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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
K.M. Joseph, V.K. Bist, JJ.
Devendra Chand Ramola - Appellant
Versus
Vikram Singh Kaintura & another - Respondents
Special Appeal No. 189 of 2014
Decided On : 10-04-2017
Absorption - Seniority Dispute - Absorption Rules of 2004, Rule 7(4) - The court held that the appellant's absorption was illegal under the Absorption Rules of 2004 and declared the writ petitioner as senior to the appellant for all purposes including promotion to higher cadre/grade and for grant of any benefit based on seniority. The court set aside the direction that the appellant will be junior to the persons other than the writ petitioner and directed that the appellant can be considered to reckon the previous service. In other respects, the appeal was dismissed.
Fact of the Case:
The appellant was absorbed in the Governor's Office, which was found to be illegal under the Absorption Rules of 2004. The writ petitioner challenged the absorption when his seniority was sought to be imperiled.
Finding of the Court:
The court found the appellant's absorption to be illegal and declared the writ petitioner as senior to the appellant for all purposes including promotion to higher cadre/grade and for grant of any benefit based on seniority. The court set aside the direction that the appellant will be junior to the persons other than the writ petitioner and directed that the appellant can be considered to reckon the previous service.
Issues: The main issue was the legality of the appellant's absorption in the Governor's Office under the Absorption Rules of 2004 and the challenge to the seniority of the writ petitioner.
Ratio Decidendi: The court held that the appellant's absorption was illegal under the Absorption Rules of 2004 and declared the writ petitioner as senior to the appellant for all purposes including promotion to higher cadre/grade and for grant of any benefit based on seniority. The court set aside the direction that the appellant will be junior to the persons other than the writ petitioner and directed that the appellant can be considered to reckon the previous service.
Final Decision: The court declared the writ petitioner as senior to the appellant for all purposes including promotion to higher cadre/grade and for grant of any benefit based on seniority. The court set aside the direction that the appellant will be junior to the persons other than the writ petitioner and directed that the appellant can be considered to reckon the previous service.
K.M. Joseph, J.
1. Appellant is the second respondent in the writ petition. The writ petition was originally filed seeking the following reliefs:
“(I) Issue a writ, order or direction in the nature of mandamus commanding the respondent to consider the case of the petitioner for promotion as Driver, Grade-I in the pay scale of Rs.5300/- (unrevised) from the date when junior to the petitioner has been promoted i.e. from 30.6.2010 with all consequential benefits.
(II) Issue a writ order or direction in the nature of ad interim mandamus commanding the respondents to consider and to decide the representation of the petitioner dated 16.6.2010 (Annexure no. 12 to the writ petition).”
2. Subsequently, the reliefs were got amended and prayer nos. I-A and I-B were added. The amendment was carried out on the basis of the order of the Court dated 20.08.2013. Amended prayers read as follows:
“(I-A) To issue a writ order or direction in the nature of certiorari for quashing the absorption order dated 15.12.2004 passed by the Respondent No. 1 (Page 98 of the paper book) so far as it relates to the Respondent No. 2.
(I-B) To issue a writ order or direction in the nature of certiorari for quashing the promotion order No. 981/G.S./C-109/2010 dated 30.6.2010 passed by Respondent No. 1 (Page 160 of the paper book) in favour of Respondent No. 2.”
3. Brief facts, which are necessary to be noted, are as follows:
The State of Uttarakhand was carved out on the basis of the Uttar Pradesh Reorganization Act 2000, which came into force on 09.11.2000. Appellant was a Driver working with the Punjab State Council for Science and Technology. He was working in the said body since 1987. It would appear that he started working with the Raj Bhawan, Uttarakhand at Dehradun from 27.06.2001. As far as the writ petitioner is concerned, he was also working as a Driver, but in the District Information Office at Tehri Garhwal in the erstwhile State of Uttar Pradesh on 09.11.2000, which was the appointed day as per the Reorganization Act. He was asked to join the service of Raj Bhawan at Dehradun. He had been working in the District Information Office from 09.03.1993. He joined in the Raj Bhawan from 05.04.2002. It is while so that the Rules, which were known as Absorption in Uttaranchal Governor Secretariat on various posts, which included the Drivers, Rules of 2004, which were framed under the proviso to Article 309, came into being (hereinafter referred to as the Rules of 2004). On the strength of these Rules, the appellant and the writ petitioner were absorbed in service with the Governor. As far as the appellant is concerned, he was absorbed on 15.12.2004. The writ petitioner was absorbed on 18.11.2004. It is to be noted that the appellant, when he was absorbed, was absorbed in the pay scale of 4000-6000. It is to be noted that by Annexure No. 5 dated 03.07.2006, Government of Uttarakhand has created Grade-I for the post of Driver for all departments. The lowest grade is Grade-IV and from the same, the next higher grade is Grade-III and further Grade-II and finally, a person could aspire to become Grade-I. By order-dated 11.12.2006, this has been implemented in the Governor’s Office. Order dated 03.07.2006 reads as follows:
“No. 108/XXVII(7)/2006
Date: 3 July, 2006
From
Indu Kumar Pandey
Principal Secretary
Govt. of Uttarakhand
To
All Principal Secretaries/Secretaries
Govt. of Uttaranchal.
Sub: Reorganisation of the structure of Driver Cadre of the State.
Sir,
With reference to the decision taken on the recommendations of the Pay Disparity Committee 1997-99 constituted for review of the pay-scales etc. of various categories of employees, I am directed to say that following decisions have been taken with regard to designation, pay-scales, minimum qualification for recruitment, procedure for recruitment etc. of the structure of t
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