IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1567 of 2007 Anand Singh Rawat S/o Sri R.S. Rawat R/o Ajabpur Kalan, Dehradun. …………..Petitioner. Versus (1) State of Uttarakhand through Principal Secretary, Food and Civil Supplies, Uttarakhand, Dehradun. (2) Commissioner, Food and Civil Supplies, Uttarakhand, Dehradun. (3) State of U.P. through Principal Secretary, Food and Civil Supplies Civil Secretariat, U.P. Lucknow. (4) Commissioner, Food and Civil Supplies, U.P. Lucknow. (5) Sri Kishan Ram Tamta, Presently working as Senior Assistant (Marketing Division), In the office of the Commissioner, Food and Civil Supplies, Dehradun. ...……..Respondents. Along with Writ Petition No. 30 of 2008 Anand Singh Rawat S/o Sri R.S. Rawat R/o Ajabpur Kalan, Dehradun. …………..Petitioner. 2 Versus (1) State of Uttarakhand through Principal Secretary, Food and Civil Supplies, Uttarakhand, Dehradun. (2) Commissioner, Food and Civil Supplies, Uttarakhand, Dehradun. (3) State of U.P. through Principal Secretary, Food and Civil Supplies Civil Secretariat, U.P. Lucknow. (4) Commissioner, Food and Civil Supplies, U.P. Lucknow. (5) Sri Kishan Ram Tamta, Presently working as Senior Assistant (Marketing Division), In the office of the Commissioner, Food and Civil Supplies, Dehradun. ...……..Respondents. Sri Subhash Upadhyaya, Advocate for the Petitioner. Sri N.P. Sah, Standing Counsel for Respondents no. 1 and 2. Smt. Bina Pande, Additional C.S.C. for respondents no. 3 and 4. Sri Rajendra Dobhal, Advocate for respondent no. 5. Hon’ble Prafulla C. Pant, J. Both these writ petitions are connected with each other and as such the same are being taken up together for being disposed of after hearing the learned counsel for the parties. (2) Brief facts of the case are that petitioner Anand Singh Rawat was appointed as Typist on 12.02.1973 along with respondent no. 5 Kishan Ram Tamta. The services of the petitioner were confirmed vide order dated 3 15th September 1981 w.e.f. 01.01.1980. Respondent no. 5, who belongs to the Scheduled Caste category, was promoted as Senior Assistant prior to the petitioner. Thereafter, the petitioner got promoted as Senior Assistant on 01st August 1992. Both, petitioner and respondent no. 5 were allocated State of Uttarakhand by the Government of India vide its order dated 11.11.2005 (copy of which is annexure 1 to the writ petition). In compliance of said order, passed by Government of India, both of them joined their duties in State of Uttarakhand in the office of Food Commissioner, Dehradun. The petitioner was given posting as Senior Assistant in Supply Division, and respondent no. 5 was given posting as Senior Assistant in Marketing Division. Thereafter, on restructuring of the Department one post of Administrative Officer, Grade I was created vide order dated 14.09.2006. Petitioner’s case is that a Departmental Promotion Committee was constituted for selecting candidate to the post of Administrative Officer. Since, respondent no. 5, though senior, had earned an adverse entry in the State of Uttar Pradesh on 31.12.2005, the Departmental Promotion Committee promoted petitioner to the post of Administrative Officer, Grade I, vide order dated 21.11.2006 (copy annexure 3 to the writ petition). It appears that meanwhile respondent no. 5 pursued his representation, pending with the State of U.P., which was allowed by the authority concerned vide order dated 22nd February 2007 i.e. after the petitioner had already been promoted in the State of 4 Uttarakhand. The petitioner has challenged that expunction of the adverse entry by the authority in State of Uttar Pradesh after petitioner as well as respondent no. 5 had already been allocated State of Uttarakhand, and they had given their joining to the successor State. (3) Respondents no. 1 and 2 filed their counter affidavit in which most of the facts alleged in the writ petition are not denied. However, it is stated in the counter affidavit, filed on behalf of the State of Uttarakhand and Commissioner, Food and Civil Supplies, Uttarakhand, that adverse entry earned by Kishan Ram Tamta since pertains to the period when he worked in State of Uttar Pradesh, as such the State of Uttar Pradesh has expunged the same. It is further stated in their counter affidavit that fresh meeting of Departmental Promotion Committee is being held and any promotion in pursuance thereof shall be subject to the decision of this writ petition, as directed by the interim order of this Court. (4) In the counter affidavit filed on behalf of respondent no. 5, defending the expunction of the adverse entry, it is stated that the State of Uttar Pradesh was competent to expunge the adverse remarks, as the respondent’s representation was pending there. It is further stated in the counter affidavit by respondent no. 5 that the petitioner has no locus to challenge the order passed by State of Uttar Pradesh, as the matter of expunction of adverse entry was between the employee and the 5 employer (the State). It is vehemently denied that respondent no. 5 had taken any initiation to get decided the representation made against the adverse entry, after he joined his duties in State of Uttarakhand. It is further stated that in a routine manner the authority concerned took its own decision on 22.02.2007. (5) Writ Petition No. 30 of 2008 is filed by the petitioner Anand Singh Rawat, challenging the order dated 26.12.2007, passed by respondent no. 2, during the pendency of the aforesaid writ petition (No. 1567 of 2007), reverting the petitioner back to the post of Senior Assistant and in his place promoting respondent no. 5 to the post of Administrative Officer, Grade I (copy of said impugned order is annexure 8 to the writ petition no. 30 of 2008 (S/S)). The grounds of challenging the said order are also the same as mentioned in the earlier writ petition and it has been further stated that the respondents have erred in law by taking into account the expunction of adverse entry by State of Uttar Pradesh, and on its basis, reverting the petitioner as Senior Assistant. To this writ petition also respondent no. 2 filed its counter affidavit stating that by the earlier Departmental Promotion Committee, Sri Kishan Ram Tamta (respondent no. 5) was not found fit to be promoted only due to the adverse entry on the record. However, on finding that adverse entry has been expunged later on by respondent no. 3 (State of U.P.) on the recommendation of the Commissioner, Food and Civil 6 Supplies, Uttar Pradesh, fresh Departmental Promotion Committee was constituted and the respondent no. 5, who was admittedly senior to the petitioner, was promoted vide order dated 26.12.2007, subject to the decision of Writ Petition No. 1567 (S/S) of 2007. On behalf of respondent no. 5, who is represented by Sri Rajendra Dobhal in connected writ petition, it is stated that no counter affidavit has been filed on behalf of respondent no. 5 in this writ petition, as he was not served with any notice. However, it is pertinent to mention that both the writ petitions are connected matters and copy of counter affidavit of respondent no. 5 filed in Writ Petition No. 1567 of 2007 (S/S) is also on the record of this writ petition (annexure 7 to the writ petition). (6) Admittedly, both petitioner and respondent no. 5 were initially appointed as Typist in the year 1973 with Food and Civil Supplies Department. It is also not disputed that respondent no. 5 is senior to the petitioner. It is also admitted between the parties that both petitioner as well as respondent no. 5 were allocated State of Uttarakhand by the Government of India under Section 73 of U.P. Reorganisation Act, 2000 (Central Act 29 of 2000). Both of them joined their duties as Senior Assistants in State of Uttarakhand in April 2006. It is also admitted case between the parties that a post of Administrative Officer, Grade I, was created in September 2006, which was to be filled by promotion. It is also not 7 denied that as against petitioner, respondent no. 5 had an adverse entry earned by him in 2005, when he was working in State of Uttar Pradesh. The entire dispute revolves round the point whether State of Uttar Pradesh had any jurisdiction / competence to decide the representation of respondent no. 5, after he had been allocated State of Uttarakhand and had joined his duties in the new successor State. (7) Section 73 of U.P. Reorganisation Act 2000 (Central Act 29 of 2000) empowers the Government of India to allocate the employees (other than the employees of All India Service) either of the Successor States created by aforesaid Act. Sub-section (2) of said Section 73 provides that as soon as may be, after the appointed day (09.11.2000), the Central Government shall, by general or special order, determine the successor State to which every employee shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect. Section 75 of the aforesaid Act further 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 8 post or office by the Government of, or any other appropriate authority in that successor State. (8) In view of the above provisions of law, this Court is of the view that once respondent no. 5 was allocated State of Uttarakhand by the Government of India and had joined his duties in April 2006, in the new successor State, he would be deemed to have been appointed to the post held by him by the Government of such successor State. That being so, after the final allocation made by the Government of India of respondent no. 5 to State of Uttarakhand, which has been acted upon by the employee, State of Uttar Pradesh or Commissioner of Food and Civil Supplies at Lucknow had no authority to pass the orders on the representation of respondent no. 5, pending there. The record should have been transferred to the successor State of Uttarakhand to which the employee was allocated. No doubt the entry pertains to the year prior to joining in the State of Uttarakhand and representation too was made by respondent no. 5 before joining his duties in the new State, but as per the provisions contained in U.P. Reorganisation Act, 2000 (Central Act 29 of 2000), particularly after the employee had joined his duties in the new successor State the pending representation should have been transmitted by the State of Uttar Pradesh to the State of Uttarakhand. That being so, the expunction of remarks by State of Uttar Pradesh pertaining to respondent no. 5 on 22.02.2007 (i.e. after 9 22nd April 2006) is erroneous in law and cannot be upheld. (9) However, this Court is conscious of the fact that respondent no. 5 is admittedly senior to the petitioner and his representation was pending in 2006, when the petitioner was considered for promotion to the post of Administrative Officer, Grade I and promoted to said post. As such, in the circumstances, this Court feels it just and proper to dispose of both these two writ petitions with following directions:- (i) The order of expunction passed on 22nd February 2007 by State of Uttar Pradesh, pertaining to respondent no. 5 is quashed. (ii) Both the orders of promotion i.e. one passed in favour of the petitioner and the impugned order date 26.12.2007, passed in favour of respondent no. 5 are also quashed. (iii) The respondents no. 1 and 2 are directed to consider and decide first the representation of respondent no. 5 against the 10 adverse entry, within a period of 15 days from today, and thereafter meeting of Departmental Promotion Committee be held to fill the post of Administrative Officer, Grade I. (Both, Stay Application and Stay Vacation Application also stand disposed of). (Prafulla C. Pant, J.) Dt.11.08.2008 NS