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2020 DIGILAW 11 (UTT)

Khushal Singh Rana v. State Of Uttarakhand

2020-01-03

ALOK KUMAR VERMA, RAMESH RANGANATHAN

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JUDGMENT Ramesh Ranganathan, C.J. (Oral) - Heard Sri T.P.S. Takuli, learned counsel for the petitioners and Sri Pradeep Joshi, learned Standing Counsel for the State Government. 2. The validity of Rule 5 (2) of the Uttarakhand Subordinate Audit Service Rules, 2019 , which provides for the manner in which the post of the Senior Auditor should be filled-up, is under challenge in this writ petition. The petitioners seek a direction to declare Rule 5(2) as ultra vires Articles 14 and 16 of the Constitution of India , and as violative of Section 74(1) of the U.P. Re-organisation Act, 2000. They also seek a direction to declare that Rule 5(3) of the Uttarakhand Subordinate Audit Service Rules, 2019 (for short the 2019 Rules), by which the post of Assistant Audit Officer has to be filled-up by promotion through departmental promotion committee from amongst those substantively appointed Senior Auditors, who have completed five years of service on the first day of that recruitment year on the basis of seniority after rejecting the unfit, as illegal. 3. Facts, to the limited extent necessary, are that the petitioners were appointed as Class-IV employees/Junior Clerks in the Uttar Pradesh Co-operative and Panchayat Audit Department. While the first petitioner was appointed as a Class-IV employee on 31.01.1992, he was promoted as a Junior Clerk on 21.05.2008 and as a Senior Clerk on 10.05.2013. Petitioners 2 to 5 were all appointed as Junior Clerks long after the State of Uttarakhand was created on 09.11.2000. Before the 2019 Rules were made, the relevant rules governing the field were the Uttar Pradesh Subordinate Co-operative and Panchayat Audit Examination Rules, 1980 (for short the 1980 Rules), which were subsequently amended in the year 1993. 4. The 1980 Rules were made by the Government of Uttar Pradesh in the exercise of the powers conferred by the proviso to Article 309 of the Constitution of India . In terms of Rule 5(1) thereof, the post of Auditor is required to be filled-up 90% by direct recruitment and the remaining 10% by promotion. 4. The 1980 Rules were made by the Government of Uttar Pradesh in the exercise of the powers conferred by the proviso to Article 309 of the Constitution of India . In terms of Rule 5(1) thereof, the post of Auditor is required to be filled-up 90% by direct recruitment and the remaining 10% by promotion. For the next higher posts of Senior Auditor and Assistant Audit Officer (the erstwhile posts of Senior Audit Officer Grade-I is equivalent to that of Assistant Audit Officer) the 1980 Rules, as amended in the year 1993, only provided for these posts to be filled up by promotion without stipulating the minimum period of service required to be discharged in the feeder category. All the petitioners were promoted as Auditors on 27.07.2019 in terms of the 1980 Rules as amended in the year 1993. After the petitioners were promoted and appointed as Auditors on 27.07.2019, the Government of Uttarakhand framed the 2019 Rules. Part-III of the 2019 Rules relates to recruitment, and Rule 5 thereunder relates to source of recruitment. Rule 5(1) of the 2019 Rules stipulates that recruitment of Auditor shall be hundred percent by direct recruitment through the Uttarakhand Subordinate Service Selection Commission. Rule 5(2) of the 2019 Rules provides for promotion to the post of Senior Auditor, through a departmental promotion committee, from amongst the substantively appointed permanent Auditors, who have completed seven years of service in the post of Auditor on the first day of that recruitment year, and have passed the Subordinate Audit Service (SAS) departmental examination as per the syllabus prescribed by the Government from time to time, as per seniority after rejecting the unfit. Rule 5(3) stipulates that promotion to the post of Assistant Audit Officer shall be through a departmental promotion committee, from amongst those substantively appointed Senior Auditors who have completed five years of service on the first day of that recruitment year, on the basis of seniority after rejecting the unfit. 5. Rule 5(3) stipulates that promotion to the post of Assistant Audit Officer shall be through a departmental promotion committee, from amongst those substantively appointed Senior Auditors who have completed five years of service on the first day of that recruitment year, on the basis of seniority after rejecting the unfit. 5. The petitioners have invoked the jurisdiction of this Court contending that the prescription of a minimum of seven years service as an Auditor, and the requirement of passing the Subordinate Audit Service departmental examination, in Rule 5(2) of the 2019 Rules is ultra vires Articles 14 and 16 of the Constitution of India, since the petitioners have the vested right to be considered for promotion in terms of the 1980 Rules as amended in the year 1993. 6. In this context, it is necessary to note that that the 2019 Rules were made by the Government of Uttarakhand in the exercise of the powers conferred on it by the proviso to Article 309 of the Constitution of India and in terms of the U.P. Co-operative Societies Department and Local Fund Audit Department Unification Rules, 2019. The mere fact that the 2019 Rules prescribe a minimum of seven years of service to be considered for promotion to the post of Senior Auditor, and a minimum of five years of service as a Senior Auditor to be considered for promotion to the post of Assistant Audit Officer, would not render either of these Rules ultra vires Article 14 and 16 of the Constitution of India, since the said Rules apply uniformly to all persons appointed to the post of Auditors/Senior Auditors. It is only such of them, who have completed seven years service in the post of Auditor, who are eligible to be considered for promotion to the post of Senior Auditor; and only those, who have completed five years of service as Senior Auditors, are eligible to be considered for promotion to the post of Assistant Audit Officer. Prescription of a minimum length of service in the feeder category under the 2019 Rules, which was absent in the earlier 1980 Rules, for promotion to the next higher posts would not render the 2019 Rules ultra vires Articles 14 and 16 of the Constitution of India. 7. Prescription of a minimum length of service in the feeder category under the 2019 Rules, which was absent in the earlier 1980 Rules, for promotion to the next higher posts would not render the 2019 Rules ultra vires Articles 14 and 16 of the Constitution of India. 7. The classification of employees for being considered for promotion, on the basis of the number of years of service they have rendered in the feeder category, satisfies the twin tests of a valid classification. The said classification of post is based on an intelligible differentia between those included in the group and those excluded therefrom. The said classification also has a reasonable nexus to the objects sought to be achieved in improving efficiency of service. Only those who have a minimum of seven years experience as Auditors are eligible to be considered for promotion as Senior Auditors, and only those who have put in a minimum of five years of service as Senior Auditors are eligible to be considered for promotion to the post of Assistant Audit Officer. The prescription of a minimum length of service in the feeder category, and the requirement of passing the Subordinate Audit Service departmental examination, is only to ensure that officers with sufficient experience and expertise are alone promoted to higher posts, thereby improving the overall efficiency of administration. Such a prescription would not render Rule 5(2) and (3) of the 2019 Rules ultra vires Articles 14 and 16 of the Constitution of India. The fact that the petitioners were promoted on 27.07.2019, with respect to vacancies which arose in the year 2014-15, would hardly make any difference, since it is only after the petitioners were promoted to the post of Auditors would they, thereafter, be eligible to be considered for promotion the next higher posts of Senior Auditors/Assistant Audit Officers. 8. The challenge to the validity of this Rule on the touch-stone of Section 74 of the U.P. Re-organisation Act, 2000 does not also merit acceptance. Section 74(1) of the U.P. Re-organisation Act, 2000 stipulates that nothing in this Section, or in Section 73, shall be deemed to affect, on or after the appointed day, the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to determination of the conditions of service of persons serving in connection with the affairs of the Union or any State. Chapter-I of Part XIV of the Constitution of India relates to services and Article 309 thereunder relates to recruitment and conditions of service of persons serving the Union or a State. In the absence of any enactment, the power of the State Government to make Rules under the proviso to Article 309 of the Constitution of India is legislative in character ( B.S. Yadav and others vs. State of Haryana and others : AIR 1981 SC 561 ; B.S. Vadera vs. Union of India and others : AIR 1969 SC 118 ). 9. The proviso to Section 74(1) of the U.P. Reorganisation Act stipulates that the conditions of sevice, applicable immediately before the appointed day in the case of any person deemed to have been allocated to the State of Uttar Pradesh or to the State of Uttaranchal under Section 73, shall not be varied to his disadvantage except with the previous approval of the Central Government. The requirement of obtaining prior approval of the Central Government is necessary only where the conditions of service of an employee, allotted either to the State of Uttar Pradesh or the State of Uttarakhand, is sought to be varied to his disadvantage. 10. As noted hereinabove, except for the first petitioner, all the other petitioners were initially appointed as Junior Clerks long after the State of Uttarakhand was created on 09.11.2000, and therefore the question of their being allotted to the State of Uttarakhand does not arise. The first petitioner was merely a Class-IV employee when he was allotted to the State of Uttarakhand after its creation on 09.11.2000. If his service conditions as a Class-IV employee were sought to be varied by way of Rules, then prior approval of the Central Government was necessary. In the present case, the first petitioner was promoted as a Junior Clerk on 21.05.2008 long after the State of Uttarakhand was created on 09.11.2000. He was, thereafter, again promoted as a Senior Clerk on 10.05.2013 and as an Auditor on 27.07.2019. The 2019 Rules, which relate to his further promotion as Senior Auditor/Assistant Audit Officer, would not fall within the ambit of the proviso to Section 74(1) of the U.P. Re-organisation Act, 2000. 11. He was, thereafter, again promoted as a Senior Clerk on 10.05.2013 and as an Auditor on 27.07.2019. The 2019 Rules, which relate to his further promotion as Senior Auditor/Assistant Audit Officer, would not fall within the ambit of the proviso to Section 74(1) of the U.P. Re-organisation Act, 2000. 11. The power of the Uttarakhand State Legislature to make a law, or the Government of Uttarakhand to make Rules under the proviso to Article 309 of the Constitution of India, is not circumscribed or fettered by the proviso to Section 74(1) of the U.P. Re-organisation Act, 2000. All that the proviso stipulates is that the conditions of service of an employee allotted to the State of Uttarakhand shall not be varied to his/her disadvantage. The proviso to Section 74(1) would have been attracted in case the service conditions of the first petitioner, as a Class-IV employee, were sought to be varied to his disadvantage on his allotment to the Statement of Uttarakhand. It is not even the first petitioners complaint that his service conditions, as a Class-IV employee, were varied to his disadvantage. His grievance is with respect to his chances of promotion to the higher posts of Senior Auditor/Assistant Audit Officer being adversely affected. That would not disable the State Government from making Rules under the proviso to Article 309 of the Constitution of India. 12. Viewed from any angle, we find no merit in the submissions urged on behalf of the petitioners regarding the constitutional validity of Rule 5(2) and (3) of the 2019 Rules. The writ petition fails and the same is dismissed. 13. No costs.