Shri Sudhakar Ganpat ... vs Lokmanya Tilak Smarak Mandal ...
2016 Latest Caselaw 3088 Bom

                                                                                       WP2166.15
                                                   1

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH 




                                                                                        
                                 NAGPUR.

                      WRIT    PETITION     NO.   2166     OF     2015




                                                                
    Sudhakar Ganpat Umargundawar,




                                                               
    aged 44 yrs. Occu. Service,
    R/o Aheri, Tah. Aheri, Distt.
    Gadchiroli.                                                              PETITIONER.




                                                
                                                VERSUS
                              
    1] Lokmanya Tilak Smarak Mandal,
    Main Road, Chandrapur, through
                             
    its President. 

    2] Santosh Sadashivrao Joshi,
    Headmaster, Late Chandrabhagabai
    Maddiwar Primary School, Aheri,
      


    Tah. Aheri, Distt. Gadchiroli.
   



    3] The Education Officer (Pri.)
    Zilla Parishad, Gadchiroli.                                              RESPONDENTS.

Shri P. N. Shende, Advocate for the petitioner.

Shri D. L. Dharmadhikari, Advocate for the respondents.

                              CORAM:     A. S. CHANDURKAR  J.
                               





                                      Dated    :   JUNE  22, 2016.

    ORAL JUDGMENT: 


                   Rule.     Heard   finally   with   consent   of   learned   counsel   for   the 

    parties.  

    2]             The petitioner is aggrieved by the order passed by the learned 





                                                                                        WP2166.15

Presiding Officer, School Tribunal, Chandrapur on an application for

condonation of delay that was filed by the petitioner along with the appeal

filed by the petitioner under Section 9 of the Maharashtra Employees of

Private Schools (Conditions of Service) Regulation Act, 1977 (for short, the

said Act). It is the case of the petitioner that he was appointed on the post of

Assistant Teacher at the school run by the respondent no.1. His date of

appointment was 28.09.1998. It is his further case that the respondent no.2

was appointed as an untrained teacher on 01.07.1997 and he acquired

training qualification subsequently. According to the petitioner the

respondent no. 1 promoted the respondent no.2 on the post of Head Master

on 01.07.2004 by disregarding the claim of the petitioner. He, therefore,

filed the aforesaid appeal under Section 9 of the said Act on 28.05.2014

seeking to challenge the order of promotion dated 01.07.2004. Along with

the said appeal he moved a separate application for condonation of delay. In

that application it was stated that the respondent no.2 had been working as

in-charge Head Master and only after receiving information under the Right

to Information Act, 2005 that he got knowledge about his supersession. This

application was opposed by the respondent nos. 1 and 2. By the impugned

order said application for condonation of delay has been rejected holding that

the delay of almost nine years was not properly explained.

3] Shri P. N. Shende, the learned counsel for the petitioner

submitted that as the petitioner was challenging his supersession, there was

no period of limitation prescribed under the provisions of Section 9(2) of the

WP2166.15

said Act for filing an appeal. He submitted that even if such application for

condonation of delay was filed, the same was only by way of abandant

precaution. He submitted that the School Tribunal ought to have entertained

the appeal on merits and ought to have decided the same. In any event he

submitted that the period of delay had been satisfactorily explained by the

petitioner which explanation ought to have been accepted by the School

Tribunal. He, therefore, submitted that the impugned order was liable to be

set aside and the appeal deserves to be decided on merits.

4] Shri D. L. Dharmadhikari, the learned counsel for the respondent

nos. 1 and 2 supported the impugned order. According to him the petitioner

having filed an application for condonation of delay and said explanation not

having been found to be satisfactory, it was not open now for the petitioner

to submit that the School Tribunal ought not to have considered the

application for condonation of delay. He submitted that even if the period of

limitation was not prescribed under Section 9(2) of the said Act, the appeal

ought to have been filed within a reasonable period. The appeal had been

filed after considerable delay and the same was rightly dismissed. He placed

reliance upon the judgment of the learned Single Judge in Secretary, Shiorai

Education Society Vs. Presiding Officer, School Tribunal & Ors.

2000(2) Maharashtra Law Journal 752 and the judgment of the Division

Bench in Mohammad Hasan Khan Vs. Mohammad Majidulla & Ors.

2003(supp.) Bom. C.R. 235. He therefore submitted that the impugned

order did not call for any interference.

WP2166.15

5] I have carefully considered the respective submissions and I have

given due consideration to the material on record. It is not in dispute that

the petitioner being aggrieved by the order of promotion dated 01.07.2004

issued in favour of the respondent no.2 has filed an appeal on 28.05.2014

along with an application for condonation of delay. The period of delay

mentioned therein is of nine years and nine months. Under the provisions of

Section 9(2) of the said Act there is no limitation prescribed for filing an

appeal before the School Tribunal in the matter of supersession by the

Management. This position stands settled in view of the decision of the

learned Single Judge in Secretary, Shiorai Education Society (supra). In

paragraph 12 of the said judgment it has been observed as under:

"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 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."

The aforesaid view has been upheld by the Division Bench in

Mohammad Hasan Khan (supra).

6] From the aforesaid legal position it is clear that though there is

no limitation prescribed for filing an appeal under Section 9 of the said Act

when the grievance is with regard to supersession, the general doctrine of

delay and laches would be applicable while considering the aspect as to

whether the challenge needs to be entertained on merits. Before considering

WP2166.15

the said aspect in the facts of the present case, it would be useful to refer to

the observations of the Hon'ble Supreme Court in Union of India and others

Vs. A Durairaj (Dead) by LRS. (2010) 14 Supreme Court Cases 389. On

the aspect of delay and laches in making a grievance regarding non-

promotion or non-selection, it was observed in para 13 as under:

"13. It is well settled that anyone who feels aggrieved by non-promotion or non-selection should approach the court/tribunal as early as

possible. If a person having a justifiable grievance allows the matter to become stale and

approaches the court/tribunal belatedly, grant of any relief on the basis of such belated application would lead to serious administrative

complications to the employer and difficulties to the other employees as it will upset the settled position regarding seniority and promotions which has been granted to others over the years. Further, where a claim is raised beyond a

decade or two from the date of cause of action, the employer will be at a great disadvantage to

effectively contest or counter the claim, as the officers who dealt with the matter and/or the relevant records relating to the matter may no longer be available. Therefore, even if no

period of limitation is prescribed, any belated challenge would be liable to be dismissed on the ground of delay and laches."

7] In the light of aforesaid if the facts of the present case are

examined, the documents on record indicate that the respondent no.2 came

to be promoted on the post of Head Master on 01.07.2004. This order of

promotion was based on the seniority list pertaining to the school in question

that was prepared on 01.07.2003. This seniority list indicating the names of

respondent no. 2 at Sr. No. 1 and the petitioner at Sr. No. 3 has been duly

signed by the petitioner without protest. This would indicate that on

WP2166.15

01.07.2003 the petitioner was aware about his placement in the senior list.

It is also pertinent to note that the petitioner has been shown to be

discharging duties as Assistant Teacher at the same school where the

respondent no.2 was holding the post of Head Master. In the application for

condonation of delay the petitioner has stated that he got the necessary

information under the Right to Information Act, 2005 in the year 2013 and it

is thereafter that he filed the present proceedings. According to the

petitioner he was under the impression that the respondent no.2 was holding

the post of incharge Head Master. In the background of the aforesaid facts

and the documents on record it cannot be said that the petitioner acted

diligently in the matter of raising a challenge to the promotion of respondent

no.2. The aforesaid also indicates that the challenge to the order of

promotion dated 01.07.2004 that was sought to be raised by filing an appeal

on 28.05.2014 would result in a stale or dead claim being sought to be

raised. It is, therefore, clear that the petitioner has not raised his grievance

with regard to his supersession within a reasonable time.

8] Though it is true that it was not necessary for the petitioner to

have filed a separate application for condonation delay along with the

appeal in which there was a grievance with regard to his supersession, the

fact as to whether the appeal was preferred within a reasonable time was

required to be gone into. Though the impugned order has been passed on

the application for condonation of delay, the grounds furnished therein have

been considered by this Court on the backdrop of the requirement of filing

WP2166.15

the appeal within a reasonable time. The appeal having been found not to

have been filed within reasonable time, it cannot be said that in the facts of

the present case any prejudice has been caused to the petitioner by

considering his explanation furnished in the application for condonation of

delay as the explanation for not filing the appeal within reasonable time.

The reasons assigned for the cause of delay and the aspect whether the

appeal was filed within reasonable time would depend on the very same

reasons.

9] In view of aforesaid, I do not find that there is any case made out

to interfere in writ jurisdiction. The appeal filed by the petitioner did not

deserve to be entertained on merits as it was filed beyond reasonable time.

Rule accordingly stands discharged with no order as to costs.

JUDGE

svk