shri Samarth Institute of Education and ors. ] ..................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... Mr. V.A. Kothale, Advocate for Appellant. ... CORAM : S.A. BOBDE & P.D. KODE, JJ. DATE OF RESERVING THE ORDER : 05.04. 2010. DATE OF PRONOUNCING THE ORDER :07.05. 2010. 1. Heard. 2. The appellant superannuated on 30.6.2005 after having served since 1.7.1972 in respondent no.1 School has preferred this appeal against the judgment and order dated 19.11.2009 passed by the learned Single Judge upholding the order dated 23.7.2004 passed by School Tribunal, Amravati dismissing the application filed by the appellant under section 5 of the Limitation Act for condonation of delay of 360 days occurred in filing appeal under Section 9 of M.E.P.S. Act, 1977. 3. It was the case of the appellant that even though he was the senior most teacher the Management of respondent no.1 has promoted respondent no.2 on the post of Head Mistress by order dated 16.7.2002 with effect from 23.7.2002. It was his further case that he had made certain representation 2 for redressal of his grievances to the Management and out of them last representation was given on 2.8.2003. Since the said representations were not positively considered, he intended to prefer an appeal against the relevant orders. It was also his case that since the case was pertaining to supersession as such there was no prescribed limitation for filing the appeal. However, by way of abundant precaution, he had filed the said application. The same being rejected, he had preferred Writ Petition No. 5675 of 2004 which was rejected by learned Single Judge by passing the order appealed. 4. Mr. Kothale, the learned counsel for the appellant urged that respondent no.2 was promoted by giving her jumping promotion in the name of implementation of reservation policy under the pretext of filling in the roster point from SC category. The appellant was unaware of giving of such a promotion by the Management of respondent no.1. Even the respondent no.3 has not given any hearing before granting of an approval to the appointment dated 16.7.2002 of respondent no.2. The appellant had given representations and lastly on 2.8.2003 and thereafter filed appeal No. 61 of 2002 before the School Tribunal, Amravati on 6.8.2003. He further urged that though the School Tribunal accepted that the provision of limitation of filing appeal within 30 days is not applicable in case of supersession, still came to the conclusion that appeal was not filed within reasonable period as there was delay of 360 days. 5. The learned counsel urged that School Tribunal and so also the learned Single Judge ignored the specific submission made that respondent no.1 runs only two schools and as such it was not possible to make appointment by way of promotion giving jumping promotion as there was no 3 availability of four schools. He urged thus School Tribunal and so also learned Single Judge took hyper technical view while dismissing application/ writ petition respectively preferred before them by ignoring substantial question of giving such a promotion when reservation of 24 % being permissible for SC and ST category in an institution running only 2 schools would be violative of statutory provisions of Rule 9 of MEPS (Conditions of Service) Rules, 1981. He further urged that School Tribunal and learned Single Judge were unjustified in holding that 360 days delay was an hurdle in preferring an appeal and particularly in the event of no opportunity of hearing being given to the appellant before according a jumping promotion under the grab of reservation policy. The learned counsel thus contended for admitting the appeal. 6. The issue regarding limitation of 30 days prescribed under Section 9(2) of the MEPS Act being not applicable for an appeal preferred in the event of supersession is found settled by decision of this Court in a case of Secretary, Shiorai Education Society .vs. School Tribunal reported in 2000 (2) Mh.L.J. 752 and upheld by the Division Bench in a case of Mohammad H. Khan .vs. Mohammad Majidulla reported in 2003 (Suppl) Bom C.R. 235. Having regard to the same, we are unable to find any fault with the findings to such an effect recorded in the order dated 23.7.2004 passed by School Tribunal. 7. Similarly the decision in a case of Secretary, Shiorai Education Society (supra) also reveals the observations made in paragraph no.12 to the effect: “Though there is no limitation prescribed under the statute for filing appeal to the Tribunal in case of supersession by the Management while making appointment to 4 any post by promotion, general doctrine of delay and laches would apply in this regard. It is the general rule that whenever limitation is not prescribed for filing appeal or revision, the aggrieved person is required to prefer the same within reasonable time.” 8. On the backdrop of the aforesaid legal position, examining the reasoning given by the learned Single Judge while upholding the findings given by the School Tribunal of the appellant having not proved sufficient and reasonable case for filing the appeal after delay of 360 days and the delay caused being abnormal the reasoning given reveals the learned Single Judge having taken into consideration all the relevant circumstances such as the application preferred by the appellant being vague and not disclosing any other reason except stating that certain representations were made by the appellant but again without giving details about the same and last representation being made on 2.8.2003. The same amongst other also reveals that the representation dated 2.8.2003 made by the appellant itself fails to show cause for not giving the same earlier in spite of the order being passed on 16.7.2002. In the said state of affairs we are unable to find any fault with the findings arrived by the learned Single Judge of the appellant having waited indefinitely for preferring the appeal and consequently coming to the conclusion of appellant having not shown sufficient cause for belatedly filing the appeal after period of 360 days. Needless to add that in such state of affairs no conclusion could have been reached of appellant having preferred the appeal within reasonable time as expected from a diligent person intending to have the redressal of his grievances. In the said circumstances no 5 interference was warranted on part of the learned Single Judge with the order passed by the School Tribunal which was challenged by preferring the writ petition. 9. In this view of the matter, we see no merit in the appeal. As such the judgment and order does not call for any interference. The Letter Patent Appeal accordingly stands dismissed. JUDGE JUDGE halwai