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2016 DIGILAW 636 (UTT)

Anil Kumar Singh v. State of Uttarakhand

2016-09-27

ALOK SINGH, K.M.JOSEPH

body2016
JUDGMENT : K.M. Joseph, J. Petitioner seeks the following reliefs:- “a. Issue a Writ, Order or direction in the nature of certiorari quashing the order dated 24.8.2011 (Annexure 5) passed by respondent no. 1. b. Issue a writ order or direction in the nature of mandamus directing the respondents to relieve the respondent no. 5 to State of Uttar Pradesh.” 2. Petitioner was working as Assistant Regional Transport Officer in the State of Uttarakhand. One Sri Ramesh Chandra Kalra also held equivalent post in the Transport Department of the State of Uttar Pradesh. Petitioner made an application seeking mutual transfer with the aforesaid Sri Ramesh Chandra Kalra. This application was moved, apparently, purporting to invoke the provisions of Government Order No. 14/279/2002-SR(S) dated 15.09.2004 issued by the Government of India, read with Government Order dated 19.07.2007 issued by the Government of Uttarakhand. The effect of the said orders was that they authorized entertainment of applications for mutual transfer of the employees of the State of Uttarakhand and the employees of the State of Uttar Pradesh. Complaining that his application was not being considered, petitioner filed Writ Petition (S/B) No. 169 of 2008 before this Court. This Court, by judgment dated 02.03.2009, disposed of the said writ petition as follows:- “6. Having heard learned counsel for the parties, and after going through the papers on record, and the Government Orders, applicable to the case of the petitioner, this writ petition is disposed of with the following direction:- 1. State Level Advisory Committee, U.P. Reorganization Department, Lucknow, shall take decision on the representation of the petitioner for his mutual transfer vice Shri R.C. Kalra within a period of two months from the date of certified copy of this order is produced before said authority, and communicate the same to the Government of India for further action in the matter.” 3. Pursuant to the same, order dated 30.07.2009 (Annexure No. 3) was issued relieving the petitioner for the State of Uttar Pradesh. Similarly, there was an order issued in respect of Sri Ramesh Chandra Kalra by the State of Uttar Pradesh. Petitioner joined as Assistant Regional Transport Officer in the State of Uttar Pradeseh some time in the year 2009. Pursuant to the same, order dated 30.07.2009 (Annexure No. 3) was issued relieving the petitioner for the State of Uttar Pradesh. Similarly, there was an order issued in respect of Sri Ramesh Chandra Kalra by the State of Uttar Pradesh. Petitioner joined as Assistant Regional Transport Officer in the State of Uttar Pradeseh some time in the year 2009. In the meantime, petitioner had been promoted as Regional Transport Officer; but, in view of the request made and in view of the fact that he was being transferred to the State of Uttar Pradesh on his own request, he came to be transferred and he joined as Assistant Regional Transport Officer. It is, thereafter, that the impugned order dated 24.08.2011 was issued. In the said impugned order, reference was made to the judgment rendered by this Court in Writ Petition (S/B) No. 79 of 2008 and the State of Uttar Pradesh was requested to relieve the petitioner for the State of Uttarakhand. 4. We have heard Mr. Manoj Tiwari, learned Senior Counsel assisted by Mr. Amar Shukla, Advocate, on behalf of the petitioner; Mr. S.S. Chauhan, learned Deputy Advocate General appearing on behalf of the State of Uttarakhand; and Ms. Beena Pande, learned Standing Counsel appearing on behalf of the State of Uttar Pradesh. 5. Learned Senior Counsel for the petitioner would address the following submissions before us:- i. He would, firstly, submit that reliance placed on the judgment of the Division Bench, as has been done in the impugned order, is without any basis insofar as the petitioner is not a party to the judgment referred to in the impugned order. It is an inter-party judgment and the petitioner, who was transferred under the extant policy providing for mutual transfer, cannot be visited with the consequences provided for in the judgment. In this regard, he would seek to fortify himself by referring to another development, which is as follows:- Another person, who was not a party to the said judgment, filed a Review Petition seeking to review the judgment. The following is the order passed by the Bench in the Review Petition: “There is about 18 months’ delay in filing the Review Application. In such view of the matter, an application for condonation of delay in preferring the Review Application has also been filed. We have considered the averments made therein. The following is the order passed by the Bench in the Review Petition: “There is about 18 months’ delay in filing the Review Application. In such view of the matter, an application for condonation of delay in preferring the Review Application has also been filed. We have considered the averments made therein. We have not been able to convince ourselves that sufficient grounds have been made out for condonation of delay in preferring the Review Application. Be that as it may, inasmuch as the Review Application has been filed by an existing employee, who has altered his status on the basis of mutual agreement blessed by the orders passed by the two State Governments and the order under review affected such status although the review applicant was not a party to the writ petition, we allow the application for condonation of delay in preferring the Review Application. 2. We do not think that we need to go into the merit of the Review Application, inasmuch as, the review applicant was not a party to the order under review and, accordingly, it must be deemed that the order under review dealt with the issues inter se the parties to the writ petition and, accordingly, did not affect the review applicant. 3. The Review Application, accordingly, stands disposed of.” Emphasizing paragraph 2, learned Senior Counsel would submit that the very basis for the impugned order collapses. ii. Further, Mr. Manoj Tiwari, learned Senior Counsel would submit that the pronouncement by this Court can have prospective operation, but it cannot nullify the rights, which had been secured under the policy prior to the judgment. iii. Learned Senior Counsel would also seek to harness the de facto doctrine and would contend that the policy was valid at the time when mutual transfer was ordered in the case of the petitioner. It is also submitted that subsequent overruling of a judgment cannot result in the undoing of the acts done under the previous judgment. On the same analogy, he would submit that the fact that the order of the Government of India was set aside should not result in the undoing of the transaction, which has been effected legally at the time when the order was valid. iv. On the same analogy, he would submit that the fact that the order of the Government of India was set aside should not result in the undoing of the transaction, which has been effected legally at the time when the order was valid. iv. Learned Senior Counsel would further submit that this is a case, where the Court may not be oblivious to the fact that the order was passed for mutual transfer pursuant to a direction by a Court, to which judgment we have already referred to besides extracting the same. v. Without the foundation of any pleading, the learned Senior Counsel would also make an attempt to paint a picture of discrimination in the matter, as he would contend that several persons are being retained though they were beneficiaries of mutual transfer. vi. Petitioner has also a case that, in fact, even by the impugned order, the earlier order has not expressly been cancelled. 6. Per contra, Mr. S.S. Chauhan, learned Deputy Advocate General appearing for the State of Uttarakhand, would submit that the Government is only acting on the basis of the directions issued by the Court and, having regard to the law laid down, the Government decided to undo the earlier transfer made under the aegis of the mutual transfer policy, which is frowned upon by the Court. 7. As regards the argument of the learned Senior Counsel for the petitioner that the petitioner is not a party to the earlier judgment and, therefore, the petitioner cannot be affected or impacted by the same, we would think that there may not be much merit in the said argument. To consider the full effect of that submission, we have to consider what was decided in the judgment by the Division Bench. Towards the same, we would rely on and extract the following portion of the judgment of the Division Bench passed in Writ Petition (S/B) No. 79 of 2008, which is the basis for the impugned order:- “22. We have given our thoughtful consideration to the submissions advanced by the learned counsel for the respondents (as have been noticed in the foregoing paragraph). We have given our thoughtful consideration to the submissions advanced by the learned counsel for the respondents (as have been noticed in the foregoing paragraph). A birds eye view of the provisions contained in Part VIII of the Reorganisation Act, 2000 reveals, that the principal responsibility of the Central Government under Part VIII of the Reorganisation Act, 2000, was to divide the employees of the composite State of Uttar Pradesh between the two successor States of Uttarakhand and Uttar Pradesh, by finally allocating them to one or the other successor State. Insofar as the instant aspect of the matter is concerned, reference may be made to Section 73 of the Reorganisation Act, 2000. The only important question to be determined while adjudicating upon the instant issue is, whether the Central Government, having finally allocated employees of the composite State of Uttar Pradesh on 22.04.2003, still had the authority to issue further directions/orders in the matter. In our considered view, the answer to the aforesaid query is not far to fetch. The issue in hand has to be considered by keeping in mind the fact, that the Central Government had fulfilled the responsibility vested on its shoulders under Part VIII of the Reorganisation Act, 2000, when it issued the Final Allocation Lists on 22.04.2003. In carrying out the aforesaid onerous task, the Central Government had followed a well-planned and systematic process. In the first instance, the Central Government had prescribed guidelines through a letter dated 30.09.2000, depicting the factors which would be taken into consideration, in finalising the allocation process. In the aforesaid letter, it was pointed out, that the option of the employee concerned, his domicile status, ethnic affinity and seniority etc. would be kept in mind, while taking a decision on his allocation. These factors were obviously intended to protect the interest of the employees. The aforesaid letter also required, that the balance between each cadre/post would also be maintained, naturally to ensure, that there is no deficiency of any cadre/post in any of the successor States, nor an undesirable surplus. This was obviously to protect the interest of the two successor States. For its assistance, the Central Government constituted State Advisory Committees under Section 76 of the Reorganisation Act, 2000. The State Advisory Committee comprised of representatives of the two successor States. This was obviously to protect the interest of the two successor States. For its assistance, the Central Government constituted State Advisory Committees under Section 76 of the Reorganisation Act, 2000. The State Advisory Committee comprised of representatives of the two successor States. Insofar as the present controversy is concerned, the State Advisory Committee issued the Tentative Final Allocation Lists on 30.09.2002. The Tentative Final Allocation Lists, along with the representations made by those who were dissatisfied with their proposed final allocation, were placed before the Central Government, for passing final allocation orders under Section 73 of the Reorganisation Act, 2000. The Central Government was obliged under Section 73(2) of the Reorganisation Act, 2000 to “…determine the successor State to which every person…shall be finally allocated for service…”. The responsibility vested in the Central Government under Section 73 of the Reorganisation Act, 2000, would, therefore, come to an end immediately upon the issuance of final orders of allocation by the Central Government. In our view, the power vested in the Central Government under Part VIII of the Reorganisation Act, 2000, stood exhausted after the Central Government issued the Final Allocation Lists on 22.04.2003. The Central Government, after 22.04.2003, must be deemed to have been rendered functus officio insofar as the allocation of employees is concerned. Having discharged the responsibility vested in the Central Government under Section 73 of the Reorganisation Act, 2000, the Central Government, even on its own, had no further authority, to alter the final allocation of the employees. In fact, the aforesaid conclusion clearly emerges even from the letters/orders dated 15.09.2004/08.06.2006, inasmuch as, the Central Government declined to entertain any further representations from employees seeking alteration in their final allocation to one or the other of the successor States, by observing, that having already finally allocated employees to the successor States “…it finds no reasons to entertain such requests…”. This determination of the Central Government, in our considered view, was fully justified, after the Central Government had faithfully discharged its responsibility under Section 73 of the Reorganisation Act, 2000. There can be no gainsaying, that what the Central Government could not have done on its own, it could not require others to do. This determination of the Central Government, in our considered view, was fully justified, after the Central Government had faithfully discharged its responsibility under Section 73 of the Reorganisation Act, 2000. There can be no gainsaying, that what the Central Government could not have done on its own, it could not require others to do. Thus viewed, there seems to be no escape from the conclusion, that the Central Government had no authority to issue any directions of the nature contained in its letters/orders dated 15.09.2004/08.06.2006 after it had issued lists of final allocation of employees on 22.04.2003. Thus viewed, the letters/orders dated 15.09.2004/08.06.2006, requiring the successor States, to determine by consensus, terms and conditions for accepting requests for transfer of employees already finally allocated to one or the other successor State, was clearly beyond the competence of the Central Government. 8. This judgment of the Court leaves us in no doubt that the Court took the clear view that, after the final allocation was made by the Central Government, the Central Government had become functus officio and it had no authority to issue order dated 15.09.2004. We have already noticed that the very cause of action for the petitioner to approach this Court in the earlier round seeking a direction to consider his application for mutual transfer was partly based on order dated 15.09.2004 passed by the Government of India. It was this very order, which was pronounced as without any authority and issued after the Central Government had become functus officio. Therefore, it is a matter, where the order, which was made the basis for the petitioner’s claim, was found to be unauthorized and, if we may say so, without jurisdiction. 9. Thereafter, the Court also proceeded to hold as follows:- “27. The issues debated hereinabove can also be examined from another perspective. It has been provided in Article 162, contained in Chapter II (The Executive), of Part VI (The States), of the Constitution of India, that the extent of executive power of a State shall extend to matters with respect to which the legislature of that State has power to make laws. It is also clear from Chapter II (Administrative Relations) of Part XI (Relations Between the Union and the States), of the Constitution of India, that a federal form of governance has been envisaged for the country. It is also clear from Chapter II (Administrative Relations) of Part XI (Relations Between the Union and the States), of the Constitution of India, that a federal form of governance has been envisaged for the country. As a matter of exercising executive/administrative functions, the President of India, with the consent of the Governor of a State, can entrust to that State, executive/administrative functions on any matter to which the authority of the Union extends under Article 258 of the Constitution of India. Likewise, under Article 258A of the Constitution of India, the Governor of a State, with the consent of the Central Government, can entrust to the Central Government executive/administrative functions on any matter to which the authority of the State extends. In order to determine the present controversy, it is also essential to refer to Part XIV (Services under the Union and the States) of the Constitution of India, and specially to Article 309, contained in Chapter I (Services), which provides as under:- “309. Recruitment and conditions of service of persons serving the Union or a State. – Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this Article, and any rules so made shall have effect subject to the provisions of any such Act.” An overview of the provisions of the Constitution of India (referred to above) reveals a well-defined scheme of division of executive/administrative powers between the Central Government and the State Governments. The Constitution of India forbids transgression of the aforesaid distribution of power, other than in the manner prescribed. The Constitution of India forbids transgression of the aforesaid distribution of power, other than in the manner prescribed. The executive/administrative authority of a State is not only limited to the subjects in respect whereof a State legislature can enact law, but is also limited geographically to the boundaries of the State concerned. While the scheme of governance envisages the delegation of Union executive/administrative functions to a State and vice-versa, there is no such coordination envisaged between two different States, wherein executive/administrative functions can be delegated by one State to the another State, or can be carried out jointly. Therefore, the directive contained in the letters/orders issued by the Central Government, in its letters/orders dated 15.09.2004/08.06.2006, requiring the successor States to jointly perform executive/administrative functions, in respect of employees over which only one of the two successor States had jurisdiction/authority, is per se unsustainable under the provisions of the Constitution of India. First and foremost, it is not possible for us to accept that any such orders could have been issued by the Central Government under Article 162 of the Constitution of India. After the final allocation of employees, the manner in which the employees were to be dealt with, as also their conditions of service, would fall exclusively with the jurisdiction of the State to which they had been allocated. The Central Government’s orders dated 15.09.2004/08.06.2006 were in the nature of an unauthorised intrusion into affairs over which it had no jurisdiction. The letters/orders dated 15.09.2004/08.06.2006, seem to be in the nature of unsolicited advice, as the successor States are not shown to have sought the opinion of the Central Government on the matter. We are of the considered view that the Central Government could not have issued directions to the executive of the successor States, requiring them to carry out the exercise of framing a policy, laying down a criterion, for transfer of employees of one State to another by mutual consent, after they had been finally allocated to a particular State by the Central Government under Section 73 of the Reorganisation Act, 2000. As already noticed hereinabove, the authority/jurisdiction vested in the Central executive can be delegated to a State executive only in accordance with the procedure envisaged under Article 258 of the Constitution of India. As already noticed hereinabove, the authority/jurisdiction vested in the Central executive can be delegated to a State executive only in accordance with the procedure envisaged under Article 258 of the Constitution of India. From the factual position narrated above, it is apparent, that the aforesaid procedure had not been followed, and that, the Central Government had issued the letters/orders dated 15.09.2004/08.06.2006 on its own accord. Thus viewed, the directions contained in the letters/orders dated 15.09.2004/08.06.2006, requiring the successor States of Uttarakhand and Uttar Pradesh to carry out the responsibility of transferring employees from one State to another, was wholly impermissible under the provisions of the Constitution of India. We are also satisfied, that under the federal scheme envisaged under the Constitution of India, it is not open to individual State Governments, to singularly or jointly issue a policy decision in the discharge of their executive/administrative authority, so as to transplant employees of one State into another. In our view, executive/administrative functions of a State under the mandate of Article 162 of the Constitution of India extends to matters with respect to which the legislature of the State has power to make laws, limited to the geographical boundaries of the State concerned. The action of a State in dealing with employees of another State, would transgress both the aforesaid limitations. Even the power to frame rules under Article 309 of the Constitution of India, has consciously been confined to the scheme of distribution of powers and governance, envisaged in Parts VI and XI of the Constitution of India. Under Article 309 of the Constitution of India, the power vested in the Governor of a State to frame rules regulating recruitment and conditions of service is limited to the “…services and posts in connection with the affairs of the State…” alone. Even the authority to frame rules under Article 309 of the Constitution of India vested in the Governor of a State, in our view, could not have extended to “…services and posts …” of another State. We are, therefore satisfied, that the exercise carried out jointly, even though by consensus, by the successor States of Uttarakhand and Uttar Pradesh, so as to transfer employees of one State to the other, was in clear violation of the distribution of executive/administrative functions envisaged under the Constitution of India.” 10. We are, therefore satisfied, that the exercise carried out jointly, even though by consensus, by the successor States of Uttarakhand and Uttar Pradesh, so as to transfer employees of one State to the other, was in clear violation of the distribution of executive/administrative functions envisaged under the Constitution of India.” 10. The Court also proceeded to deal with various other contentions; but, we need not be detained by the same. Suffice it for our purpose that we deal with the aspect relating to lack of authority. In short, it is a case, where a superior court, namely, the High Court in this case was called upon to pronounce on the validity of the order issued by the Government of India purporting to act under the State Reorganisation Act and the Court has pronounced the said order as completely unauthorized and against the Constitution. It is only with reference to the said Government of India decision that the petitioner’s application for mutual transfer was processed, no doubt on the basis of the direction issued by this Court. In short, our reasoning is that the request for mutual transfer of the petitioner being directed to be considered by this Court in the earlier round and the order granting the request for mutual transfer were all based on a Government of India decision and also on the order of the Government of Uttarakhand, which were completely unauthorized in law. This is the effect of the judgment passed by this Court. 11. The question is, whether this judgment should have only prospective operation. If the judgment is to have prospective operation, it would certainly debar consideration of any future application about which even the learned Senior Counsel for the petitioner has no quarrel, whether the applicant is a party to the judgment or not. The argument of the petitioner is that the said principle cannot be extended to the case of a transaction, which is a past transaction and which was valid at the time when the order was passed, particularly pursuant to the judgment of this Court. 12. We must, first, deal with the aspect relating to the order of mutual transfer being passed pursuant to the direction of this Court and, therefore, it becoming invulnerable to further scrutiny or supersession. We are of the view that there is no merit in the said submission. 12. We must, first, deal with the aspect relating to the order of mutual transfer being passed pursuant to the direction of this Court and, therefore, it becoming invulnerable to further scrutiny or supersession. We are of the view that there is no merit in the said submission. All that the Court did in the earlier round was that, as there was no challenge to the policy, the Court took note of the stand of the respondents that there was a recommendation in favour of the petitioner and directed the matter to be looked into by the authorities under the policy for mutual transfer. Pursuant to the same, an order was also passed. But, when the Government of Uttarakhand, which most importantly is a party to the subsequent judgment, was faced with the judgment, which is rendered by a superior court, then, can it be dubbed illegal when it decides to implement the terms of the judgment across the board, as we must presume in the absence of any plea of discrimination, to the employees, who were beneficiaries of such mutual transfer. We would think that it cannot be dubbed illegal. This is for the reason that, when a superior court, which, under the Constitution, is entrusted with the task of interpreting the law and striking down executive orders as also statutes and the case is made out under Article 13 of the Constitution, the said decisions would have retrospective operation. This is not a case, where there was prospective overruling by the High Court. We are also not oblivious to the principle that the principle of prospective overruling can be resorted to only by the Apex Court. The High Court has also not resorted to prospective overruling. In such circumstances, the ordinary principle is that quashing of the order will have effect with effect from the date when the order was originated. When the Court has held, as we have noted, that the Central Government had become functus officio after the final allocations were made and, therefore, the order dated 15.09.2004 was completely unauthorized, it should be understood as meaning that it was a case of complete lack of authority and it struck at the constitutional framework. Therefore, it was a case, where the order, under which the petitioner was transferred, must be treated as found to be completely unauthorized and without jurisdiction. Therefore, it was a case, where the order, under which the petitioner was transferred, must be treated as found to be completely unauthorized and without jurisdiction. When the Government of Uttarakhand undertook the exercise of giving life to the judgment even in respect of a past transaction on the basis that it understood the law that the superior court’s judgment will have retrospective operation, which is in consonance with the principles which we have discussed above, we certainly cannot dub it as illegal. If the order is not illegal, then, we are afraid, the very basis for seeking a writ of certiorari for quashing the same may not be justified. 13. The next argument we have to deal with is the order passed in review. The judgment passed in the review on the analogy of the petitioner’s argument must be treated as an inter-party judgment. It is a judgment, which affected the parties therein. It cannot be treated as a judgment in rem. Petitioner has not filed any review. When faced with the order, which was passed in this case, we are informed by Mr. Manoj Tiwari that the case, which resulted in the review being filed, was a case, where, following the judgment of the Tribunal, the petitioner, who was the beneficiary of mutual transfer, thought it fit to file a review. Here also, the petitioner is faced with an order against him, but he has not chosen it fit to approach the court in review. We have also noticed that the Court in Writ Petition (S/B) No. 79 of 2008 has pronounced on the constitutional validity of order dated 15.09.2004 and it was found that there was transgression of the constitutional scheme. In fact, it is not in dispute that the said order was quashed. There is a clear pronouncement on the legal effect of the Constitution and the State reorganization on the order in question and, undoubtedly, it is under the same order that the petitioner secured benefit of the said transfer. State of Uttarakhand is certainly a party to the said judgment. There is a clear pronouncement on the legal effect of the Constitution and the State reorganization on the order in question and, undoubtedly, it is under the same order that the petitioner secured benefit of the said transfer. State of Uttarakhand is certainly a party to the said judgment. When the Court has declared the law that there is no authority with either the Government of India or even on the basis of consensus between the two States to pass such an order providing for mutual transfer, we find that the impugned decision, which purports to follow the law laid down by the Bench which has become final, passed by the State of Uttarakhand, which is a party to the said judgment, cannot be dubbed as illegal in any manner. The petitioner continued from 2009 till 2011. The order impugned is passed following the judgment dated 26.07.2010 passed by this Court. So, we cannot say that there is a great delay in implementing the judgment or that equity is in favour of the petitioner. No doubt, petitioner secured an interim order in this case, which we deem appropriate at this juncture to extract for other reasons as well. The same reads as follows:- “Mr. Gopal Narain, Advocate for the petitioner. Mr. J.P. Joshi, Chief Standing Counsel for respondent Nos. 1 and 2. Mrs. Beena Pandey, Standing Counsel (U.P. Govt.) for respondent Nos. 3 and 4. The petitioner was transferred and relieved from the State of Uttarakhand in the year 2009 on mutual transfer basis pursuant to the Government Order dated 19th July, 2007. This Government Order has been quashed by a decision of this Court dated 26th July, 2010 passed in Writ Petition No. 79 of 2008 (S/B). Pursuant to the decision of the Court, the impugned order has been passed by the State Government of Uttarakhand directing the State of U.P. to relieve the petitioner. The question to be considered is whether any action taken validly pursuant to the Government Order can be recalled merely because this Government Order has now been set aside. Let a counter affidavit be filed by the learned counsel appearing for the respondent within two weeks. Notice to respondent Nos. 5 and 6 is not being issued at this stage. The question to be considered is whether any action taken validly pursuant to the Government Order can be recalled merely because this Government Order has now been set aside. Let a counter affidavit be filed by the learned counsel appearing for the respondent within two weeks. Notice to respondent Nos. 5 and 6 is not being issued at this stage. In the light of the aforesaid, the impugned order dated 24th August, 2011 passed by the respondent No.1 shall remain stayed till the next date of listing.” 14. We said so that there are other reasons as we noticed that the Court did not issue notice to the fifth respondent. The second prayer of the petitioner relates to the fifth respondent. It appears that the fifth respondent was originally allocated to the State of Uttar Pradesh in 2005 and, subsequently, she was allocated to the State of Uttarakhand. But, it is noteworthy that it is not under the policy of mutual transfer. There is no challenge to her allocation. There is only a writ of mandamus, which is sought and, as already noticed, notice was not issued to her and the arguments were essentially addressed in relation to prayer No. 1. 15. We are also not impressed with the argument based on de facto doctrine. De facto doctrine, in our humble view, is invoked without the slightest pretence being made out to its applicability in the facts. De facto doctrine is a doctrine, which has been evolved to protect the public from situations, where it is found that a person, under the colour of title, is discharging public function and, later, it is discovered that he did not have actual authority to discharge the public function. We cannot liken it in any manner to the facts available in this case, as, undoubtedly, at the time when the petitioner was transferred and he discharged functions in the State of Uttar Pradesh, his actions were certainly based on the authority of mutual transfer and there is no question of invoking the de facto doctrine in respect of his functions on the basis of the subsequent Division Bench judgment. The question is as to whether recalling the petitioner back on the basis of the judgment of this Court can be saved by the de facto doctrine. Certainly we would think that the application of the said doctrine is without any basis. The question is as to whether recalling the petitioner back on the basis of the judgment of this Court can be saved by the de facto doctrine. Certainly we would think that the application of the said doctrine is without any basis. We, accordingly, reject the said contention. 16. The argument that subsequent judgment cannot nullify the rights, which have been secured under the earlier order, also does not appeal to us for the reason which we have already given. We only state that the petitioner secured an order for mutual transfer under the aegis of Government of India decision and also the decision of the Government of Uttar Pradesh and the Government of Uttarakhand. These orders were found to be completely without jurisdiction. Government of Uttarakhand has decided to give effect to the judgment of this Court. In such circumstances, it would be a case of setting right a wrong, correcting an illegality, overturning an order which was foundation-less in law and reversing an act which was found to be without jurisdiction. Therefore, we would think that, having regard to the true function of superior judiciary, we cannot hold that the impugned order is illegal. 17. As we have already noticed, there was an attempt made by the learned Senior Counsel for the petitioner to point out that there was discrimination. In fact, to borrow the words of the learned Senior Counsel, there are hundreds of cases of persons, who have not been treated similarly as the petitioner; but, what is pertinent to note is that there is not an iota of pleading in the writ petition in this regard. A plea of discrimination must certainly be founded in definite pleadings, as the absence of pleadings will deprive the respondents of an opportunity to rebut the same and also the court to render a finding thereon. Therefore, in the absence of any pleading, we need not be detained by the said argument. Rather, the absence of a plea of discrimination would fortify us in the view that we have taken that the action of the Government cannot be dubbed as illegal or even arbitrary, as was sought to be urged finally by the learned Senior Counsel for the petitioner. 18. The argument that the petitioner had secured accrued rights under the existing policy also does not appeal to us. 18. The argument that the petitioner had secured accrued rights under the existing policy also does not appeal to us. This is for the reason that the nature of the effect of the judgment of a superior court, as we have already indicated, is that it has the effect from the very inception of the policy, which is found to be flawed, particularly when the flaw goes to the root of the matter, insofar as it is found to be without jurisdiction. Therefore, as already noted, this is a case of correcting an illegality when the transfers were found to be without any basis. It is a settled law that, if mistakes, for instance, are committed by the Government and the mistakes have resulted in rights, they are amenable to correction; may be considerations like length of time the mistake continued to be perpetuated, the consequent fairness of the action and may be, in appropriate cases, the principle of natural justice, may all be relevant when the matter is tested. It is not as if the Government should allow mistakes to be perpetuated. If the law with regard to mistakes is as above, certainly, when what is at stake is plain illegality, then we would think that laying store by the argument of “accrued rights” cannot assist the petitioner. In fact, in this case, petitioner has not argued a case of violation of principles of natural justice and we need not be detained by that aspect. 19. The learned Senior Counsel for the petitioner also submits that the State of Uttarakhand does not have the authority. Petitioner was finally allocated to the State of Uttarakhand and, therefore, he was the employee of the State of Uttarakhand. He was, subsequently, allocated to the State of Uttar Pradesh on the basis of mutual consent. There is no dispute that Sri Ramesh Chandra Kalra, who was mutually transferred to the State of Uttarakhand, has not separately challenged the said order, which means that he has accepted the same. In fact, Mr. Manoj Tiwari would point out that he has subsequently retired. There is no dispute that Sri Ramesh Chandra Kalra, who was mutually transferred to the State of Uttarakhand, has not separately challenged the said order, which means that he has accepted the same. In fact, Mr. Manoj Tiwari would point out that he has subsequently retired. We cannot characterize the impugned order as illegal for the reason that the State of Uttarakhand has requested for recalling its employee, which is all it could possibly do, as it has claim only over its employee and, acting on the judgment of this Court, it decided to give effect to it by recalling its officer and particularly when the State of Uttar Pradesh has no complain over the impugned order. In this regard, we record the submission of Ms. Beena Pande, learned Standing Counsel for the State of Uttar Pradesh, that the State of Uttar Pradesh has accepted the joining back of Sri Ramesh Chandra Kalra in the State of Uttar Pradesh. We, accordingly, need not lay much store by that argument of the learned Senior Counsel appearing for the petitioner. 20. The upshot of the above discussion is that the writ petition fails and it is dismissed. No order as to costs.