JUDGMENT
Narendra Kumar Jain, J.
1. These special appeals are directed against the judgment of the learned Single Judge, whereby writ petitions filed by the appellants were dismissed. These special appeals involve similar question of law, therefore, the same are decided by a common order.
2. The facts of D.B.C. Special Appeal No. 739/1994 Smt. Chhoti Devi v. State of Rajasthan and Ors. are that the appellant is having National Trade Certificate (for short ‘N.T.C.’} in cutting and tailoring course and after undergoing training during the period of August, 1984 to July, 1985, the appellant was awarded National Trade Certificate. The case Of the appellant is that the N.T.C. Course was treated as sufficient qualification for the appointment on the post of General Teacher. However, the appellant’s application was not considered by the respondents for appointment on the post of Teacher Grade-III, therefore, she filed S. B. C. W. P. No. 4428/1989 before this Court. The writ petition of the appellant was allowed by this Court vide judgment dated 28.6.1991, and in pursuance of the judgment of this Court dated 28.6.1991, the appellant was appointed as Teacher Grade-111 vide Order dated 11.3.1992. The appellant joined the duty on the post of Teacher Grade-III and worked continuously. However, vide Order dated 5.5.1994 the Vikash Adhikari Panchayat Samiti, Laxmangarh, district Sikar issued a notice terminating the services of the appellant w.e.f. 4.6.1994 on the basis of the circular dated 7.4.1994 issued by the Rural Development and Panchayati Raj Department. The circular dated 7.4.1994 was issued on the basis of the judgment of the Hon’ble Supreme Court given in Civil Appeal No. 7031/1993 State of Rajasthan v. Shyam Lal Joshi, 1994(1) SCC 593. The termination Order dated 5.5.1994 further reveals that in the circular dated 7.4.1994 issued by the State Government, there is mention that all the Teachers, who have been appointed after 6.11.1985 by the District Establishment Committee holding qualification of N. T. C. are to be removed from the services as they are not eligible for appointment the post of General Teacher i.e., Teacher Grade-III. The appellant filed S. B. C. W. P. No. 2828/1994 assailing the aforesaid two orders dated 7.4.1994 as well as notice/order dated 5.5.1994.
3. The learned Single Judge of this Court dismissed the writ petition of the petitioner vide its judgment dated 2.9.1994 in view of the judgment of the Hon’ble Supreme Court delivered in the case of the State of Rajasthan v. Shyam Lal Joshi and Ors., 1994(1) SCC 593.
4. Being aggrieved with the aforesaid judgment, the appellant filed the present special appeal before Division Bench, who vide its Order dated 28.9.1994 dismissed the special appeal filed by the appellant. The appellant thereafter filed a special leave petition before the Hon’ble Supreme Court. The Hon’ble Supreme Court granted the leave to appeal and disposed of the civil appeal filed by the appellant. The judgment of the Division Bench was set aside and the ease was remanded back to dispose of the appeal in the light of the observation made in the order. The Order dated 1.3.1996 passed by the Apex Court is reproduced as under: –
“Leave granted.
It is stated on behalf of the appellants that their services have been terminated in view of the judgment of this Court in the case of State of Rajasthan v. Shyam Lal Joshi and Ors. reported in 1994(1) SCC 593. It appears that out of the five appellants four appellants l, 2, 4 & 5. Smt. Chhoti Devi, Mr. Vidyadhar Singh Ola, Mr. Satinder Pal Singh & Ms. Amita Devi had filed writ petitions, which were allowed by the learned Single Judge of the High Court. No appeal was filed on behalf of the State against those judgments. The appeal filed before this Court was against the judgments in other writ petitions. According to the appellants any later judgment of this Court shall not take away the effect or finality of the judgment in favour of aforesaid 4 appellants. According to us this aspect of the matter should have been considered by the High Court. Accordingly, we dismiss the appeals so far appellant No. 3 Kamlesh Kumar is concerned. So far remaining 4 appellants are concerned, the appeals are allowed to the extent that the judgment of the High Court is set aside and we request the High Court to dispose of the appeals filed on their behalf against the second Order of termination afresh in the light of the observation made above. No costs.”
5. Under the aforesaid circumstances, the case was heard, Learned counsel for the appellant has argued before us that the appellant obtained the N.T.C. Certificate way back in the year 1985 and it was treated as equivalent to the qualification as mentioned in the Rajasthan Education Subordinate Service Rules, 1971 for appointment on the post of General Teacher. However, when the appellant’s application in pursuance of the advertisement was not entertained, the appellant filed S.B.C.W.P. No. 4428/1989 and this Court allowed the writ petition of the appellant vide its judgment dated 28.6.1991. Learned counsel for the appellant further submits that Order of the learned Single Judge was not challenged by the respondents and that attained the finality and in pursuance of the judgment of the learned Single Judge dated 28.6.1991, the appellant was treated as qualified for appointment on the post of Teacher Grade-III and vide Order dated 11.3.1992, the appellant was appointed on the post of Teacher Grade-Ill, the appellant continued on the said post till passing of the Order dated 5.5.1994 terminating the service of the appellant w.e.f. 4.6.1944. Learned counsel for the appellant further submits that initially interim stay Order was granted by this Court on 25.5.1994 and the appellant was allowed to continue on the post of Teacher Grade-III. However, learned Single Judge without considering the fact that S.B.C.W.P. No. 4428/1989 of the appellant was allowed and the direction was giving to treat that appellant as qualified for the purpose of appointment on the post of Teacher Grade-III. That judgment was not challenged by the respondents and the same attained the Finality and could not have been questioned by the respondents.
6. Learned counsel for the appellant submits that the Hon’ble Supreme Court has made observations and directions in its Order dated 1.3.1996 as reproduced above that any later judgment of the Hon’ble Apex Court will not take away the effect or finality of the judgment passed in favour of the appellant. The observations of the Hon’ble Supreme Court clearly show that in case the judgment dated 28.6.1991 given in favour of the appellant, has attained the finality and the appellant was given appointment in pursuance of the said order, then subsequent judgment may be of the Hon’ble Apex Court given in Shyamla’s case, will not take away the effect or finality of the judgment in favour of the appellant.
7. Learned counsel for the appellant has also cited a judgment of the Hon’ble Supreme Court delivered in the case of Gorie Gouri Naidu (Minor) and Anr. v. Thandrothu Bodemma and Ors., 1997 (2) SCC 552, wherein it was held that Inter purities judgment rendered by the court of competent jurisdiction, even if erroneous, would bind the parties. Learned counsel for the appellant also cited the judgment given in the case of V.S. Charati v. Hussein Nhanu Jamadar, 1999 (1) SCC 273, wherein it was held that a decision rendered by a Tribunal/Court in the absence of challenge, becomes final and binding on both the parties and merely because it may be wrong, it would not become a nullity.
8. Learned counsel for the appellant further argued that circular dated 7.4.1994 on the basis of which the impugned termination Order has been passed, is contrary to the judgment of the Hon’ble Supreme Court given in the case of Shyamlal Joshi (supra), as the Hon’ble Apex Court never said that all persons selected or appointed having qualification of N.T.C. on the post of General Teacher, after 6.11.1985 should be removed. He submits that the Hon’ble Supreme Court passed its judgment on 16.11.1993 in the case of Shyamlal Joshi (supra), whereas the writ petition of the appellant was allowed way back on 28.6.1991 and the said judgment was never challenged by the respondents and it attained the finality, therefore, the appointment Order issued in favour of the appellant on 11.3.1992 was legal-one and service of the appellant could not have been terminated on the basis of the circular dated 7.4.1994 based on the judgment of the Hon’ble Supreme Court in the case of Shyamlal Joshi (supra). Learned counsel for the appellant further submits that the respondents have wrongly interpreted the judgment of the Hon’ble Supreme Court given in the case of Shyamlal Joshi (supra). Moreso the said judgment is not binding in the case of the appellant where the judgment dated 28.6.1991 has attained the finality.
9. The appeal has been opposed by the respondents on the ground that the appellants are holding National Trade Certificate and as per the Rajasthan Education Subordinate Service Rules, they are not eligible for appointment on the post of General Teacher i.e., Teacher Grade-III. The Hon’ble Supreme Court has held that the persons possessing National Trade Certificate can only be appointed on the post of Teacher in Craft for which they are holding the Certificate and cannot be appointed as primary school teacher. He further submits that the circular dated 5.5.1994 is based on the judgment of the Hon’ble Supreme Court, which requires no interference. He further submits that the impugned Order of the termination of the services of the appellants is based on aforesaid circular dated 7.4.1994 as well as the judgment of the Hon’ble Supreme Court, therefore, the appeals are liable to be dismissed.
10. We have considered the rival submissions of both the parties.
11. It is not in dispute that the appellant filed S.B.C.W.P. No. 4428/1989 before this Court, which was allowed vide judgment dated 28.6.1991 and the respondents were directed to treat the appellant as eligible for appointment on the post of Teacher Grade-III. The said judgment dated 28.6.1991 was not challenged by the respondents and the appointment on the post of Teacher Grade-111 was given to the appellant vide Order dated 11.3.1992. No doubt, the Hon’ble Supreme Court in the case of Shyamlal Joshi (supra), to taken a view that the persons possessing the National Trade Certificate can only be appointed on the post of Craft Teacher and cannot be appointed as General Teacher, but a bare perusal of the judgment of the Hon’ble Supreme Court will clearly show that the Hon’ble Supreme Court never directed to terminate the service of all the Genera! Teachers, who were appointed after 6,11.1985. Learned counsel for the respondents could not satisfy us as to how the State Government mentioned the cut off date i.e., 6.11.1985 in the circular dated 7.4.1994. The judgment of the Hon’ble Supreme Court was delivered on 16.11.1993 whereas the writ petition of the appellant was allowed on 28.6.1991 and the appointment Order was issued on 11.3.1992. There is no dispute that judgment dated 28.6.1991 was not challenged by the respondents either before the Division Bench or before the Hon’ble Supreme Court. Therefore, issuance of the circular dated 7.4.1994 was contrary to the judgment of the Hon’ble Supreme Court to the extent of fixing the cut off date as “after 6.11.1985”. The persons holding the National Trade Certificate could not have been appointed after the judgment of the Hon’ble Supreme Court Court delivered on 16.11.1993 and the said judgment was also binding from the earlier date in the cases of the persons, who were before the Hon’ble Supreme Court. So far as the present appellants are concerned, their judgments were not challenged before the Division Bench or before the Hon’ble Supreme Court, therefore, the services of the appellants could not have been terminated after the judgment delivered by the Hon’ble Supreme Court on 16.11.1993 in the case of Shyamlal Joshi (supra).
12. The Hon’ble Supreme Court in the present case in its Order dated 1.3.1996 as reproduced above, has mentioned that any later judgment of the Hon’ble Apex Court shall not take away the effect of the judgment passed in favour of the appellants. The learned Single Judge in its impugned Order under appeal dated 2.9.1994 has only referred the judgment given in the case of Shyamlal Joshi (supra), but has not considered that the appellant’s earlier writ petition was allowed in the year 1991, which was not challenged and that attained finality which was binding on the respondents; therefore, the special appeals of the appellants are liable to be allowed.
13. Consequently, the termination of the appellants as also the impugned judgment and Order of the learned Single Judge are set aside and accordingly these four appeals are allowed. The respondents are directed to reinstate the appellants on the post of Teacher Grade-Ill immediately after receipt of this Order and they would be entitled to avail the benefit of seniority and consideration for promotion.
14. in so far as the grant of back wages is concerned, we are not inclined to grant the same as there is no material on record that the appellants were not gainfully employed during these years and the question as to whether back wages could have been granted to them is also a question of fact which cannot be gone into for the first time in appeal. Besides this, there is no prayer to that effect even in the memo of appeals.
15. The appeal are accordingly allowed, but there will be no Order as to costs.