IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 176 of 2005 (S/B) Manohar Singh S/o Sri Indra Singh at present Posted as Assistant Engineer Temporary Division, Public Works Department Bhawali District Nainital & another . . . Petitioners Vs Secretary, Ministry of Personal, Public Grievances & Pensions Government of India, New Delhi & 30 others . . . Respondents Sri L.P. Naithani, learned senior counsel assisted by Sri Rakesh Thapliyal, learned counsel for the petitioners. Sri Gopal Narayan, learned counsel for the respondents. Hon’ble P.C. Verma, J. Hon’ble B.C. Kandpal, J. Dated: June 30, 2006 By means of this of this writ petition, the petitioners have sought a writ in the nature of certiorari quashing the order dated 29.07.2005 (Annexure No. 13 to the writ petition) issued by the respondent No. 5 – Secretary, Public Works Department, Dehradun. Further prayer has been made for issue of a writ in the nature of mandamus directing the respondents to reserve 36 posts for the optees who have been provisionally allocated to the State of Uttaranchal vide Government Order dated 01.02.2001. 2. The petitioners are holding the post of Assistant Engineer (Civil) in P.W.D. Department. Their allocation have not been made so far under Section 73 of the U.P. Re- organization Act, 2000. So far as other 34 candidates are concerned they have not also been finally allocated. 2 3- In the counter affidavit filed by the State it has been stated that the appointments made by the impugned order on the basis of selection held by the Public Service Commission are not against the posts held by the petitioners in the State of Uttaranchal. In case, they are finally allocated to the State of Uttaranchal, they will be allowed to continue and they are not going to suffer in any manner. It has been further stated in the counter affidavit that these appointments have been made against the newly created vacancies. 4- Learned counsel for the petitioners Sri L.P. Naithani learned senior advocate invited our attention on the appointment letters issued by the Government of Uttaranchal impugned in this writ petition to demonstrate that the appointments of the respondents is against the permanent posts. He further invited our attention to Para 30 of the counter affidavit filed by the State wherein it has been stated that 25 posts have been temporarily created for a period of six months or the period in which the allocation of the optees between the State of Uttaranchal and Uttar Pradesh as per T.F.A.L. is finalized, whichever is earlier. According to this statement, learned counsel for the petitioners Sri L.P. Naithani has submitted that the respondents are being given appointments against the permanent posts while they are being shifted to temporary posts. 5- Section 73 of the U.P. Reorganization Act, 2000 provides that every person who immediately before the appointed day is serving in connection with the affairs of the existing State of Uttar Pradesh shall, on and from that day provisionally continue to serve in connection with the affairs of the State of Uttar Pradesh unless he is required, by general or special order of the Central Government to serve 3 provisionally in connection with the affairs of the state of Uttaranchal. 6- Section 75 of the U.P. Reorganization Act provides that every person who, immediately before the appointed day is holding or discharging the duties of any post or office in connection with the affairs of the existing State of Uttar Pradesh in any area which on that day falls within any of the successor States shall continue to hold the same post or office in that successor State, and shall be deemed, on and from that day, to have been duly appointed to the post or office by Government of, or any other appropriate authority in that successor State. Provided that nothing in this section shall be deemed to prevent a competent authority, on and from the appointed day, from passing in relation to such person any order affecting the continuance in such post or office. 7- Thus it is clear that the petitioners are holding the posts here by virtue of Section 75 of U.P. reorganization Act provisionally and they can be sent back to State of Uttar Pradesh to hold the post substantively till the final allocation is made U /S 73 of the U.P. Reorganization Act. Therefore the petitioners cannot claim that they are permanent employees of the State of Uttaranchal and only they are entitled to continue against the permanent posts. Since there is delay in allocationof the petitioners and other 34 persons, therefore the State of Uttaranchal has taken a measure to create 25 posts till the allocation is made finally. It has further been pleaded in the counter affidavit that after the petitioners and any other persons are finally allocated to State of Uttaranchal, they shall be allowed to continue on the permanent posts. 4 8- Since the petitioners interest is fully protected by the State Government and they are holding the posts of substantively and their continuance depends upon the final allocation made by the Government of India under Section 73 of the U.P. reorganization Act, 2000, therefore, the petitioners cannot be said to be aggrieved by the impugned appointment letters issued in favour of the respondents. However, the Government is directed that the permanent post held by the petitioners and other 34 persons working in the State of Uttaranchal by virtue of Section 75 of the U.P. Reorganization Act shall not be touched till the final allocation is made under Section 73 of the Act and the options of the petitioners and other 34 candidates shall be considered independently against the post held by them and it will not be rejected that no post is available. 9- The Government is directed that the permanent post held by the petitioners and other 34 persons working in the State of Uttaranchal by virtue of Section 75 of the U.P. Reorganization Act shall not be touched till the final allocation is made under Section 73 of the Act and the options of the petitioners and other 34 candidates shall be considered independently against the post held by them and it will not be rejected that no post is available. However, in view of the above, the petitioner is devoid of merit and is dismissed. No order as to costs. (B.C. Kandpal, J.) (P.C. Verma, J.) Aswal.