IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/B) No. 293 of 2009 Om Prakash …..…… Petitioner Versus State of Uttarakhand and others ……… Respondents Coram:- Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. Present: Mr. Pooran Singh Rawat, Advocate for the petitioner. Mr. H.M. Raturi, Advocate for respondent Nos. 1, 2 & 3. Mr. B.P.S. Mer, Advocate for respondent Nos. 4, 5 & 6. Ms. Beena Pande, Advocate for respondent Nos. 7, 8 & 9. Date of Decision: 08.03.2010 J.S. Khehar, C.J. (Oral) The facts in the instant writ petition reveal, that the petitioner was employed as a Jail Warder in the composite State of Uttar Pradesh on a temporary basis on 29.07.1976, and thereafter, on a regular basis on 01.03.1978. Consequent upon the reorganization of the composite State of Uttar Pradesh, the petitioner has been required to discharge his duties in the State of Uttarakhand, inspite of the fact that he has been treated as an employee of the successor State of Uttar Pradesh. In fact, the petitioner was promoted to the post of Head Warder in the successor State of Uttar Pradesh, vide an order dated 03.11.2008. The grievance of the petitioner is, that he is not being relieved by the State of Uttarakhand, so as to enable him to assume his duties in the successor State of Uttar Pradesh. His grievance is further aggravated by the fact, that the order of petitioner’s promotion to the post of Head Warder expressly notices that the promotion order will take effect from the date he joins the promotional post of Head Warder. 2. It is not the case of the State of Uttarakhand, that the petitioner has been finally allocated to the State of Uttarakhand. An extremely ambiguous position in connection with the petitioner’s 2 allocation has been revealed in paragraph 5 of the counter affidavit filed on behalf of respondent No.2. Paragraph No.5 of the counter affidavit is being extracted hereunder:- “That in reply to the contents of para 1 of the writ petition it is submitted that vide order dated 9.05.05 and 8.12.2005 the Govt. of India issued the final allocation list with respect to the employees of the Jail Department and in the list so issued by the Government of India only the “name” of the employees are mentioned and the description with regard to their complete identity is not mentioned. In the list dated 9.5.05 at serial no.393 and 402 name of Om Prakash, Bandi Rakshak and Om Prakash Sharma are shown on account of this confusion the petitioner could snot be relieved for the State of U.P. In addition to this it is stated that the employees shown at serial no.393 and 402 as referred to above have been allocated for the State of Uttarakhand but they assailed their final allocation in writ petition no.45768 of 2005 and 45433 of 2005 before the Hon’ble Allahabad High Court and on the strength of the stay order obtained by them they are still working in the State of U.P. The petitioner is snot allocated for the State of Uttarakhand and vide order no.217 dated 3.11.2008 the petitioner has been promoted as Pradhan Bandi Rakshak and orders have been issued on 13.11.2008 for his posting as Pradhan Banndi Rakshak in Central Jail, Bareilly.” 3. A perusal of the aforestated pleadings filed on behalf of respondent No.2 reveals, that two persons having a similar name as the petitioner, were finally allocated to the State of Uttarakhand but a close examination of the averments in paragraph 5 also reveals, that the aforesaid two persons, whose names figured at serial Nos.393 and 402 in the final allocation order, are persons other than the petitioner, inasmuch as, they are still working in the successor State of Uttar Pradesh. Since respondent Nos. 1 to 3 have not been able to demonstrate that the petitioner was allocated to the State of Uttarakhand either in the temporary allocation order or in the final allocation order, we are of the view, that the State of Uttarakhand cannot restrain the petitioner from proceeding to the successor State of Uttar Pradesh so as to derive benefit of his promotion to the post of Head Warder ordered as far back as on 03.11.2008. The aforesaid promotion order, we are satisfied, impliedly demonstrates the allocation of the petitioner to the successor State of Uttar Pradesh, at least in the absence of any material to the contrary. 3 4. In view of the above, the instant writ petition is allowed. Respondent Nos.1 to 3 are directed to relieve the petitioner forthwith, so as to enable him to assume posting in terms of his promotion order dated 03.11.2008. 5. As already noticed hereinabove, the order of the petitioner’s promotion dated 03.11.2008 mandates, that he would be promoted with effect from the date he joins the post of Head Warder, yet since the petitioner was not relieved by respondent Nos. 1 to 3 the petitioner could not assume his duties on the promotional post, not on account of any fault at his hands, but on account of the determination of respondent Nos. 1 to 3 in not relieving him. In the peculiar facts and circumstances of this case, we also consider it just and appropriate to direct respondent Nos. 7 to 9 to re-consider the claim of the petitioner for promotion with effect from the date when he was originally promoted as Head Warder, in the back ground of the facts noticed hereinabove. The aforestated respondents shall, accordingly, pass an appropriate order on the instant aspect of the matter, within two months from the date of receipt of certified copy of this order. In case the order passed by the respondents is to the detriment of the petitioner, it shall be open to the petitioner to assail the same in accordance with law, if he is so advised. 6. The instant writ petition stands disposed of accordingly. (Sudhanshu Dhulia, J.) (J.S. Khehar, C.J.) 08.03.2010 P.Singh