Uttarakhand High Court
SPA/299/2019 on 1 April, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA
SINGH CHAUHAN
AND
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
SPECIAL APPEAL NO. 299 of 2019
01st APRIL, 2021
Between:
State of Uttarakhand and others. ....Appellants
and
Committee of Management Udairaj Hindu Inter College
and others. ...Respondents
Counsel for the State/appellants: Mr. Anil Bisht, learned
Additional Chief Standing
Counsel.
Counsel for the respondents :Mr. Jitendra Chaudhary,
learned counsel.
The Court made the following:
JUDGMENT :(per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan) The State of Uttarakhand has challenged the legality of the order dated 28.07.2017, passed by the learned Single Judge, in Writ Petition (M/S) No.2340 of 2014, whereby the learned Single Judge has allowed the writ petition filed by the Committee of Management of Udairaj Hindu Inter College and others, and has directed 2 the District Education Officer to accord approval to the appointment of persons for the Class IV posts.
For the sake of convenience, the parties shall be referred to as arrayed in the writ petition.
2. The brief facts of the case are that the Committee of Management of Udairaj Hindu Inter College, and the BSV Inter College, the petitioner Nos.2 and 4 respectively, are managed by the Committee of Management, the petitioner Nos.1 and 3. The Inter Colleges are situated in Kashipur and Jaspur in District Udham Singh Nagar. Both the colleges have several posts of class IV employees which were lying vacant. Therefore, the Committee of Management sought the permission from the respondent-department for filling up the said vacant posts.
3. According to the petitioners, on 14.09.2011, the Director of School Education, the respondent No.2, directed all the District Education Officers to start the recruitment process for filling up the vacant posts, except the post of Principal, by direct recruitment in the aided institutions. Subsequently, by letter dated 24.10.2011, the District Education Officer, Udham Singh Nagar, also informed all the aided institutions to commence the recruitment process for filling up the vacant posts. Consequently, by letter dated 02.11.2011, Udairaj Hindu 3 Inter College, the petitioner No.2, sought approval for filling up seven vacant posts of Class IV, from the District Education Officer. By letter dated 22.11.2011, the respondent No.4 granted the requisite permission to the Committee of Management for the said College. Resultantly, on 24.11.2011, the College advertised the vacancies for Class IV posts in two daily local newspapers, and invited applications from the eligible candidates. In the said advertisement, it was clearly mentioned that the interview would be held on 18.12.2011.
4. Likewise, the B.S.V. Inter College, the petitioner No.4, sought the approval from the District Education Officer for filling up the seven vacant posts of Class IV. Since the respondent No.4 granted the requisite permission. On 02.12.2011, the B.S.V. Inter College advertised the said posts.
5. However, on 14.12.2011, the State Government issued an order directing the Education Department to the effect that "Class IV cadre is being declared as a dying cadre". In fact, in future, the Class IV employees can be resorted through the process of outsourcing. Therefore, in the light of the Government Order dated 14.12.2011, the District Education Officer withdrew the permission given by him for the recruitment process of Class IV employees. 4
6. Since the petitioners were aggrieved by the Government Order dated 14.12.2011, and the letter dated 17.12.2011, they filed a writ petition before this Court, namely, Writ Petition (M/S) No.1486 of 2012, wherein they prayed that the petitioners should be permitted to complete the recruitment process in relation to the Class IV posts. By order dated 02.09.2013, this Court directed the petitioners to file a representation before the Department; the Department was directed to decide the same.
7. Consequently, the petitioners filed the representations on 31.10.2013, 14.10.2013, 17.10.2013 and 15.03.2014. Having received the representations, the respondent No.3, the Chief Education Officer, sought directions from the Director of School Education, the respondent No.2. However, as no action was taken by the respondents on the representations submitted by the petitioners, and that, too, after this Court had directed the respondents to decide the representations, the petitioners filed a Contempt Petition before this Court, namely, Contempt Petition No.115 of 2014. During the pendency of the contempt petition, by order dated 15.05.2014, the Chief Education Officer, the respondent No.3, decided the representations filed by the petitioners. The representations were duly rejected.
5
8. Since the petitioners were aggrieved by the rejection of their representations by the order dated 15.05.2014, the petitioners filed a second writ petition, namely Writ Petition (M/S) No.1417 of 2014, before this Court. By judgment dated 20.06.2014, this Court allowed the said writ petition, inter alia, on the ground that the controversy was already covered by the judgment passed in another similar case.
9. On the basis of the decision dated 20.06.2014, the petitioners again filed representations; they sought permission to complete the selection process. However, by order dated 19.08.2014, the Chief Education Officer, the respondent No.3, again rejected the representations. Therefore, aggrieved by the orders dated 15.05.2014, 19.08.2014 and the Government Order dated 14.12.2014, the petitioners filed the present writ petition before this Court. By the impugned order, the learned Single Judge has allowed the writ petition as aforementioned. Hence, the present appeal before this Court.
10. Mr. Anil Bisht, the learned Additional Chief Standing Counsel for the State, submits that the learned Single Judge was not justified in relying upon the case of Vikas Mohan Tiwari & another vs. State of Uttarakhand, [(2017) SCC Online Utt 32]. For, the 6 said case was decided on a different factual matrix. Moreover, in the case of State of Manipur and another vs. Takhelmayum Khelendro Meitei and others, 2019 (3) SCC 331, the Hon'ble Supreme Court has already opined that the State would be justified in cancelling all the prior selections, and would be justified in banning further recruitment. Therefore, even in the present case, the State was justified in banning the selection process to the Class IV posts by the Government Order dated 14.12.2011. Hence, the learned Single Judge was not justified in directing the respondents to permit the petitioners to continue with the selection. Therefore, the impugned order passed by the learned Single Judge deserves to be set aside by this Court.
11. On the other hand, the learned counsel for the petitioners has raised the following counter-arguments:-
Firstly, an administrative order can only have a prospective effect. It cannot be given a retrospective effect, until and unless the order itself clearly reveals that it is required to be given a retrospective effect.
Secondly, the order dated 14.12.2011 does not indicate that it must be given a retrospective effect.
Thirdly, the selection process had already commenced on the basis of the permission which was granted by the Chief Education Officer. Since the order 7 dated 14.12.2011 cannot be given retrospective effect, the Chief Education Officer was not justified in revoking its permission, and in preventing the Committee of Management from completing the selection process.
Fourthly, in catena of cases, the Hon'ble Supreme Court has already held that, although the employer would be justified in not completing the selection process, but even the employer must give cogent reasons for not completing the selection process. In the present case, no cogent reason has been given by the State for preventing the Committee of Management from completing the selection process.
Fifthly, the case of Takhelmayum Khelendro Meitei and others (Supra) is distinguished on the factual matrix. For, in that case the State had clearly stated that it is cancelling all the previous selections and is banning further recruitment on the ground of financial crisis being faced by the State.
However, in the present case, no such reason has been given by the State. Moreover, although the State has referred to a Pay Committee Report, the report has never been submitted before this Court. Therefore, the learned Single Judge was justified in concluding that a selection process that has commenced cannot be dropped by arbitrary action on the part of the State. Hence, the learned counsel has supported the impugned order. 8
12. Heard the learned counsel for the parties, and perused the impugned record.
13. The issue before the learned Single Judge was whether the selection process that had commenced prior to the issuance of the Government Order dated 14.12.2011 could be left incomplete ostensibly on the ground that, by the Government Order dated 14.12.2011, the Government had placed a ban on the recruitment process of the Class IV posts or not?
14. Admittedly, the Government Order dated 14.12.2011 is an administrative order. It is, indeed, a settled position of law that an administrative order would have a prospective operation, and not a retrospective one, if not otherwise indicated.
15. Undoubtedly, on 14.09.2011, the Director of School Education had directed all the District Education Officers to start the recruitment process to fill up the vacant posts. Consequently, on 24.10.2011, the District Education Officer, Udham Singh Nagar had directed the petitioners to commence the selection process for Class IV posts. Resultantly, the petitioners had sought the approval for filling up seven vacant posts. The permission was granted by letter dated 22.11.2011. Consequently, the selection process had commenced after the 9 advertisements were issued, and the applications were invited. Even, the interviews were scheduled for completing the selection process.
16. It is only on 14.12.2011, i.e. after the selection process had commenced, that the Government issued an order directing that the Class IV posts should be considered as part of dying cadre. Henceforth, the Class IV employees should be outsourced, the said order does not indicate that it should be given retrospective effect. Moreover, no reason has been given for banning the regular recruitment to the Class IV posts.
17. Since, the administrative order dated 14.12.2011, would apply only prospectively and not retrospectively, the District Education Officer was not justified in recalling the permission which was already granted by the District Education Officer, and in preventing the selection process.
18. In the case of Government of Andhra Pradesh & others vs. Sri Sevadas Vidyamandir High School & others, [(2011) 9 SCC 613], a similar issue had arisen before the Hon'ble Apex Court. For, in that case also, the selection process had commenced prior to the ban being imposed by the State. Therefore, the issue before the Hon'ble Supreme Court was whether the 10 selection process can be dropped in the middle due to the ban so imposed by the State or not? In these circumstances, the Hon'ble Supreme Court held that the administrative orders are prospective in nature unless they are expressly, or by necessarily implications, made to have retrospective effect. Secondly, once the selection process has commenced, merely because of the ban imposed by the Government, the selection process should not come to a grinding hault. Therefore, even, in the present case, which is squarely covered by the decision of the Hon'ble Supreme Court in the case of Sri Sevadas Vidyamandir High School & others (Supra), the selection process, which commenced prior to the ban imposed by the State, cannot be haulted.
19. The learned counsel for the State is justified, but only to a limited extent, that the factual position in the case of Vikas Mohan Tiwari (Supra) is quite different from the factual position of the present case. However, even in the case of Vikas Mohan Tiwari, the State had taken a position that the appointment of two respondents was illegal as immediately after their appointment a ban has been imposed by the Government. Therefore, the permission could not be given for their appointment. Although the facts are slightly different, the issue would have been the same as in the present one, namely 11 whether a ban placed by the government can be given a retrospective effect or not? Hence, the ratio of the case of Vikas Mohan Tiwari (Supra) is applicable to the present case.
20. Most importantly, in the case of Vikas Mohan Tiwari, the learned Co-ordinate Bench had relied upon the case of Sri Sevadas Vidyamandir High School & others. Therefore, the learned Single judge, even in the present case, is justified in relying upon the case of Vikas Mohan Tiwari.
21. The case of Takhelmayum Khelendro Meitei and others (Supra) is certainly distinguishable on the factual matrix. For, in the said case, the State had justified its ban on the ground of "facing a financial crisis". However, in the present case, no such justification has been given for imposing the ban. In catena of cases, the Hon'ble Supreme Court has observed that an employer has the discretionary power to fill up the vacancies, or not to do so. However, if the employer decides not to fill up vacancies, the employer must assign cogent reasons for the same. For, not to fill up the vacancies, or not to complete the selection process, cannot be left at the whims and caprice of the employer. Therefore, it is imperative for the State to justify, and to give cogent reasons for preventing the completion of the selection 12 process. In the present case, no such justification or cogent reasons are forthcoming.
22. In the counter affidavit filed by the State, the State claims that the decision to ban has been taken on the basis of "Pay Committee Report". However, even then, the State has failed to produce the copy of the Pay Committee Report. Thus, the State has not given any convincing reasons for placing a ban on future recruitment of Class IV posts.
23. The learned Single Judge has noticed all these points. Therefore, this Court does not find any illegality, or perversity in the impugned order.
24. For the reasons stated above, this Court does not find any merit in the present appeal. Consequently, it is, hereby, dismissed.
_____________________________ RAGHVENDRA SINGH CHAUHAN, C.J.
___________________ ALOK KUMAR VERMA, J.
Dt: 01st April, 2021 JKJ/Pant