Judicature For Rajasthan Bench High Court · 2010

27/8/2010. others HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri D.P. Sharma for the petitioners Shri Ganesh Meena, Deputy Govt. Counsel Shri Virendra Lodha for respondent No.2 Shri J.K.Dhingara for respondent No.3 By the Court: ****** This writ petition is directed against the judgment dated 9th March, 1994 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur by the appeal filed by the petitioner against the order of his termination from service was dismissed, holding that it has no jurisdiction to entertain the appeal because the impugned order of termination was passed on 1st August, 1991, whereas the Rajasthan Non-Government Educational Institutions Act, 1989 (hereinafter to be referred to as “the Act of 1989”) came into force with effect from 1st January, 1993 and the rules framed thereunder were made applicable from 1st April, 1993. Learned counsel for the petitioner has strenuously argued that the finding of the learned Tribunal that it has no jurisdiction to entertain the appeal is absolutely perverse because it is specifically mentioned in the appeal filed before the Tribunal that the petitioner had filed an appeal/representation before the Government against the order of termination of his service and that such appeal/representation was pending with the Government at the time when the Act of 1989 came into force.

Since no remedy was available to the petitioner against the order of termination, he filed writ petition before this Court, which came to be dismissed on the ground of availability of alternative remedy, with the direction to approach the Tribunal. In such circumstances, he filed an appeal before the Tribunal. Referring to sub Section (2) of Section 21 of the Act of 1989, learned counsel for the petitioner argued that according to the said provision the Tribunal had the jurisdiction to entertain the appeal of the petitioner, as sub Section (2) specifically provides that any dispute of the nature referred to in sub- section (1) and any appeal of the nature referred to in Section 19, pending before the State Government or any officer of the State Government immediately before the commencement of this Act, shall, as soon as may be after such commencement shall be liable to be transferred to the Tribunal for its decision.

In the instant case if such an appeal/representation filed by the petitioner before the State Government was not transferred to the Tribunal for its decision, the petitioner himself filed an appeal, after his writ petition filed before this Court was dismissed with that note. Learned counsel for the respondents have

opposed the writ petition. However, they could not controvert the fact that if any representation/appeal was filed by the petitioner before the State Governor prior to enforcement of the Act, the Tribunal shall have the jurisdiction to entertain such appeal if it has come before it by way of transfer and further that the petitioner had earlier approached this Court by filing writ petition, which was also dismissed, requiring him to avail alternative remedy of appeal before the Tribunal. In this view of the matter, it is evident that the petitioner has been left remedyless, inasmuch as the Tribunal having examined his matter on merits, did not pass any order either way as far as merits of the case is concerned and it rejected the appeal as being not maintainable and at the same time the writ petition of the petitioner was also dismissed by this Court as being not maintainable. In the aforesaid circumstances, I am of the considered view that the matter needs to be examined by the Tribunal on merits. Consequently, the impugned judgment dated

9.3.1994 of the Tribunal is set aside and the matter is remanded to the Tribunal for its decision on merits afresh. Since the appeal was filed way back in 1993, the Tribunal is directed to dispose of the appeal on merits expeditiously and in any case within one year from the date of production of copy of this order. Parties are directed to appear before the Tribunal on 20th September, 2010. Thanvi (MOHAMMAD RAFIQ), J.