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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
U.C. Dhyani, K.M. Joseph, JJ.
Sarva Singh Chauhan & others - Petitioners
Versus
Union of India & others - Respondents
Writ Petition (SB) Nos. 274 of 2011; 264 of 2013 & 184 of 2014
Decided On : 13-05-2016
UP REORGANISATION ACT, 2000 - SERVICES - ALLOCATION - EMPLOYEES NOT IN SERVICE ON APPOINTED DAY - GUIDELINES ISSUED BY CENTRAL GOVERNMENT - VALIDITY - EMPLOYEES NOT IN SERVICE ON APPOINTED DAY CANNOT CLAIM ALLOCATION TO SUCCESSOR STATE ON BASIS OF GUIDELINES - ALLOCATION ORDERS QUASHED - SENIORITY RESTORED.
Fact of the Case:
Petitioners, selected for the post of Excise Inspector in erstwhile Uttar Pradesh, were appointed after the appointed day (09.11.2000) for the Reorganisation Act. They were relieved for the State of Uttarakhand and directed to join in the Excise Department in the State of Uttarakhand. Later, their services were absorbed/transferred to the State of Uttarakhand from the date of their joining. However, within the space of 10 days thereafter, the earlier order was cancelled. Petitioners challenged the cancellation order.
Finding of the Court:
The Court held that the allocation of the petitioners to the State of Uttarakhand was not legally valid. The guidelines issued by the Central Government, purporting to draw authority from Section 77 of the Act, that pending recruitments may be kept in abeyance and appointment orders be not issued, were ultra vires the provisions contained in Section 73 of the Act. The guidelines could not contemplate a situation, where a person was not in service as on 09.11.2000 and his being asked to continue beyond that date in the successor State, namely, Uttaranchal. The allocation orders were quashed and the seniority of the petitioners was restored.
Issues: Whether the allocation of the petitioners to the State of Uttarakhand was legally valid.
Ratio Decidendi: The Court held that the allocation of the petitioners to the State of Uttarakhand was not legally valid. The guidelines issued by the Central Government, purporting to draw authority from Section 77 of the Act, that pending recruitments may be kept in abeyance and appointment orders be not issued, were ultra vires the provisions contained in Section 73 of the Act. The guidelines could not contemplate a situation, where a person was not in service as on 09.11.2000 and his being asked to continue beyond that date in the successor State, namely, Uttaranchal.
Final Decision: The allocation orders were quashed and the seniority of the petitioners was restored.
K.M. Joseph, J.
These three writ petitions being connected, we are disposing of the same by this common judgment.
Writ Petition (S/B) No. 274 of 2011:
2. The petitioners seek to quash order dated 23.09.2011 (Annexure No. 15). They further seek a mandamus directing the State of Uttarakhand not to interfere in their peaceful working and to pay them salary on monthly basis.
3. Very briefly put, the case of the petitioners is as follows:
i. In the erstwhile State of Uttar Pradesh, an Advertisement was issued on 07.10.1998 by the Uttar Pradesh Public Service Commission (hereinafter referred to as the “Commission”). The Advertisement was issued for the purpose of recruitment to the Lower Subordinate Services. The post of Excise Inspector was one of the posts, which was advertised. The petitioners applied for the said post. The result of the written examination was declared on 20.12.1999 and the petitioners were declared successful. On 11.08.2000, after verification of the credentials of the petitioners and other formalities, recommendation was sent by the Commission to the State of Uttar Pradesh for appointing the petitioners. The Excise Commissioner, by communication dated 11.08.2000, informed the petitioners about the fact of the recommendation. It is while so that the Uttar Pradesh Reorganisation Act, 2000 (hereinafter referred to as the “Act”) came to be passed. The said Act provided for creation of State of Uttaranchal and the State of Uttar Pradesh as successor States as a result of the reorganisation. The Act was passed and received the assent of the President on 25.08.2000. The Government of India, it appears, issued certain guidelines in the meantime. According to the petitioners, in terms of the guidelines, actual appointment to the posts, including the post in question, was not effected and the procedure was kept in abeyance. Resultantly, petitioners were not appointed on or before 09.11.2000 “the appointed day”. On the basis of the guidelines issued, however, appointment orders were issued to the petitioners after 09.11.2000. Petitioners, by order dated 15.02.2001, were asked to join the State of Uttarakhand on various dates. Petitioners were asked for their willingness to serve in the State of Uttarakhand by communication dated 13.06.2003. Petitioners had domicile in the State of Uttarakhand and they expressed their willingness, which was communicated by the Government of Uttarakhand to the Reorganisation Cell. According to the petitioners, at the instance of certain persons, who were though junior to the petitioners in the cadre of Excise Inspector and who felt aggrieved by the inclusion of the petitioners in the State of Uttarakhand, steps were taken to get the petitioners relieved in the year 2004. An order was passed by the Secretary to relieve them. The said order dated 17.08.2004 came to be challenged before this Court by filing Writ Petition (S/S) No. 943 of 2004. An interim order was passed by this Court on 19.08.2004 providing that the petitioners will not be relieved. After exchange of pleadings, the writ petition came to be finally disposed of on 03.05.2007. Since much may turn on the impact of the said judgment, we deem it appropriate to extract the same as under:
“Heard Sri S.N. Babulkar, learned Senior Advocate assisted by Sri Ravi Babulkar, learned counsel for the petitioner and Sri Paresh Tripathi, learned Standing Counsel for the respondents.
By means of this writ petition, the petitioners have prayed for quashing of the order dated 17th August 2004 passed by the Secretary Excise Department, Govt. of Uttarakhand, by which the petitioners were directed to be relieved for the State of Uttar Pradesh.
The petitioners were selected as Excise Inspectors and were appointed by the State of Uttar Pradesh, after creation of State of Uttarakhand. After providing appointments to the petitioners, they were relieved for State of Uttarakhand and were directed to join in the Excise Department in the State of Uttarakh
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