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2018 DIGILAW 369 (UTT)

STATE OF UTTARAKHAND v. SACHIN GAUTAM

2018-07-09

K.M.JOSEPH, SHARAD KUMAR SHARMA

body2018
JUDGMENT K.M. Joseph, C.J. (Oral) There is delay of 305 days in filing the present Special Appeal. 2. We heard Mr. Anil Kumar Bisht, learned Standing Counsel for the State of Uttarakhand / appellants, Mr. Amar Shukla, learned counsel on behalf of the writ petitioner / first respondent and also Mr. Sanjay Bhatt, learned Standing Counsel for the Union of India/respondent no. 5. 3. In the nature of the order, we propose to pass, we are dispensing with the notice to respondent nos. 2 to 4, who may not be directly affected as such. 4. After hearing the learned counsel for the parties, we are of the view that the delay in filing the Appeal has been satisfactorily explained, hence, the same is to be condoned. Accordingly, the Application (CLMA No. 3535 of 2018) for condonation of delay will stand allowed and the delay will stand condoned. 5. The writ petition was filed seeking the following reliefs: “a) Issue a Writ, Order or direction in the nature of Certiorari for quashing the impugned order dated 17.2.2014 (Anenxure-20) issued by respondent no. 4. b) Issue a Writ, Order or direction in the nature of Mandamus directing the respondents to consider the case of petitioner for appointment/promotion to the post of Junior Engineer (Civil) from the date in which the recommendation was made by the competent authority on the post of Junior Engineer under 10% reservation quota." 6. Following is the judgment passed by the learned Single Judge: “Mr. Amar Shukla, Advocate for the petitioners. Mr. Vikas Pande, Brief Holder for the State. Mr. Rakesh Thapliyal, Asst. S.G. for the Union of India. Learned counsel for the petitioners submits that the controversy, raised in these writ petitions, is squarely covered by a judgement rendered by the Division Bench of this Court in WPSB No.297 of 2010 on 10.07.2012. Accordingly, the present writ petitions are allowed in terms of the judgment cited hereinabove. Impugned order dated 17.02.2014 is quashed and set-aside. Respondents are directed to consider the case of the petitioners for appointment/promotion to the post of Junior Engineer (Civil) under 10% quota stipulated under the Uttar Pradesh Irrigation Department Civil Engineers (Subordinate) Service Rules, 1992 within a period of six weeks from the date of production of a certified copy of this order. Let a copy of this order be kept in all connected petitions. Let a copy of this order be kept in all connected petitions. All pending applications stand disposed of accordingly." 7. We heard Mr. Anil Kumar Bisht, learned Standing Counsel for the State of Uttarakhand/appellants, Mr. Amar Shukla, learned counsel for the writ petitioner/first respondent, besides, no doubt, Mr. Sanjay Bhatt, learned Standing Counsel for the Union of India/respondent no. 5 also. 8. After hearing the learned counsel for the parties, we are of the view that the judgment of the learned Single Judge cannot be sustained. The question in issue raised by the petitioner was with regard to the effect of the impugned order dated 17.02.2014, in regard to the right of the petitioner to be considered as against 10% quota reserved for Diploma Holders. Petitioner claims to be a Diploma Holder from the 4th respondent Institute. 9. A perusal of the judgment would show that before the learned Single Judge, the writ petitioner has placed reliance on the judgment of the Division Bench in WPSB No. 297 of 2010 (decided on 10.07.2012), and the learned Single Judge was of the view that the matter is covered by the same, and the writ petition was disposed of on the basis of the same. There is, in fact, no reference to any pleading taken by the respondents to writ petition in the counter affidavit. Secondly, we also notice that the said judgment of Division Bench, on which reliance was placed by the petitioner, is related to the Degree Holders, who obtained Degrees from the 4th respondent Institute. After the judgment of the Division Bench, which was relied on by the learned Single Judge in disposing of the writ petition, the Hon'ble Apex Court has considered the entire issue. The Apex Court has considered the matter in SLP No. 19807-19808/12 Orissa Lift Irrigation Corporation & others vs. Rabi Sankar Patro, Their Lordships in their judgment dated 03.11.2017 had held that the 4th respondent Institute had no authority to grant Degree after 2005. 10. Mr. Amar Shukla, learned counsel for the writ petitioner/first respondent took the contention that after the judgment was pronounced by the Hon'ble Apex Court in relation to the Degree Holders, Diploma Holders moved Applications before the Hon'ble Apex Court, and the Hon'ble Apex Court has clarified that it has not pronounced on the issue regarding validity of the Diploma granted. Mr. Amar Shukla, learned counsel for the writ petitioner/first respondent took the contention that after the judgment was pronounced by the Hon'ble Apex Court in relation to the Degree Holders, Diploma Holders moved Applications before the Hon'ble Apex Court, and the Hon'ble Apex Court has clarified that it has not pronounced on the issue regarding validity of the Diploma granted. Therefore, he would submit that the judgment of the Hon'ble Apex Court would not affect the case of the writ petitioner. The second contention taken by Mr. Amar Shukla, learned counsel for the writ petitioner is that the judgment of the Hon'ble Apex Court dated 03.11.2017 was delivered after the judgment of the Division Bench dated 10.07.2012, therefore, it cannot have any effect on the controversy raised by the writ petitioner. 11. Taking the second point first, namely, since the judgment of the Hon'ble Apex Court had been pronounced after the date of the judgment of the Division Bench, it may not have any affect, we are of the view that he has proceeded on misapprehension of the state of law. A judgment, which has been rendered by the Hon'ble Apex Court, will have retro-active operation. This means that though the law as declared by the Court is at a particular point of time, its impact will be as it has been the law earlier also. In other words, whereas the law laid down by the Hon'ble Apex Court will be treated as a law at all point of time after the advent of the constitution. This will also only be subject to the exceptional cases, where the Hon'ble Apex Court orders otherwise in exercise of well-known powers available to it. This means that the judgment of the Hon'ble Apex Court in relation to the Degree granted by respondent no. 4 is contrary to the judgment laid down by the Division Bench and though the Division Bench had pronounced the judgment much earlier, and since they cannot stand together, the judgment of the Hon'ble Apex Court will prevail. Therefore, the validity of the Degree granted by respondent no. 4 is a matter, on which the Hon'ble Apex Court has spoken, and therefore, the reasoning of the learned Single Judge based on the judgment of the Division Bench cannot stand. 12. Therefore, the validity of the Degree granted by respondent no. 4 is a matter, on which the Hon'ble Apex Court has spoken, and therefore, the reasoning of the learned Single Judge based on the judgment of the Division Bench cannot stand. 12. Then there remains further question as to whether the judgment of the Hon'ble Apex Court will cover the cases of the Diploma Holders. In this regard, it is brought to our notice by Mr. Amar Shukla, learned counsel for the writ petitioner that the Hon'ble Apex Court has itself made it clear that it must not be treated as having pronounced on the validity of the Diploma. If that is so, the matter has to be considered on merits as to whether the Diploma, which has been granted by respondent no. 4, will be valid. If such an exercise has not been undertaken by the learned Single Judge, this question does not arise for consideration before us at the appellate stage for the first time. We may notice that the learned Single Judge has proceeded exclusively on the basis of the submission made by the learned counsel for the writ petitioner that the matter is covered by the judgment of the Division Bench. The judgment of the learned Single Judge reveals that the learned Single Judge has not ascertained whether actually the matter is covered by the judgment of the Division Bench and same is equally applicable in cases of Diploma-holders, which was the case before the learned Single Judge. 13. Therefore, in the interest of justice, the judgment of the learned Single Judge will stand set aside with the observations, which we have made. We remit the matter back. The petitioner will take out fresh notice to the fourth respondent. As far as respondent nos. 2 and 3 are concerned, copy of the writ petition will be served again on the counsel for respondent nos. 2 and 3. We leave it open to the parties, if advised, to apply for amendment in the pleadings in the light of the question, which falls for consideration, namely, whether the Diploma obtained from the 4th respondent Institute can be treated as valid. 14. The Appeal is allowed as above. No order as to costs.