HIGH COURT OF UTTARANCHAL AT NAINITAL WRIT PETITION NO.764 (S/S) OF 2003 Rajeshwar Singh s/o Sri Narvadeshwar Singh, Posed as X-ray Technician, at District Govt. Hospital, Gopeshwar, District Chamoli. ………………….Petitioner Versus 1. State of Uttaranchal, through Secretary, Medical and Health Services, Secretariat, Dehradun. 2. Director General, Medical Health and Family welfare, Uttaranchal, Dehradun. 3. Department of Medical and Health Services, U.P., Lucknow through its Principal Secretary. ……………..Respondents Sri C.D. Bahuguna, Advocate for the petitioner Sri N.P. Shah, standing counsel for the state of Uttaranchal Smt. Beena Pandey for the state of U.P. Sri V.B.S. Negi, for the Union of India Dated: May 5, 2006 Hon’ble Rajesh Tandon, J. Heard Sri C.D. Bahuguna, counsel for the petitioner and standing counsel for the State of Uttaranchal, State of U.P. and the Union of India. By the present writ petition the petitioner has prayed a writ, of mandamus directing the respondent nos. 1 and 2 to relieve the petitioner for the State of Uttar Pradesh on the basis of option exercised by him for working in the State of Uttar Pradesh. 2 Briefly stated, the petitioner was appointed on the post of X-ray Technician on 16-01-1996 in the department of Medial and Health Services of the State of U.P. and was posted under Chief Medical Officer, Chamoli. Prior to creation of the State of Uttaranchal, the petitioner was asked by the department authorities to exercise his option as regards his working either in the State of U.P. or in the State of Uttaranchal after creation of the State of Uttaranchal. Since the petitioner is permanent resident of District Kushi Nagar in the State of U.P., he exercised his option for working in the State of U.P. and filled- in his option-form on 04-10-2000 and 14-11-2000 accordingly. It has been further stated in Paragraph No. 7 of the writ petition that the petitioner neither exercised his option for the hill-sub-cadre nor has he exercised his option for the State of Uttaranchal at any point of time; and that prior to creation of the State of Uttaranchal he was belonging to Plains cadre and his services were transferable within a entire State of U.P.; and as such he deserves to be relieved for the State of U.P. on the basis of option exercised by him. It has been further stated in Para. 8 of the writ petition, that the petitioner cannot be compelled to remain in the State of Uttaranchal against his wish and desire and particularly against the option exercised by him. It has been further stated in Paragraph 9 of the writ petition that a number of Medical Assistants, Lab-Technicians, Staff Nurses, Non-medical Supervisors and Dental hygienists who were appointed under similar circumstances have already been relieved for the State of U.P. It has been argued by the counsel for the petitioner that in the advertisement issued for appointment on the post of X- ray technician, there was no mention that the post of X-ray 3 Technician was required for the Hill sub-cadre, nor in the selection/appointment letter, contained in Annexure-1 of the writ petition, there is any mention about appointment of the petitioner under the Hill-Sub-Cadre and he was simply sent on posting in the hilly area. The Govt. of India by an order of Final allocation dated 11- 09-2001, has finally allocated State of Uttaranchal to all those employees who were appointed under U.P. Hill Sub-cadre Rules, 1992, or whose appointing authority is district level or region level authority. The counsel for the petitioner has submitted that neither Govt. of India nor its Advisory Committee, constituted under section 76 of the U.P. Re-organisation Act, 2000 has afforded any opportunity of hearing to the petitioner before issuing a general final allocation order. The counsel has further submitted that each employee, whom State of Uttaranchal has been allocated against his wish, has a legal right of being heard, before his final allocation. The counsel for the petitioner has also submitted that the employees who were never employed under Hill sub-cadre Rules, 1992 and who never opted for either for the Hill sub- cadre or for the State of Uttaranchal for their final allocation and who do not permanently belong to the State of Uttaranchal, they can not be forced to work in the State of Uttaranchal under the garb of final allocation order, issued against their wish and desire. Therefore, the decision of Govt. of India dated 11-09- 2001 is arbitrary and illegal. The counsel for the petitioner has also submitted that the service condition of the petitioner is governed by Statutory Rules of the State Govt. and transfer of an employee being part 4 of condition of service, can not be unilaterally Changed by the Govt. of India, in-as-much as the subject of ‘State public service’ is the subject of State Legislature and not that of Parliament, and, therefore, the order of the Govt. of India dated 11-09-2001, interfering with the conditions of a service of a State employee, is wholly illegal, and the matter requires to be re-considered by the Government of India and its Advisory Committee. The counsel for the petitioner has also submitted that the petitioner is ready to make a fresh representation before the State Advisory Board, Constituted U/S 76 of the U.P. Reorganisation Act, 2000, and before the Government of India, and the State Advisory Board that the Government of India may be directed to decide all the points raised in the representation of the petitioner, by a reasoned and speaking order. The counsel for the petitioner has further submitted that Division Bench of this Hon’ble Court has decided similar nature of Writ Petition No.4446 of (S/S) 2001, Ashok Kumar & others Vs. State & others alongwith bunch of writ petitions on 25th March 2004, and the case of the present petitioner can also be decided on the same terms. Having heard the counsel for the parties, I am of the opinion that the present petition may be disposed of on the same terms of the judgment rendered in the writ petition no. 4446(S/S) of 2001. The petitioner is, therefore, directed to make a fresh representation before the State Advisory Committee, constituted under section 76 of the U.P. Re-organisation Act 2000 and before the Government of India. The State Advisory Committee, constituted under section 76 of the U.P. Re- 5 organisation Act 2000 and the Government of India, are directed to decide the representation of the petitioner by reasoned and speaking order, within a period of two months from the date of receipt of a copy of order this Court along with a copy of representation. Subject to the observations made above, writ petition is disposed of. No order as to costs. Dated: May 5, 2006 Rajesh Tandon, J. *Dhyani