JUDGMENT - GAVAI B.R., J.:-Rule. Rule is made returnable forthwith. Shri S.P. Kshirsagar; learned Counsel waives notice on behalf of the respondent Nos. 1, 2 and 3 and Shri D.P. Thakre, learned Assistant Government Pleader waives notice on behalf of the respondent No. 4. Heard finally by consent of the parties.

2. The present petition challenges the order, dated 17th January, 2003 passed by the learned Presiding Officer, School Tribunal in Appeal No. STN/227/1996, vide which the appeal of the petitioner/appellant has been rejected.

3. At the hearing of the petition, Shri A.S. Chandurkar, the learned Counsel appearing on behalf of the petitioner restricted his prayer for remand of the matter. Shri A.S. Chandurkar has raised two fold submissions. Firstly, that having entertained the appeal on merits, it was not permissible for the learned Tribunal to reject the same on the ground of delay. And if the learned Tribunal comes to a finding that the appeal is filed beyond the period of limitation, it is the duty of the Tribunal to bring it to the notice of the appellant and give him as opportunity to make an application for condonation of delay. He also submits that even on oral prayer, the Tribunal can consider the question of condonation of delay. Secondly, he submits that the learned Tribunal has to first decide the question of limitation and thereafter only it can enter into the merits of the matter. He submits that by the impugned order, the learned Tribunal has held that the appeal was filed beyond limitation and has also decided the appeal on merits. According to the learned Counsel, such a course was not permissible in law. Shri A.S. Chandurkar, the learned Counsel has relied on the judgment of the Apex Court in the case of (State of M.P. and another v. Pradeep Kumar and another)1, reported in 2000(7) S.C.C. 372 a judgment of this Court in the case of (Anusayabai Ramchandra Lande and others v. Union of India and another)2, reported in 1992(Supp.) Bom.C.R. (N.B.)376 , a judgment of the Madhya Pradesh High Court in the case of (Suresh Kumar and others v. Firm Kurban Hussain Taiyab Ali and others)3, reported in 1996 M.P.L.J. 330 and the judgment of the Full Bench of the Gujarat High Court in the case of (Municipal Corporation of Ahmedabad, through the Municipal Commissioner v. Voltas Limited and etc.)4, reported in A.I.R. 1995 Gujarat 29.

4. Shri S.P. Kshirsagar, the learned Counsel appearing on behalf of the respondent Nos. 1, 2 and 3, on the contrary, submits that the learned Presiding Officer has rightly dismissed the appeal of the petitioner. He submits that the petitioners services were terminated vide notice dated 30th March, 1996. The said notice was received on the same date. He submits that the said notice of one month came into effect on 30th April, 1996 and as such the appeal ought to have been filed within a period of one month thereof. He submitted that the petitioner could not have been permitted to challenge the imaginary termination date 8-7-1996. He submits that the learned trial Court has, therefore, rightly dismissed the appeal of the petitioner. Relying on the judgment of the learned Single Judge of this Court in the case of (Savitribai Fule Shikshan Prasarak Mandal, Wardha and another v. Dhananjay Deoraoji Diwate and others)5, reported in 2004(3) Mh.L.J. 18, he submits that since the petitioner has not challenged the termination which came into effect on 30th April, 1996, the appeal itself was not tenable. He further submits that since the respondent-management had taken a specific objection regarding the appeal being filed beyond the period of limitation, an opportunity was available to the petitioner to file an application for condonation of delay. He submits that the petitioner having not availed of the said opportunity, cannot be heard to raise the grievance in the present petition.

5. Therefore, the question that arises for consideration is as to whether it was necessary for the learned Tribunal to point o

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