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2019 DIGILAW 83 (UTT)

Ajay Kumar v. Union of India

2019-02-14

R.C.KHULBE, RAMESH RANGANATHAN

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JUDGMENT : RAMESH RANGANATHAN, J. 1. In this writ petition, the petitioner seeks a writ of certiorari to quash the impugned order dated 18.12.2013 passed by the first respondent; a writ of mandamus commanding / directing the first respondent to allocate the petitioner to the State of Uttar Pradesh; and a writ of mandamus commanding / directing the second respondent to relieve the petitioner for the State of Uttar Pradesh. 2. Facts, to the limited extent necessary, are that the petitioner was appointed to the post of Assistant Agriculture Engineer, Pauri on 16.11.1999, in the Department of Agriculture, in the erstwhile State of Uttar Pradesh vide Notification dated 16.11.1999. He was allotted to the State of Uttarakhand. On the ground that persons similarly situated to him i.e. Sri Anil Kumar Yadav, Km. Smita Verma, Sri Ajeet Kumar Sachan and Sri Balram were later reallocated to the State of Uttar Pradesh, the petitioner requested the first respondent to allot him also to the State of Uttar Pradesh. On his request being rejected, by the order impugned in the writ petition, the petitioner has invoked the jurisdiction of this Court. 3. Consequent upon creation of the State of Uttaranchal (now State of Uttarakhand), in terms of Section 3 of the Uttar Pradesh Reorganisation Act, 2000 (for short ‘the 2000 Act’), employees, working in the erstwhile State of Uttar Pradesh, were required to be allocated between the States of Uttar Pradesh and Uttarakhand. Part-VIII of the 2000 Act contains the provisions as to services. While Section 72 of the 2000 Act contains provisions relating to All India Services, Section 73 contains provisions relating to other services. Section 73 (2) of the 2000 Act stipulates that, as soon as may be after the appointed day, the Central Government shall, by general or special order, determine the successor State to which every person, referred to in sub-section (1), shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect. Section 73 (3) of the 2000 Act provides that every person, who is finally allotted under the provisions of sub-section (2) to a successor State, shall, if he is not already serving therein, be made available for serving in the successor State from such date as may be agreed upon between the Governments concerned or, in default of such agreement, as may be determined by the Central Government. 4. In terms of Section 73(2) of the 2000 Act, the Government of India issued a general order dated 11.09.2001, and directed that all officers and staff borne on cadres:- (a) …… (b) …… (c) Who belonged to the hill sub cadre of the State of U.P. existing immediately before 09.11.2000 or whose services are normally liable for transfer within the hill sub-cadre districts of the State of U.P. existing immediately before 09.11.2000. (d) ….. Be finally allocated for service to the State of Uttaranchal on and from 09.11.2000. 5. The petitioner, admittedly, belonged to the Hill Sub-Cadre of the State of Uttar Pradesh, having been appointed as an Assistant Agriculture Engineer at Pauri on 16.11.1999 (Pauri formed part of the erstwhile U.P. Hill Sub-Cadre and is now a part of the State of Uttarakhand). Consequent on his allocation to the State of Uttarakhand, the petitioner has been employed under the State Government ever since. 6. While matters stood thus, four other employees (whose names are noted hereinabove) were allotted to the State of Uttar Pradesh pursuant to the orders issued by the Government of Uttarakhand on 28.11.2006 and 18.05.2007. Claiming parity with those individuals, who were appointed along with him in the U.P. Hill Sub Cadre, the petitioner has invoked the jurisdiction of this Court. 7. It does not appear to be in dispute that the four other individuals, with whom the petitioner claims parity, also belonged to the U.P. Hill Sub-Cadre, and were consequently allotted to the State of Uttarakhand. 7. It does not appear to be in dispute that the four other individuals, with whom the petitioner claims parity, also belonged to the U.P. Hill Sub-Cadre, and were consequently allotted to the State of Uttarakhand. Their subsequent re-allocation to the State of Uttar Pradesh, as is stated in the counter affidavit filed by the first respondent, is on the basis of the orders issued by the Government of Uttarakhand in accordance with the consent of the U.P. Reorganisation Coordination Department, U.P. dated 28.11.2006 and 18.05.2007 for adjustment/transfer of these employees in U.P; the Government of India was neither involved in the process nor intimated about the same as the matter relates to adjustment/transfer of services of the State Government employees by mutual consent of the Governments of both the successor States; and these orders could not be considered as revision of allocation. 8. The petitioner’s representation for re-allocation to the State of Uttar Pradesh was rejected by the Government of India by its proceedings dated 18th December, 2013, along with the request of four other individuals, on the ground that, since the petitioner belonged to the U.P. Hill Sub-Cadre, he was liable to be allotted to the State of Uttarakhand. 9. In this context, it is relevant to note that the petitioner has not arrayed any of those four individuals, with whom he claims parity, as respondents in the writ petition. No statutory provision or any order made in terms of Section 73 (2) of the 2000 Act, which conferred any right on the petitioner to claim allocation to the State of Uttar Pradesh, has been brought to our notice. While it does appear that the allocation of these four individuals to the State of Uttar Pradesh does not accord with the conditions stipulated in the general orders issued by the Government of India, in exercise of its power under Section 73(2) of the 2000 Act, on 11.09.2001, we refrain from saying anything more, as we may not be justified in making any observations in this regard behind the back of those four individuals who were allotted to the State of Uttar Pradesh. Suffice it to observe that, in the absence of any statutory or legal right conferred on him to be allocated to the State of Uttar Pradesh, the petitioner cannot claim parity in illegality or seek a mandamus from this Court to perpetuate the illegality, committed earlier in allotting these four individuals to the State of Uttar Pradesh. 10. In this context, it is relevant to take note of the observations in Chandigarh Administration and another vs. Jagjit Singh and another (1995) 1 SCC 745 , wherein the Supreme Court held:- “…..Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extra-ordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law - indeed, wherever it is possible, the court should direct the appropriate authority to correct such wrong orders in accordance with law - but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioners' case is similar to the other persons' case. But then why examine another person's case in his absence rather than examining the case of the petitioner who is present before the court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the case nor is his case. In our considered opinion, such a course barring exceptional situations - would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles…….” (emphasis supplied) 11. In the light of the law declared by the Supreme Court, in Jagjit Singh, we would not be justified in granting the petitioner, the relief sought for by him in the writ petition i.e. for his reallocation to the State of Uttar Pradesh merely on the ground that four other individuals were allotted to the State of Uttar Pradesh, by the Government of Uttarakhand, in the years 2006 and 2007. 12. The writ petition fails and is, accordingly, dismissed.