mahendra prasad tiwari Vs the state of maharastra and 7 Ors.

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 ORDINARY ORIGINAL CIVIL JURISDICTION

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 NOTICE OF MOTION NO. 1791 OF 2006

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IN

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 REVIEW PETITION NO. 6 OF 1998

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IN

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 APPEAL NO. 519 OF 1986

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IN

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 WRIT PETITION NO. 1763 OF 1981

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 Mahendra Prasad Tiwari .. Petitioner

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V/s

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 State of Maharashtra & Ors. .. Respondents

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 Petitioner in person.

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 Ms.Madhubala Kajale, A.G.P. for Respondents No.1 to 3.

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 Mr.Raju Moray with Mr.V.S. Khemka and Mr.V.V. Khemka
 for Respondents No.4 to 6.

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 CORAM : H.L. GOKHALE & J.P. DEVADHAR, JJ.

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 DATE : 5TH OCTOBER 2006

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P.C. :

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 1. Heard the Petitioner in person. Ms.Kajale,

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 A.G.P. appears for Respondents No.1 to 3. Mr.Moray

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 appears for Respondents No.4 to 6.

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 2. The notice of motion prays that delay in taking

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 out this motion be condoned and the order passed by the
 Prothonotary & Senior Master dismissing the Review
 Petition (Lodging) No.13 of 1992 on 18th November 1997
 be set aside and the Review Petition be heard on merit.

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 3. Before we deal with the prayers in this motion,
 we may refer to a few facts leading thereto.

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 (i) The Petitioner herein joined as a Teacher in the
 school run by Respondent No.4 Institution on 12th June
 1965. He was proceeded in a departmental enquiry for
 various allegations which led to his termination on 5th
 September 1981. The Petitioner filed Writ Petition
 No.1763 of 1981 on 6th October 1981 to challenge this
 order of termination. It so happened that during the
 pendency of this petition, the Maharashtra Employees of
 Private Schools (Condition of Service) Regulation Act,
 1977 ("the Act" for short) came to be implemented from
 15th July 1981. In view of the Act having been passed,
 the learned Single Judge, who was hearing the petition,
 was of the view that it will be proper that the
 Petitioner files an Appeal under section 9 of the Act to
 the Tribunal constituted thereunder. The writ petition
 was kept pending.

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 (ii) The Petitioner accordingly filed the Appeal to
 the Tribunal. This Appeal came to be dismissed on 20th

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 February 1983. The Petitioner thereafter amended his
 writ petition and challenged this order of the Tribunal.
 This amended writ petition came to be dismissed on
 merits by a Single Judge on 16th April 1986. The
 Petitioner filed an Appeal against this order of the
 learned Single Judge being Appeal No.519 of 1986. That
 Appeal also came to be dismissed on merits by a Division
 Bench on 17th March 1991. It is thereafter that the
 Petitioner filed the Review Petition bearing Lodging
 No.13 of 1991 to seek the review of the order passed by
 the Appeal Bench. The Review Petition was declared on
 14th September 1992 and lodged on 21st September 1992.
 The Petitioner took out Notice of Motion No.83 of 1993
 therein to condone the delay in applying for review
 which was a delay of over 4 months. This Notice of
 Motion appeared before a Bench which ordered that the
 same be placed before the Bench which had disposed of
 the Appeal.

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 (iii) It so transpired that there were certain office
 objections in the Review Petition according to the
 administration. The same were notified for removal of
 those objections, but the objections were not removed.
 Almost after 4 years, i.e. on 18th November 1997, the
 Review Petition and the motion therein were therefore
 rejected by Prothonotary & Senior Master by an
 administrative order passed under Rule 986 of the High

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 Court (O.S.) Rules for not removing the objections.
 Though it was an order of rejection, it was a
 conditional order. It was directed that the objection
 be removed by 9th December 1997, failing which the
 Review Petition was to stand rejected. The office of
 the Prothonotary & Senior Master issued a notice to the
 Petitioner and his advocate. On 21st November 1997, the
 Prothonotary & Senior Master is stated to have sent a
 letter to the Petitioner to remove the objection which
 can be seen from the office note of the Prothonotary
 which is annexed to the affidavit in support of the
 present motion. Inasmuch as necessary steps were not
 taken, the Review Petition stood rejected on 9th
 December 1997.

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 4. It is the case of the Petitioner that he was not
 aware of any of these developments and he came to know
 as to what had happened only when his then advocate
 Mr.Sudhan Amare returned the papers to him along with
 his forwarding letter dated 8th January 2005. As far as
 the affidavit in support of the present motion is
 concerned, the Petitioner is trying to contend that it
 is only thereafter that he is required to explain the
 delay. It is his case that on receiving the papers, he
 made a computer inquiry and on 25th July 2005 he learned
 that the Review Petition was dismissed by the above
 conditional order passed way back on 18th November 1997.

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 It is his further case that for getting a copy of the
 order and other records, he was advised to apply for
 search of the record. He applied accordingly and it is
 thereafter that he got the copy of the order by which
 the petition was dismissed by order dated 18th November
 1997 for not removing the objections. He therefore
 submits that the delay in moving this motion for setting
 aside the order of the Prothonotary & Senior Master be
 condoned and the Review Petition be restored.

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 5. We have heard Mr.Tiwari by giving him sufficient
 time since he is a party in person. We must however
 note that after his termination in the year 1981, he has
 taken a sanad as an advocate in July 1983. He has tried
 to explain the entire period from 18th November 1997
 until 2005 by stating that he came to know about the
 order when the papers were returned to him by his
 advocate.

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 6. Mr.Moray, learned counsel appearing for
 Respondents No.4 to 6, submitted that as far as this
 delay of 2972 days is concerned, unless there is some
 reasonable explanation, the Court is not expected to
 record a satisfaction that the delay deserves to be
 condoned. He referred to us a judgment of the Apex
 Court in the case of P.K. Ramachandran v. State of
Kerala - JT 1997 (8) S.C. 189. That was a case of

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 delay of 565 days and the High Court had condoned the
 delay by accepting the application for condonation which
 stated that the Advocate General’s office was fed with
 so many arbitration matters which were equally important
 and therefore there was delay in filing the concerned
 proceeding. The Apex Court observed that the High Court
 had not recorded any satisfaction that the explanation
 for delay was either reasonable or satisfactory.

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 7. In the present case, what we have to note is
 that the Petitioner had followed the matter quite
 diligently until the appeal was heard and decided and
 until he filed his review petition which was way back in
 September 1992. Thereafter it is seen that he has
 suddenly stopped attending to the matter and that is not
 a small period. The explanation for the time taken
 thereafter is that his advocate was attending to the
 matter as if the party concerned has no responsibility.
 The responsibility is sought to be cast entirely on the
 advocate who ultimately returned the papers in January
 2005. It is not possible for us to hold only the
 advocate responsible for the delay and to say that the
 Petitioner was not in any way responsible at all. The
 Petitioner has himself become an advocate in the
 meanwhile in July 1983 and surely it was expected of him
 at least to inquire and find out as to what was
 happening to his review petition. Such a gross delay

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 cannot be explained by simply saying that he was not
 aware as to what was happening and that his advocate
 alone was responsible. It is possible that the
 Petitioner was not following the matter because in the
 meanwhile he reached the age of superannuation in the
 school concerned some times in November 1995. Be that
 as it may, the law will have to be applied uniformly and
 the application for setting aside the order of the
 Prothonotary & Senior Master cannot be entertained after
 such a long lapse of time.

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 8. Mr.Tiwari contended that there were hardly any
 objections and the Prothonotary was not right in
 dismissing the review petition for not removing the
 objections. The fact remains that such an order was
 passed by the Prothonotary and there is a procedure to
 get it set aside and the procedure requires that the
 application has to be moved within the limitation
 prescribed. An order until set aside continues to hold
 the field and therefore we cannot accept this submission
 of Mr.Tiwari.

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 9. Before we dispose of the motion, we may record
 that considering that the Petitioner had put in 16 years
 of service before he was terminated, we tried to explore
 the possibility of a settlement. However, the school
 management did not respond favourably by stating that

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 its decision was confirmed by the School Tribunal, the
 learned Single Judge as well as the Division Bench and

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 that they were not agreeable for any modification.

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 10. For the reasons stated above, we cannot
 entertain this motion. The same is rejected.

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 Consequently, the earlier motion, i.e. Notice of Motion
 No.83 of 1993, will also stand dismissed. There will be
 no order as to costs.

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 (H.L. GOKHALE, J.)

¶51

 (J.P. DEVADHAR J.)

mahendra prasad tiwari v. the state of maharastra and 7 Ors.

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mahendra prasad tiwari v. the state of maharastra and 7 Ors.

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