IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Civil Writ Petition (S/B) No. 188 of 2008 Satendra Kumar Bhatnagar . .……… Petitioner Versus Union of India and others ……… Respondents Mr. Manoj Tiwari, Advocate for the petitioner. Mrs. Anjali Bhargava, Standing Counsel for Union of India/respondent Nos.1 & 2. Mr. Subhash Upadhyaya, Brief Holder for the State of Uttarakhand/respondents Mrs. Beena Pandey, Standing Counsel for the State of U.P. Date: March 17, 2009 Hon’ble J.C.S. Rawat, J. Hon’ble B.S. Verma, J. (Per : Hon’ble J.C.S. Rawat, J.) After hearing the learned counsel for the parties, this petition is disposed of at the motion hearing stage by passing the following order. 2. This writ petition has been filed under Article 226 of the Constitution of India for seeking the following reliefs:- “A. To issue a writ order or direction in the nature of certiorari called for the record and for quashing the impugned final allotment list regarding Public Works Department issued by the Respondent No.1 on 31/07/2008 (Annexure No.20 to this writ petition). B. To issue a writ order or direction in the nature of mandamus commanding the respondent No.1 to pass order of final allocation only after taking into account the total number of posts in any grade as existing on 8.11.2000 vis-à-vis the number of employees belonging to Hill Sub Cadre as well as 2 General Cadre serving in the said posts in substantive capacity as on 8.11.2000. C. To issue a writ order or direction in the nature of mandamus commanding the Respondent No.1 to finally allocate all optees to Uttarakhand State if the number of posts available in Hill Districts as on 8.11.2000 are more than the combined strength of optees and members of Hill Sub Cadre who were serving on the corresponding post in substantive capacity as on 8.11.2000. D. To issue any other writ order or direction, which this Hon’ble Court may deem fit and proper in the circumstances of the case. E. Award the cost of the writ petition in favour of the petitioner.” 3. It is admitted to both the parties that the petitioner was appointed on the post of Assistant Engineer (Mechanical) in Public Works Department, Government of U.P. vide order dated 26/12/1984. That vide notification date 25/11/1992, U.P. Hill Sub Cadre Rules, 1992 were framed which came into effect to cover hill districts, namely, Almora, Chamoli, Dehradun, Nainital, Pauri Garhwal, Tehri and Uttarkashi. A separate Hill Sub Cadre came into existence after the publication of the notification and all the employees were required to exercise option whether they wanted to switch over the cadre in which transfer was restricted within the designated hill districts. After the creation of the new State of Uttaranchal now Uttarakhand with effect from 09/011/2000, the districts nominated in the Hill Sub Cadre became the exclusive part of the State of Uttaranchal now Uttarakhand. By a general order dated 09/11/2001 all the persons belonging to Hill Sub Cadre were allocated to the State of Uttaranchal 3 and no separate orders were to be passed or no deliberations were to be held in the State Advisory Committee and the rest of the employees who had not been allocated to the State Hill Sub Cadre were to be allocated either to the State of Uttarakhand or to the State of U.P. 4. The petitioner exercised his option pursuant to the notification dated 25/11/1992 and his name was not included inspite of his option by the competent authority in the list of Hill Sub Cadre though the benefit was granted to the other Assistant Engineers and officers belonging to the Hill Sub Cadre including the benefits which were available to other employees. Inspite of the repeated requests of the petitioner his name was not included in the said list and he preferred a claim petition before the Public Services Tribunal, Lucknow. The claim petition was allowed ex parte on 10/12/1998 and the State Government was directed to include the name of the petitioner in the Hill Sub Cadre and in the seniority list 1993 at the proper place according to the rules. Thereafter, the State of U.P. preferred a review Petition before the Tribunal. The same was dismissed by the Tribunal on 17/10/2000 before the creation of State of Uttaranchal now Uttarakhand. When the name of the petitioner was not included in the list inspite of the judgment of the Tribunal, he preferred a Contempt Petition before the Tribunal which was transferred to State of Uttaranchal now Uttarakhand and the Public Services Tribunal, Uttarakhand directed the competent authority to ensure the compliance of the judgment upto 31/07/2002, vide order dated 26/04/2002. 5. We also summoned the record of the State Government. The perusal of the record reveals that the options were invited by the State of Uttranchal now Uttarakhand and a list of the officers including the name of the petitioner was submitted to the Union of India on 22/05/2004 after the order of the Public Services Tribunal and the Union of India allocated the petitioner to the State of U.P. 4 6. The State of Uttarakhand also issued a relieving order dated 08/08/2008 by which he was directed to join the State of U.P. in pursuance of his allocation to that State. 7. The learned counsel for the petitioner contended that the Tribunal vide order dated 10/12/1998 directed the competent authority to include the name of the petitioner in the list of members of the Hill sub Cadre and also to consider his claim for promotion. The review petition filed by the State of U.P. was also dismissed vide order dated 17/10/2000. The contempt petition was also terminated in favour of the petitioner directing the respondents to comply the order by 31st July, 2002. The petitioner would have been deemed to be allocated to the Hill Sub Cadre by virtue of the allocation to the Hill Sub Cadre. According to the guidelines issued by the Central Govt. on 11/09/2001, the petitioner’s case is covered by the said general order as he has been declared to be a member of Hill Sub Cadre in 1998. The judgment of the Public Service Tribunal has attainted the finality and it was binding on the respondents. The petitioner stands allocated to the State of Uttaranchal now Uttarakhand. He cannot be re- allocated or the order by way of general guideline have not been reviewed by any special reasons in case of the petitioner. As such, the allocation of the petitioner to the State of U.P. at a later date is illegal and against the provisions of law. 8. Mr. Subhash Upadhayaya, learned Brief Holder for the State of Uttarakhand contended that the decision regarding the inclusion of the name of the petitioner in the Hill Sub Cadre to be taken by the State of U.P. and the compliance of the order dated 10/12/1998 passed in claim petition was to be carried out by the predecessor State, so the case of the petitioner is not covered by the guidelines prescribed in that behalf. So his name was not included in the Hill Sub Cadre. The State of U.P. has not filed any counter 5 affidavit. The learned counsel for the Union of India contended that the list was submitted by the State of U.P. and by the State of Uttarkhand so they allocated according to the deliberations held in the State Advisory Committee. After the creation of the new State, the Central Govt. issued an order on 11/09/2001 to allocate all the employees and the officers of Hill Sub Cadre exclusively to the new State. The petitioner had already filed a claim petition which was allowed and his name was to be included in the list as such, the name of the petitioner should not have referred to the Central Govt. for the allocation. It was a matter in between the States. 9. It is not in dispute that the Central Government has issued a general order on 11/09/2001 (Annexure-10 to the writ petition) which Para-Ga reads as follows: vkns”k “mRrj izns”k iquZxBu vf?kfu;e 2000 dh /kkjk 73 ds mi[k.M ¼2½ }kjk iznRr “kfDr;ksa dk iz;ksx djrs gq, dsUnzh; ljdkj ,rn~}kjk funsZ”k nsrh gS fd os lHkh vf/kdkjh vkSj deZpkjh %& ¼d½ - - - - - - - ¼[k½ - - - - - - - ¼x½ tks 9 uoEcj 2000 ls rRdky iwoZ fo|eku mRrjkapy jkT; ds fgy lc dkMj ls lacaf/kr gSa ;k ftudh lsok;sa 09 uoEcj ls rRdy iwoZ fo|eku mRrj izns”k jkT; ds fgy lc dkMj ftyksa ds vUnj lkekU;r% LFkkukUrj.k gsrq v/khuLFk gSa vFkok ¼?k½ - - - - - - - 9 uoEcj 2000 dks vkSj mlds ckn mRrjkapy jkT; dh lsok gsrq vafre #i ls vkcafVr fd;s tkrs gSa A” 10. The language of the above extracted general order is clear that the persons who have been included in the Hill Sub Cadre, they stand allocated to the State of Uttaranchal now Uttarakhand. It is 6 pertinent to mention here that the claim petition was allowed on 10/12/1998 and the claim of the petitioner was upheld. The Review petition was dismissed prior to the creation of the State. It was only a ministerial act which is to be carried out. If the ministerial act has not been done, that does not mean that the right which has been accrued to a party would have been extinguished by such omission committed by the State Government. After the creation of the new State of Uttaranchal now Uttarakhand, the State Government had to implement the said decision because the State of Uttarakhand was on the steps of the State of U.P. and all the decisions regarding the inclusion of the names was to be carried out by the State of Uttaranchal now Uttarakhand. If there is any omission on the part of the State Government, the State cannot take a plea that the State of U.P. has committed error and the same error has also been repeated by the State of Uttarakhand. Once a person has been allocated by a general order, then he cannot be reallocated to other State by the subsequent order. Thus, the order is bad in law. The petition is liable to be allowed. 11. The petition is accordingly allowed. The order dated 31/07/2007 is hereby quashed to the extent it relates to the petitioner and the name of the petitioner be included in the list of Hill Sub Cadre and consequently the order date 08/08/2008 passed by respondent No.6 by which the petitioner has been relieved for the State of U.P. is also quashed. 12. No order as to costs. (B.S. Verma, J.) (J.C.S. Rawat, J.) 17.03.2009 17.03.2009 PSM