Uttarakhand High Court
SPA/635/2019 on 14 October, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
HON'BLE SRI JUSTICE MANOJ K. TIWARI
14TH OCTOBER, 2022
SPECIAL APPEAL No. 635 OF 2019
Between:
State of Uttarakhand and others.
...Appellants
and
Kah Kashan Khan Naz and others.
...Respondents
Counsel for the appellants. : Ms. Mamta Bisht, the learned Deputy
Advocate General for the State of
Uttarakhand.
Counsel for respondents. : Mr. Vinay Kumar, the learned counsel.
JUDGMENT : (per Sri Vipin Sanghi, C.J.)
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.
2. We have heard the learned counsels.
3. 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.
4. 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
5. 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.
6. 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.
7. In the present Special Appeal, the stand taken
by the appellants is that the present case is
2
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.
8. 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.
9. 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.
10. We, therefore, dispose of the present Special
Appeal, while granting liberty to the appellants to prefer a
3
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.
11. The Special Appeal stands disposed of in the
aforesaid terms.
12. In sequel thereto, pending application, if any,
also stands disposed of.
________________
VIPIN SANGHI, C.J.
_________________
MANOJ K. TIWARI, J.
Dt: 14th October, 2022
Rahul
