S. Padmanabhan, J.
1. This writ petition has been filed to quash the order of the Education Tribunal, Ramanathapuram, dated 9th November, 1976. The facts leading to the filing of the writ petition are as follows:
The petitioner is the Correspondent of the Hindu Girls High School, Watrap. The second respondent Subadra was at all material times employed as a teacher in the petitioner's school. For some irregularities, the petitioner terminated the services of the second respondent on 31st May, 1971. Against the said order of termination of her services, the second respondent preferred an appeal to the Inspectress of Girls' Schools, Madurai. The appellate authority allowed the appeal by the order dated 17th November, 1974 and directed reinstatement in service of the second respondent. The petitioner in turn filed a second appeal which by mistake was presented to the Chief Educational Officer instead of to the Director of School Education. The Chief Educational Officer therefore returned the appeal to the petitioner for being presented to the appropriate authority namely Director of School Education. Accordingly, the petitioner presented the appeal on 23rd December, 1974 to the Director of School Education.
2. While so, on 1st December, 1974, the Tamil Nadu Recognised Private Schools (Regulation) Act XXIX of 1974 came on the statute book with effect from 1st December, 1974. The Act for the first time created what is known as Education Tribunal to hear second appeals against the orders passed by the appellate authorities Though the Act came into force on 1st December, 974, the Tribunal was constituted only on 21st May, 1975 by GO. Ms. No 813, Education dated 21st May, 1975. Under Section 43 of the said Act:
No appeal under any provision of this Act shall be preferred after expiry of one month from the date on which the order, decision or direction appealed against, was received by the appellant;
Provided that the appellate authority may in its discretion allow further time not exceeding one month for preferring any such appeal if it is satisfied that the appellant had sufficient cause for not preferring the appeal in time.
Now the petitioner found himself in a rather difficult situation. He could not have filed an appeal on 1st December. 1974 before the Education Tribunal, because on that date no Tribunal had been constituted. He could not have filed an appeal on 2lsr May, 1975 because the appeal would have been barred by time and the Tribunal would have had jurisdiction only to excuse delay upto a period of 30 day and not: beyond that time. At the same time, his appeal had already been duly constituted before the Director of School Education on 23rd December, 1974. I use the word duly constituted' because as I have already stated, the Education Tribunal had not been established and the only authority before which the petitioner could have preferred the appeal was before the Director of School Education on 23rd December, 1974.
Section 25 of the Act reads as follows:
If, before the date of the commencement of this Act, any teacher or other person employed in any private school has been dismissed or removed or reduced in rank or his appointment has been otherwise terminated and any appeal preferred before that date-
(a) by him against such dismissal or removal, reduction in rank or termination or;
(b) by him or the educational agency against any order made before that date in the appeal referred to in Clause (a) is pending on that date, such appeal shall-
(i) in a case falling under Clause (a)' stand transferred to the appellate authority prescribed under Section 23; or
(ii) in a case falling under Clause (4), stand transferred to the Tribunal.
In view of this section, the petitioner applied to the Tribunal stating that he had already filed an appeal before the Director of School Education as early as on 23rd December, 1974 and therefore the said appeal should be transferred to the file of the Tribunal and disposed of according to law. He also filed along with his petition a copy of the appeal petition preferred before the Director of School Education and prayed that the original may be sent for by the Education Tribunal. However, the Tribunal dismissed that application. The Tribunal stated that the petitioner could have filed an appeal before the Tribunal with a petition to excuse the delay in preferring such appeal. It is in these circumstances the petitioner has asked for quashing the order of the Tribunal.
3. I have no doubt that the petitioner is entitled to succeed. On the date on which he filed the appeal before the Director of School Education, the Education Tribunal had not come into existence and therefore he could not have filed an appeal before the Tribunal as required by Section 24 of the Act. Naturally, therefore, the petitioner did what was possible, namely, to file an appeal before the then second appellate authority, namely the Director of School Education, The petitioner is not expected in law to do the impossible. The Education Tribunal was established on 21st May, 1975. All appeals pending before the other appellate authorities should get automatically transferred to the Tribunal. No doubt the statute gave the date 1st December 1974 as the date of the coming into force of the Act. But that does not mean that the other appeals which had been filed before the Director, School Education at a time when the Tribunal had not been established do not get transferred to the Education Tribunal, even assuming that Section 25 of the Act does not literally apply. The Tribunal should have exercised its discretion and ought to have withdrawn the appeal from the file of the Director of Education in keeping with the spirit of Section 25 of the Act.
4. The learned Government Pleader had no effective argument to meet the contentions of the petitioner. His only argument was that nothing prevented the petitioner from filing a fresh appeal with an application to excuse the delay in filing the appeal. I have already referred to Section 43 which limited the discretion of the Education Tribunal to excuse the delay in filing the appeal within 30 days. By the time the Tribunal itself was constituted the right of the petitioner had become barred by limitation. Therefore, he could not have presented a fresh appeal to the Education Tribunal In the circumstances, the petitioner could not be made to suffer for no fault of his. The delay in setting up an Education Tribunal as required under Section 24 of the Act, cannot defeat the right of the petitioner. In the circumstances, the order of the Education Tribunal is set aside. The rule nisi is made absolute. The Writ Petition is allowed. 1 he Education Tribunal is directed to take the appeal on file and dispose of the same according to law. The petitioner is entitled to his costs, as against the 3rd respondent. Advocate's fee Rs. 150.