Per: Hon’ble Sudhanshu Dhulia, J.

1. This Special Appeal, which has had a long journey and has finally reached before us. It is against the judgment and order dated 8.5.2012, passed by learned Single Judge in Writ Petition No. 1898 of 2011 (S/S).

2. In a bunch of writ petitions filed before this court, the petitioners have challenged the selection as well as appointment of Primary School Teacher in the State of Uttarakhand. The challenge was on various grounds, such as-

(a) the qualification being asked was not being in accordance with law,

(b) the age relaxation being given in such case was not in accordance with law, and,

(c) the mandatory requirement in the G.O. dated 14.12.2011 and the advertisement given in daily Newspaper on 15.12.2011 clearly gave a condition that only such candidates will be eligible for the posts in a District who have permanent residence in that particular District, in other-words their home District.

3. Learned Single Judge dismissed the writ petition holding that the procedure adopted by the Government is in accordance with law. One of the petitioners, the present appellant, whose petition was also dismissed had filed a Special Appeal before this Court on grounds that his contention regarding the criteria of residence being, violative of Article 16(2) and 16(3) of the Constitution of India, has not been considered by the learned Single Judge. The Special Appeal was, however, dismissed by the Division Bench vide order dated 10-6-2013, holding that the petitioner/appellant has not challenged the vires of the Rule 14 of U.P. Basic Education (Teachers) Service Rules, 1981. Further it was held that the petitioner has already participated in the selection process and having failed therein he now cannot challenge the selection, following the principle of law laid down in Dhananjay Malik and others vs. State of Uttaranchal and others, reported in (2008) 4 SCC page 171.

4. After dismissal of the Special Appeal, petitioner moved a review application, wherein whether the judgment of the Division Bench could at all be reviewed became a preliminary issue on which there was a difference of opinion between the two Hon’ble Judges. Hence the matter was referred to a third Judge. The learned third Judge, gave opinion that the order passed by Division Bench in Special Appeal is liable to be reviewed and accordingly the same was recalled.

5. This Special appeal is now being heard again on merits.

6. Learned Advocate General raised his submission regarding the very maintainability of the petition and submitted that the petitioner participated in the selection process and when not successful in that he has filed writ petition. He has invited our attention towards various decisions of Apex Court. In the case of Dhananjay Malik case (supra), it has been held that the writ petitioners participated in the selection process without any demur, they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process.

7. In the present case, the facts as to petitioner’s participation are somewhat different. The petitioner has applied for the post of “Primary School Teacher” and he had prayed that his candidature be considered for selection on the post from other districts as well, besides his home district. Therefore, the contention of learned Advocate General has no substance and the law laid down & the Hon’ble Apex Court is not applicable to the facts of the present case. Moreover, the petitioner here has raised a matter which is extremely important wherein he has alleged violation of his Fundamental Rights. He applied as a candidate from District Udham Singh Nagar where he indeed participated but his claim to participate in other districts cannot be denied is wha