Court No. - 58
Case :- WRIT - A No. - 3008 of 2019 Petitioner :- Mustaqeem Ahmad Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Mohammad Ali Ausaf Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
Petitioner's grievance is that he was appointed prior to the amendment incorporated in the Regulations of 2016, and therefore, his candidature ought to have been examined with reference to the rules then enforced. Reliance is placed upon an order passed in Writ Petition No.9477, decided on 5.4.2018, which reads as under:-
"An order passed by the Registrar (Minorities) dated 21.11.2017 is under challenge, which declines grant of approval to petitioner's appointment. Petitioner had earlier approached this Court by filing Writ Petition No.50099 of 2016, which was disposed of on 19.10.2016, with a direction to the respondent to accord consideration to petitioner's claim for grant of approval. It is pursuant to this order that the order impugned has been passed. The claim of petitioner has been rejected on the ground that in view of the amendment incorporated in the U.P. Non-Governmental Arabic and Persian Regulations, 2016, the post itself is to be filled by outsourcing.
Learned counsel for the petitioner submits that the amendment has been introduced in the regulation vide notification dated 22.9.2017. The amendment clearly states that it was to come into effect from the date of amendment. Submission is that no retrospective effect can be given to the amendment. Reliance is placed upon a Full Bench judgment of this Court in Santosh Kumar Singh Vs. State of U.P. and others, reported in 2015 (7)ADJ 179. Para 10 of the Larger Bench is relied upon, which reads as under:-
"The decision in A A Calton (supra) is, therefore, an authority for the proposition that once a process of selection has been initiated, a subsequent amendment of the law by which the power to make an appointment has specifically been taken away from a statutory authority - in that case from the Director - would have no application to a pending selection process which must be governed by the law as it stood when the selection process was initiated. Undoubtedly, the Legislature does have the power to make a law with retrospective effect but unless the law is made expressly retrospective or retrospective by necessary implication, the position of law as it stood when the selection process was initiated, would govern the selection."
Learned Additional Chief Standing Counsel appearing for the State though has supported the order, but does not dispute the legal position, noticed above.
Admittedly, on the date of petitioner's appointment in the year 2015, there was no stipulation in the applicable statutory regulation about outsourcing and subsequent amendment incorporated in September, 2017 cannot be given a retrospective application, in view of the law settled. For such reasons, the order of Registrar dated 21.11.2017 cannot be sustained, and is accordingly quashed.
The Registrar shall proceed to examine the petitioner's claim afresh, with reference to law applicable on the date of appointment of petitioner. It is also clarified that the statutory regulation operating on the relevant date alone would be taken note of for the purpose. Required consideration shall be made within a period of three months from the date of presentation of certified copy of this order.
Writ petition is, accordingly, disposed of."
Facts being identical, this writ petition is also disposed of on the same terms. Order impugned dated 28.2.2017 so far as it relates to the rejection of claim of the petitioner is quashed and the authority concerned is directed to take a fresh decision.
Order Date :- 26.2.2019 Ranjeet Sahu