2010 Supreme(Raj) 1797
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Jagdish Bhalla, Mohammad Rafiq, JJ.
Beena Sharma (Smt.) - Appellant
Versus
The State of Rajasthan and others - Respondent
D.B. Civil Special Appeal (Writ) No. 826 of 2006.
Decided On : 08-09-2010
Subject
Writ Petition - Maintainability
Act Referred
CONSTITUTION OF INDIA : Art.226
RAJASTHAN NON-GOVERNMENT EDUCATIONAL INSTITUTIONS ACT : S.18
Headnote
Constitution of India, 1950 Art.
226(3) Rajasthan Non – Government Education Institutions Act, 1993 – S. 18 – The single bench passed an order to dismiss a writ petition on the account of availability of alternate remedy under the Act – A special appeal was filed to challenge the order of the single bench – The contention put forward by the appellant was that the cause of action accumulated before the Act has come into effect – The court accepted the contention of the appellant – Therefore, the court held that the impugned judgment was liable to be set aside and the matter was remanded back to the Tribunal to be decided on the basis of merits – Hence, the special appeal was allowed.
Advocates:
For the Appellant: None present.
For the Respondents: Sriniwas Pathak, Block Education Officer.
JUDGMENT
1. - This special appeal has been directed against the Order dated 28.4.2006, dismissing the writ petition, observing that the appellant has got efficacious remedy of filing appeal before the Rajasthan Non-Government Educational Institutions Tribunal and in view of availability of alternative remedy of appeal, the writ was held to be not maintainable.
2. The appellant then preferred a Review Petition on the ground that the cause of action to file writ petition accrued to the appellant on 1st July, 1992, whereas the Rajasthan Non-Government Educational Institutions Act came into force in the State of Rajasthan w.e.f. 1st July, 1993, vide Notification dated 4th July,m 1992. According to the provisions contained in Section 18 of the said Act, right to appeal would be available to the employees of recognised institutions only if cause of action to do so has arisen on any date subsequent thereto. The Act being prospective in nature, appeal before the Tribunal would not be maintainable.
3. Mr. Sriniwas Pathak, representing the respondent has opposed the appeal.
4. On perusal of memo of appeal, we find that cause of action to file writ petition accrued to the appellant on 1st July, 1992 when she went to attend her duties on reopening of the School after summer vacations and she was not allowed to joint her duties, despite the fact that the appellant was serving the respondent institution right from 1st July, 1988. Contention of the appellant that she did not have the right to file appeal before the Tribunal deserves to be accepted, We are not persuaded to agree with the view point expressed by the learned Single Judge that the writ petition was liable to be dismissed on account of availability of alternative remedy of filing appeal
5. This appeal, therefore, succeeds and is hereby allowed. The impugned judgment is set aside and the matter is remanded back to the Tribunal for deciding the writ petition on merits.Special Appeal Allowed.
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