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2016 Supreme(UK) 457
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Servesh Kumar Gupta & U.C. Dhyani, JJ.
Yogesh Chandra Petshal & others - Appellants
Versus
State of Uttarakhand & others - Respondents
Special Appeal No.114, 115, 127 of 2016 With Special Appeal No.207, 208, 209 of 2016
Decided On : 30-08-2016
For the Appellants :Mr. C.D. Bahuguna, Senior Advocate, assisted by Mr. Anuj Kumar Verma, Advocate.
For the Respondents:Mr. B.S. Negi, Deputy Advocate General.
The central legal point established in the judgment is the protection of the conditions of service of employees deemed to have been allocated to the state prior to the appointed day, as per the Proviso under Section 74 of the Uttar Pradesh Reorganisation Act, 2000.
Headnote:
Delay Condonation - Promotion Dispute - Uttar Pradesh Reorganisation Act, 2000 - Section 74 - Rules of 2013 - Promotion from Patwari's Peon to Patwari - High School to Intermediate qualification - Proviso under Section 74 - Applicability of Rules of 2013 - Discretion of State Government in sending for training
Fact of the Case:
The case involves a dispute over the promotion of a Patwari's Peon to the post of Patwari, with changes in qualification requirements from High School to Intermediate. The petitioners argued that the new rules adversely affected their service conditions and violated the Proviso under Section 74 of the Uttar Pradesh Reorganisation Act, 2000.
Finding of the Court:
The court found that the petitioners, who were in service prior to the appointed day, should not have their conditions of service varied to their disadvantage without the previous approval of the Central Government. The court also held that the Rules of 2013 cannot be read to the disadvantage of the petitioners, and that the State Government should send the petitioners for training at the Patwari Training School, Almora, provided they possess the requisite qualification of high school or equivalent.
Issues: The issues revolved around the applicability of the new Rules of 2013 to the petitioners, the discretion of the State Government in sending for training, and the violation of the Proviso under Section 74 of the Uttar Pradesh Reorganisation Act, 2000.
Ratio Decidendi: The court's decision was based on the interpretation of the Proviso under Section 74, which protects the conditions of service of those deemed to have been allocated to the state prior to the appointed day. The court also considered the applicability of the Rules of 2013 and the discretion of the State Government in sending the petitioners for training.
Final Decision: The court directed the Secretary, Department of Revenue Secretariat, to send the petitioners for training at the Patwari Training School, Almora, provided they possess the requisite qualification of high school or equivalent.
U.C. Dhyani, J.
1. There is some delay in preferring the appeals by the State Government. Being satisfied with the sufficiency of reasons, we condone such delay. Delay condonation applications (CLAM 7507/16, 7510/16 and 7513/16) stand allowed accordingly.
2. Since the factual matrix of the judgment, under challenge, is the same against which the above mentioned special appeals have been filed, either by the petitioners or by the State of Uttarakhand, therefore, all the special appeals arising out of the orders dated 10.3.2016 and 5.4.2016 are being decided together by this common judgment and order for the sake of brevity and convenience.
3. The relevant portion of the order, under challenge, is being reproduced hereinbelow for convenience: -
“The petitioner before this Court is a Patwari’s Peon working in the Revenue Circle, District Almora. He claims promotion from Class IV post to Class III post i.e. to a post of Patwari, which is now called as “Revenue Sub Inspector”. Although, in the erstwhile State of U.P. there was initially no specific Rules for promotion of Patwari Peon to the post of Patwari but under the Government Order dated 18.08.1986, 10% posts of Patwari were to be filled from amongst Patwari Peons. The educational qualification however, was High School.
On 09.11.2000 the new State of Uttarakhand came into existence by an Act of Parliament known as “Uttar Pradesh Reorganisation Act, 2000”. The petitioner has since been working in Uttarakhand as Patwari’s Peon. According to the petitioner, he was selected to appear in the exam of Patwari but prior to appearing in the examination, such Patwari’s Peons have to be sent for training. According to the petitioner, his name was shortlisted and thereafter he was liable to be sent for training, but he has not been sent for training so far. Now, the Government of Uttarakhand has framed its own Rules where 10% of Class III posts, which were to be filled from promotion amongst Class IV posts have been increased to 25%, but the qualification has also been increased from High School to Intermediate.
Indeed there was no such Rules earlier by which there was a channel of promotion from Patwari’s Peon to Patwari, but in view of the Government Order dated 18.08.1986 (referred above) it became a part of the condition of service, for those who are working in the Revenue Department, whereby a Patwari having High School certificate were entitled for promotion, subject to qualifying training, test etc.
According to the petitioner, this increase of qualification from High School to Intermediate has adversely affected the service conditions, which is not permissible in view of the Proviso provided under Section 74 of the Uttar Pradesh Reorganisation Act, 2000. Moreover, no permission of the Central Government has been taken before passing new Rules of 2013 known as “Uttarakhand Rajaswa Up-Nirikshak (Patwari), Sewa Niyamawali, 2013”. The learned Counsel for the State in his counter affidavit has not met these legal submissions of the learned counsel for the petitioner.
It is therefore, clear that the Rules which have been referred above, will only be applicable to such employees who were not in service prior to 09.11.2000. The petitioner, while he was in service in Uttar Pradesh was qualified for the post of Patwari by way of promotion. This condition could not be changed to his disadvantage as this change would be violative of the proviso to Section 74 of the Uttar Pradesh Reorganisation Act, 2000.
In view thereof, the writ petition succeeds. However, it is made clear that the qualification of the petitioner would remain to be High School. However, whether the petitioner has to be sent for training or not has to be finally determined by the State Government or by the concerned authorities, as it is they who have to fill the existing vacancies in accordance with law, which shall be done as per the needs and exigencies of the work.”
4. Special appeals have been filed by the writ petitione
