STATE OF U P Vs. SHARDA SARAN PANDEY

JUDGEMENT

(1.) R. H. Zaidi. J. By means of the present petition under Article 226 of the Constitution of India, petitioner State of U. P. and others challenged the validity of the order dated 26-7-1279 passed by respondent No. 2 U. P. Public Services Tribunal II Lucknow, whereby the claim petition of respondent No. 1 was allowed.

(2.) THE facts of the case in brief are that it was on 1-12-1960, respondent No. 1 was appointed on the post of Surveillance Inspector by Addl. Director of Medical and Health. Subsequently, he was transferred from the said Department to National Maleria Epidemic Programme, Kanpur. It was on 5-10-1964 the services of the respondent No. 1 were terminated by Deputy Director Malarialogy. Respondent No. 1 filed Original Suit No. 2135 of 1971 and same was dismissed in default on 14-7-1974. Subsequently, an application for restoration was filed on 20-5-1976. In the meantime U. P. Public Services (Tribunals) Act, 1976, hereinafter referred to as the Act, came into force and the said suit including the proceedings for restoration of the suit were trans ferred to the Tribunal. Tribunal after hearing the counsel for the parties was pleased to allow the restoration application vide order dated 8-8-1978 and 10 reside the suit (claim petition) to its original number. THE order dated 8-8-1978 has become final as the validity of the said order was not challenged by the petitioners.

(3.) ON behalf of the petitioner it was contended that the application filed by respondent No. 1 for restoration of (he suit was liable to be dismissed in view of the provision of sub-clause (b) of sub-section (l)of Sections of the Act, as the restoration application was not filed within the time prescribed under law. It was contended that the Dy. Director of Health was the ap pointing authority of the respondent No. 1. Thus the services of the res pondent No. 1 were rightly terminated by Dy. Director of Health. ON the other hand, it was contended by ,;mr. Bajpai, learned counsel for respondent No. 1 that principles of resjudicaia apply by the stages, the order dated 8-8-1978 passed by Tribunal, restoring the suit to its original number hag become final and operates as res judicata. Therefore, at this stage it is not open to the petitioner to challenge the validity of the said order. It was also con* tended that subsequent amendment made in the rules conferring the power of appointment on the other authority of the respondent No. 1, who was actual and initial appointing authority.