IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 61 of 2008 Sajjad Hussain and others …..…… Appellants Versus District Basic Shiksha Adhikari and others ....……… Respondents Coram:- Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. Present: Mr. S.S. Yadav, Advocate for the appellants. Mr. B.K. Gupta, Advocate for respondents. Date of Decision: 25.03.2010 J.S. Khehar, C.J. (Oral) An advertisement was issued in the newspaper ‘Amar Ujala’ dated 06.08.1995 inviting applications for appointment to the posts of Urdu teacher in Primary Schools. All the appellants herein responded to the aforesaid advertisement, in furtherance whereof they were invited to appear in a written test held on 10.09.1995. By an order dated 27.10.1995, the appellants were declared successful in the aforesaid written test. Thereafter they were required to appear in a viva voce test held on 06.11.1995. It is the case of the appellants, that they appeared in the test and were found suitable for appointment to the posts of Urdu teacher (advertised on 06.08.1995). 2. It is the case of the appellants, that the Vice President of the Congress Committee made a complaint alleging irregularities conducted at the hands of the respondents in the aforesaid selection process for appointment to the posts of Urdu teacher, resultantly the Education Minister by his order dated 06.08.1997 banned the appointment of Urdu teachers. The action of the respondents, in not giving effect to the process of selection for appointment to the posts of Urdu teacher, was assailed through Writ Petition No. 3374 of 1997 filed before the High Court of Judicature at Allahabad. The aforesaid writ petition was disposed of by an order dated 28.01.1997. The case of the appellants is, 2 that as per the order dated 28.01.1997 the respondents were directed to consider the representation made by the appellants for appointment to the posts of Urdu teacher. The representation directed to be decided by this Court was disposed of by an order dated 26.04.1997, wherein the respondents arrived at the conclusion that the appellants could not be appointed as a consequence of the order passed by the Education Minister dated 06.08.1997 (banning appointment of Urdu teachers). Irrespective of the order passed by the respondents, it is the case of the appellants, that as a matter of fact there was no irregularity, whatsoever, found in the selection process. In this behalf, reference has been made by the learned counsel for the appellants to an inquiry conducted by the District Magistrate, Dehradun, wherein as per the report submitted by the District Magistrate, Dehradun dated 13.06.1996, no irregularity was found in the selection process. 3. To assail the order dated 26.04.1997 issued by the respondents declining to appoint the appellants against the posts of Urdu Teacher in furtherance of the selection process commenced/conducted in the year 1995. The appellants approached the High Court of Judicature at Allahabad by filing Writ Petition No.19112 of 1997. On the reorganization of the composite State of Uttar Pradesh, the aforesaid writ petition was transferred to this Court. Before this Court, it was re- numbered as Writ Petition (S/S) No. 2972 of 2001. During the course of pendency of Writ Petition (S/S) No. 2972 of 2001, the appellants moved Civil Miscellaneous Application No.5566 of 2004. Through the instant application, the appellants sought an interim direction against the recruitment process initiated by the respondents through an advertisement dated 19.09.2004 (whereby the respondents again advertised the posts of Urdu teacher). Since the posts of Urdu teacher were advertised yet again, a learned Single Judge of this Court disposed of Writ Petition (S/S) No. 2972 of 2001 alongwith Civil Miscellaneous Application No.5566 of 2004 by arriving at the conclusion, that the writ petition had been rendered infructuous on account of the initiation of the process of recruitment of Urdu teachers at the hands of the respondents. 3 This conclusion was drawn on the basis of advertisement issued by the respondents on 19.09.2004 for recruiting Urdu teachers. 4. After the dismissal of Writ Petition (S/S) No. 2972 of 2001, the appellants moved a review application seeking recall of the order dated 29.09.2004. The instant recall was sought on the basis of the decision rendered by this Court in Writ Petition (S/S) No. 5358 of 2001. It would be pertinent to mention, that the aforesaid writ petition was also originally filed before the High Court of Judicature at Allahabad, wherein it was numbered as Writ petition No.5822 of 1997. This Court had allowed Writ Petition (S/S) No. 5358 of 2001 by an order dated 10.12.2003. Through the aforesaid order, this Court had directed the respondents to consider the claim of Rashid Ali Khan who had participated in the same process of selection as the appellants in 1995. In compliance with the direction issued by this Court on 10.12.2003, the aforesaid Rashid Ali Khan was issued an order of appointment dated 27.05.2004. The aforesaid Rashid Ali Khan had been placed at serial number- 1 in the selection list, whereas the appellant Nos. 1, 2 and 3 were placed at serial Nos. 4, 5 and 6 respectively. The other appellants were also placed at different serial numbers in the same selection list. It was therefore the contention of the appellants, that they should be appointed in the same manner as the aforesaid Rashid Ali Khan had been appointed. The Civil Miscellaneous Application No.4182 of 2005, seeking review of the earlier order dated 29.09.2004 was, however, dismissed on 15.07.2005. 5. Dissatisfied with the order passed by this Court in disposing of Writ Petition (S/S) No.2972 of 2001, vide order dated 29.09.2004 and Civil Miscellaneous Application No.4182 of 2005 vide order dated 15.07.2005, the appellants approached this Court by filing Special Appeal No.32 of 2005. Special Appeal No.32 of 2005 was, however, dismissed on the ground of limitation. The order passed by this Court dated 24.05.2006 dismissing Special Appeal No. 32 of 2005 was set aside by the Supreme Court in Civil Appeal No.2292 of 2008, vide order dated 31.03.2008. The Supreme Court having disposed of the aforesaid Civil Miscellaneous Application No.2292 of 2008 (for 4 condonation of delay) directed this Court to decide the present Special Appeal on merits. It is, therefore, that we have considered the claim of the appellants herein consequent upon the revival of Special Appeal No.32 of 2005 (re-numbered as Special Appeal No. 61 of 2008). 6. During the course of hearing, learned counsel for the appellants has raised only one submission, namely, that Rashid Ali Khan, who had approached this Court by filing Writ Petition (S/S) No.5358 of 2001 which was disposed of by an order dated 10.12.2003 requiring the respondents to consider his claim for appointment to the post of Urdu teacher, was identically placed as the appellants herein, inasmuch as, he had also responded to the advertisement which was originally issued in the newspaper ‘Amar Ujala’ on 06.08.1995. His selection depicted in the order dated 01.08. 1997 (Annexure SA-2) was based on the same selection process, in which the appellants had participated. The appellants had also been selected in the said selection process. Whereas the aforesaid Rashid Ali Khan was placed at serial No.1 in the merit list in furtherance of the direction issued by this Court on 10.12.2003 (whereby Writ Petition (S/S) No.5358 of 2001 was disposed of) resulted in the respondents unilaterally giving him appointment against the post of Urdu teacher, vide order dated 27.05.2004. The case of the appellants is, that the appellants are identically situated to the aforesaid Rashid Ali Khan, and accordingly deserve to be appointed in the same manner as Rashid Ali Khan was appointed against the post of Urdu teacher. 7. When confronted with the factual position noticed in the foregoing paragraph, learned counsel for the respondents could not distinguish the case of the appellants from that of Rashid Ali Khan, who had approached this Court by filing Writ Petition (S/S) No. 5358 of 2001 except that the appellants herein were placed at a position inferior to the aforesaid Rashid Ali Khan in the final select list. 8. In view of the factual position depicted hereinabove pertaining to the appellants as also Rashid Ali Khan, who had also approached this Court by filing Writ Petition (S/S) No.5358 of 2001, we are satisfied that the appellants also deserve to be appointed as Urdu 5 teachers in the same manner as the aforesaid Rashid Ali Khan was appointed vide order dated 27.05.2004. We hereby accordingly direct the respondents to issue an order in favour of the appellants similar to the one issued in favour of the aforesaid Rashid Ali Khan dated 27.05.2004. Despite the aforesaid direction, it is imperative for us to clarify, that although the appellants would be deemed to be appointed against the posts of Urdu teacher in the same manner as the aforesaid Rashid Ali Khan, they would not be entitled to wages till the date of disposal of the present special appeal in terms of the principle of no work no pay. 9. Having disposed of the instant special appeal in the manner expressed hereinabove, learned counsel for the respondents points out that some of the appellants, namely, appellant Nos. 3, 8 and 11 (Hashmat Fatma, Shahida Begum and Azra Parveen respectively) had also participated in the selection process conducted by the respondents through the advertisement dated 19.09.2004 (already referred to hereinabove), it is submitted that the aforesaid appellants are already rendering service as Urdu teachers as they were also selected in response to the subsequent process of selection. As such, it is submitted, that they cannot be granted any further benefit. Having considered the instant contention advanced by the learned counsel for the respondents, all that needs to be clarified is, that the order already passed by us shall undoubtedly also apply to appellant Nos. 3, 8 and 11, however, the same would result in merely vesting a notional date of appointment in their favour, and also consequential benefits thereof in terms of the instant order. 10. The instant special appeal stands allowed in the aforesaid terms. (Sudhanshu Dhulia, J.) (J.S. Khehar, C.J.) 25.03.2010 P.Singh