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Uttarakhand High Court · body

2012 DIGILAW 84 (UTT)

RAKESH KUMAR DIXIT v. STATE OF UTTARAKHAND

2012-02-27

BARIN GHOSH, U.C.DHYANI

body2012
Judgment Barin Ghosh, C.J. (Oral) All these writ petitions address common questions of law and facts and, accordingly, they are disposed of by the following common judgment and order. 2. Section 18 of the Uttar Pradesh Water Supply and Sewerage Act, 1975 authorized the State Government of Uttar Pradesh to establish Jal Sansthans. Sub-Section(4) of Section 18 of the said Act declares that once a Jal Sansthan is established, the same shall become a body corporate having perpetual succession and a common seal and shall be entitled to sue and be sued by the name of “Jal Sansthan” as specified in the notification establishing such Jal Sansthans and have the power to acquire, hold or dispose of property. Section 27 of the said Act authorized Jal Sansthans, with previous approval of the State Government, to create such posts of officers and other employees and with such designations as it considers necessary for the efficiency performance of its functions. Section 27-A of the said Act authorized the Government to provide for the creation of one or more services of such officers and servants as the State Government may deem fit common to Jal Sansthans or to Jal Sansthans, Nagar Mahapalikas and Nagarpalikas in the State and prescribe the method of recruitment and conditions of service of persons appointed to any such service. The said section authorized the Director of local bodies or any other officer authorized by the Government to transfer an employee serving on any post in any Jal Sansthan or waterworks to any other Jal Sansthan of waterworks. On 23rd December, 1996, the State of Uttar Pradesh made the Uttar Pradesh Palika and Jal Sansthans Waterworks Engineering (Centralised) Service Rules, 1996. In terms thereof, Junior Engineers, working in Jal Sansthans, became part of the centralized service. The said Rules provided for an option to become a part of the hill sub-cadre. The Rules made it clear that such option must be exercised within three months from the date of coming into force of the said Rules and in the event anyone not exercising such option, he shall be deemed to have opted to remain in the general cadre. 3. According to the respondents, except the State of Uttar Pradesh, writ petitioners herein were appointed in Jal Sansthans situate in the plane areas of the State of Uttar Pradesh. 3. According to the respondents, except the State of Uttar Pradesh, writ petitioners herein were appointed in Jal Sansthans situate in the plane areas of the State of Uttar Pradesh. It is also the contention of the respondents, except the State of Uttar Pradesh, that the petitioners did not opt for hill sub-cadre and, accordingly, they opted for general cadre. The fact, however, remains, to which there is no dispute, that each of the petitioners was working in Jal Sansthans situate within the territory of the State of Uttarakhand as on the date of creation of the State of Uttarakhand. According to the petitioners, both the State Governments agreed that the petitioners should continue to remain in the Jal Sansthans situate within the territory of the State of Uttarakhand. There are number of letters, exchanged between the Government of Uttarakhand, which, in clearest of clear terms, indicate that it was understood and agreed between the States that the petitioners shall remain in the Jal Sansthans where they were working as on the date of creation of the State of Uttarakhand and which Jal Sansthans were within the territory of the State of Uttarakhand. 4. We think that the said understanding between the Governments of Uttar Pradesh and Uttarakhand was a correct understanding. The respondent – Jal Sansthan, a Jal Sansthan of the State of Uttarakhand, had no authority, in law or otherwise, to relieve any of the petitioners purportedly to join the services of the Jal Sansthans situate in the State of Uttar Pradesh. The said action on the part of the respondent – Jal Sansthan is without any basis and is not legally sustainable. 5. As aforesaid, the act in question was made by the State of Uttar Pradesh, whereby and under, the State of Uttar Pradesh created a central service, preserving the right of the State Government, to transfer employees from one Jal Sansthan to other. In exercise of such right, despite a person has not opted for hill sub-cadre, as contended by the respondent – Jal Sansthan, petitioners were transferred to the Jal Sansthans situate in the hill districts of the State of Uttar Pradesh. Those hill districts became the territory of the State of Uttarakhand. In exercise of such right, despite a person has not opted for hill sub-cadre, as contended by the respondent – Jal Sansthan, petitioners were transferred to the Jal Sansthans situate in the hill districts of the State of Uttar Pradesh. Those hill districts became the territory of the State of Uttarakhand. On the creation of the State of Uttarakhand, the State of Uttar Pradesh ceased to have all its rights and privileges over the Jal Sansthans situate in the territories falling within the State of Uttarakhand. At no point of time, under any law, the State of Uttarakhand acquired any right or say in the matter of any Jal Sansthan created by the State of Uttar Pradesh and which is situate even today within the territory of the State of Uttar Pradesh. 6. Accordingly, the question that crops up is whether the State of Uttarakhand or a Jal Sansthan situate in the territory of the State of Uttarakhand could, at all, ask any of such employees then working in such Jal Sansthans to go and work in a Jal Sansthan over which the State of Uttarakhand never had, nor has any administrative or otherwise control. The answer will be emphatic ‘No’. 7. The fact remains that having regard to the nature of the matter, as mentioned above, petitioners have been fixed with the Jal Sansthan where they were working at the time of creation of the State of Uttarakhand. Undisputedly, prior thereto, petitioners had served in many Jal Sansthans. It is settled law that service benefits already accrued to a government employee cannot be curtailed even by making a law to his disadvantage. Petitioners have served and, accordingly, have earned their seniority. With effect from the date of creation of the State of Uttarakhand, the hill sub-cadre created by the State of Uttar Pradesh has been abolished. Since then, there is only one general cadre. The seniority of the petitioners at their present place of working, can only be counted on the basis of seniority that they have earned from the date they started discharging their service on being appointed. 8. Since then, there is only one general cadre. The seniority of the petitioners at their present place of working, can only be counted on the basis of seniority that they have earned from the date they started discharging their service on being appointed. 8. We, accordingly, dispose of the writ petitions, declaring that the petitioners remain attached to the Jal Sansthans situate in the territory of the State of Uttarakhand with effect from the date of creation of the State of Uttarakhand, but their seniority must be counted from the date they were originally appointed by the State of Uttar Pradesh in any of the Jal Sansthans.