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2017 DIGILAW 227 (UTT)

Sant Ram v. State of Uttarakhand

2017-04-10

ALOK SINGH, K.M.JOSEPH

body2017
JUDGMENT : K.M. JOSEPH, J. 1. Petitioners have approached this Court seeking the following relief:- (“a) Issue an appropriate writ, order or directions in the nature of Certiorari commanding the Respondents to quash the arbitrary, illegal and unconstitutional order No. 1802/111(1)/08-125/PWD/02-TC dated 8-8-2008 & order No. 1887/111(1)/08-125(PWD)/02T.C. dated 8.08.2008 (both orders are annexed as Annexure-5 colly) by which Petitioners were relieved from the Successor State of Uttarakhand / Uttaranchal. (b) Issue an appropriate writ, order or direction in the nature of Mandamus commanding the Respondents to finally allocate the Petitioners into the Cadre of PWD Engineers of Uttaranchal/Uttarakhand State on the same guidelines and Rules on the basis of which many other similarly situated candidates had been allocated into the Cadre of PWD Engineers of Uttaranchal/Uttarakhand State applying the Principle of Equality before Law (Parity). (c) Issue an appropriate writ, order or directions in the nature of Mandamus commanding the Respondents to finally allocate the Petitioners into the Cadre of PWD Engineers of Uttaranchal/Uttarakhand State on the same post on which they are working in the State of Uttar Pradesh on the basis of the Guidelines & directions issued vide Uttarakhand govt. G.O. No. 284/XXXVII/13-23 (TC)/2007 dated 08-08-2013 (Annexure-2) and as per the directions issued by Hon’ble Supreme Court vide the Judgment & order dated 17-4-2013 (Annexure-6) passed in Civil Appeal Nos. 3918-3922 of 2013 (arising out of SLP(c) Nos 5355-5359/2012) titled as Union of India & Ors. Vs. Deepak Yadav and others, on the basis of the options of the Petitioners in the interests of justice to the Petitioners. (d) Issue an appropriate writ, order or directions in the nature of Mandamus commanding the Respondents to decide the Petitioner’s representations dated 05-5-2014 & dated 19-5 2014 (Annexure-9 colly) through a speaking order within a stipulated time period as may be directed by this Hon’ble Court in the interest of justice to the Petitioners. (d) Issue an appropriate writ, order or directions in the nature of Mandamus commanding the Respondents to decide the Petitioner’s representations dated 05-5-2014 & dated 19-5 2014 (Annexure-9 colly) through a speaking order within a stipulated time period as may be directed by this Hon’ble Court in the interest of justice to the Petitioners. (e) Issue an appropriate writ, order or direction in the nature of Mandamus commanding the Respondent No.1 to absorb the petitioners in PWD Cadre of the State of Uttarakhand on the same post on which they are working at present and also give them the seniority/position based on combined seniority list of U.P. Public Service Commission and also promote them upto the level on which their juniors are working in the State of Uttarakhand.” Briefly put, the case of the petitioners is as follows:- Petitioners were working in the proposed territory of Uttaranchal/Uttarakhand since 17.07.2000 and 21.02.2000 respectively in the post of Executive Engineer (Civil). They desired to be allocated in the Cadre of PWD Engineers of the successive State of Uttaranchal/Uttarakhand. They had exercised options for allocation. It is their case that they were allocated on 14.11.2000 by the competent authority after due approval as per the provision of Sections 73 and 75 of the U.P. Reorganisation Act, 2000. Petitioners filed Writ Petition No. 150 (S/B) of 2005. Therein, it appears that petitioners sought the following reliefs : “A. To issue a writ order or direction in the nature of certiorari for quashing the Government Order dated 10.05.2005 issued by the Respondent No.2 (Annexure No.6 to the writ petition). (B) To issue a writ order or direction in the nature of mandamus restraining the respondents from subjecting the petitioners to any hostile discrimination in the matter of promotion. (C) To issue a writ order direction in the nature of mandamus commanding Respondent No.1 to consider claim of the petitioners for promotion in accordance with the relevant Service Rules strictly in order of seniority as it existed in the Combined Seniority List of Hill Sub Cadre and General Cadre. (D) To issue a writ order or direction in the nature of mandamus commanding the Respondent No.5 to include name of the petitioners in the Tentative Final Allotment List in respect of Executive Engineers (Civil) proposed to be allocated to State of Uttaranchal. (D) To issue a writ order or direction in the nature of mandamus commanding the Respondent No.5 to include name of the petitioners in the Tentative Final Allotment List in respect of Executive Engineers (Civil) proposed to be allocated to State of Uttaranchal. (E) To issue a writ order or direction in the nature of mandamus commanding Respondent No.6 to pass appropriate orders regarding final allotment in respect of the petitioners in accordance with the Section 73 (2) of U.P. Reorganisation Act, 2000.” The Division Bench of this Court, vide order dated 1st March, 2006, disposed of the matter as follows: “2. Relief Nos. A, B, C and D cannot be granted until and unless the final allocation is made under Section 73 (2) of the U.P. Reorganisation Act (hereinafter will be referred to as the Act) and for that purpose, the petitioners have made a prayer in Clause (E) of the prayer clause as quoted above. 3. No allocation in respect of the petitioners has been made by the Government of India under Section 73 (2) of the Act. Therefore, it is directed that the petitioners shall make their representations relating to their allotment under Section 73 (2) of the Act along with certified copy of this order to the Government of India within a week. Thereafter, the Government of India is directed to decide the said representation within a period of three weeks from the date of production of certified copy of this order. 4. We are framing time schedule for the reason that the petitioners are suffering due to non-consideration for their promotion on account of their non-allocation under Section 73 (2) of the Act.” According to the petitioners, pursuant to the same, they filed representation dated 07.03.2006. The said representation is produced along with supplementary affidavit filed on 06.04.2017, as Annexure-1. Pursuant to the same, on 22.08.2007, the following order was passed by the Government of India. “No.27(C) 184/06-SRS Government of India Ministry of Personnel, P.G. and Pensions Department of Personnel & Training ***** 3rd floor, Lok Nayak Bhawan Khan Market, New Delhi Dated 22nd August, 2007. To, The Chief Secretary Government of Uttar Pradesh Lucknow. The Chief Secretary Government of Uttarakhand, Dehradun Subject : Representation of Shri Sant Ram, Executive Engineer, PWD and another – W.P. No. 150/2005 in Hon’ble High Court of Uttarakhand, Nainital. To, The Chief Secretary Government of Uttar Pradesh Lucknow. The Chief Secretary Government of Uttarakhand, Dehradun Subject : Representation of Shri Sant Ram, Executive Engineer, PWD and another – W.P. No. 150/2005 in Hon’ble High Court of Uttarakhand, Nainital. In compliance of the directions of the Hon’ble High Court of Uttarakhand, Nainital in W.P. No.150/2005 and pending finalization of TFAL, the Central Government has considered the representation of Shri Sant Ram, Executive Engineer, PWD and decided to allocate him, provisionally, to the successor State of Uttarakhand. The provisional allocation of Shri Sant Ram to the successor State of Uttarakhand is subject to issue of final allocation orders in respect of the Engineering Service of PWD by the Central Government, based on the recommendations of State Advisory Committee. The employee will be at liberty to represent against the TFAL before issue of final allocation orders. The Office concerned may be informed accordingly. Yours faithfully, (V. Peddanna) Deputy Secretary to the Govt. of India 24623711 Copy to : 1. Shri Raja Ram, Principal Secretary, U.P. Reorganisation Coord. Deptt., Vikas Bhawan, Janpath Market, Lucknow (U.P.) 2. Shri Nepalchayal, Principal Secretary, Reorganisation, Govt. of Uttarakhand, Dehradun. 3. Shri Sant Ram, Executive Engineer, Provincial Division, Public Works Department, Ram Nagar, District Nainital. 4. Smt. Anjali Bhargava, CGSC, Uttarakhand High Court, Ravi Niwas (IInd floor) Pilgrim Lodge Compound, Malli Tal Nainital-263001.” Annexure-4 relates to the 1st petitioner and Annexure-5 relates to the 2nd petitioners. Both the annexure are identical. From the perusal of 2nd paragraph of the aforesaid order, it is clear that petitioners were provisionally allocated to the State of Uttarakhand. It is complaint of the writ petitioners that petitioners were not allocated the cadre of PWD Engineers in State of Uttarakhand and the reason given was sanctioned posts were not available. The same was challenged before this Court and finally the matter reached the Apex Court. We heard Smt. Neetu Singh, learned counsel for the petitioners, Sri Hari Mohan Bhatia, learned Brief Holder for the State of Uttarakhand/respondent Nos. 1 and 6, Smt. Bina Pande, learned Standing Counsel (U.P. Govt.) for respondent Nos. 2 and 5 and Sri P.S. Bisht, Standing Counsel (Central Govt.) for respondent No. 4. Reliance is essentially placed on Annexure-2 dated 8th August, 2013, English translation whereof is reproduced as under:- “No.284/XXXVII/13-23 (TC)/2007 From : Subhash Kumar Chief Secretary Govt. of Uttarakhand To The Chief Secretary Govt. 2 and 5 and Sri P.S. Bisht, Standing Counsel (Central Govt.) for respondent No. 4. Reliance is essentially placed on Annexure-2 dated 8th August, 2013, English translation whereof is reproduced as under:- “No.284/XXXVII/13-23 (TC)/2007 From : Subhash Kumar Chief Secretary Govt. of Uttarakhand To The Chief Secretary Govt. of U.P., Lucknow State Reorganisation Section Dehradun:Dated 08 August, 2013 Subject : Regarding consent of the State of Uttarakhand on the submitted proposal of allotment/Merger of officials. Sir, In the above matter pl. refer to the letter No.-16/28-1-2013 writ/2013, dtd 22.04.2013 and no. 423/28-1-2013-writ/2013, dated 30.07.2013 issued by the department of U.P. reorganization. In compliance of Hon’ble High Court of Allahabad’s Judgment on writ Petition no. 3636/2005 Jagdish Narayan Dohrey Vs U.P. State and others and the decision taken in the joint meeting of Chief Secretaries of both the States on dated 24.02.2013 and on their recommendations. The Consent/recommendation of the State of Uttarakhand has been desired on the proposal made/sent by the State of U.P. 2. In the above reference I have been instructed to say that the Hon’ble Governor gives his consent of the State of Uttarakhand as below: (A) The officials who are not able join in the State of Uttar Pradesh/Uttarakhand due to personal administration and judiciary hindrances, then the required number of vacant posts must be provided to the successor state, so that the concerned Govt. of States may give appointment on those posts. (B) The officials who have been allotted to the successor state against their will based on juniority/state cadre and they have joined in successor state against their will, they must be allotted to their original willing state. This policy will be applicable on all officials/cadre of all the departments equally, even if the posts are vacant or not, if it is required then the excess posts may be created. Therefore do the necessary action on the basis of above decision in the matter of allotment/Merger of the officials. Yours faithfully (Subhash Kumar) Chief Secretary No.284/XXXVII/13-23(TC)/2007” Therefore, it is the case of the petitioners that petitioners were entitled to the benefit of the said Government Order. It is further contended that similar issues were raised before this Court and finally matter reached the Apex Court, and, therefore, reliance placed on the judgment rendered therein. Yours faithfully (Subhash Kumar) Chief Secretary No.284/XXXVII/13-23(TC)/2007” Therefore, it is the case of the petitioners that petitioners were entitled to the benefit of the said Government Order. It is further contended that similar issues were raised before this Court and finally matter reached the Apex Court, and, therefore, reliance placed on the judgment rendered therein. The relevant portion of the judgment relied by the learned counsel for the petitioners, rendered by the Apex Court in Civil Appeal Nos 3918-3922 of 2013, reads as follows:- “In this context, the High Court has noted that on earlier occasion when steps were taken by the State of Uttarakhand to fill up some of the vacant posts, challenge was made and the said writ petition was disposed of finally by dismissing the same. While dismissing the writ petitions, the High Court made a specific reference to an undertaking at the instance of the Union of India that the option of the writ petitioners as well as other optee will not be rejected while filling up the posts on the sole ground that no post is available. Taking note of the said categoric undertaking made on behalf of the Union of India then, the High Court has now held that it cannot now turn around and attempt to contend that posts are not available after the reorganisation. We are not, therefore, impressed by the said contention even by referring to the order dated 11.9.2001 in Order No. 27/9/2001 SR issued by the Director (SR). We, therefore, do not find any good grounds to interfere with the orders impugned in these appeals. We, however, direct the appellants to consider the option exercised by the writ petitioners for the post which was already allocated to the State of Uttarakhand and pass orders. But while passing such orders, we make it clear that their options cannot be turned down on the ground that no post was available. With these observations, the appeals are disposed of.” Counter affidavit is filed by the State of Uttarakhand and also by the Government of India. Therein, there is reference that petitioners were finally allocated to the State of Uttarakhand by an order dated 31.07.2008. With these observations, the appeals are disposed of.” Counter affidavit is filed by the State of Uttarakhand and also by the Government of India. Therein, there is reference that petitioners were finally allocated to the State of Uttarakhand by an order dated 31.07.2008. It is also contended, in fact, by Sri H.M. Bhatia, learned Brief Holder that petitioners have been relieved from the State of Uttarakhand in the year 2008 (08.08.2008) and ever since they were serving in the State of U.P. He would pose a question as how the writ petition is maintainable in this Court. It is also contended that Annexure-3 was issued on 8th August, 2013 and petitioners came to Court with delay and on that ground also the writ petition was opposed. He would also submit that petitioner No.1 was on deputation since 05.09.2014 in the State of Uttarakhand. It is clear that originally, on the basis of the judgment passed in Writ Petition No. 150 of 2005 (S/B), direction was given by this Court that petitioners may represent their grievance relating to their final allocation under Section 73 (2) of the Act and file representation within the time provided. Government of India was also directed to decide the said representation within a period of three weeks from the date of production of certified copy of the order. Initially, petitioners were favoured with provisional allocation to State of Uttarakhand but, subsequently, there has been an order of final allocation passed by the Government of India. In fact, in this regard, we may notice the stand of the learned counsel for the Government of India that petitioners’ names were not recommended by the State Advisory Committee even for allocation to the State of Uttarakhand. Whatever that be the fact remains that orders of final allocation passed by the competent authority, i.e. Government of India dated 31.07.2008 are against the petitioners and these orders are not challenged. Therefore, the position is that petitioners stand finally allocated to the State of U.P. Reliance placed on Annexure-2, in our view, may not be justified. Annexure-2 is of dated 8th August, 2013. Therefore, the position is that petitioners stand finally allocated to the State of U.P. Reliance placed on Annexure-2, in our view, may not be justified. Annexure-2 is of dated 8th August, 2013. It is the communication addressed by the Chief Secretary of State of Uttarakhand to the Chief Secretary of the Government of U.P. We do not know on what basis the petitioners can rely on this communication as there is final allocation by the Government of India which is not called in question. As far as the judgment of the Apex Court is concerned, the petitioners cannot possibly derive any assistance from the same as the facts were different. Relevant paragraphs of the judgment of the Apex Court are extracted hereunder: “The writ petitioners were aggrieved by the orders of cancellation of their earlier allocation in the post of Assistant Engineers in the Public Works Department to the State of Uttarakhand on the bifurcation of the said State in the year 2000 under Uttar Pradesh Reorganisation Act, 2000(hereinafter being referred to as “Act of 2000”) which came into effect on 9.11.2000. Though, the Union of India challenging the impugned orders made an attempt to dislodge the allocation already made by sustaining the cancellation of the allocation orders, on a perusal of the order dated 10.5.2011 which is the lead order passed in these writ petitions, we find that that very issue was examined earlier also when a definite stand was taken by the Union of India which persuaded the High Court not to pass the orders impugned in these writ petitions. In paragraph 4 of the impugned order dated 10.5.2011, we find that after bifurcation of Uttarakhand under the Act of 2000, 204 posts of Assistant Engineers in the Public Works Department were allocated to the said State, that of the said 204 posts, 82 came from Hill Sub cadre and 8 posts from Haridwar District as they were then working at Haridwar. It was also the definite stand of the Union of India that the remaining 114 posts could be supplied by allocation. Therefore, when the writ petitioners opted to serve the State of Uttarakhand in 2006, the Union of India published a final allocation list and they were allotted to the State of Uttarakhand. The said allocation, it appears, was, however, not implemented and was kept in abeyance. Therefore, when the writ petitioners opted to serve the State of Uttarakhand in 2006, the Union of India published a final allocation list and they were allotted to the State of Uttarakhand. The said allocation, it appears, was, however, not implemented and was kept in abeyance. The Union of India subsequently issued the orders cancelling the allocation which made the writ petitioners approach the High Court challenging those orders. In this context, the High Court has noted that on earlier occasion when steps were taken by the State of Uttarakhand to fill up some of the vacant posts, challenge was made and the said writ petition was disposed of finally by dismissing the same. While dismissing the writ petitions, the High Court made a specific reference to an undertaking at the instance of the Union of India that the option of the writ petitioners as well as other optee will not be rejected while filling up the posts on the sole ground that no post is available. Taking note of the said categoric undertaking made on behalf of the Union of India then, the High Court has now held that it cannot now turn around and attempt to contend that posts are not available after the reorganisation. We are not, therefore, impressed by the said contention even by referring to the order dated 11.9.2001 in Order No. 27/9/2001 SR issued by the Director (SR). We, therefore, do not find any good grounds to interfere with the orders impugned in these appeals. We, however, direct the appellants to consider the option exercised by the writ petitioners for the post which was already allocated to the State of Uttarakhand and pass orders. But while passing such orders, we make it clear that their options cannot be turned down on the ground that no post was available. With these observations, the appeals are disposed of.” A perusal of the penultimate paragraph of the judgment would show that actually writ petitioners therein opted to serve the State of Uttarakhand in the year 2006. The Government of India published final allocation list and they were allocated to the State of Uttarakhand. The said allocation was not implemented and was kept in abeyance. Then Government of India subsequently cancelled the final allocation which made the writ petitioners approach the High Court challenging those orders. The Government of India published final allocation list and they were allocated to the State of Uttarakhand. The said allocation was not implemented and was kept in abeyance. Then Government of India subsequently cancelled the final allocation which made the writ petitioners approach the High Court challenging those orders. In the said context, the Court noted that there was earlier occasion when the Government of Uttrakhand tried to fill up the vacant posts and the writ petition was filed challenging the same. While dismissing the writ petition, it appears there was an undertaking that the option of the writ petitioners as well as other optees will not be rejected while filling up the post on the sole ground that no post is available. Having given the said undertaking by the Government of India, the Court felt that it is not open to the Government of India to turn around and contend that the posts were not available. There is no case of the petitioners that petitioners were parties to the said litigation. Even assuming for a moment that they could come within the category of persons other than the persons who were actually parties and, therefore, they could take benefit of annexure-2 which purports to deal with the situation where persons who are allocated to the Uttarakhand inter alia are not able to join due to personal administration and judiciary hindrances or they come under clause 2 (A) and (B), the facts remain that they have not challenged the final allocation order dated 31.07.2008. Without putting the order dated 31.07.2008 in issue, we do not think that any of the reliefs sought by the petitioners can be granted. Accordingly, the writ petition stand dismissed. No order as to costs.