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2022 DIGILAW 320 (UTT)

Astt. Operator Amit Kumar Kohli v. State of Uttarakhand

2022-09-26

MANOJ KUMAR TIWARI

body2022
JUDGMENT : Heard learned counsel for the parties. 2. Since common questions of law and fact are involved in these writ petitions, therefore are being taken up together and are being decided by this common judgment. However, for the sake of brevity, facts of WPSS No. 257 of 2020 alone are being considered. 3. Petitioners are serving as Assistant Operator in Police Tele-communication Department of Uttarakhand State, who were appointed as such in the year 2017. They are aggrieved by reduction of post of Head Operator by Government of Uttarakhand, as according to them, this will adversely affect their chances of promotion. 4. Earlier, there were 449 posts of Head Operator in the department, however, by Government Order dated 30.05.2019, their number was reduced to 200. Since Head Operator is promotional post for Assistant Operator, therefore, petitioners apprehend that their promotion would now be delayed. 5. By means of this writ petition, petitioners have sought the following reliefs:- “i) Issue a writ in the nature of mandamus directing the respondents to make promotions on about 100 vacant posts of Head Operator from the post of Assistant Operator strictly in accordance with the Rules of 1982 as these posts are lying vacant prior to 30-5-2019, otherwise the petitioner shall suffer irreparable loss and injury. ii) Issue a writ in the nature of Certiorari calling for the records and quash the letter/ communication dated 30-5-2019 issued by the Joint Secretary who neither competent to issue such letter nor it has been notified in the official Gazette of the State Government.” 6. Learned counsel for petitioners contends that the order dated 30.05.2019, whereby posts of Head Operator were reduced, is not issued by Secretary, but, by a Joint Secretary in Government of Uttarakhand. He further contends that it is not issued on behalf of His Excellency the Governor of Uttarakhand, therefore, at best it can be be treated as a communication between Joint Secretary and Director General of Police, as such the said communication has no legal sanctity. He further submits that the impugned communication was not notified in the official gazette, thus it cannot have the effect of reducing number of posts of Head Operator. 7. A counter affidavit is filed by Mr. A.P. Anshuman, Inspector General of Police on behalf of respondent nos. 2 & 3. He further submits that the impugned communication was not notified in the official gazette, thus it cannot have the effect of reducing number of posts of Head Operator. 7. A counter affidavit is filed by Mr. A.P. Anshuman, Inspector General of Police on behalf of respondent nos. 2 & 3. It is stated that as per recruitment Rules applicable for the post of Head Operator, only a permanent Assistant Operator is eligible for promotion. It is stated that petitioners are yet to complete requisite training as per recruitment Rules, and only upon successful completion of such training, petitioners can be confirmed on the post of Assistant Operator and upon confirmation, their claim for promotion can be considered. 8. In paragraph no. 7 of the counter affidavit, it is stated that after creation of State of Uttarakhand, 449 posts of Head Operator were created, which are required to be filled by promotion alone, whereas only 215 posts of Assistant Operator were created, due to which the cadre had become inverted pyramid shaped, and this anomaly was removed by restructuring the cadre, on the recommendation of Head of Department. 9. In the rejoinder affidavit, petitioners have admitted that they have not completed the requisite training, which is condition precedent for grant of permanent status to them. Thus, no direction can be issued to consider their claim for promotion till the time, they become eligible for promotion. 10. Regarding prayer no. 2, learned counsel for petitioners contends that Annexure No.-4 to the writ petition is simply a communication issued by Joint Secretary in the State Government to the Director General; the said communication is not issued in the name of His Excellency the Governor and the communication is not notified in the official gazette, therefore, the impugned communication dated 30.05.2019 has no sanctity in the eyes of law. 11. The challenge to Annexure No.-4 by petitioners’ is misconceived. Perusal of Annexure No.- 4 to writ petition reveals that Joint Secretary in the Home Department of the State Government issued order on behalf of the State Government in response to letter issued by Director General, on 07.02.2018. By the said order, cadre of Police Tele-communication Department was restructured. In paragraph no. 2, it is stated that the order is being issued as per directions issued by some superior authority, which is mentioned in every Government Order. By the said order, cadre of Police Tele-communication Department was restructured. In paragraph no. 2, it is stated that the order is being issued as per directions issued by some superior authority, which is mentioned in every Government Order. Thus, the contention made by learned counsel for petitioners that the Order dated 30.05.2019 is not issued in the name of His Excellency the Governor, is without any force. 12. The third contention that the document contained in Annexure No.-4 has no legal sanctity, as it was not published in official gazette, is also unacceptable. There is no legal requirement that every Government Order should be published in the official gazette of the State. Learned counsel could not show any statute which requires publication of every Government Order in official gazette. Requirement of publication in official gazette is only for enforcing a statute or while issuing a notification/ order or scheme under a statute. 13. Learned counsel for petitioners relied upon paragraph no. 21 of the judgment rendered by Hon’ble Supreme Court in the case of State of Uttaranchal v. Alok Sharma, (2009) 7 SCC 647 , for contending that notification in the gazette is condition precedent for issuing a Government Order, which is reproduced below :- “21. It is conceded at the Bar that a statutory rule cannot be modified or altered by reason of an executive instruction far less by way of a circular letter. It has been so held in Punjab State Warehousing Corpn. v. Manmohan Singh stating: “12. Furthermore, when the terms and conditions of the services of an employee are governed by the rules made under a statute or the proviso appended to Article 309 of the Constitution of India laying down the mode and manner in which the recruitment would be given effect to, even no order under Article 162 of the Constitution of India can be made by way of alterations or amendments of the said rules. A fortiori if the recruitment rules could not be amended even by issuing a notification under Article 162 of the Constitution of India the same cannot be done by way of a circular letter.” 14. The said judgment does not support the case of petitioners at all. It does not provide that every Government Order has to be notified in the official gazette. The said judgment does not support the case of petitioners at all. It does not provide that every Government Order has to be notified in the official gazette. In the said judgment, Hon’ble Supreme Court has reiterated that when service conditions are governed by statutory Rules framed under proviso to Article 309, then a Government Order/ Executive Instruction cannot alter or change service conditions of the employees. 15. Regarding petitioners’ last submission that Joint Secretary is not competent for reducing number of post and only the Secretary of concerned department can issue such order, a question was put to learned counsel to show any provision, which supports said contention, however, learned counsel could not show any provision, which indicates that Joint Secretary is not competent for issuing an order on behalf of State Government regarding restructuring of cadre. 16. Learned State Counsel points out that the Government Order dated 24.10.2002, whereby cadre structure of Police Tele-communication Department was originally sanctioned, was also not issued by the Secretary, but Additional Secretary in the Home Department. 17. In the present case, admittedly, the condition of service of petitioners is not being altered. By Government Order dated 30.05.2019, only number of posts of Head Operator is reduced. Petitioners contend that such reduction will adversely affect their chance of promotion. 18. It is settled position in law that a Government Servant has a right to be considered for promotion subject to availability of vacancies on promotional post and fulfilment of all conditions of eligibility, for such promotion. However, there is no vested right of promotion available to a Government Servant. Thus, reduction in the number of promotional posts, which may incidentally affect the chance of promotion of the petitioners, will not amount to change in their condition of service so as to warrant interference by this Court. 19. Creation of new posts or reduction in number of existing posts in a cadre is a policy decision of the State Government and such decision cannot be challenged merely on the ground that it may result in reduction in chances of promotion of a Government Servant. It is not the case of petitioners that their right to be considered for promotion has been taken away by amending the Recruitment Rules or the promotion quota available to them under Recruitment Rules has been reduced. It is not the case of petitioners that their right to be considered for promotion has been taken away by amending the Recruitment Rules or the promotion quota available to them under Recruitment Rules has been reduced. Reduction in number of posts of Head Operator thus has not caused any legal injury to petitioners. Thus, there is no force in the writ petition. 20. Accordingly, all the writ petitions are dismissed. No order as to costs.