Soorat Singh vs State Of Uttarakhand And Others
2021 Latest Caselaw 2897 UK

                 IN HIGH COURT OF UTTARAKHAND
                           AT NAINITAL
                     Writ Petition No.2444 of 2020 (M/S)

Soorat Singh                                                           .....Petitioner
                                            Vs.

State of Uttarakhand and others                                        ...Respondents


Advocate: Mr. Harshit Sanwal, Advocate for the petitioner.
          Mr. M.S. Bisht, Brief Holder for the State of Uttarakhand.
          Mr. S.K. Mandal, Advocate for respondent nos.7 & 8.

Hon'ble Sharad Kumar Sharma, J.

(Through Hybrid Mode)

All the Miscellaneous Applications, which are listed today for orders would stand allowed. The respective counters, rejoinders and supplementary affidavits, are taken on record. With a consensus of the counsel for the parties, this writ petition is being decided finally.

2. To sum up the controversy, the petitioner has come up in this writ petition by challenging the process of selection, which was resorted to by the respondents for the recruitment on the two posts of Junior Clerks, which was intended to be undertaken by the Advertisement No.1 dated 08.11.2000. The challenge was also given to the Advertisement No.1 of 19.11.2020, issued by the Manager of Guru Nanak Balika Inter Collage, for the purposes of recruitment to be made on one post of Junior Clerk. If this writ petition is considered from that limited prospective, so far the issue relates to the challenge given to process of appointment of the clerks; that may not fall to be within the ambit of Article 226 of the Constitution of India, but if the other reliefs claimed, in the writ petition, are read harmoniously particularly the dispute, which is reflected to be pending before the Assistant Registrar Firms and Societies, as agitated in terms of the complaint dated 09.11.2020 and 12.11.2020. There cannot be any doubt that the relief 1 infact was used as a shield to settle their scores, which was prayed in by modulation of relief 2 and 3 of the writ petition. The reliefs of the writ petition are extracted hereunder:-

"I. Issue an order, direction or writ in the nature of issuance of writ in the nature of certiorari for quashing the advertisement No.01 dated 18.11.2000 issued by the Office of Manager, Guru Nanak Inter College, Nanakmatta, Udham Singh Nagar, for direct recruitment to two posts of Junior Clerk Pay Scale of Rs.21,700- 69,100 Level-3 (Annexure No.15); as well as advertisement No.01 dated 19.11.2000 issued by the Office of Manager, Guru Nanak Balika Inter College, Nanakmatta Sahib Udham Singh Nagar, for direct recruitment to one posts of Junior Clerk Pay Scale of Rs.20,700-69,100 Level-3 & one post of Principal (female only) in the pay scale of Rs.78800-209200 Level 12 (Annexure No.16) II. Issue an order, direction or writ in the nature of mandamus directing the Assistant-Registrar, Firms Societies and Chits, Udham Singh Nagar, to decide the dispute between the parties in terms of complaint dated 09.11.2020 & 12.11.2020 in accordance with law. III. Issue appropriate order or direction to the Gurudwara Management Committee, Shri Nanakmatta Sahib, to not take any major financial, administrative or policy decision pending disposal of reference pending before Assistant Registrar, Chits Firms & Societies, Udham Singh Nagar.

IV. Issue a writ in the nature of mandamus for giving effect to resolution dated 23.01.2020 passed by the respondent no.5 (Annexure No.5) for management of affairs of the society; V. Issue any other appropriate order or direction as the Hon'ble Court thinks fit and proper."

3. Initially when this writ petition was heard at an admission, since there was an argument extended, that there is an eminent threat that respondents may proceed to finalize the process of selection, as detailed in relief 1 of the writ petition, the Coordinate Bench of this Court vide its order of 21.12.2020, had passed an interim order to the following effect:-

"Till the next date of listing, selection process may go on, however, appointment letter shall not be issued."

4. During the pendency of the writ petition, the complaint, which was submitted by the petitioner before the Assistant Registrar as it has been reflected from relief no.2, to the writ petition, has been informed that it has been decided initially in favour of the petitioner by an order dated 23.02.2021. But, however later on, on a review which was preferred by the respondents, the Assistant Registrar has reviewed the earlier order by an order dated 16.04.2021. As far as the law in the field is concerned, since the controversy relates to the dispute pertaining to a Society where a rival claim has been raised by two factions of the

society, it would be falling for consideration under Section 24 of the Societies Registration Act.

5. The counsel for the petitioner has very candidly submitted that as against the aforesaid decision which was rendered on a review which was preferred by the respondents, he has already approached the Registrar, who is competent under Section 24 of the Act, to decide the controversy and same is still pending consideration. But simultaneously, he has also expressed an apprehension that if during the pendency of proceedings before the Registrar under Section 24 of Societies Registration Act, if the effect of the interim order is taken off, the respondents may proceed and complete the process of appointment, which was one of the subject matter of challenge in the present writ petition. In order to balance the equities between the parties from the two prospective:-

i. The controversy pertaining to resorting to the process of appointment of the clerks, in pursuance to the two advertisements referred in relief I, the said process of appointment and the competence of appointment, would fall to be an issue which has to be determined by the competent authority, as it has been provided under the Uttarakhand School Education Act.

ii. So far as the other reliefs are concerned, where there is a dispute pertaining to the claim of their respective rights by the rival faction of the Society, as well as the determination, which has been made by the Assistant Registrar, to the objections of the petitioner, which has been reviewed later on, at the instance of the respondents, would fall to be a subject matter of consideration by the Registrar under Section 24 of the Society Registration Act.

6. In order to balance the equities and for an effective adjudication of the controversy in question, in fact both the controversies, which has been summarised upon will not fall to be a subject matter of adjudication within the ambit of consideration, under Article 226 of the Constitution of India, and that would be apparent from the act of the petitioner, himself because he himself has voluntarily submitted himself before the Registrar, as against the decision, which was taken on the review of respondents and thus it would amount to that

it is an admission of a fact by the petitioner, that it is the Registrar, who has to decide the dispute pertaining to or arising from relief nos.2, 3 and 4 of the writ petition.

7. Since the petitioner has already approached the Registrar, hence the Registrar of societies, is directed to decide the matter within a period of two months from the date of production of certified copy of this judgment.

8. As far as the first controversy is concerned, pertaining to the dispute of appointment, in relation to which the Coordinate Bench, has granted a limited interim, order that the selection process may be culminated, but however the appointment would not be made. It is stated at the bar that the selection process has already been completed but the appointments have not been issued because of the embargo created by the interim order. While on the other hand, the petitioner contends that an inquiry in relation thereto, with regards to the process of appointment, is to be decided by the competent authority under the Uttarakhand School Education Act on 2004.

9. For this aspect so far it relates to the process of appointment on the post of clerks, the matter is relegated to the Chief Education Officer, of the competent junction, to decide the matter, as to whether the process of appointment resorted to by the respondents, was in accordance with law or not and it goes without saying that the Chief Education Officer; while conducting the inquiry or taking a decision, on the process of appointment will provide ample of opportunity of hearing to both the parties to the writ petition and till the Chief Education Officer, decides that controversy within a period of two months from today, the protection already granted by way of the interim order would continue to operate.

10. Subject to the above observations, the writ petition stands disposed of.

(Sharad Kumar Sharma, J.) 06.08.2021 Arti