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2016 DIGILAW 935 (UTT)

Prem Singh Rawat v. State of Uttarakhand

2016-12-07

SUDHANSHU DHULIA

body2016
JUDGMENT : The petitioners before this Court are Foresters in Uttarakhand Forest Department and have challenged the inter se seniority list of Foresters, which has been prepared by the Government on 21.01.2016, which is annexed as Annexure No. 2 to the writ petition. 2. In this matter, counter affidavit and rejoinder affidavit have been exchanged and the matter has been heard finally. 3. The case of the petitioners is that prior to 2002, the post of Forester, which is a Class-III post, were to be filled by way of promotion as well as by direct recruitment. One of the channels for promotion to the post of Forester is the feeding cadre of Forest Guard and Wildlife Guard. The petitioners were initially appointed as Forest Guard and subsequently were promoted to the post of Foresters in the year 2002. 4. All the private respondents, who are also Foresters in the forest department and who have been shown as senior to the present petitioners in the inter se seniority list of Foresters have never worked as Forest Guard or Wildlife Guard in the department. Admittedly, all of them were either working as “Moharrir” or “Jamadar” in the department. Vide order dated 24.11.2001, the Principal Secretary, Government of Uttarakhand passed an order, whereby the post of Jamadar and Moharrir were merged in the post of Foresters but with a rider that the inter se seniority of such Foresters, who stood merged shall be calculated from the initial date of their appointment on the post of Moharrir or Jamadar, as the case might be, but the second rider was that such Foresters, who were Jamadar and Moharrir and who now stood merged as Foresters will always be kept lower than the last Forester, who has been regularly promoted from the post of Forest Guard to the post of Forester. 5. Apart from the above facts, learned Senior Counsel for the petitioners would further rely upon the Uttaranchal Subordinate Forest (Rangers, Deputy Rangers and Foresters) Service Rules, 2002 (from hereinafter referred to as the “Adaptation order or Modification order”, 2002). Under the U.P. Reorganisation Act, 2000, (from hereinafter referred to as the “Act”), the State Government has got powers under Section 87 of the Act to adapt the existing laws (i.e. existing laws, for facilitating their application in relation to Uttarakhand). Section 87 of the Act reads as under:- “Section 87. Under the U.P. Reorganisation Act, 2000, (from hereinafter referred to as the “Act”), the State Government has got powers under Section 87 of the Act to adapt the existing laws (i.e. existing laws, for facilitating their application in relation to Uttarakhand). Section 87 of the Act reads as under:- “Section 87. Power to adapt laws.- For the purpose of facilitating the application in relation to the State of Uttar Pradesh or Uttaranchal of any law made before the appointed day, the appropriate Government may, before the expiration of two years from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority. Explanation.- In this section, the expression “appropriate Government” means as respects any law relating to a matter enumerated in the Union List, the Central Government, and as respects any other law in its application to a State, the State Government.” 6. In view of the aforesaid provision, the above adaptation order was passed and by the said Act, Rule 3 of the Uttaranchal [U.P. Subordinate Forest (Rangers, Deputy Rangers and Foresters) Service Rules, 1951] Adaptation and Modification Order, 2002 which have their application in the State of Uttarakhand in view of Section 87 of the U.P. Reorganisation Act, 2000 stood amended. Amended Rule 3 of the Adaptation order and Modification order, 2002 reads as under:- Rule 3. Amendment of Rule 3.- In the “Subordinate Forest (Rangers, Deputy Rangers and Foresters) Service Rules, 1951, hereinafter referred to as the said Rules, in Rule 3 for existing clause (g) set out in Column 1 below, the clause as set out in column 2 shall be substituted, namely- Column 1 Existing Clause (g) “Member of the Service” means a person appointed substantively under these rules or the rules or orders in force prior to the commencement of these rules, to a post in the cadre of the service. Column 2 Clause as hereby substituted (g) “Member of the Service” means a person appointed substantively under these rules or the rules or orders in force prior to the commencement of these rules, to a post in the cadre of the service. Column 2 Clause as hereby substituted (g) “Member of the Service” means a person appointed substantively under these rules or the rules or orders in force prior to the commencement of these rules, to a post in the cadre of the service. Provided that the persons substantively appointed to the posts of Jamadar and moharrir prior to the commencement of the Uttaranchal Subordinate Forest (Rangers, Deputy Rangers and Foresters) Service rules, 2002 shall, on the commencement of the said rules be deemed to have been substantively appointed as Foresters and their inter se seniority shall be determined on the basis of their substantive appointment on the posts of Jamadar and Moharrir and they shall be placed below the junior most person substantially appointed to the post of Forester prior to the commencement of the Uttaranchal Subordinate Forest (Rangers, Deputy Rangers and Foresters) Service Rules, 2002. 7. The proviso to the aforesaid amendment, which has been incorporated in the adaptation or modification order, is extremely relevant. The said proviso reiterates what had earlier been stated by the Principal Secretary, Government of Uttarakhand in its order dated 24.11.2001 and which has an extremely crucial bearing to the present dispute. 8. The proviso states that though the inter se seniority of the merged Foresters (such as the private respondents) would be from the date of their initial appointment as Moharrir or Jamadar, as the case might be, but all of them shall be placed below the persons substantially appointed to the post of Forester prior to the commencement of the Uttaranchal Subordinate Forest (Rangers, Deputy Rangers and Foresters) Service Rules, 2002. 9. Admittedly the seniority list, which has been prepared and is presently under challenge, has totally overlooked the above provision of law. The adaptation order as well as the earlier order of the Principal Secretary, Government of Uttarakhand have not been considered. The respondents would not have committed the grave error of making the private respondents senior to the petitioners had they considered the relevant provision. Considering that all the private respondents were earlier working as Moharrir or Jamadar and have been merged as Foresters between July 2002 to November 2002 i.e. after the petitioners have been substantially appointed/promoted to the post of Foresters, the private respondents were to be juniors to the present petitioners. They have wrongly been shown as senior to the petitioners. 10. Considering that all the private respondents were earlier working as Moharrir or Jamadar and have been merged as Foresters between July 2002 to November 2002 i.e. after the petitioners have been substantially appointed/promoted to the post of Foresters, the private respondents were to be juniors to the present petitioners. They have wrongly been shown as senior to the petitioners. 10. In view of the aforesaid, the writ petition is allowed. The seniority list dated 21.01.2016 is hereby quashed. A mandamus is hereby issued to the respondents to prepare a fresh seniority list within a period of six weeks from the date of production of a certified copy of this order.