SPA/299/2019
2021 Latest Caselaw 1268 UK

      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

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

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.

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.

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

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

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.

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

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

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

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

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