IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/S) No. 705 of 2007 Brij Bihari Savita S/o late Shri Chhote Lal Savita Posted as Dark Room Assistant, Soban Singh Jeena Hospital, Haldwani, District Nainital. ………….. Petitioner Versus 1. State of Uttarakhand through Secretary, Medical and Health Services, Secretariat, Dehradun. 2. Director General, Medical, Health and Family Welfare, Uttarakhand, Dehradun. 3. Union of India, Ministry of Personnel, Public Complaints & Pension, Lok Nayak Bhawan, Third Storey, Khan Market, New Delhi 100003. 4. State of U.P. through Principal Secretary, Medical and Health Services, Secretariat, Lucknow. ..…...……. Respondents Present: Mr. H.S. Dhilon, Advocate for the petitioner. Mr. K.P. Upadhyay, Addl.Chief Standing Counsel, for the State of Uttarakhand/respondent Nos. 1 & 2. Ms. Farida Siddiqui, Standing Counsel for Union of India/respondent No.3. Ms.Beena Pande, Standing Counsel for the State of U.P./ respondent No.4. Coram:- Hon’ble Barin Ghosh, Chief Justice Hon’ble V.K. Bist, Judge Date of Decision : 03.12.2010 Barin Ghosh, C. J. (Oral) [M.C.C. (Restoration Appln.) No. 1021 of 2010] [CLMA (Delay Condonation Appln.) No.10078 of 2010] This is the second application for restoration of the writ petition. The previous application has since been withdrawn. We have perused the reasons furnished for restoration. Those are opposite to those taken in the earlier application. The grounds taken appear to be product of afterthought. Similar grounds have been taken in the application for condonation of delay. However, inasmuch as, it has 2 been stated that Shri C.D. Bahuguna, Advocate could not mark the case in the list, of course, without any supporting affidavit of Shri C.D. Bahuguna, Advocate, there being no scope for us to ascertain the truth and substance of the said assertion, we reluctantly allow the application for condonation of delay and also the application for restoration. [Writ Petition (S/S) No. 705 of 2007] Admit. With consent of the parties, we have taken up the writ petition for hearing. Petitioner contends that he is entitled to be allocated to the State of Uttarakhand or should be deemed to have been allocated to the State of Uttarakhand but he is being treated to be still an employee of the State of Uttar Pradesh. Petitioner contends that when he was originally appointed in Group ‘D’, he was a member of the district cadre and since the district in question was allocated to the State of Uttarakhand, in view of the decision taken by the Central Government, petitioner should be deemed to have been allocated to the State of Uttarakhand. Petitioner contends that on promotion of the petitioner to Group ‘C’, the district cadre of the petitioner did not stand altered. He continued to remain a member of the district cadre. Alternatively, petitioner contends that since the promotion was effected by an appropriate officer of the Kumaon Range, in terms of the order of the Central Government, he should be deemed to have been allocated to the State of Uttarakhand. Petitioner also stated that he belonged to the Hill Sub- Cadre as he purported to have exercised option therefor in the year 1996 and the said assertion has not been denied in the counter affidavit. In the counter affidavit filed to the writ petition by the State of Uttarakhand, it has been stated that the petitioner was promoted to a Group ‘C’ post in the year 1993. The said post, at the time when the petitioner was promoted, was a State cadre post. It has been further stated in the counter affidavit that in 1998, statutory rules were framed 3 and in terms thereof the post held by the petitioner since 1993 became a State cadre post and, accordingly, there cannot be any dispute that since after coming into force of the said Rules, i.e., since 1998, petitioner was holding a post in the State cadre. It is the case of the State of Uttarakhand in its counter affidavit that after the State of Uttarakhand was created, petitioner submitted an option form. The said form was meant only for those employees who were members of the State cadre. In the said option form, it had been indicated by the petitioner that he belongs to Kanpur, wants to work at Kanpur and, accordingly, opts for the State of Uttar Pradesh. It is the contention of the State of Uttarakhand that having regard to filing of the said form, since in the final allocation list prepared by the Central Government the name of the petitioner did not feature, for all practical purposes, it must be deemed that the petitioner, who was a State of Uttar Pradesh employee, remained so and had not been allocated to the State of Uttar Pradesh. Inasmuch as, petitioner submitted the said form, we could not accept non-denial of the assertion of the petitioner that he was a member of the Hill Sub-Cadre as an acceptance thereof and, accordingly, called upon learned counsel for the petitioner to substantiate that, in fact, petitioner was a member of the Hill Sub- Cadre, which stood abolished with effect from the date of creation of the State of Uttarakhand. Learned counsel for the petitioner failed to demonstrate the same from the records of the writ petition. Learned counsel for the petitioner wanted seven days’ adjournment for bringing on record materials to support the said contention. We believe that if the petitioner was, in fact, a member of the Hill Sub- Cadre, the frame of the writ petition would have been totally different then how the same had been framed and, accordingly, we refused to grant any such time. Having regard to what has been stated above, there is nothing to be done on the writ petition. The same is, accordingly, dismissed. 4 After we dictated the order in the presence of learned counsel for the petitioner, he submitted that subsequent to submission of the said form, petitioner submitted yet another form before the Advisory Committee seeking to be allocated to the State of Uttarakhand. In accordance with the Rules governing the subject, once the petitioner has submitted an option, he is struck thereby and cannot alter the same ordinarily. Therefore, submission of the second option in the instant case is of no effect, legal or otherwise. However, we do not interfere with consideration of the same. ( V.K. Bist, J. ) ( Barin Ghosh, C.J.) 03.12.2010 P. Singh