DEBARATI NANDEE Vs. TRIPTI GURHA

JUDGEMENT

(1.) The challenge in the present Writ Petitions is to adjudicate on the short issue as to whether the decision of the Steering Committee Resource Authority, Central Adoption Resource Authority, dtd. 15/2/2023 and a subsequent Office Memorandum dtd. 21/3/2023 affirming the decision of retrospective application of the Adoption Regulations, 2022, to pending applications of registered prospective adoptive parents is valid.

(2.) The facts leading up to the passage of the impugned order and the Petitioners' objection to it thereof are as follows:

(3.) The Petitioners contend that the retrospective application of the Adoption Regulations 2022 via the Respondent No 2's decision dtd. 15/2/23 is arbitrary and violative of Article 14 of the Constitution since it is settled law that Regulations and Rules in the form of delegated legislation cannot be applied retrospectively in the absence of a express statutory authorisation to that effect, i.e. in the absence of a statutory provision, a delegate cannot make a delegated legislation with retrospective effect. It is also submitted that the decision of the Steering Committee suffers from excessive jurisdiction as the 2022 Regulations do not vest any right on the Committee to modify the way they are implemented. Reliance is placed in this regard on the Apex Courts judgement in Assistant Excise Commissioner, Kottayam v. Esthappan Cherian 2021:INSC:445 : (2021) 10 SCC 210 and Kerala State Electricity Boars v. Joseph Thomas and Ors., Mahabir Vegetable Oils (P) Ltd v. State of Haryana 2006:INSC:152 : (2006) 3 SCC 620 , DDA v. Joint Action Committee, Allottee of SFS Flats 2007:INSC:1299 : (2008) 2 SCC 672 , Vice-Chancellor, MD University, Rohtak vs. Jahan Singh 2007:INSC:256 : (2007) 5 SCC 77 and this Court's judgement in Charanjit Singh Ahluwalia v. Union of India, It is submitted that since the application for adoption was presented by the Petitioners and accepted by the Respondents under the 2017 Regulations, a change in the status of the Petitioner's application by retrospectively applying a new set of directives subsequently introduced in illegal and arbitrary in so far as the substantive rights of the Petitioner created in favour of the 2017 guidelines and their statutory right under Sec. 58(2) of the Act are taken away by rendering them ineligible to adopt a normal child.