Where an appellate authority accepts and adjudicates an appeal on its merits despite an initial delay in filing, it is legally presumed that the delay has been condoned. The authority cannot subsequently overturn its decision on the ground of limitation once the appeal has proceeded to a final determination.

JUDGMENT :

R.Mukhopadhyay, J.

1. Heard Mr. Manoj Tondon, the learned counsel for the appellant and Mr. Indranil Bhaduri, the learned SC-IV.

2. This appeal is directed against the order dated 12.04.2022, passed by the learned Single Judge in W.P.(S) No. 3828 of 2017, whereby and whereunder, the writ application preferred against the order of dismissal dated 14.07.2004 and rejection of the appeal on the ground of delay has been dismissed.

3. The writ petitioner/appellant was posted as a Regional Education Deputy Director, Santhal Pargana Block, Dumka and vide order dated 03.10.2002 the writ petitioner was suspended from service and the departmental proceeding was initiated and charge-sheet was forwarded to the writ petitioner and the charges included indulging in corruption in payment to teachers of the Madarsa, disobeying the orders of her seniors by granting irregular promotion, illegally sending teachers of the Madarsa for training in Teachers’ Training College, indulging in corruption by colluding with her co- workers, fraud, illegal appointments and overlooking numerous rules and provisions and all these charges were for the period during which the writ petitioner was posted as District Education Superintendent, Deoghar, District Education Officer, Godda and Regional Education Deputy Director, Santhal Pargana Block, Dumka. The writ petitioner had denied the charges levelled against her by submitting a detailed reply. The departmental inquiry found the writ petitioner guilty of several charges and she was also exonerated in some of the charges. The writ petitioner was served with the inquiry report along with a second show-cause notice which was duly replied by her. Vide order dated 15.07.2004 the writ petitioner was dismissed from service under Rule- 49 of the Civil Services (Classification, Control and Appeal) Rules, 1930. The writ petitioner had preferred an appeal before the Minister of Human Resources Department, Jharkhand and despite the delay the authorities had sent it for Cabinet requisition for consideration under Rule-49 and 57(5) of the Civil Services (Classification, Control and Appeal) Rules, 1930. The Cabinet considered the appeal of the writ petitioner on the basis of merits and exonerated the writ petitioner. It has been stated that the Department of Personnel, Administrative Reforms and Rajbhasa contended that the Hon’ble Governor was the competent appellate authority and thus it was recommended to put up the appeal for his perusal/ consideration. The Hon’ble Governor found the appeal to be barred by limitation as the appeal was preferred after a delay of two years, four months and eleven days. The appeal was sent to the Cabinet for reconsideration. The Cabinet reversed its own decision and dismissed the appeal being time barred. Being aggrieved the writ petitioner preferred a writ application being W.P.(S) No. 3828 of 2017 which was dismissed vide order dated 12.04.2022 and which is the order impugned to the present letters patent appeal.

4. It has been submitted by Mr. Manoj Tandon, the learned counsel for the writ petitioner/appellant that the learned Single Judge has not considered the fact that the appeal preferred by the writ petitioner was sent to the Cabinet which itself would suggest that the delay in preferring the appeal has been condoned. Mr. Tandon while referring to Rule-64(3) of the Civil Services (Classification, Control and Appeal) Rules, 1930 has submitted that the authority instead of withholding the appeal found the same to be fit for pl