State Of Uttarakhand And Others vs Kah Kashan Khan Naz And Others

Vipin Sanghi, CJ

DELAY CONDONATION APPLICATION (CLMA No. 8352 of 2019)

By this application, the appellant seeks to condone the delay of 549 days in filing the present Special Appeal.

We have heard the learned counsels.

There is no reply filed to this application seeking condonation of delay. There is no reason for us not to accept the grounds taken in this application to seek condonation of delay, in the absence of objections.

We, accordingly, accept the grounds and condone the delay in preferring the present Special Appeal. Delay Condonation Application stands disposed of.

SPECIAL APPEAL No. 635 OF 2019

The present Special Appeal is directed against the judgment rendered by the learned Single Judge in Writ Petition (S/S) No. 2387 of 2017 and Writ Petition (S/S) No. 2260 of 2015. The learned Single Judge allowed the said Writ Petitions, by placing reliance on the earlier decision of the Division Bench of this Court in Special Appeal No. 131 of 2010 dated 23.02.2011, titled “Bala Dutt Sharma v. State of Uttarakhand and others”. The learned Single Judge also took note of the fact that the said earlier judgment of this Division Bench was followed in subsequent cases as well.

A perusal of the impugned order shows that, in paragraph no. 6, the learned Additional C.S.C. for the State conceded that the controversy in hand is covered by the aforesaid decision of the Division Bench of this Court.

In the present Special Appeal, the stand taken by the appellants is that the present case is distinguishable from the case decided by the Division Bench in Special Appeal No. 131 of 2010, inasmuch as those cases related to the Schools imparting formal education. As opposed to that, the respondents are serving in Madarsas, which are not covered by the scheme in question. Other aspects have also been sought to be urged by the appellants to distinguish the present case from the earlier decided cases, referred to hereinabove.

Counsel for the respondents submits that, in the light of the fact that the impugned judgment was rendered on the concession being made by the learned Addl. C.S.C. for the appellants therein, the correct remedy available to the appellants would be to prefer a Review Application.

We find merit in the submission of the learned counsel for the respondents. In case the stand of the appellants is that the concession was wrongly made before the learned Single Judge, which led to the passing of the impugned order, the correct course of action for the appellants would be to seek Review of the said order, and to deplore the concession made in the impugned order.

We, therefore, dispose of the present Special Appeal, while granting liberty to the appellants to prefer a Review Application in the Writ Petition. In case the Review Application is filed within the next thirty days, the learned Single Judge shall deal with the same on its own merits, without going into the issue of limitation.

The Special Appeal stands disposed of in the aforesaid terms.

In sequel thereto, pending application, if any, also stands disposed of.