IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 27 of 2010 (S/B) Ramesh Chandra. .……… Petitioner Versus Union of India & others. .………. Respondents. Mr. Shobhit Saharia, Advocate for the petitioner. Ms. Anjali Bhargava, Addl. Standing Counsel (Central Govt.) for respondent Nos. 1 & 2. Mr. K.P. Upadhyaya, Addl. Chief Standing Counsel for respondent Nos. 3 & 4. Ms. Beena Pandey, Standing Counsel (U.P. Govt.) for respondent Nos. 5 & 6. JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble V.K. Bist, J. BARIN GHOSH, C. J. (Oral) By the final allocation order dated 31st July, 2008 the petitioner has been allocated to the State of Uttar Pradesh. The petitioner is a member of Scheduled Tribe community. An advertisement was published by the undivided State of Uttar Pradesh for appointment of Assistant Engineers from amongst those belonging to Scheduled Tribe community. The said advertisement indicated that the persons, agreeable to serve in the hill sub- cadre, may indicate the same in their applications in response to the advertisement. While responding to the advertisement, the petitioner mentioned that he would like to serve hill sub-cadre only. The response of the petitioner to the said advertisement succeeded in an appointment as an ad hoc Assistant Engineer in 1995, which was subsequently regularised. Since then, he has served in the territories, which later became part of the successor State of Uttarakhand. After the State of Uttarakhand was formed, the petitioner was posted in the hill areas thereof. Petitioner is a domicile of the State of Uttarakhand. Petitioner also submitted his option for allocation to the State of Uttarakhand. These facts are not in dispute. The State – respondents, in their counter affidavit, have only pointed out that though the petitioner had expressed in his application in response to the advertisement that he wanted to be appointed to the hill sub-cadre only, but upon regularisation of the appointment of the petitioner as Assistant Engineer, he was not treated as a member of hill sub-cadre only. It appears from the said affidavit that 2 the final allocation has been made by the Union of India and the State Government had no role to play in relation thereto. At the same time, it has not been denied in the said affidavit that vacant posts in the cadre of Assistant Engineers are available in the State of Uttarakhand. 2. There is a decision of the Union of India that in the event a person was a member of hill sub-cadre of the undivided State of Uttar Pradesh, he is domiciled in Uttarakhand and has given option for Uttarakhand, he would be allocated to the State of Uttarakhand. It appears that despite the petitioner having had stated in his application that he wanted to be appointed to hill sub-cadre only, the undivided State of Uttar Pradesh did not treat him as a member of hill sub-cadre after his ad hoc appointment was regularised. The petitioner, at the time of allocation, was, thus, not treated as a member of hill sub-cadre, though the petitioner, from the date of his regular appointment, has served in only those posts, which are normally held by members belonging to hill sub-cadre. This has resulted in, as it appears to us, final allocation of the petitioner to the State of Uttar Pradesh. Inasmuch as, Union of India has not filed an affidavit despite this Court, by an order dated 23rd February, 2010, granted liberty to the Union of India to file an affidavit, we are not in a position to know any other reason, if any, for the final allocation of the petitioner to the State of Uttar Pradesh. 3. We feel that when in the advertisement an option was given to join the hill sub-cadre and the petitioner expressly opted to join the said sub- cadre only, treatment of petitioner after his appointment was regularised as not belonging to hill sub-cadre was unjust on the part of undivided State of Uttar Pradesh, inasmuch as ad hoc appointees are generally regularised in the same cadre. By doing so, without referring back to the petitioner, we think the undivided State of Uttar Pradesh interfered with the right the petitioner wanted to assert and establish from the day one he responded to the advertisement, which ultimately resulted in an appointment in his favour. 4. In the circumstances, for all practicable purposes, it should be deemed that the petitioner was a member of hill sub-cadre and, 3 accordingly, in terms of the decision of the Union of India, the petitioner being domiciled in the State of Uttarakhand and he having had opted for Uttarakhand and there being vacancies in the post of Assistant Engineers in the State of Uttarakhand, while we set aside the final allocation order dated 31st July, 2008 insofar as the petitioner is concerned, direct the Union of India to issue a fresh final allocation order in favour of the petitioner showing that he has been allocated to the State of Uttarakhand. 5. This disposes of the writ petition. (V.K. Bist, J.) (Barin Ghosh, C. J.) 26.08.2010 26.08.2010 G