- (1.) The above application for condonation of delay in preferring appeal is taken out by the State/appellant against the judgement and order of the learned Single Judge dated 2nd May, 2008 passed in the above writ petition. It appears there has been delay for about 220 days. This application is strongly contested by the respondents above named, hence it was made to understand to both the parties hearing of this application and merit of the appeal is to take place simultaneously; in the event the Court finds sufficient cause having been made out, this delay would be condoned and considering the argument on merit appeal itself would be disposed of and in the event the Court finds none obviously there would be no need to consider the argument on merit, and appeal would be dismissed.
(2.) Hence factual aspect of this matter needs to be stated for which present appeal is intended to be preferred. The respondents above named were claiming to be organizing teachers and non-teaching staff of Vidyasagar Tapasili Adibasi Sikshaniketan, Police Station, Garbeta, District: Paschim Midnapore (hereinafter referred to as the said school). The said school though organized, was not being recognized by the State as well as Board of secondary Education despite repeated representations hence number of writ petitions came to be filed and several orders were passed thereon. First of which was CO. No. 955(5) of 1993 and the same was disposed of by the Hon'ble Justice Paritosh Kumar Mukherjee (as His Lordship then was) on 3rd February, 1994 directing the Board of Secondary Education to grant recognition of the said school as IV Class Junior High school. After the said writ petition was disposed of one Manik Chandra Ghosh made an application for addition of parties and modification of the said order dated 3rd February, 1994. On the application His Lordship Justice Mukherjee was pleased to recall the earlier order dated 3rd February, 1994 by order dated 25th August, 1994. This order dated 25th August 1994 was appealed against by the present respondents and the same being F.M.A.T. No. 1474 of 1994 was disposed of by the Division Bench of this Court and Their Lordships of Division Bench were pleased to allow the appeal and set aside the order of learned Single Judge dated 25th August, 1994 and fresh direction was given by the Appeal Court to the West Bengal Board of Secondary Education (hereinafter in short Board) to consider the application for grant of recognition of the said school. However, the Board refused to grant recognition while considering the application in terms of the Division Bench Judgment and order by a Memo being No. 6-S dated 3rd January, 1997. Thereafter the respondents herein filed an application before the Division Bench for clarification of the order of the Appeal Court on 27th July 1994 on various grounds and the Division Bench however dismissed the said application observing that in view of order of rejection of the said Board fresh cause of action had arisen. Thereafter the respondents challenged the order of rejection dated 3rd January, 1997 in a writ petition being WP No.17429 (W) of 1999 and the same was disposed of upon contested hearing on 29th March, 2000. By order dated 29th March, 2000 His Lordship the Hon'ble Mr. Justice Lala (as His Lordship then was) gave direction to the West Bengal Board of Secondary Education to grant recognition to school in question within a month from the date of communication of this order. Further direction was given in the said order to the respondents to forward the names of the respondent to the District Inspectors of Schools within 15 days from the date of grant of recognition of the said school for considering approval of the services of the petitioner after opportunity being given. The Board intended to prefer appeal against the order dated 29th March, 2000 with an application for condonation of delay. The appeal Court dismissed the application for condonation of delay consequently appeal was also dismissed. Subsequently a review application was made unsuccessfully in an attempt to upset the order of the learned Trial Judge as well as the order passed by the Division Bench. In spite of the dismissal of the appeal order of the learned Trial Judge having not been carried out, a contempt application was filed thence the Board granted recognition by order dated 10 September, 2003 as un-aided IV Class Junior High school provisionally for three years with effect from 1st May, 2003 without any financial assistance. The contempt application was finally heard out and His Lordship held that contemnors were guilty for not carrying out the order passed in true sense. Hence Justice Lala by an order dated 23rd June, 2004 disposed of the contempt application by deleting the word "without any financial assistance" from the said order of recognition. Thereafter the Board reconsidered the matter and in terms of the said order dated 23rd June, 2004 deleted the said words "without any financial assistance." This order of reconsideration dated 9th November, 2005 was passed informing the respondents herein that the Board had no power to grant financial assistance as the matter of grant of financial assistance is left for consideration of the State Government in compliance with the order of me Hon'ble High Court. Thus the order of Justice Lala has been accepted conclusively by the Board and even State of West Bengal did not prefer any appeal against the above order of Justice Lala. In spite of the above orders and communication made, the State respondent did not take any step for release of financial assistance and also for granting approval of appointment of the present respondents, as such DI on representation being made, had given hearing to the teaching and non-teaching staff and respondent school authorities, and he came to the conclusion that services of four teaching and two non-teaching staff could be approved with effect from 1st May, 2005 but appointment of the respondents were not accorded approval. In view of the aforesaid rejection the respondents filed the above writ petition praying for following reliefs: "a) A writ of and/or in the nature of mandamus should not be issued commanding the respondent to act and proceed in accordance with law and further commanding the respondents to approve the service of your petitioners as organiser teaching and non-teaching staff of Vidyasagar Tapasili Adibasi Sikshaniketan forthwith; b) A writ of and/or in the nature of mandamus commanding the respondents not to withhold the approval of appointment of your petitioners as organiser teaching and non-teaching Staff of Vidyasagar Tapasili Adibasi Sikshaniketan, Post Office Manalbendi, Garbeta, District-Paschim Midnapore and pay their salary on and from 1st May, 2003 till date and month by month; c) A writ of and/or in the nature of certiorari directing the respondents to transmit the entire records of the case forming the basis of withholding the approval of appointment of your petitioners as organiser teaching and non-teaching staff of Vidyasagar Tapasili Adibashi Sikshaniketan Post Office- Manalbendi, Garbeta, District - Paschim Midnapore till date and also the papers and documents forming the basis of withholding the appointment of your petitioner as Organiser Teaching and non- teaching staff of Vidyasagar Tapasili Adibasi Sikshanikatan, Post Office - Manalbendi, Garbeta, District- Paschim Midnapore till date to this Hon'ble Court and to certify the same and on behalf so certified quash the same; d) Rule NISI in terms of prayers (a) to (c) as above; e) An order do issue directing the respondents to approve the appointment of your petitioners organising teaching and non-teaching staff of Vidyasagar Tapasili Adibashi Sikshaniketan Post Office - Manalbendi, Garbeta, District-Paschim Midnapore forthwith; f) Ad interim order in terms of the prayer (e) above till the disposal of the Rule; g) And pass further order/orders and/or direction or directions, as Your Lordships may deem fit and proper;" The learned Single Judge by the impugned judgment and order after hearing the parties and considering the decisions of this Court as well as Apex Court allowed the prayer of the respondents and had given direction in the manner as follows: "Thus the respondents particularly the 4th respondent are directed to approve the appointments of the petitioners within four weeks from the date of communication of the order and once the appointments were approved by the 4th respondent the petitioners will be entitled to the salaries with effect from the date of recognition of the said high school by West Bengal Board of Secondary Education on 4th January, 2003".
(3.) In the application for condonation of delay the petitioner/appellant in order to explain the delay has stated substantially as follows: The impugned judgment and order was passed on 2nd May, 2008. It was communicated for the first time to the then District INspector of school concerned by a letter of the learned Advocate of the writ petitioners/respondents dated 14th August, 2008 which was received on 19th August, 2008. Thus it was for the first time the appellant is said to have knowledge through its officers on 19th August, 2008. Thereafter on 21st August, 2008 the then District INspector of Schools requested the learned Advocate for the State of West Bengal in Original Side to apply for a certified copy of the impugned judgment and order. Pursuant to such request application for; certified copy was filed in the Registry of the Hon'ble Court on 28th August, 2008. Folio charges/requisites of the said certified copy were notified on 17th which were put in on the same day the certified copy was made ready for delivery ultimately on 18th of March, 2009, meanwhile a proposal for preferring appeal was submitted by District INspector of school concerned. The proposal was approved by the school Education Directorate of the school Education Department Government of West Bengal and ultimately vide Memo dated 17th March, 2009, Mr. Saikat Banerjee learned Advocate was engaged in appeal. Thereafter all the papers including the certified copy were handed over to Mr. Banerjee by the Office of the appellant/petitioner No. 1 on 24th March, 2009. Upon receipt of the papers Mr. Banerjee thereafter took some time to get the documents prepared for filing the aforesaid appeal which was ultimately filed in 2nd Week of April 2009. IN the application it is stated that there has been delay for about 109 days in preferring appeal. The aforesaid statements and averments made in the said application were dealt with and/or controverted by the affidavit-in-opposition affirmed by one Mr. Tarun Kumar Ghosh in the manner as follows: Actually the delay was more than 109 days as computation of this period is patently wrong since impugned judgment and order was passed on 2nd May, 2008 and admittedly application for obtaining certified copy was made on 28th August, 2008 that is to say after expiry of 30 days of period of limitation. According to the respondent the delay would be at least 340 days. Immediately after the said impugned order was passed, by a letter dated 5th May, 2008 the learned Advocate for the writ petitioner/respondent duly communicated to the District Inspector of Schools by a letter dated 5th May 2008 and the same was received on 6th May, 2008, about passing of the order dated 2nd May, 2008. Thus the said letter was duly received by DI himself having signed. Thus it is incorrect to say that the appellant for the first time came to know about the order dated 2nd May, 2008, in the month of August, 2008. Thereafter on receipt of the certified copy of the order on 14th August, 2008 the same was communicated by registered post with acknowledgement due and the same was received on 19th August, 2008.;