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2006 DIGILAW 714 (RAJ)

ADARSH CENTRAL SCHOOL v. PRAMESH CHANDRA PATHAK

2006-03-01

R.P.VYAS, RAJESH BALIA

body2006
Judgment ( 1 ) HEARD the learned counsel for the parties. ( 2 ) THIS appeal is directed against the judgment of the learned Single Judge dtd. 5. 2. 2003. This appeal was filed on 28. 1. 205 and is barred by 693 days. Hence, it is accompanied with the application under Section 5 of the limitation Act. ( 3 ) THE facts and circumstances in which this appeal has been preferred in brief are that the respondent was serving with the appellant institution and was in permanent employment of the appellant after regular selection. His appointment was terminated by order dtd. 26. 2. 1999 which has been challenged before the Educational Tribunal. By order dtd. 1. 1. 2003, the Tribunal allowed the appeal of the teacher and directed his reinstatement. The controversy which was noticed and the opinion which was expressed by the Tribunal deserve to be noticed here. ( 4 ) THE plea taken by the appellant before the Tribunal as well as before the learned Single Judge was that they have received a notice from the Board of Secondary education that if they have kept untrained teacher, then the institution can be de-recognized. It was also stated in the reply to the appeal that the Board has cancelled the recognition of the Secondary and Higher Secondary level of classes under the institution in that regard. The appellant before the Tribunal was required to present before the principal, but he has not appeared. Apart from that his conduct was not proper. Since he has not appeared before the Management Committee in pursuance of the notice and he is voluntarily remaining absent. It was also said that his services were not terminated. It was also stated that the incumben does not hold the requisite qualification for holding the post of Teacher in Sanskrit. ( 5 ) THE Tribunal found that notice given to the appellant and the statement made in the written statement are at variance. Coupled with this, the Tribunal also found that approval of the competent officer before termination of services of the employee was not obtained in terms of Rule 39 (2) read with Section 18 of the Act of 1989. Therefore, termination was held to be invalid. Coupled with this, the Tribunal also found that approval of the competent officer before termination of services of the employee was not obtained in terms of Rule 39 (2) read with Section 18 of the Act of 1989. Therefore, termination was held to be invalid. ( 6 ) THE order of the Tribunal was challenged by filing writ petition being S. B. CWP No. 456/2003 which was dismissed by the learned Single Judge agreeing with the conclusion reached by the Tribunal. Special appeal was filed against the order of the learned Single Judge and the said appeal was withdrawn on 19. 2. 2003 with a liberty to approach the learned Single judge by way of review petition. However, no liberty was sought to file fresh appeal if the review petition fails. ( 7 ) THEREAFTER the petitioner filed review petition which was dismissed on 16. 3. 2004. The order dtd. 16. 3. 2004 was also challenging by filing special appeal which was also withdrawn on 24. 1. 2005 with a view to file fresh appeal against the original order dtd. 5. 2. 2003. In these circumstances, this appeal has been filed against the order dtd. 5. 2. 2003. Apart from the fact that the petitioner having not been granted liberty to file fresh appeal while withdrawing the special appeal filed in the first instance on failure to succeed in the review petition, no special appeal was maintainable against the original order as a matter of right. Withdrawal of appeal without liberty to file fresh appeal closes his right to challenge that order in appeal. Apart from aforesaid, we have also examined the merits of the case of the appellant and are in agreement with the finding recorded by the Tribunal and affirmed by learned Single Judge. ( 8 ) IN that view of the matter we are of the opinion that no case is made out for condoning the delay of more than 18 months in filing the appeal and appeal as well as the application under Section 5 of the Limitation Act are dismissed. No order as to costs.