[2025:RJ-JP:31591-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Special Appeal Writ No. 252/2013 Vijay Singh S/o Shri Umrao Singh, Plot No. 3-C, J.p. Colony, Sector No. 4, Vidyadhar Nagar, Jaipur ----Appellant Versus 1. State Of Rajasthan, Through Principal Secretary, Department Of Home, Government Secretariat, Jaipur 2. Police Commissioner, Jaipur ----Respondents For Appellant(s) : Mr.Chiranji Lal Saini For Respondent(s) : Mr.Samee Khan with Mr.Vishnu Dutt Sharma for Mr.Bhuvnesh Sharma, AAG HON'BLE MR. JUSTICE AVNEESH JHINGAN HON'BLE MR. JUSTICE BALJINDER SINGH SANDHU Order 13/08/2025 AVNEESH JHINGAN, J:- 1. This intra-court appeal is against the order of the learned Single Judge dated 21.11.2022 passed in SBCWP No.15714/2012 dismissing the writ filed by the appellant. 2. The brief facts are that the appellant was terminated from service vide order dated 26.09.1996. Aggrieved of the termination order, the petitioner filed SBCWP No.5483/1996, which was dismissed on 06.04.2010. D.B. Special Appeal (Writ) No.664/2020 was filed against the order of the learned Single Judge. On 21.01.2011, prayer made by the counsel for the appellant for withdrawal of the writ petition with liberty to avail the remedy of appeal was accepted. The appellant filed an appeal along-with an [2025:RJ-JP:31591-DB] (2 of 3) [SAW-252/2013] application for condonation of delay. The respondents on 29.04.2011 filed para-wise reply to the appeal. The appeal was dismissed by the appellate authority as time barred having not been filed within ninety days of passing of the order dated 26.09.1996. The petitioner filed SBCWP No.15714/2012 against the order of the appellate authority. The writ petition was dismissed holding that in the earlier writ petition the learned Single Judge dealt with merits of the case and the appeal was not maintainable. Hence, the present appeal. 3. Learned counsel for the appellant submits that in appeal, earlier writ petition was allowed to be withdrawn with liberty to avail remedy of appeal and order of the learned Single Judge is not in existence thereafter. The contention is that appellant after grant of permission vide order dated 21.01.2011 to withdraw the writ petition with liberty to avail remedy of appeal, immediately filed the appeal and the appellate authority erred in dismissing the appeal as time barred. 4. As per contra the order dated 26.09.1996 was challenged by filing an appeal in 2011 and the appeal, was rightly dismissed. 5. Heard learned counsel for the parties and perused the pleadings. 6. The termination order was challenged in writ petition and writ was dismissed on merits by the learned Single Judge. In intra-court appeal, the appellant was granted permission to withdraw the writ with liberty to avail remedy appeal. After withdrawal of the writ petition, order of the learned Single Judge dealing the with the merits of case cease to exist. [2025:RJ-JP:31591-DB] (3 of 3) [SAW-252/2013] 7. It cannot be lost sight of that the appellant was availing the remedies against the termination order dated 26.09.1996 and it was only after permission from this Court to withdraw the writ petition with liberty to avail alternative remedy that the appeal was filed within ninety days of withdrawal of the writ. The appellate authority erred in not considering the pendency of writ and appeal before this Court and dismissing this appeal as time barred. 8. The appeal is allowed. The order of the learned Single Judge dated 21.01.2011 and the impugned appellate order dated 07.06.2011 are set aside. The matter is remitted to the appellate authority to decide the matter afresh in accordance with law. (BALJINDER SINGH SANDHU),J (AVNEESH JHINGAN),J Monika/59 Reportable: Yes