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2018 Supreme(UK) 249
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Sharad Kumar Sharma, J.
Devendra Singh Rawat – Petitioner
Versus
State of Uttarakhand and others – Respondents
Writ Petition (S/S) No. 3636, 3533, 3602, 3640, 3611, 3612, 3638, 3647, 3650, 3654, 3655, 3712 of 2017 & 136, 141 of 2018
Decided On : 09-07-2018
For the Petitioner:Mr. Bhagwat Mehra, Advocate, Mr. Anand Singh, Advocate on behalf of Mr. Amar Shukla, Advocate
For the Respondent:Mr. T.S. Bisht, Deputy Advocate General
The entitlement to ACP benefits as per the Rules of 1993 and subsequent government orders.
Headnote:
ACP Benefits - Malies - Rule 17 of Rules of 1993 - Summary of Acts and Sections
Fact of the Case:
The petitioners, Malies working with the Horticulture Department, sought relief against an order withdrawing ACP benefits. They argued that their appointments and entitlement to ACP were as per the Rules of 1993 and subsequent government orders.
Finding of the Court:
The court found that the petitioners were entitled to ACP benefits as per the Rules of 1993 and government orders. The impugned order withdrawing ACP benefits was quashed for the petitioners.
Issues: Entitlement to ACP benefits, Validity of impugned order, Applicability of Rules of 1993 and government orders
Ratio Decidendi: The petitioners were entitled to ACP benefits as per the Rules of 1993 and government orders. The impugned order withdrawing ACP benefits was quashed for the petitioners.
Final Decision: The impugned order withdrawing ACP benefits was quashed for the petitioners. Writ petitions were allowed subject to the specified conditions.
Sharad Kumar Sharma, J.
This is a bunch of writ petitions, preferred by the Malies, who are and some of them were, working on Malies with the Horticulture Department of the respondents. The petitioners in this writ petition (WPSS No. 3636 of 2017), which is being taken up as leading case have sought for the following reliefs:-
“(i) To issue a writ order or direction in the nature of certiorari to quash the impugned order dated 28.11.2017, passed by the Respondent No. 2 (Annexure No. 5 to the writ petition) in so far as it relates to the petitioners, and also the order dated 05.12.2017 passed by the Respondent No. 3 (Annexure No. 6 to the writ petition).
(ii) To issue a writ order or direction in the nature of mandamus commanding the Respondents to grant all consequential benefits to the petitioners.
(iii) To issue any other suitable writ, order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case.
(iv) To award the cost of the writ petition in favour of the petitioners.”
2. Out of these bunch of 14 writ petitions, there is slight changes in the relief sought in the Writ Petition (S/S) No. 3602 of 2017, where, besides challenging the impugned order dated 28th November, 2017, the second order which has been put to challenge by the petitioner is that of 3rd December, 2017. Similarly, in the Writ Petition (S/S) No. 136 of 2018, apart from challenging the common orders dated 28th November, 2017 and 5th December, 2017, which have already been referred hereinabove, the petitioner has also challenged the consequential order dated 23rd December, 2017. But, since the issue and the question being common, the minor changes in the relief will not have any bearing on the judgment. Hence they are being decided together.
3. For the purposes of assailing the validity of the impugned action of respondent No. 2, of issuing order dated 28th November, 2017, the petitioners have contended in the writ petition that the writ petitioners, are and were working as Malies with the respondent no. 3 i.e. Director, Horticulture and Food Processing, Uttarakhand, Udhyan Bhawan, Chaubatia, Ranikhet District, Almora. It had been the contention of the petitioners that they had been working regularly against respective substantive posts held by them. Their appointments, as against their respective dates, happen to be after due process of selection, and on their completion of one year Mali Diploma from the Horticulture Directorate itself, which is the eligibility for appointment. They are qualified to hold the post and continued in regular service.
4. As a consequence of their appointments, the petitioners contend that they have been working to the utmost satisfaction of all the concerned authorities and all of them enjoyed an unblemished service record to their credit and they have put in over 20-25 years of service each. Their case is that the State, while exercising powers under Article 309 of the Constitution of India, had framed the Rules called as “The Uttar Pradesh Horticulture and Food Processing Subordinate Service Rules, 1993 (hereinafter to be called as “Rules of 1993”).
5. As per the said Rules of 1993, Rule 17 which reads as under:
“17. Procedure for recruitment by promotion – (1) Recruitment by promotion shall be made on the basis of “seniority” subject to the rejection of the unfit through the Selection Committee constituted in accordance with the Uttar Pradesh Constitution of Departmental Promotion Committee (for Posts Outside the Purview of the Service Commission) Rules, 1992.
(2) The Appointing Authority shall prepare eligibility lists of the candidates in accordance with the Uttar Pradesh Promotion by Selection (on Posts Outside the Purview of the Public Service Commission) Eligibility List Rules, 1986 and place the same before the Selection Committee alongwith their character rolls and such other record, pertaining to them, as may be considered proper:
Provided that where promotion to any category of post
