Court No. - 58
Case :- WRIT - A No. - 10792 of 2018 Petitioner :- Zaheerul Hasan Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Mohammad Ali Ausaf,Vijay Kumar Singh Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
It is stated that petitioner was appointed prior to amendment made in the Regulations of 2016, whereby post of class IV employee was required to be filled by way of outsourcing. In respect of appointments made prior to the amendment in the regulations, a direction has been issued by this Court on 5.4.2018 in Writ Petition No.9477 of 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."
Since the petitioner alleges his appointment to be prior to amendment made as well, and his claim has not been considered so far, this writ petition stands disposed of permitting the petitioner to approach respondent no.2, in respect of his grievance noticed above, annexing all materials in support of his claim, alongwith certified copy of this order, within a period of two weeks from today. In case such a claim is raised, the respondent no.2 shall accord consideration to petitioner's claim, in accordance with law, within a further period of three months, thereafter.
Order Date :- 30.4.2018 Ashok Kr.