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2024 DIGILAW 262 (UTT)

Sagir Ahmad v. State of Uttarakhand

2024-04-18

ALOK KUMAR VERMA, RITU BAHRI

body2024
JUDGMENT : Ritu Bahri, C.J. Petitioner has sought a direction to declare the Uttarakhand Public Service Commission (Absorption Against the Posts of Assistant Accountant/ Typist) (Amendment) Rules, 2007 (Annexure-1) as ultra vires to the Constitution of India, with a further prayer to issue a writ, order or direction in the nature of certiorari quashing the office order dated 12.12.2007 (Annexure-2) and the order dated 17.12.2007 (Annexure-3) passed by respondent no.2. 2. The relevant portion of the notification dated 08.05.2007 is as under:- “2. Substitution of sub rule (1) of rule 6 In the Uttarakhand Public Service Commission (Absorption Against the Posts of Assistant Accountant/ Typist) Rules, 2004 (hereinafter referred to Principal Act) the following sub rule (1) of rule 6 as set out in column 1 shall be substituted by the rule as set out in column 2 as follows:- Column-1 (Existing rule) Column-2 (rule as hereby substituted) Determination of conditions of absorption 6(1) The date of attachment to the Uttarakhand Public Service Commission shall be the date of the initial recruitment of the concerned employee in Uttarakhand Public Service Commission. After his absorption against the post of Assistant Accountant/ Typist the seniority, promotion and other service matters shall be dealt with under the relevant service rules for the post. 6(1) The date of order of absorption against the post of Assistant Accountant/ Typist in the Uttarakhand Public Service Commission shall be considered as the date of substantive appointment of the concerned employee on the concerned post in the Uttarakhand Public Service Commission and there after his seniority on the post, promotion and other service matters shall be dealt with under the relevant service rules of the post.” 3. The petitioner, in the present case, was serving as Junior Clerk in the Department of Village Development and he was posted in the office of District Development, Roshnabad, District Haridwar. His date of substantive appointment in the original department is 17.08.1995. The Uttarakhand Public Service Commission- respondent no.2 sent a proposal with regard to the sanction of creation of 57 seats of different categories, and invited applicant from the employees of other departments for imminent attachment and absorption with respondent no.2. The petitioner, along with other persons, preferred his willingness for attachment and absorption with 3 the Uttarakhand Public Service Commission- respondent no.2. The petitioner, along with other persons, preferred his willingness for attachment and absorption with 3 the Uttarakhand Public Service Commission- respondent no.2. The petitioner has placed on record a copy of letter dated 12.06.2001 (Annexure-4), whereby respondent no.2 issued a list of employees of different departments who had given their willingness for their attachment in the department of respondent no.2. Thereafter, the Secretary- respondent no.1 issued a letter dated 09.07.2001 (Annexure-5) with regard to the attachment of employees, including the petitioner, with respondent no.2. Vide letter dated 19.07.2001 (Annexure-6), the petitioner was informed with respect to his attachment with the Commission- respondent no.2, and pursuant to the letter dated 19.07.2001, the petitioner joined his services with respondent no.2 on 19.07.2001. In Annexure-6, the name of the petitioner- Sagir Ahmad is at Sl. No.4. 4. Thereafter, respondent no.2 issued a letter dated 08.11.2001 (Annexure-7) to respondent no.1 for the transfer of services of the petitioner from the concerned department to respondent no.2 with immediate effect. A reminder was also issued on 28.06.2002 (Annexure-7A) by respondent no.2 with regard to the transfer of service. 5. No objection certificate (Annexure-8) was also given in favour of the petitioner by his parent department. Another letter dated 07.06.2003 (Annexure-9) was sent by the Commission-respondent no.2 to respondent no.1 with request to grant a formal recommendation for absorption of employees by granting them promotion. 6. Since respondent no.1 did not issue any order with regard to the absorption of the petitioner along with other employees, therefore, respondent no.2 sent letters dated 25.11.2003, 05.12.2003 and 02.06.2004 (Annexure-10) to respondent no.1 with regard to grant recommendation for absorption of the petitioner. 7. On 30.07.2004 (Annexure-11), respondent no.1 framed Uttaranchal Public Service Commission (Absorption against the Post of Assistant Accountant/ Typist) Rules, 2004. 8. Relevant portion of Rule 6 of the above said Rules is as under:- “6(1) The date of attachment to the Uttaranchal Public Service Commission shall be the date of the initial recruitment of the concerned employee in Uttaranchal Public Service Commission. After his absorption against the post of Assistant Accountant/ Typist the seniority, promotion and other service matters shall be dealt with under the relevant service rules for the post.” 9. Thereafter, a Selection Committee was constituted for the purpose of absorption, and vide office memorandum dated 07.02.2005 (Annexure-12), the petitioner was absorbed w.e.f. 19.07.2001 on the post of typist (in the pay-scale of Rs.3050-4590). Thereafter, a Selection Committee was constituted for the purpose of absorption, and vide office memorandum dated 07.02.2005 (Annexure-12), the petitioner was absorbed w.e.f. 19.07.2001 on the post of typist (in the pay-scale of Rs.3050-4590). 10. The grievance of the petitioner is that after the order dated 07.02.2005 (Annexure-12), an amendment in the Rules was carried out vide notification dated 08.05.2007 (Annexure-1), and as per these above said Rules, the date of attachment would be the date of initial appointment of the concerned employee. As per the original Rules, the petitioner was to be absorbed w.e.f. 19.07.2001, and as per the amended Rules, it was to be from the date of his substantive appointment. After the amendment, respondent no.2 cancelled the order of absorption vide order dated 12.12.2007 (Annexure-2), and thereafter, order dated 17.12.2007 (Annexure-3) was passed directing the petitioner to handover the charge. 11. The petitioner has challenged the said orders on the following grounds:- “i. That the petitioner had joined the services of respondent no.2 on 19.07.2001, and he was attached with the department on that very day. ii. That the petitioner was absorbed on 07.02.2005 w.e.f. 19.07.2001 and respondent no.1 had framed the Rules on 30.07.2004 and in those rules, it was specifically provided that the date of attachment with the Commission would be the date of substantive appointment, and as per Rule 8, the petitioner had given his consent for absorption. The valuable rights of the petitioner cannot be snatched by amending the rules in the year 2007 vide notification dated 08.05.2007 with retrospective effect, i.e. 30.07.2004.” 12. After notice, a counter-affidavit has been filed by the Secretary, Uttarakhand Public Service Commission. The stand taken in the counter-affidavit is that, at the time of establishment of Uttarakhand Public Service Commission, no fresh recruitment was made nor any employee from the U.P. Public Service Commission was transferred to the Uttarakhand Public Service Commission. The State Government has sought willingness of the employees from different departments for their consent to temporary attachment in Public Service Commission, subject to their absorption or relieving by their parent department. Petitioner, along with five other employees, was attached to the Commission’s office vide order dated 19.07.2001 of Secretary, Uttarakhand Public Service Commission (Annexure-6 to the writ petition), in view of Government Order dated 09.07.2001. Since the attachment was purely temporary, it was clarified that the salary will be paid by the concerned Department. Petitioner, along with five other employees, was attached to the Commission’s office vide order dated 19.07.2001 of Secretary, Uttarakhand Public Service Commission (Annexure-6 to the writ petition), in view of Government Order dated 09.07.2001. Since the attachment was purely temporary, it was clarified that the salary will be paid by the concerned Department. Hence, for all intents and purposes, by virtue of the attachment, the services of these employees were not transferred to the Uttarakhand Public Service Commission. 13. The petitioner was previously working as Junior Clerk in department of Rural Development, office of District Development Officer, Roshnabad, Haridwar, and he was attached as Typist with the Uttarakhand Public Service Commission. The petitioner was absorbed in Public Service Commission in the post of Typist vide Commission’s office order dated 07.02.2005 (Annexure-12). This order was passed in view of the un-amended Rules, 2004. Further, it was found that the absorption order of the petitioner was not in accordance with the existing service rules. As per Rule 4(4) of the 2004 Rules, absorption could be made in existing vacancy against direct recruitment vacancy. That on the date of attachment of the petitioner, no post of typist was created/ sanctioned. Prior to petitioner’s absorption, two posts of typist were created by the State Government, and the same were filled up by direct recruitment on 30.04.2004 and 06.05.2004. These two posts were occupied by two dependants, whose father and husband had died in-harness, and their services were regularized on these two permanent posts. Since, as per the 2004 Rules, absorption could only be made on the existing vacancy, the petitioner was working on the post of clerk, and was absorbed on the post of Typist, and there was no sanctioned post of typist at the time of his absorption, when the order dated 07.02.2005 (Annexure-12) was passed, and the order of absorption was reviewed, and in this backdrop, vide order dated 12.07.2007, the petitioner was relieved to join his parent department. 14. Relevant portion of Rule 4(4) of the 2004 Rules is as under:- “4(4). Absorption shall only be against the available vacancies to be filled through direct recruitment.” 15. The petitioner has filed rejoinder-affidavit to the counter-affidavit filed by respondent no.2. In the rejoinder-affidavit, the petitioner has admitted the contents of Paragraph No.14 of the counter-affidavit. 14. Relevant portion of Rule 4(4) of the 2004 Rules is as under:- “4(4). Absorption shall only be against the available vacancies to be filled through direct recruitment.” 15. The petitioner has filed rejoinder-affidavit to the counter-affidavit filed by respondent no.2. In the rejoinder-affidavit, the petitioner has admitted the contents of Paragraph No.14 of the counter-affidavit. Hence, as per Rule 4(4) of the 2004 Rules, the absorption of the petitioner could be in the existing vacancy of typist, which was to be filled up by direct recruitment, and in Paragraph No.14 of the counter-affidavit, it is further stated that the State Government sanctioned two more posts of typist vide orders dated 10.01.2005 and 08.01.2007, whereby two employees were appointed on compassionate ground and their services were regularized against the said two posts of typist. Hence, as per the 2004 Rules, the petitioner could only be appointed against the vacant post of typist, which was to be filled up by direct recruitment. Since, at the time of petitioner’s absorption, there was no sanctioned post, the petitioner was sent back to his parent department. 16. In this backdrop, as per the amended notification dated 08.05.2007, it is only the date of order of absorption, which is to be taken as the date of substantive appointment of the concerned employee. It has nothing to do with the retention of the petitioner in the office of Commission-respondent no.2. This amendment with retrospective effect has no bearing with the petitioner because, in the case of the petitioner, he was sent back to his parent department on the ground that, as per the 2004 Rules, the absorption had to be made in the existing vacancy against direct recruitment, and at the time of his absorption, there was no sanctioned post of typist in the Commission, on which, he could have been absorbed, and hence, the order dated 08.05.2007 has no bearing with returning the petitioner back to his parent department, and the same has been passed in view of Rule 4(4) of the 2004 Rules (Annexure-11). 17. The petitioner, in his rejoinder-affidavit, has not disputed the fact that against the two sanctioned posts of typist, the dependants of the employees, who died-in-harness, had been appointed. 18. 17. The petitioner, in his rejoinder-affidavit, has not disputed the fact that against the two sanctioned posts of typist, the dependants of the employees, who died-in-harness, had been appointed. 18. Since the petitioner, in the present case, after the Commission’s order, has already joined back his parent department, no case, at this stage, is made out to interfere with the impugned order, whereby he has been repatriated to his parent department on the post of clerk, and no case is made out to examine the validity of Annexure-1, as the same has no concern with sending back of the petitioner to his parent department. 19. For the aforesaid reasons, the writ petition is dismissed. 20. Pending application, if any, also stands disposed of.