IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO.3081 OF 2001 (SS) Daljeet Singh Bisht ………..Petitioner. Versus Managing Director, U.P. Jal Nigam & another …….Respondents. Dated: 16.7.2008 Hon’ble P.C. Verma, J. Heard Sri Akhilesh Kalra & Ms. Menka Tripathi, counsel for the petitioners and Shri D.S. Patni, counsel for the respondents. 2. The Petitioner Sri Daljeet Singh Bisht was appointed as Junior Engineer (E/M) in Hill Sub-Cadre of U.P. Jal Nigam vide order dated 23.11.1976 which is contained in Annexure no. 1 to the writ petition. He was being given Rs. 25/- as Hill Allowance by the same order. Initially, there was no separate rule for Hill Sub-Cadre. The Hill Sub-Cadre was created by Resolution of the Board of Jal Nigam and the employees were given offer to exercise their options who were willing to go to Hill Sub- Cadres which is evident from the order dated 7th September, 1978 of the Jal Nigam Board contained in Annexure no. 3 to the Writ Petition. The State of U.P. in exercise of its rule making powers under Article 309 of the Constitution of India framed U.P. Sub-Cadre Rules, 1992 which was notified in the official Gazette on 25.11.1992. Rule 5 of the aforesaid Rules, 1992 provides that there 2 shall be separate Hill Sub-Cadre in all the departments mentioned in the Appendix comprising of group ‘C’, ‘D’ and ‘E’ posts. In the Appendix to the rule at serial no. 17, the department of Nagar Vikas is showsn and the Jal Nigam being Corporation is under the administrative control of the Nagar Vikas Department. These Rules were not directly applicable to the Jal Nigam, therefore, in the year 1998 in exercise of its powers under Section 97 of U.P. Water Supply and Sewerage Act 1995 with the previous approval of the State Government, Uttar Pradesh Jal Nigam framed the regulations known as U.P. Jal Nigam Hill Sub-Cadre Regulations 1998 with regard to constitution of separate Hill Sub-Cadre in various services in the Jal Nigam. The Jal Nigam, from time to time, by Resolution created the post in the hill division, namely Hill Sub-Cadre and invited the option from the employees to become member of that Hill Sub-Cadre under the Resolution of the Board. 3. In the year, 1998 the Uttar Pradesh Jal Nigam Hill Sub-Cadre Regulation, 1998 was created. Clause ‘c’ defines “Hill Sub-Cadre”, clause ‘d’ defines “Member of Services and clause ‘f’ defines “Substantive appointment”. Clause ‘c’, ‘d’ and ‘f’ of 1998 Regulations are quoted below:- “(c) “Hill Sub-Cadre” means the Hill Sub- Cadre constituted under regulation; (d) “Member of Services” means a person substantively appointed to a post in the service under the relevant service regulations or executive instruction issued by the Nigam, as the case may be. 3 (f) “Substantive appointment” means an appointment not being an ad-hoc appointment made after selection in accordance with the relevant service regulation and if there were no such regulations, in accordance with the procedure prescribed for the time being be executive instructions issued by the Nigam.” 4. There is no dispute relating to 1976 the petitioner’s appointment that he was appointed to serve in Hill districts of Kumaon and Garhwal Division according to executive instructions issued by the Jal Nigam, which was subsequently notified as Hill Sub-Cadre in 1993. Therefore, after completion of probation period, he became substantively appointed and became member of service w.e.f. the date of his appointment i.e. 23.11.1976. Since he had opted in the year 1993 in pursuance of the 8th meeting of the Jal Nigam held in the year 1978 and he was working since then, therefore, the petitioner’s seniority shall be reckoned from the date of his substantive appointment i.e. 23.11.1976 as he was appointed initially t serve in Hill districts, which subsequently became Hill Sub Cadre. 5. Seniority list appended to the counter affidavit itself shows that the seniority shall be determined in the Hill Sub-Cadre from the date of substantive appointment. The cause of dispute is that the substantive appointment is being treated in the Hill Sub-Cadre after the enforcement of 1998 Regulations. The seniority list appended to the counter affidavit has been prepared according to the tentative seniority list on the basis of the date of option in 4 the Hill Sub-Cadre which is contained in Annexure no. 12. It does not indicate the date of substantive appointment, therefore, the respondents are directed to prepare the list on the basis of the date of substantive appointment of each candidate including the case of petitioner after considering his option as per 1978 resolution / order. Since the date of his substantive appointment of petitioner is 23.11.1976, he shall be given the seniority from that date and in case his junior has been promoted to the higher post, the petitioner shall also be considered and promoted accordingly. 6. With the above order, writ petition is allowed. No order as to costs. (P.C. Verma, J.) 16.7.2008 Rathour