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2019 DIGILAW 75 (UTT)

Maya Devi v. State of Uttarakhand

2019-02-13

R.C.KHULBE, RAMESH RANGANATHAN

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JUDGMENT : RAMESH RANGANATHAN, J. 1. In this Writ Petition, the order of the Public Services Tribunal, Uttarakhand, passed in Claim Petition No. 96 of 2010 dated 19.11.2012, has been subjected to challenge by the petitioner. 2. Facts, to the limited extent necessary, are that the petitioner was initially appointed as an Accountant by direct recruitment on 11.04.2000, and was posted in the office of the Chief Agriculture Officer, Haridwar. The seniority list of Accountants, in the Agricultural Department, was prepared on 03.05.2001, wherein the petitioner’s name figured at Serial No. 03. Pursuant to the G.O., issued by the erstwhile Government of Uttar Pradesh on 29.07.1992, a ratio of 80:20 was prescribed for appointment to the posts of Accountants i.e., 80 percent by way of promotion from the cadre of Assistant Accountants and 20 percent by direct recruitment. The unofficial respondents were all appointed as Assistant Accountants during different periods ranging from 1992 to 1997. While they claim to have been designated as an Accountant by the Government of Uttar Pradesh, even before the State of Uttarakhand came into being, it is their admitted case, in their counter affidavit filed before this Court, that 12 Assistant Accountants were promoted as Accountants on 17.07.2001 from different Directorates, and 8 more Assistant Accountants were promoted by order dated 25.11.2002. The Government of Uttar Pradesh modified its G.O. dated 29.07.1992 by another G.O. dated 10.11.2008. A Division Bench of the Allahabad High Court (Lucknow Bench), in its order in SLP No. 280 (S/B) of 2005 and SLP No. 281 (S/B) of 2005 dated 04.12.2008, took note of the fact that G.O. dated 10.11.2008 (issued by the Government of Uttar Pradesh) had set all controversies to rest, the cut-off date had been fixed as 29.07.1992, and all counsel were in agreement that the appeals had lost its efficacy in view of the decision taken by the State Government. 3. 3. In examining the questions whether the G.O. dated 10.11.2008 issued by the Government of Uttar Pradesh would be applicable to Accountants employed by the State of Uttarakhand, and whether the State of Uttar Pradesh had jurisdiction in respect of employees finally allocated to the State of Uttarakhand, the Tribunal relied on the judgment of the Supreme Court, in State of Uttarakhand vs. Umakant Joshi (order in Civil Appeal No. 3984 of 2012 dated 28.05.2012), to hold that only the Government of Uttar Pradesh had the power to amend the Government Order from a retrospective date which is prior to the date of creation of the new State of Uttarakhand. 4. The Tribunal, thereafter, observed that the Government Order dated 10.11.2008, whereby the earlier Government Order dated 29.07.1992 was modified by the State of Uttar Pradesh, was uniformly applicable to all employees working in Uttar Pradesh and Uttarakhand; only the Government of Uttar Pradesh had the authority to modify/explain this Government Order; this Government Order (G.O. dated 10.11.2008) was applicable to all employees who were appointed before 09.11.2000 irrespective of whether they were finally allocated to the State of Uttar Pradesh or Uttarakhand; and this Government Order had finally settled the controversy. 5. The Tribunal thereafter, relied on its earlier judgment in Bhuvnesh Chandra vs. State of Uttarakhand and others (Claim Petition No. 48 of 2010), wherein the petitioner was appointed to the post of Accountant in the year 1997. It is in this context that it was held that he could not dispute the seniority of Accountants, who were promoted even on a 80:20 basis prior to his appointment as an Accountant; all persons, who were promoted or deemed to be promoted before 1997 i.e., the year of appointment of the petitioner to the post of Accountant even on the basis of 80:20 reorganization of the department, were senior to the petitioner; and, hence, the petitioner had no claim on this account. 6. Relying on this judgment, the Tribunal held that the respondents were promoted on 80:20 basis with retrospective effect; they shall be deemed to be promoted to the post of Accountant from a retrospective date prior to the appointment of the petitioner; and hence the petitioner had no claim on this account. 7. 6. Relying on this judgment, the Tribunal held that the respondents were promoted on 80:20 basis with retrospective effect; they shall be deemed to be promoted to the post of Accountant from a retrospective date prior to the appointment of the petitioner; and hence the petitioner had no claim on this account. 7. The judgment of the Tribunal in Bhuvnesh Chandra vs. State of Uttarakhand and others has no application to the facts of the present case, since the petitioner herein was appointed as an Accountant by direct recruitment on 11.04.2000 whereas the respondents, on their own showing in their counter affidavit filed before this Court, were all appointed either on 17.07.2001 or on 25.11.2002, long after the petitioner was appointed as an Accountant by direct recruitment on 11.04.2000. 8. Reliance placed by the Tribunal on the judgment of the Supreme Court, in Umakant Joshi (supra), to hold that the Government Order issued by the Government of Uttar Pradesh on 10.11.2008 would apply to Accountants working in the State of Uttarakhand even after 09.11.2000 (when the State of Uttarakhand came into being), is misplaced . In Umakant Joshi (supra), one Shri R.K. Khare was considered for promotion from Class-II to Class-I post w.e.f. 16.11.1999 by the Government of Uttar Pradesh; his case was not considered for promotion because of certain adverse remarks recorded in his Annual Confidential Report, and the punishment imposed on him by order dated 23.01.1999. On the order of punishment having been set aside, the said employee became entitled to be considered for promotion to Class-I post w.e.f. 16.11.1989. It is in this context that the Supreme Court observed that such an exercise could have been undertaken only by the Government of Uttar Pradesh, and not by the State of Uttaranchal (now the State of Uttarakhand), which was formed on 09.11.2000. 9. Unlike in Umakant Joshi (supra), in the present case, the seniority list of Accountants, working under the control of the Government of Uttarakhand, was finalized on 13.07.2010, nearly 10 years after the State of Uttarakhand came into being on 09.11.2000. 9. Unlike in Umakant Joshi (supra), in the present case, the seniority list of Accountants, working under the control of the Government of Uttarakhand, was finalized on 13.07.2010, nearly 10 years after the State of Uttarakhand came into being on 09.11.2000. While the State of Uttarakhand could, undoubtedly, have relied on any Government Order issued by it after 09.11.2000 modifying the earlier Government Order issued by the Government of Uttar Pradesh on 29.07.1992 or clarifying the same, it could not have finalized the seniority list of Accountants, working under the control of the Government of Uttarakhand, on the basis of a Government Order issued by the Government of Uttar Pradesh on 10.11.2008, 8 years after the State of Uttarakhand came into being on 09.11.2000. 10. The Government Order dated 10.11.2008, issued by the Government of Uttar Pradesh, would apply only to employees working in the State of Uttar Pradesh, and not to those who were finally allotted to the State of Uttarakhand. As the unofficial respondents were, admittedly, promoted as Accountants by the Government of Uttarakhand, after the State came into being on 09.11.2000, the Government Order dated 10.11.2008, issued by the Government of Uttar Pradesh thereafter, cannot be relied upon in fixing the seniority of the unofficial respondents above that of the petitioner herein. 11. We are satisfied, therefore, that the Tribunal fell in error in upholding the seniority list dated 13.07.2010 which was prepared on the basis of a Government Order issued by the Government of Uttar Pradesh on 10.11.2008. The order of the Tribunal dated 19.11.2012 is set aside, and the seniority list of Accountants dated 13.07.2010 is quashed. The official respondents herein shall prepare a seniority list of Accountants, working in different departments of the State of Uttarakhand, afresh relying on Government Orders issued by the Government of Uttar Pradesh before 09.11.2000 and any Government Order issued by the Government of Uttarakhand after 09.11.2000, and without placing reliance on any Government Orders issued by the Government of Uttar Pradesh on or after 09.11.2000. 12. The writ petition is, accordingly, disposed of. However, in the circumstances, without costs.