JUDGMENT : Sangeeta Chandra, J. Vijay Kumar Dubey is assailing the validity of the order dated 17.02.2012 passed by the learned Single Judge allowing the Civil Misc. Writ Petition No. 21251 of 1990 filed by the petitioner-respondent Anand Vardhan Tripathi as well as order dated 06.11.2012 whereby recall application filed by the petitioner-appellant has been rejected in Civil Misc. Writ Petition No. 21251 of 1990 (Anand Vardhan Tripathi v. D.I.O.S. and others). 2. Brief background of the case in brief is that Anand Vardhan Tripathi preferred Civil Misc. Writ Petition No. 21251 of 1990, assailing therein the validity of the orders dated 08.06.1990 and 23.07.1990 whereby District Inspector of Schools, Deoria has approved the promotion of Vijay Kumar Dubey as Lecturer (History) on ad-hoc basis till regular appointment was made by candidate selected and recommended by the U.P. Secondary Education Selection Board. 3. Said writ petition was taken up for final hearing on 17.02.2012 and learned Single Judge of this Court has proceeded to pass following order:- "The writ petition is directed against the orders dated 8.6.1990 and 23.7.1990 (Annexure Nos. 3 and 6 respectively to the writ petition) whereby the District Inspector of Schools, Deoria has approved promotion of respondent no. 3 as Lecturer (History) on ad hoc basis till regular appointment is made by a candidate selected and recommended by the U.P. Secondary Education Services Selection Board. It is contended that respondent no. 3 did not full fill the requisite qualification in as much as he was appointed as Demonstrator in the subject of Chemistry in L.T. Grade on 1.11.1975, though the petitioner was appointed as Assistant Teacher L.T. Grade on 12.11.1979. The respondent no. 3 passed M.A. (History) in the year 1988 and, therefore, did not had requisite experience of five years in the subject concerned so as to become eligible for promotion to the post of Lecturer (History) even on ad hoc basis. Reliance is placed on the decision of this Court in Smt. Basanti Gaur v. Regional Inspectress of Girls Schools, VII Region Gorakhpur and others, 1987 UBLBEC 121 (FB), wherein this Court has observed that five years experience must be in the subject concerned otherwise the incumbent cannot be held to be a person suitable for appointment on the post in question. Since respondent no. Since respondent no. 3 obtained degree in M.A. (History) only in 1998 and the impugned selection has been made in 1990, it is evident that respondent no. 3 lack requisite qualification for promotion to the post of Lecturer (History) and, therefore, his promotion on the said post is patently illegal. In view of above decision in Smt. Basanti Gaur v. Regional Inspectress of Girls Schools (Supra), the writ petition is allowed and the impugned orders dated 8.6.1990 and 23.7.1990 are hereby quashed". 4. Aggrieved against the order dated 17.02.2012, Special Appeal No. 324 of 2012 (Vijay Kumar Dubey v. D.I.O.S. and others) has been preferred and said special appeal in question was rejected on 18.04.2012 with liberty to move fresh application before the learned Single Judge, as arguments were advanced that the said order has been passed without affording any opportunity of hearing to the counsel for the appellant. Order dated 18.04.2012 is as follows:- ekuuh; ;rhUnz flag] U;k;ewfrZ ekuuh; eksgEen rkfgj] U;k;ewfrZ 1- vihykFkhZ ds vf/koDrk dk dFku gS fd vkisf{kr vkns'k mls fcuk lqus ikfjr fd;k x;k gSA 2- vihykFkhZ ds vf/koDrk dk dFku gS fd mls ;g vihy okil ysus dh vuqefr] ,dy U;k;ihB ds le{k vkosnu i= nsus dh Lora=rk ds lkFk] nh tk,A 3- vihykFkhZ ds vf/koDrk ds vuqjks/k ij ;g vihy mDr Lora=rk ds lkFk [kkfjt dh tkrh gSA 5. Thereafter, this much is reflected that recall application was moved and said recall application has been rejected on 06.11.2012, as follows:- "Writ petition was decided in presence of learned counsels for parties and after hearing them. This application has been filed by a new counsel who was admittedly not a counsel of any of respondents when writ petition was decided vide judgment dated 17.2.2012. In view of above, it does not lie in his mouth that judgment was passed without hearing counsel for respondents. The application is thoroughly misconceived. Rejected". 6. At this juncture, against both the orders dated 17.02.2012 and 06.11.2012 present Special Appeal has been filed. 7. Sri. B.P. Tiwari, learned counsel for the respondent no. In view of above, it does not lie in his mouth that judgment was passed without hearing counsel for respondents. The application is thoroughly misconceived. Rejected". 6. At this juncture, against both the orders dated 17.02.2012 and 06.11.2012 present Special Appeal has been filed. 7. Sri. B.P. Tiwari, learned counsel for the respondent no. 3 raised preliminary objection qua maintainability of appeal by contending that against the order dated 17.02.2012 Special Appeal is not at all maintainable, as in the past, Special Appeal No. 324 of 2012 was got dismissed on 18.04.2012 with no further liberty to prefer Special Appeal once again on the same set of ground against the said order, in view of this, Special appeal at the behest of appellant against order dated 17.02.2012 is not maintainable. Limited liberty was accorded to move review-recall application and once the same has been rejected, then only against the order dated 06.11.2012 that has been passed special appeal is maintainable and on merit there is no infirmity in the order passed while rejecting review-recall application. 8. Sri V.K. Singh learned counsel for the appellant contended with vehemence that in the present, once special appeal has been filed and same had been dismissed with liberty to move recall application and then to say that special appeal is not maintainable against the order dated 17.02.2012 and subsequent order dated 06.11.2012 would be too unjustifiable, in view of this, as order dated 17.02.2012 has merged in the order dated 06.11.2012 then on all available ground Special Appeal can be pressed, and on merit the order passed is de-hors the statutory provision, as such Special Appeal deserves to be allowed. 9. After respective argument has been advanced, factual situation on which there is no dispute that against the order dated 17.02.2012 passed by the learned Single Judge, Special Appeal has been filed. From the perusal of order that has been so passed, this much is clear that arguments were advanced to the effect that order has been passed without providing opportunity of hearing to the appellant and thereafter, Division Bench of this Court has proceeded to take note of the fact that counsel for the appellant requests to give liberty to move an application before the learned Single Judge and then on the request of the learned counsel for the appellant, aforementioned liberty has been accorded and appeal has been directed to be dismissed. Fact of the matter is that at no point of time Special Appeal Bench while passing order dated 18.04.2012 ever accorded any liberty to approach the Special Appeal Bench once again for assailing the validity of the order dated 17.02.2012 on the same set of ground. 10. Only assertion made before Special Appeal Bench has been that the order had been passed without hearing the appellant and on this facet of the matter, liberty had been accorded, and subsequently it has been found that full opportunity has been afforded to the appellant. Such observation made by the learned Single Judge that order passed on earlier occasion has been passed after hearing on recall application, has not been assailed before us. Law on the subject is clear that when an issue is raised in respect of way and manner in which proceeding has been conducted and anything contrary to the finding recorded is suggested, then at the first instance, the concerned Court is to be confronted with such a situation and then the finding returned or observation made by the Judge would be final word on the factual aspect unless there is something contrary to indicate. Here before us nothing has been indicated that would show that observation that has been made in the recall application that earlier order has been passed after affording opportunity of hearing, in view of this, order passed on the recall application is rightful order. 11. The other issue engaging our attention is that special appeal on the earlier occasion had been got dismissed as not pressed with no liberty to move another special appeal, can special appeal be yet maintainable, assailing the validity of aforementioned order that has been subjected to challenge on earlier occasion in Special Appeal that has been got dismissed as not pressed with limited liberty to move recall application. 12. Learned counsel for the appellant has placed reliance on judgment rendered in the case of Steel Authority of India Ltd. v. Ranchi Municipal Corporation and others JT 2000 (7) SC 513 for the preposition that Special Appeal would be maintainable. Relevant para no. 7 is being quoted. 7. 12. Learned counsel for the appellant has placed reliance on judgment rendered in the case of Steel Authority of India Ltd. v. Ranchi Municipal Corporation and others JT 2000 (7) SC 513 for the preposition that Special Appeal would be maintainable. Relevant para no. 7 is being quoted. 7. Considering the aforesaid facts and circumstances, the fact that party wants to move for review because incorrect statement of fact is recorded on which the High Court passed the order that being recorded in its order it was not proper for the High Court to have rejected the review petition on the principle of merger. If any factual error has crept in the impugned order and the Appellant on this premises does not want to press his appeal for moving a review petition then dismissal by the appellate court is merely based on such statement. Hence, such an order would stand on a different pedestal. Still it is open to the court to test whether any review is otherwise maintainable or whether it falls within the scope of review. The Court still has to see whether there is any such error, which is apparent on the face of record. Hence the impugned order has to be set aside. 13. The case of Steel Authority (Supra), in the facts of present case is quite distinguishable for the simple reason that Special Leave Petition was earlier withdrawn after recording the statement of the Counsel for the appellant that he would like to move review application before the High Court order, then at the said point of time, while deciding the review petition, High Court was not right to reject the review petition on the principal of the merger and then on the principle of merger, Apex Court intervened in the matter and asked the High Court, that without prejudice to the right of parties to make all such submission which are within the permissible ambit of review petition, to decide the review application. 14. Here the facts of the case in hand are nearer to the principle as set out in the case of Vinod Kapoor v. State of Goa and others 2012 (12) SCC 378 . Relevant para 9 to 13 is being quoted. 9. 14. Here the facts of the case in hand are nearer to the principle as set out in the case of Vinod Kapoor v. State of Goa and others 2012 (12) SCC 378 . Relevant para 9 to 13 is being quoted. 9. The question that we have to decide is whether the appeal will lie against the order dated 29.01.2000 of the High Court dismissing Writ Petition No.253 of 1999 when an earlier Special Leave Petition against the said order dated 29.01.2000 of the High Court was filed by the appellant but was withdrawn with the permission of this Court to pursue his remedy by way of review against the said order dated 29.01.2000 of the High Court. As the appellant has withdrawn the Special Leave to Appeal against the order dated 29.01.2000 of the High Court with permission to pursue his remedy by way of review instead and had not taken the liberty from this Court to challenge the order dated 29.01.2000 afresh by way of special leave in case he did not get relief in the review application, he is precluded from challenging the order dated 29.01.2000 of the High Court by way of Special Leave to Appeal under Article 136 of the Constitution. 10. In Abhishek Malviya v. Additional Welfare Commissioner and Another (supra), cited by the counsel for respondent No.8, the order dated 13.03.1997 of the Madhya Pradesh High Court sustaining the order of compensation passed by the Additional Welfare Commissioner was challenged before this Court in a Special Leave Petition and by order dated 04.05.1999 this Court dismissed the Special Leave Petition as withdrawn and when the fresh appeal by way of special leave under Article 136 of the Constitution was filed, this Court held that the fresh appeal is liable to be dismissed as not maintainable. Para 8 of this Court's order in the aforesaid case of Abhishek Malviya v. Additional Welfare Commissioner and Another (supra) is quoted hereinbelow: "8. We find no merit in appellant's contention. The order dated 4-5-1999 of this Court specifically refers to the error in the order describing the appellant as "deceased" and dismissed the SLP as withdrawn with the following observation: "He wants to apply to the Additional Welfare Commissioner for correction. We express no opinion in that behalf". We find no merit in appellant's contention. The order dated 4-5-1999 of this Court specifically refers to the error in the order describing the appellant as "deceased" and dismissed the SLP as withdrawn with the following observation: "He wants to apply to the Additional Welfare Commissioner for correction. We express no opinion in that behalf". No liberty was reserved to file a fresh appeal or seek review of the order dated 13-3-1997 on merits. The order dated 13-3-1997 having attained finality, his efforts to reagitate the issue again and again is an exercise in futility. We are therefore of the view that appeal is liable to be dismissed." 11. Moreover, on the High Court rejecting the application for review of the appellant, the order rejecting the application for review is not appealable by virtue of the principle in Order 47, Rule 7 of the CPC. In Shanker Motiram Nale v. Shiolalsing Gannusing Rajput; Suseel Finance & Leasing Co. v. M. Lata and Others and M.N. Haider and Others v. Kendriya Vidyalaya Sangathan and Others (supra) cited by the learned counsel for respondent No.8, this Court has consistently held that an appeal by way of Special Leave Petition under Article 136 of the Constitution is not maintainable against the order rejecting an application for review in view of the provisions of Order 47, Rule 7 of the CPC. 12. There is nothing in the decisions cited by the appellant to show that this Court has taken a view different from the view taken in Abhishek Malviya v. Additional Welfare Commissioner and Another (supra) with regard to maintainability of an appeal by way of Special Leave under Article 136 of the Constitution against an order of the High Court after an earlier Special Leave Petition against the same order had been withdrawn without any liberty to file a fresh Special Leave Petition. Similarly, there is nothing in the decisions cited by the appellant to show that this Court has taken a view that against the order of the High Court rejecting an application for review, an appeal by way of Special Leave under Article 136 of the Constitution is maintainable. 13. In the result, we hold that the Civil Appeals are not maintainable and we accordingly dismiss the same. 13. In the result, we hold that the Civil Appeals are not maintainable and we accordingly dismiss the same. We, however, make it clear that we have not expressed any opinion on the merits of the case of the appellant or on whether the Authority or the Municipal Council could under law issue the notices to the respondent no. 8 or take any action in respect of the construction made by him on the land in Survey No. 250/12 in Village Taleigao. 14. Here also fact of the matter is that at the point of time when special appeal has been got dismissed then at no point of time any liberty whatsoever has been taken to prefer Special Appeal once again against the original order contrarily limited liberty was given to approach the learned Single Judge by complaining before the learned Single Judge that order has been passed without providing opportunity of hearing. Such liberty has been invoked and thereafter recall application has been moved and learned Single Judge has given candid finding that earlier order has been passed after hearing the parties, then Special Appeal would be maintainable against the second order so passed but as against the original order, Special appeal is not maintainable. 15. With the above, present Special Appeal stands dismissed.