HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1322 of 2007 (S/S) Yashwant Singh. … Petitioner. Versus State of Uttarakhand and another. … Respondents Mr. Sharad Sharma, Advocate for the petitioner. Mr. K.C. Tewari, Brief Holder for the State/respondents. Dated: June 22,2009: Hon’ble V.K. Bist, J. Present writ petition has been filed by the petitioner for the following reliefs:- i- Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 01.10.2006 passed by respondent no.2 annexed as annexure no.3 to the writ petition. ii- Issue a writ, order or direction which this Hon’ble Court may deem fit and proper under the circumstances of the case. iii- Award the cost of the petition. 2. Brief facts of the case are that in the year 1980 the petitioner was appointed as Stenographer (Grade-II) by direct recruitment in accordance with the Rules called as U.P. District Officers (Collectorates) Ministerial Service Rules, 1980. As per the source of recruitment contained under Rule-5 Sub Category (f) (i) and (ii) the post of Stenographer Grade-II is the feeding cadre for promotion of the Stenographer (Grade-I). The appointing authority for the post of the division other than Office Superintendent is by the District Officer. Promotion on 2 the post of Stenographer (Grade-I) is made on the basis of the seniority subject to rejection of unfit through a Selection Committee. In the year 1988-89 Haridwar district was created and by virtue of Govt. Order dated 27.10.1988 a new post of Stenographer (Grade-I) was created and was transferred to District Haridwar vide Govt. Order dated 13.09.1989. The post on which the petitioner was promoted on 18.12.1989 was Ashulipik (Shreni-I) post. On satisfactory service rendered by the petitioner, the respondent no. 2 granted Personal Assistant promotional pay scale to the petitioner in pursuance of the Govt. Order dated 02.12.2000, but on 01.10.2006 the respondent no.2 issued an order in public interest as well as on administrative exigency transferring the petitioner from the post of Personal Assistant/Ashulipik from the office of respondent no.2 which is a Grade-I post, on the post of Personal Assistant/Ashulipik in the office of Additional District Magistrate, a Shreni-II post. Aggrieved by the order dated 01.10.2006, the petitioner filed the present writ petition. 3. The respondent no.2 filed a short counter affidavit in which it is submitted that order dated 01.10.2006 was merely a transfer order of Personal Assistant/ Stenographer and was made in the interest of administrative exigency and, therefore, the petitioner had an alternative remedy to approach for redressal of his grievances before the Commissioner, Garhwal region. It is further submitted that the petitioner was initially appointed as Stenographer of Sub Divisional Magistrate, Roorkee. He was directed to perform his duty as Stenographer of the Collector, Haridwar after creation of new district Haridwar on its bifurcation from district 3 Saharanpur in the year 1989. The work allotted to the petitioner was simply a stop-gap-arrangement made by the Collector at the time of creation of new district Haridwar. It is further mentioned in the counter affidavit that the order dated 18.12.1989 passed by the Collector, Haridwar cannot be treated as promotion order of the petitioner as no Selection Committee was ever held in granting such promotion to the petitioner. It is further mentioned that the petitioner is getting the same pay scale, which he was getting earlier when he was appointed as Personal Assistant to the Collector, Haridwar and order dated 01.10.2006 is simply a transfer order made under the administrative exigency, therefore the writ petition deserves to the dismissed. 4. Heard Mr. Sharad Sharma, learned counsel for the petitioner and Mr. K.C. Tewari, learned Brief Holder for the State/respondents and perused the entire material available on record. 5. Learned counsel for the petitioner submitted that at the time of creation of new district Haridwar, the petitioner was eligible to be promoted on the post of Stenographer (Grade-I) and he was rightly promoted on the said post on 18.12.1989. The said order dated 18.12.1989 was neither recalled nor set-aside and nor it was challenged by any one and the same still holds good, therefore the order passed by respondent no.2 on 01.10.2000 transferring the petitioner against the post of Personal Assistant in the office of Addl. District Magistrate, which is Grade II post, is not correct. He further submitted that in the Department the independent seniority list is prepared for Grade-I and 4 Grade-II. The petitioner even today is part of the seniority list of Grade-I and his name mentioned at serial No. 6 in the said seniority list and, therefore, he cannot be transferred against the Grade-II post. It is vehemently argued that since the seniority list of the petitioner having been placed in Grade-I has not been disturbed till date, the petitioner cannot be asked to work on the post which is subordinate i.e. Grade-II post. Learned counsel for the petitioner argued that since the order is more or less in the nature of reversion, an opportunity of hearing has to be granted to the petitioner and in the present case since no opportunity of hearing was granted to the petitioner, the order dated 01.10.2006 deserves to the quashed. 6. So far the appointment of the petitioner in stop-gap- arrangement as per the stand of the respondents is concerned, the learned counsel for the petitioner argued that the petitioner continues to function as Stenographer (Grade-I) since 1989 till the passing of impugned order and it can under no stretch of reasonable imagination will fall within the terms of the stop-gap-arrangement. According to him the petitioner after his promotion on 18.12.1989 in Grade-I is the recipient of all the service benefits including the promotional pay scale and senior scale which he was entitled to receive and, thus his continuance and appointment on the promotional post stands candidly accepted. He further argued that as the name of the petitioner finds figure in the seniority list of Stenographer (Grade-I), it cannot be said that the petitioner was given work on stop-gap-arrangement. In support of his arguments learned counsel for the petitioner referred and cited paragraph-19 of the judgment of Supreme Court in Rudra Kumar Sain 5 and ors. vs. Union of India and ors., reported in (2000) 8 Supreme Court Cases-25 and argued that since nothing is mentioned in the appointment order about the stop-gap-arrangement, the same cannot be said to be an appointment order made under stop-gap- arrangement now. 7. Rule 5 (2) of the Uttar Pradesh Divisional Commissioners Offices and District Offices (Collectorates) Personal Assistant and Stenographers Service Rules, 1989 provides that recruitment on the post of Stenographer (Grade-I) to District Officer shall be made by promotion through the Selection Committee from amongst substantively appointed Camp Assistants to Commissioner, Stenographers to Addl. Commissioner and Stenographers (Grade-II) to Addl. District Officers and Sub-Divisional Officers of the District Offices of the concerned division, who have completed five years service as such on the first day of the year of recruitment. In the present case in hand, the petitioner was fully eligible for being considered on the post of Stenographer (Grade-I) to District Officer. Though it is true that before making appointment of the petitioner in the year 1989 as Stenographer (Grade-I) no Selection Committee was held as required under the Rules. But it is also a factual aspect that the District Magistrate, Haridwar vide order dated 18th December 1989 approved appointment to the petitioner in the pay scale of Rs. 1400-2600 from the date of his posting i.e. 01.01.1989 and the petitioner continued to work on the post without any break and without any challenge. Thus, the contention of the respondents that petitioner was appointed as Stenographer (Grade-I) of the Collector, Haridwar by way of stop-gap-arrangement is 6 misconceived. Rule 21 of the above Rules makes it clear that Stenographer (Grade-I) of District Officer carries pay scale of Rs. 5000-8000 whereas Stenographer (Grade-II) of Addl. District Officer or Sub Divisional Officer carries pay scale of Rs. 4000-6000, thus it illustrates that the petitioner has been transferred from a post of Grade-I to the post of Grade-II. 8. Further for the determination of nature of appointment of the petitioner it is necessary to see the order passed by the Collector, Haridwar on 18.12.1989, appointing the petitioner on the post of Stenographer. Same is being quoted as under:- “ Jh ;’koar flag] vk’kqfyfid] ijxukf/kdkjh :M+dh dh ftyk vf/kdkjh gfj}kj ds vk’kqfyfid ds in ij muds }kjk vkgfjr osrueku vadu 470&735 esa vkns’k la[;k&2@,l0Vh0] fnukad 31-12-1988 ds varxZr fu;qfDr dh x;h FkhA mDr deZpkjh us ftykf/kdkjh ds vk’kqfyfid ds in ij dk;ZHkkj fnukad 01-01-1989 ds iwokZUg esa xzg.k fd;k gS vkSj rc ls os fujarj bl in ij vius drZO;ksa dk fuoZgu larks"kizn :i ls dj jgs gSaA gfj}kj tuin ds xBu ls lacaf/kr dk;Z gsrq 'kklukns’k la[;k 51@3@83¼267½&jk&6 fnukad 27-10-1988 }kjk osrueku 570&1100 esa vk’kqfyfid dk in fo’ks"k dk;Zf/kdkjh ds lkFk fnukad 28 Qjojh] 1989 rd ds fy, l`ftr fd;k x;k Fkk vkSj mlds i'pkr~ 'kklukns’k la[;k 51@3@83¼267½&jk&6 fnukad 13-9-89 }kjk iz’uxr in dks bl tuin esa LFkkukarfjr fd;s tkus vkSj o"kZ 89&90 esa mldh fujarjrk dh Lohd`fr iznku dh x;h FkhA bl in ds foijhr gh mDr deZpkjh vius iwoZ osrueku 470&735 esa dk;Zjr gSaA vr% Jh ;’koar flag]vk’kqfyfid ds dk;Z ,oa vkpj.k ls iw.kZ larq"V gksrs gq, mUgSa bl in ij ;ksxnku nsus dh frfFk vFkkZr~ fnukad 1-1-1989 ls osrueku 570&1100 la’kksf/kr osrueku 1400&2600 esa fu;qfDr djus dh Lohd`fr iznku dh tkrh gSA ” 9. From a bare perusal of the appointment order it is clear that the petitioner was appointed on the post of Stenographer in the pay scale of Rs. 1400-2600, thus the respondents cannot take this plea after a period of 17 years that his appointment was not proper, as the same 7 was not made after reference of the Selection Committee. The respondents themselves treated the petitioner appointed as Stenographer (Grade-I), because they kept his name in the seniority list of Stenographer (Grade-I). Now it is not open for them to place the petitioner again in the category of Stenographer (Grade-II) or to transfer him against the vacancy of Stenographer (Grade-II). Though the respondents in their counter affidavit have submitted that they have not reduced the pay scale of the petitioner and the petitioner was simply transferred to another place. But even if the order impugned dated 01.10.2006 is treated a transfer order, the same cannot be said a valid order because by way of this order the petitioner has been transferred to a post which is undoubtedly a Grade-II post. 10. In view of the forgoing discussion, the writ petition deserves to be allowed and the order impugned is liable to the quashed. 11. Consequently, the writ petitioner is allowed. The impugned order dated 01.10.2006 is hereby quashed. No order as to costs. (V.K. Bist, J.) 22.06.2009 NCM: