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2012 DIGILAW 772 (UTT)

Abdul Salam Khan v. State of Uttarakhand

2012-12-17

K.J.SENGUPTA

body2012
Judgment Kalyan Jyoti Sengupta, J. 1. This petition was filed initially for the following reliefs:- Issue a writ, order or direction in the nature of certiorari, quashing the decision of the Finance Department regarding refusal to give consent to computation of first service rendered in the Corporation for the benefit of time scale which is referred in para 3 of the communication letter dated 04.09.2006, and other reliefs are in consequential in nature. 2. Thereafter the writ petition was amended incorporating a prayer to challenge a writ and order by declaring the Uttarakhand Rajya Sampati Vibhag Vahan Chalak Samviliyan (as amended Rules 2007) as ultra vires to the Constitution of India so far as it relates to Rule 6(8) is concerned. 3. The factual backgrounds, as it is found from the writ petition as well as from both the affidavits, are as follows:- The petitioners were initially employed at their parent Department, namely, Uttar Pradesh Roadways Transport Corporation on regular post. The respective dates of employment of each of the petitioners are given in paragraph 2 to the writ petition, in a tabular form and they perform their duties in the said establishment. On 09.11.2000 after bifurcation of the State of Uttar Pradesh and consequent upon the creation of State of Uttarakhand, on 19.01.2002 the said Officer of the Estate Department of this Government issued a letter for absorption of the petitioners. The petitioners have accepted the offer of absorption as contained in letter dated 19.01.2002 with a mild protest with regard to condition No. 3 mentioned in the said letter. Thereafter by letter dated 23.01.2002, the said letter of offer was modified to some extent. The petitioners joined in the Estate Department and thereafter, they were deployed in the Estate Department. After joining on 09.07.2002, the Absorption Rules were framed by a notification and the said Rules known as “Uttaranchal State Estate Department Vehicle Driver Absorption Rules, 2002”. Thereafter tentative seniority list was prepared by order dated 13.09.2006 wherein objections were invited from all drivers posted by 10.08.2006. Under the terms and conditions of the Absorption Rules, the petitioners were supposed to be placed below those persons, who were initially working in the Estate Department notwithstanding the petitioners’ original appointment in the parent Department was earlier in point of time. Therefore, the petitioners raised objections, and objections were overruled and hence the writ petition was filed. 4. Under the terms and conditions of the Absorption Rules, the petitioners were supposed to be placed below those persons, who were initially working in the Estate Department notwithstanding the petitioners’ original appointment in the parent Department was earlier in point of time. Therefore, the petitioners raised objections, and objections were overruled and hence the writ petition was filed. 4. In the counter affidavit, it has been stated that immediately after bifurcation, the petitioners were attached to the Estate Department. This was spelt out first time in the letter dated 19.01.2002 followed by 23.01.2002. Thereafter the Rules were prepared in the year 2002 and then amended in 2007. It is said that the writ petitioners, in terms of the Rule 10 of the Absorption Rules, had given undertaking to abide by the Rules to accept the provision provided in their service condition. 5. In the context of the aforesaid, the learned counsel for the petitioners submits that since each of the them have accepted the offer issued by letter dated 19.01.2002 and petitioners also accepted such offer except condition No. 3 which was duly protested and consequent upon such protest, a modification was issued by notification dated 23.01.2002. The learned counsel for the petitioner further says that if the condition mentioned in letter dated 19.01.2002 followed by 23.01.2002 are acted upon then his clients’ have no grievance, but unfortunately on the strength of the Absorption Rules, which has been issued subsequently in the year 2002, aforesaid condition was sought to be taken away and this cannot be done. He says while amending the said Rules of 2002, vested right which has created by contract by issuing a letter of offer dated 19.01.2002 followed by 23.01.2002 and this terms and conditions of the concluded contract cannot be taken away or varied in any manner without the consent of the petitioners, meaning thereby the provision of the said Rules which is seeking to take away the petitioners’ right has to be struck down on the ground of arbitrary action, consequently, the same being ultra vires to the Constitution of India. 6. Mr. 6. Mr. Subhash Upadhyay, appearing for the State highlighting the fact mentioned in the counter affidavit, says that it is true, the aforesaid two letters were issued, but subsequently, 2002 Rules were framed and in terms of the clause 10, the petitioners, each of them had given undertaking to accept the provisions of the Rules. This fact of giving undertaking has not been denied and disputed in the affidavit of rejoinder. Therefore, both the petitioners and the Government have changed the terms and conditions which were agreed upon earlier. He contends that when the Rules have been accepted, the petitioners cannot challenge the same. Under these circumstances, he submits that the writ petition has no merit. 7. I have heard the learned counsel for the parties and considered their respective submissions, this Court is called upon to decide whether the Rules 2002 as amended is ultra vires to the Constitution of India in any manner whatsoever. The Rules is a piece of Subordinate Legislation and it is settled law, the Rules of Subordinate Legislation can be challenged basically on three grounds, namely, the legislative incompetence, whether rules offends any provision of the Constitution and then whether the Rules have transgressed the provision of parent Legislation under which it has been framed. 8. In the writ petition, nowhere it is said that the State Government is incompetent to frame such Rules, meaning thereby Legislative competence is not questioned nor there is any challenge that Rules has transgressed the provision of the parent Legislation under which it has been framed. Only question remains, as it appears whether it ultra vires to the Constitutional provision or not. While deeply thinking on the question of Constitutional validity obviously Article 14 and 16 of the Constitution of India come into play. Article 16 of the Constitution of India is not appropriate provision in this case and Article 14 of the Constitution of India has to be applied in this case. 9. The Constitution of India as well as the Hon’ble Supreme Court has not ruled out meting out discriminatory treatment with reasonable classification but such reasonable classification can not be made anywhere or every where and it must be done when it is sought to achieve the object which has got rational nexus for framing the Rules. 10. In this case the petitioners were not initially appointed in the Estate Department. 10. In this case the petitioners were not initially appointed in the Estate Department. They were engaged in a Transport Corporation which is separate body of the Government. However, since they have been working in this territory, they were mercifully sought to be absorbed by the State Government so they might not lose their livelihood by reason of bifurcation of the State. 11. It was the choice of the petitioners that they would have come to this State to serve or they could have remained in the parent establishment, but they have chosen to come to this part of the State. Accordingly, they were attached to the Estate Department from the day of bifurcation. Thereafter, it was thought that what should be the terms and the conditions of their services. Two letters were issued dated 19.01.2002 and 23.01.2002. It appears from plain reading, thereof pursuant to the said two letters, the petitioners have agreed the terms and conditions. This factum is not denied and disputed in the counter affidavit. This Court could have declared that the agreement with the terms and conditions of absorption had become final and binding upon respondent had there been not subsequent event. While dealing with the Constitutional validity, I am of the view that the Rules framed by the Government to lay down service conditions of the absorbed employee, do not offend Article 14 of the Constitution of India in any sense neither on the irrationality or arbitrariness or inequality. The petitioners could not and cannot be equalized with the original employees of the State Government. They were the employees of the separate body, therefore, question of parity with the employees of State of Uttarakhand cannot be granted. Therefore, making discrimination between the petitioners and the original appointee is neither irrational nor arbitrary. On that ground I hold that Rules are intra vires of the Constitution of India. 12. There is another aspect of the matter, as it appears from the pleadings that the petitioners in terms of the said Rules have given undertaking in the year 2002 itself and thereby agreed to accept and abide by the Rules thereby. This factum of giving undertaking has not been divulged in the writ petition and it was stated in the counter affidavit. This factum of giving undertaking has not been divulged in the writ petition and it was stated in the counter affidavit. The response to the same in the affidavit of rejoinder was that all the petitioners were that they have accepted because they thought that initial terms and conditions would not be attracted. 13. I am of the opinion that it is open for the two parties to any contract to vary or alter terms and conditions of the contract by making the Rules and followed by undertaking being given. Both the Governments and the petitioners have altered original terms and conditions of the contract. 14. After accepting this, the petitioners are estopped from challenging the said Rules. Moreover, even in the contractual field, original terms and conditions, those are sought to be enforced by the petitioners in order to challenge the Rules no longer subsists for performance. In this context Section 62 of the Indian Contract Act may be referred. Section 62 says as follows:- “Section 62 in The Indian Contract Act, 1872 62. Effect of novation, rescission, and alteration of contract.- If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed. Illustrations.” 15. Therefore, I hold the writ petitioners have no merit in this matter. The writ petition is, accordingly, dismissed. 16. No order as to costs.