IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.567/2009 Decided on:19.5.2009 Bahadur Singh Rana. …Petitioner. Versus State of Himachal Pradesh. …Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the petitioner : Mr. Dilip Sharma, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. and Mr. Ramesh Thakur, Asstt. Advocate General. Rajiv Sharma, J. The petitioner was appointed as Junior Engineer (Agriculture) with effect from 1.10.1977 in the Department of Agriculture. The Agriculture Workshop Bhangrotu alongwith its assets, liabilities and the staff was transferred to Himachal Pradesh Agro Industries Corporation Limited with effect from 1.1.1978 and the services of the petitioner were also transferred to the Corporation as Junior Engineer (Agriculture). The post of Assistant Branch Manager/Junior Engineer was re-designated as Branch Manager/Service Manager (Workshop). The State of Himachal Pradesh decided to re-transfer the Agriculture Workshop Bhangrotu to 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 Agriculture Department from Himachal Pradesh Agro Industries Corporation vide decision dated 21.3.1994. The posts were created in the Agriculture Department with effect from 1.4.1994 vide letter dated 17.9.1996. The post of Assistant Engineer (Agriculture) was also created. A common cadre of Assistant Soil Conservation Officer (Class-II) and Superintending Driller (Class-I), Agriculture Engineer (Implements) and Agriculture Engineer (Biogas) was created vide notification dated 6.1.1995. The petitioner stood transferred to the Agriculture Department after exercising his option on 11.12.1996. In order to absorb/adjust the petitioner, a decision was taken vide notification dated 24.2.2001 whereby one post of Assistant Engineer (Agriculture) was created with effect from 1.4.1994. He made a representation to the Secretary (Agriculture) in the month of September, 2003 for the redressal of his grievance. Mr. Dilip Sharma, Advocate has strenuously argued that once the petitioner has been transferred from the Agriculture Workshop Bhangrotu to Agriculture Department, the decision to keep the post of Agriculture Inspector isolated is illegal, arbitrary, unreasoned, thus, violative of Articles 14 and 16 of the Constitution of India. He then argued that since the post of Assistant Engineer (Agriculture) has been created with effect from 1.4.1994, the same should be encadred on the pattern of notification dated 6.1.1995 by including the post of Agriculture Inspector in common cadre. Mr. R.K. Sharma, the learned Senior Additional Advocate General has vehemently argued that for all intents and purposes the appointment of the petitioner in the Agriculture Department after the decision dated 21.3.1994 is to be considered as fresh appointment. The other contention of Mr. Sharma is that the petitioner has been absorbed/adjusted in the 3 pre-revised scale of Rs. 2200-400 and on that basis the post of the petitioner cannot be included in common cadre. I have heard the learned counsel for the parties and carefully perused the pleadings of the parties. The petitioner’s initial appointment was in the State Government. His services were transferred to the Agriculture Workshop Bhangrotu to the Himachal Pradesh Agro Industries Corporation in the year 1978. He joined his duties in the Himachal Pradesh Agro Industries Corporation. It was only on the basis of the decision taken by the State of Himachal Pradesh vide Annexure A-3. Subsequently, the services of the petitioner were re-transferred to the Department of Agriculture. The petitioner exercised his option as per the contents of Annexure A-4 dated 17.9.1996. In the meantime, the State Government had decided vide Annexure A-6 to create a common cadre whereby the posts of Assistant Soil Conservation Officer (Class-II) and Superintending Driller (Class-I), Agriculture Engineer (Implements) and Agriculture Engineer (Biogas) were re-designated as Divisional Engineer Soil Conservation. The Government had also taken a conscious decision to absorb/adjust the petitioner on the basis of notification dated 24.2.2001 by creating a post of Assistant Engineer (Agriculture) with effect from 1.4.1994. Immediately after the issuance of this notification dated 24.2.2001, the petitioner was required to be placed in the common cadre with the posts of Superintending Driller, Agriculture Engineer (Implements) and Agriculture Engineer (Biogas), which were re- designated as Divisional Engineer Soil Conservation. The decision of the State to keep the post which the petitioner was occupying as isolated is arbitrary. The effect of keeping the post isolated had resulted in reducing the chances of promotion of the petitioner and affecting his other 4 conditions of service. It is true that at one time the petitioner was employee of Himachal Pradesh Agro Industries Corporation Limited, however, he came back to the Agriculture Department with effect 1.4.1994. It is the prerogative of the employer to create, bifurcate or merge the cadre. However, while taking a decision the State cannot act arbitrarily and unreasonably. The post of Assistant Engineer (Agriculture) was required to be placed in a common cadre. A bare perusal of Annexure A-6 dated 6.1.1995 reveals that the post of Superintending Driller (Class-I) was also in the pay scale of Rs. 2200-4000 as well as the post of Soil Conservation Officer (Class-II). Thus the plea raised by Mr. R.K. Sharma that the petitioner could not be placed in common cadre since he was placed in the pay scale of Rs. 2200-4000 with effect from 1.4.1994 is without merit. The additional plea of Mr. Sharma that the petitioner is to be treated as fresh entrant cannot be accepted in view of the terms and conditions enumerated in the letter dated 17.9.1996. In the present case the services of the petitioner have been transferred from the Himachal Pradesh Agro Industries Corporation Limited to the State Government. The petitioner cannot be permitted to suffer on account of frequent changes in the decisions of the State Government. The petitioner has gone to the Himachal Pradesh Agro Industries Corporation Limited after the decision was taken by the State Government to transfer the Agriculture Workshop Bhangrotu to the Agriculture Department. Thereafter again the petitioner was transferred when the State Government reversed its earlier decision on 21.3.1994. The Workshop stood transferred to the Agriculture Department on 31.3.1994. In these circumstances, the petitioner cannot be treated as fresh entrant. 5 Accordingly, in view of the observations made hereinabove, the petition is allowed. The respondents are directed to place the petitioner in common cadre alongwith equal status posts which were re-designated as Divisional Engineer Soil Conservation for all intents and purposes. There shall, however, be no order as to costs. 19.5.2009 (Rajiv Sharma ), J. *awasthi*