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2019 DIGILAW 122 (UTT)

Bhovindar Singh Khati v. Deepak Joshi

2019-02-22

R.C.KHULBE, RAMESH RANGANATHAN

body2019
JUDGMENT : RAMESH RANGANATHAN, J. Application for Leave to Appeal No. 925 of 2019 : 1. Neither is Mr. Shakti Singh, learned counsel for the respondent-writ petitioners, present nor is there any representation on his behalf. 2. The applicants were all appointed as Constables (M) in the year 1996-97, and the respondents-writ petitioners were appointed in the year 2009. The order under appeal, whereby a mandamus was issued to the respondents-State to send the respondents-writ petitioners therein to Police Headquarters by treating them to be an integral part of the cadre, would adversely affect the applicants, in the Special Leave to Appeal petition, since they are senior to the respondent-writ petitioners; and, on the respondents-writ petitioners being appointed in Police Headquarters cadre, they would be deprived of the opportunity to be considered for appointment in the Police Headquarters cadre, though they are far senior to the respondents-writ petitioners. The applicants herein are, evidently, aggrieved by the order under appeal and, as they are not parties thereto, they have filed this petition seeking leave to appeal. 3. We are satisfied that the applicants herein are parties aggrieved by the order of the learned Single Judge. The petition seeking leave to appeal is, therefore, allowed. Delay Condonation Application No. 924 of 2019 : 4. As the appellants are not even parties to the writ petition, they have filed an application seeking leave to appeal. As leave has been granted, no orders need be passed in this application seeking condonation of delay. The application seeking condonation of delay is, therefore, closed. Special Appeal No. 69 of 2019 5. Neither is Mr. Shakti Singh, learned counsel for the respondent-writ petitioners, present nor is there any representation on his behalf. 6. Heard Mr. Bhagwat Mehra, learned counsel for the appellants, and Mr. Pradeep Joshi, learned Standing Counsel for the State of Uttarakhand-respondent nos. 19 to 22. 7. This appeal is preferred against the order passed by the learned Single Judge in Writ Petition (S/S) No. 1208 of 2015 dated 27.03.2018. 6. Heard Mr. Bhagwat Mehra, learned counsel for the appellants, and Mr. Pradeep Joshi, learned Standing Counsel for the State of Uttarakhand-respondent nos. 19 to 22. 7. This appeal is preferred against the order passed by the learned Single Judge in Writ Petition (S/S) No. 1208 of 2015 dated 27.03.2018. In the order under appeal, the learned Single Judge has held that, pursuant to the advertisement issued by the State of Uttarakhand, the respondents-writ petitioners were selected as Constables; according to the Government Order dated 09.02.1976, applicable to the State of Uttarakhand, there were five cadres including the Police Headquarters and Railway Police; the respondents-writ petitioners gave their options to be allocated to the Police Headquarters cadre; their cases have been rejected on the basis of the Government Order dated 10.10.2014; the Government Order dated 10.10.2014, whereby the cadres have been abolished, would apply prospectively; the law looks forward; and the rights accrued to the respondents-writ petitioners, on the basis of the Government Order dated 09.02.1976, cannot be permitted to be destroyed by another notification dated 10.10.2014. The writ petition was, accordingly, allowed, and the impugned order dated 19.12.2014 was quashed and set-aside. The respondents-State was directed to send the respondents-writ petitioners to Police Headquarters by treating them to be an integral part of that cadre. 8. Mr. Bhagwat Mehra, learned counsel for the appellants, would submit that, in the erstwhile State of Uttar Pradesh, there were five cadres in the Police Department; by Government Order dated 10.10.2014, the Government of Uttar Pradesh had restructured all the five cadres, and had constituted three cadres instead; the impugned order dated 19.12.2014 records that the State of Uttar Pradesh, which was far larger in size than the State of Uttarakhand had itself restructured its cadre, and had constituted three cadres in the place of five cadres; it was unnecessary for a much smaller State like Uttarakhand to have five cadres; and the matter be referred to the Police Establishment Committee to consider restructuring of these five cadres into three. 9. Unlike in the State of Uttar Pradesh, even by the time the impugned order dated 19.12.2014 was passed, there were five cadres in the State of Uttarakhand. The Government Order dated 10.10.2014 was issued not by the State of Uttarakhand, but by the State of Uttar Pradesh, that too long after the State of Uttarakhand came into being on 09.11.2000. Unlike in the State of Uttar Pradesh, even by the time the impugned order dated 19.12.2014 was passed, there were five cadres in the State of Uttarakhand. The Government Order dated 10.10.2014 was issued not by the State of Uttarakhand, but by the State of Uttar Pradesh, that too long after the State of Uttarakhand came into being on 09.11.2000. The Government Order dated 10.10.2014 would, therefore, have no application to Government employees employed under the Government of Uttarakhand. Further, the impugned order dated 19.12.2014 refers to government orders issued by the State of Uttarakhand on 27.04.2013 and 09.09.2014, neither of which have been considered in the order under appeal. 10. It is debatable whether this Court would have jurisdiction to examine the validity of a Government Order issued by the State of Uttar Pradesh on 10.10.2014, long after the State of Uttarakhand came into being on 09.11.2000. In any view of the matter a mandamus to the respondent-State, to send the respondents-writ petitioners to Police Headquarters by treating them to be an integral part of that cadre, would, undoubtedly, deprive the appellants, who claim to have been appointed in the year 1996-97, more than 12 years before the respondents-writ petitioners were appointed in the year 2009, of their opportunity to be treated as part of the Police Headquarters cadre. 11. As none of these issues have been examined in the order under appeal, we are satisfied that the said order must be set aside. The order under appeal is set aside, and the writ petition is restored to file. The appellants herein shall stand impleaded as respondents in the said writ petition. They shall file their counter affidavit(s) in the writ petition within a period of three weeks from today. It is open to the learned counsel for the respondents-writ petitioners to request the learned Single Judge to take up the writ petition for hearing any day after three weeks. 12. The special appeal is, accordingly, disposed of. No costs.