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Judgment
Honourable Mr.Justice K.S. Jhaveri
By way of this Intra-Court Letters Patent Appeal, the appellant ? original petitioner has challenged the judgment and order dated 12.10.2006 passed by the Learned Single Judge in Special Civil Application No.21848 of 2006 whereby the Learned Single Judge dismissed the writ petition filed by the appellant ? original petitioner and confirmed the order dated 03.10.2006 passed by the Gujarat Affiliated Colleges Services Tribunal at Ahmedabad in Restoration Application No.1 of 2006.
We have heard Mr. Jayraj Chauhan, learned counsel appearing for the appellant, Mr. N. J. Shah, learned Assistant Government Pleader appearing for respondent No.2 and Mr. H.J. Nanavati, learned counsel appearing for respondent No.4.
The undisputed facts are that the appellant filed Application No.76 of 2003 before the Tribunal seeking direction not to terminate the services of the appellant and to provide him duplicate copy of his service book. The Tribunal vide judgment and order dated 30.12.2003 allowed the said application and directed respondent No.4 herein to provide copy of service book to the appellant within three weeks. Thereafter, the respondent No.4 filed Restoration Application No.1 of 2006 which came to be allowed by the Tribunal by judgment and order dated 03.10.2006 and the main application was kept for further hearing on 12.10.2006.
3.1 Being aggrieved by the above order, the appellant preferred writ petition being Special Civil Application No.21848 of 2006 which came to be dismissed by the Learned Single Judge on 12.10.2006.
Learned counsel for the appellant has mainly contended that the restoration application filed by the respondent No.4 was not maintainable in law as Application No.76 of 2003 was allowed and was decided on merits. Hence, at the most, the respondent No.4 could have filed application for review. However, the Tribunal allowed the said restoration application and the said order was confirmed by the Learned Single Judge. Hence, the present Letters Patent Appeal deserves to be allowed.
We are of the view that the contention raised on behalf of the appellant regarding maintainability of the restoration application is required to be accepted in view of the fact that the respondent No.4 could not have preferred restoration application as the main application was not dismissed for default and the same was decided on merits. At the most, review application could have been filed. In that view of the matter, the present Letters Patent Appeal deserves to be allowed.
In the result, the present Letters Patent Appeal is allowed. The judgment and order dated 12.10.2006 passed by the Learned Single Judge in Special Civil Application No.21848 of 2006 and the order dated 03.10.2006 passed by the Gujarat Affiliated Colleges Services Tribunal at Ahmedabad in Restoration Application No.1 of 2006 are quashed and set aside. Rule is made absolute to the above extent. There shall be no order as to costs.