S.N.DEEDWANIA, J. - (1.) THE Municipal Board, Nawa defendant -appellant has preferred this second appeal against the judgment and decree, dated September 5, 1969 of learned Munsif, Nawa in favour of the plaintiff respondent was affirmed.
(2.) BRIEFLY stated the facts are these. Respondent Ganpatlal was an employee of the appellant and on 1 -7 -58 he was holding a post of a clerk. On 30 -12 -60, he was made a permanent employee of the appellant. Vide order, dated February 1, 1966, he was compulsorily retired with effect from the afternoon of February 18, 1966 (Ex. 7). The order is alleged to be Illegal and void because the respondent could only be removed or compulsorily mired from the service by the appointing authority i.e. the Municipal Board, Nawa and also because he was not compulsorily retired in accordance with the rules. The suit was resisted interalia on the ground that the respondent was a temporary employee. He submitted resignation vide letter dated June 3, 1965, which was accepted by the appellant. Another objection taken was that the unit was not within Imitation Both the courts below held that the suit was with limitation and the order of compulsory retirement dated February 1, 1966 (Ex. 7) was illegal and void. Learned appellate court held that the procedure for compulsory retirement of the Municipal employees was not followed. The Rajasthan Service Rules as amended from time to time are applicable to Municipal employees as provided under Rule 36 of the Rajasthan Municipal (Sub -ordinate and Ministerial Service) Rules, 1953 (hereinafter referred to and the Rules) The mandatory provisions of rule 244 of the Rajasthan Service Rules relating to compulsory retirement applicable to Municipal employees were not followed Therfore, order, dated February 1, 1966 (Ex. 7) could no be allowed to stand and was rightly struck down by the trial court. It further held that the respondent could have been compulsorily retired only of the appointing authority i. e. Municipal Board, Nawa. The appellate court considered the various resolutions namely Ex D/3 dated December 28, 1961 and Ex. D/6 dated May 1, 1963 and held that by these resolutions, a decision to compulsorily retire the respondent from the service was not taken. I have heard the learned Counsel for the parties and perused The record of the case carefully.
(3.) IT is argued in the apt instance that the appellate court was in error in coming to a conclusion that the suit was within limitation as two months period of notice could not be added to the limitation of 6 months prescribed under Section 271 of the Act. Under Section 271(1) of the Act, two months prior notice, is a condition precedent for filing a suit. Exclusion of this two months time is provided under Section 15(2) of the Limitation Act, 1963, which reads as under: S. 15. Exclusion of time in certain other cases (1) ... ... ... ... ... ... ... ... ... ... (2) ... ... ... ... ... ... ... ... ... ... (2)In compating the period of limitation for any suit of which notice has been given, or for which the previous consent or sanction of the Government or any other authority is required in accordance with the requirements of any law far the time being in force, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded. N Explanation -In excluding the time required for obtaining the consent or sanction of the Government or any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the Government or other authority shall both the counted Section 15 of the Limitation Act, therefore, provides that were a statutory notice has to be served by the plaintiff before instituting a suit, in computing the period of limitation, the period of notice in accordance with the requirements of the enactment must be excluded. It was thus observed in Jai Chand Sawhney v. Union of India 1970(I) SU (288: ] Under Section 15 of the Indian Limit it ion Act, 1908. where a statutory notice has to be served by the plaintiff before instituting any action, in computing the period of limitation, the period of notice in accordance with the requirements of the enactment must be excluded. The courts be low, therefore, rightly concluded that the suit was within imitation. ;