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2016 DIGILAW 435 (UTT)

Sumit Kumar v. State of Uttarakhand

2016-08-05

K.M.JOSEPH, V.K.BIST

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JUDGMENT : K.M. JOSEPH, C.J. Appellant is the writ-petitioner. The writ petition was filed seeking the following reliefs: “(i) Issue a writ, order or direction in the nature of quashing the order dated 08.08.2012 (Annexure No. 1 to this writ petition). (ii) Issue a writ, order or direction in the nature of Mandamus directing the respondent nos. 1 and 3 to issue the appointment letter to the petitioner and appoint him in the Kisan Sahkari Chini Mills Ltd., Sitarganj, District Udham Singh Nagar as per his qualifications. (iii) Issue a writ, order or direction in the nature of Mandamus directing the respondent no. 3 to withdraw the order/ decision dated 08.08.2012 and give fresh look on the case of the petitioner and appoint him as dependent of deceased employee in the light of circular dated 17.01.2006.” 2. The learned Single Judge found that though the father of the appellant was working with the second respondent at the time of his death, he was working with the second respondent on deputation. The writ petition was, accordingly, dismissed. 3. We heard Mr. S.S. Yadav, learned counsel for the appellant, Mr. T.A. Khan, learned Senior Counsel, assisted by Mr. Harshvardhan Singh Negi, appearing for the respondent nos. 2 & 3 and Ms. Charanjeet Kaur, learned Brief Holder for the State of Uttarakhand/ respondent no. 1. 4. The case of the appellant is that the appellant is the son of Sri Hargovind Singh, who was working with the second respondent at the time of his death in 2010. Though he had given his option for being allocated to the State of Uttar Pradesh, that was not accepted. He also relies on Section 73 of the Uttar Pradesh Reorganisation Act, 2000. The fact is that he is not treated as allocated to Uttarakhand and he must be treated as allocated to Uttarakhand. According to him, it is a deemed allocation. 5. On the other hand, the stand of the respondents, as stated in the Counter Affidavit filed before the learned Single Judge appears to be as follows: “By Annexure-1 in the counter affidavit dated 15.07.2000 on the request of the appellant’s father, he was sent on deputation to the second respondent mill, which is located at Sitarganj. He continued as such till his death. He continued as such till his death. They relied on deduction from the contributions under the GPF of the father of the appellant being remitted to the fourth respondent, which is the U.P. Sugar Mills Federation.” 6. Reliance is also placed on the payment of the retirement benefits by the fourth respondent. It is also the case that initially, the second respondent came under the fourth respondent when the State of Uttar Pradesh was undivided. Following the creation of the State of Uttarakhand, another Corporation was created for the State of Uttarakhand, under which four mills including the second respondent mill come. 7. A document is also produced to show that the appellant’s father sought deputation. From the said document, it becomes clear that appellant’s father was originally appointed in the year 1982 in the second respondent. Therein, he continued till he worked at Hasanpur, where he continued till 2000. When he was on deputation, he was posted with the second respondent. The second respondent, after the reorganization came within the territorial jurisdiction of the new State of Uttarkahand. 8. On these facts, it would appear to us that indeed though the father of the appellant may have initially started his innings in the year 1982 in the second respondent when the State was undivided, later on, he came on deputation to the very same unit, namely, the second respondent, again at the time when the State was undivided. Subsequently, the new State was born on 09.11.2000, and thereafter, treating the appellant’s father as employee of the fourth respondent, the second respondent has conducted itself. This is evident from the deduction towards GPF being remitted to the fourth respondent and also the payments towards retiral benefits being given by the fourth respondent. 9. We notice that there is no case for the appellant that the service of his father was absorbed while on deputation by the second respondent. A reference is made to Section 73 of the Uttar Pradesh Reorganisation Act, which reads as follows: Section 73. 9. We notice that there is no case for the appellant that the service of his father was absorbed while on deputation by the second respondent. A reference is made to Section 73 of the Uttar Pradesh Reorganisation Act, which reads as follows: Section 73. Provisions relating to other services.-(1) Every person who immediately before the appointed day is serving in connection with the affairs of the existing State of Uttar Pradesh shall, on and from that day provisionally continue to serve in connection with the affairs of the State of Uttar Pradesh unless he is required, by general or special order of the Central Government to serve provisionally in connection with the affairs of the State of Uttaranchal: Provided that every direction under this sub- section issued after the expiry of a period of one year from the appointed day shall be issued with the consultation of the Governments of the successor States. (2) As soon as may be after the appointed day, the Central Government shall, by general or special order, determine the successor State to which every person referred to in sub- section (1) shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect. (3) Every person who is finally allotted under the provisions of sub-section (2) to a successor State shall, if he is not already serving therein be made available for serving in the successor State from such date as may be agreed upon between the Governments concerned or in default of such agreement, as may be determined by the Central Government.” 10. It refers to persons, who are in service in connection with the affairs of the State of Uttar Pradesh. It contemplates that they will continue with the State of Uttar Pradesh, unless they are required by an order of the Central Government to serve provisionally in connection with the affairs of the State of Uttarakhand. 11. Likewise, sub-section 2 also contemplates final allocation. There are two obstacles in the path of the appellant in regard to Section 73. In the first place, we would think that the allocation relates to the employees of the State. Here, we are concerned with the employees, who were working in connection with the affairs of the State, that means they must be employees of the State of Uttar Pradesh. In the first place, we would think that the allocation relates to the employees of the State. Here, we are concerned with the employees, who were working in connection with the affairs of the State, that means they must be employees of the State of Uttar Pradesh. The appellant’s father was employed with a federation, which is a cooperative society. Further, assuming for the sake of arguments that he must also be treated as serving with the affairs of the State, the allocation is to be made by the Central Government. There is no allocation by the Central Government in this case. Reliance placed on sub-section 3 to contend that there was a deemed allocation, is completely misplaced. At any rate, sub-section 3 is premised on an allocation made under sub-section 2 and his allocation under sub-section 2 can be made only by the Central Government and there is no case for the appellant that the father of the appellant was allocated by the Central Government to the State of Uttarakhand. 12. A reference was made to Section 67. We do not see how the said provision can be of assistance to the appellant. There is a case that no decision was taken on the allocation of the appellant’s father and, therefore, he must be treated as allocated to Uttarakhand. The case of the appellant that, since no decision was taken till the date of the death of appellant’s father on his request for allocation to the State of Uttarakhand, he must be deemed to be allocated to the State of Uttarakhand, cannot be accepted. There is no basis in law for such a submission. 13. The result is that the learned Single Judge is fully justified. 14. In such circumstances, we do not see any merit in the case of the appellant. The Appeal fails and is dismissed. No order as to costs.