ANIL KUMAR SHARMA Vs. STATE OF U P

JUDGEMENT

(1.) D. K. Seth, J. Petitioner's ad hoc ap pointment was cancelled by order dated 29th April 1995 which is the subject matter of challenge in the present writ petition on the ground that the Managing Committee had no power to make ad hoc appointment. Mr. Ashok Khare, learned Counsel for the petitioner contends that by reason of U. P. Secondary Education Service Commission and Selection Board (Second Amendment) Act 1992 (U. P. Act No. XXIV of 1992), the power to make ad hoc appointment by the Committee of Management was taken away through amendment in Section 18 of the U. P. Secondary Education Service Commis sion Selection Board Act, 1982, by substitu tion of new Section 18 which had vested the power to make ad hoc appointment in a Committee. According to Mr. Khare, the said Act came into force on 14th July, 1992. In the present case the proceedings for recruitment having been initiated on 31st August 1991 viz. a date before coming into operation of the said Act No. XXIV of 1992. The restriction imposed cannot affect the right of the Committee of Management since there is nothing in the said Act to indicate even by necessary implications that the provisions of the said Act would be operative retrospectively. Relying on the decision in the case of A. A. Calton v. Direc tor of Education and another A. I. R. 1983 S. C. 1143, he contends that unless there is expressed provision, the existing right can not be affected by a subsequent legislation, the same can affect such right if retrospectivily is apparent by necessary implications or it is inferred from the intention of the legislature to be retrospectively operative. He refers to paragraph 5 of the said judg ment and contends that the process for selection commenced from the date of call ing of application for a post up to the date on which the Director becomes entitled to make the selection which is an integrated one and at every stage in that process certain rights are created in favour of one or the other candidates. There being nothing in the Act No. XXIV of 1992 to infer any intention of the Legislature to give it a retrospective effect and there having been nothing to decipher any such intention by necessary implication not to say of ex pressed provision. The right of the manage ment cannot be taken away and as such the impugned order is liable to be set aside.

(2.) MR. Yadav, learned Standing Coun sel on the other hand contends that after promulgation of Act No. 24 of 1992, the Committee of Management had been deprived of the power to make such ad hoc appointment as such it would operate on the date when the appointment is being made.