IMPORTANT POINT
The amendment to the absorption rules does not retroactively affect an employee's rights if no sanctioned posts were available for absorption at the time.

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:-

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 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