COURT’S ORDER WHETHER THE CASE IS OR IS NOT APPROVED FOR REPORTING {Chapter VIII, Rule 32(2)(b)} Description of the Case. (1) Writ Petition No.34 of 2005 (S/B) Dinesh Chandra Purohilt …….Petitioner Vs. State of Uttaranchal through Chief Secretary and another …..Respondents (2) Writ Petition No.32 of 2005 (S/B) Kailash Chandra Towari …..Petitioner Vs. State of Uttaranchal through Chief Secretary and another …..Respondents (3) Writ Petition No.33 of 2005 (S/B) Madan Mohan Bhardwaj ……Petitioner Vs. State of Uttaranchal through Chief Secretary and another ……Respondents (4) Writ Petition No.67 of 2005 (S/S) Roop Chand Gupta ……Petitioner Vs. State of Uttaranchal through Chief Secretary and another ……..Respondents (5) Writ Petition No.70 of 2005 (S/S) Ashutosh Bahuguna ………Petitioner Vs. State of Uttaranchal through Chief Secretary and another ……..Respondents Approved for reporting Not approved for reporting. Date: December 20, 2006 (P.C. Verma, J.). (B.C. Kandpal, J.) Court No. 2 IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL. (1) Civil Writ Petition No. 34 of 2005 (S/B) Dinesh Chandra Purohit and 11 others. ………. Petitioners Versus 1. State of Uttaranchal through Chief Secretary Government of Uttaranchal, Civil Secretariat, Dehradun. 2. Secretary, Secretariat, Administration Department, Government of Uttaranchal, Dehradun. ………. Respondents. (2) Civil Writ Petition No. 32 of 2005 (S/B) Kailash Chandra Tiwari and 7 others. ……….. Petitioners Versus 1. State of Uttaranchal through Chief Secretary Government of Uttaranchal, Civil Secretariat, Dehradun. 2. Secretary, Secretariat, Administration Department, Government of Uttaranchal, Dehradun. ……….. Respondents. (3) Civil Writ Petition No. 33 of 2005 (S/B) Madan Mohan Bharadwaj and 7 others. ……….. Petitioners versus 1. State of Uttaranchal through Chief Secretary Government of Uttaranchal, Civil Secretariat, Dehradun. 2. Secretary, Secretariat, Administration Department, Government of Uttaranchal, Dehradun. ……….. Respondents. (4) Civil Writ Petition No. 67 of 2005 (S/S) Roop Chand Gupta S/o late Shri K. Ram Presently posted as Additional P.S. to Additional Secretary, Finance, Secretariat, Dehradun. ……… Petitioner Versus 1. State of Uttaranchal through Chief Secretary, Administration. 2. Secretary, Sachivalaya Prashasan, Uttaranchal Shasan, Dehradun. ……… Respondents. (5) Civil Writ Petition No.70 of 2005 (S/S) Ashutosh Bahuguna S/o late Shri Chakradhar Bahuguna, Presently Posted as Additional P.S. to Hon’ble Minister Transport and Labour, Secretariat, Dehradun. ……… Petitioner Versus 1. State of Uttaranchal through Chief Secretary, Administration. 2. Secretary, Sachivalaya Prashasan, Uttaranchal Shasan, Dehradun. ……… Respondents. For petitioners:- Sri Sudhanshu Dhulia, Senior Advocate Sri Vipul Sharma Advocate, Sri B.P. Nautiyal Advocate Sri Hari Mohan Bhatia Advocate For Respondents: -Learned Standing Counsel. Sri Manoj Tiwari Advocate Sri P.S. Danu Advocate. Date: December 20, 2006 Hon’ble P.C.Verma,J. Hon’ble B.C.Kandpal,J. (Delivered by Hon’ble P.C. Verma, J.) In all these writ petitions, the petitioners have challenged the validity of Sub-Rule (2) of Rule 6 of “Uttaranchal Sachivalaya Vaiyaktik Sahayak, Avar Varg Sahayak, Sahayak Lekhakar, Tankak, Anusevak Ke Pado Par Samvilin Niyamavali 2002” on the ground that sub-rule (2) of Rule 6 of the aforesaid Rules is violative of Article 14 of Constitution of India. 2. The ground taken by the petitioners is based on the facts that upon the creation of the Uttaranchal State, the Government of Uttaranchal made requisition of staff from the various departments and corporations of Uttaranchal to the Secretariat. The petitioners offered their services for the post of Personal Assistants (P.As.) and finally their services were absorbed in the Secretariat under “Uttaranchal Sachivalaya Vaiyaktik Sahayak, Avar Varg Sahayak, Sahayak Lekhakar, Tankak, Anusevak Ke Pado Par Samvilin (Triteeya Sansodhan) Niyamavali 2002” (hereinafter referred to as “the Rules”) which are framed under Article 309 of the Constitution of India. It is alleged by the petitioners that Rule 6(1) states that the date of service of an employee, such as present petitioners in secretariat service will be the date on which the service of such employee was absorbed/amalgamated in the Secretariat service. Rule 6 (2) of the said Rules states that all the employees who will so absorbed on the particular post will be junior to the junior most employee of the existing secretariat service. Rule 6 (2) further states that inter se seniority of these absorbed employees will be determined from the date of the initial appointment and if the date of initial appointment is same, then inter se seniority of such employees shall be determined on the basis of their pay scale(grade) in their parent department. 3. The services of the petitioners were also confirmed as Personal Assistants vide order dated 28.09.2004. It is alleged that the Government of Uttaranchal issued a seniority list in respect of the Sachivalaya employees making the pay scale sole criteria for determining the seniority, which is unreasonable and inequitable, and are violative of Article 14 of the Constitution of India. The petitioners raised objection to the list claiming seniority on various grounds, but the Government has rejected their representation by common order dated 08.12.2004 stating that the inter se seniority has to be fixed in accordance with Rule 6 of the said Rules. 4. The respondents Nos.1 and 2 in all these writ petitions have stated in the counter affidavit that in the Rules, the provision of option to be absorbed was available to the employees under Rule 8 of the ‘Rules’. The option was given to the employees either to go to their parent departments, if they do not wish to continue in the service of Secretariat or to opt for absorption under the Rules. The petitioners opted to be absorbed in the services of Secretariat under the Rules. They did not raise any objection to their absorption in the Secretariat service, which indicates that they have accepted the absorption with the conditions laid down in Rule 6 of the said Rules. It is also alleged that no one of such employee was compelled to work in the Secretariat under compulsion. It is also alleged by these Respondents that Rule 7 of the Uttaranchal Government Servant Seniority Rules, 2002 (hereinafter will be referred to as ‘Seniority Rules, 2002’) specifically provides regarding the fixation of inter se seniority, where the promotion from more than one feeding cadre is made, the proviso appended to Rule 7 of Seniority Rules, 2002 will be applicable. The said proviso appended to Rule 7 is being reproduced as under:- “Provided that where the pay scales of feeding cadre are different, the persons promoted from the feeding cadre having higher pay scales shall be senior to the persons promoted from the feeding cadre having lower pay scales.” In sub-rule (2) of Rule 6 of the Rules, the similar provisions have been made. Sub-rule (2) of Rule 6 of the Rules is not unreasonable and violative of Article 14 of Constitution of India. 5. A chart has been furnished showing pay scales of petitioners in their parent department and pay scales of Personal Assistants of Uttaranchal Government Secretariat. It will be useful to reproduce the chart showing the difference of pay scales of the Personal Assistant in their parent department vis-à-vis Personal Assistants in the Secretariat of the Uttaranchal Government on which the petitioners have been absorbed. 6. The names of all the petitioners in Writ Petitions (S/B) Nos.32 of 2005, 33 of 2005, 34of 2005, 67of 2005 and 70 of 2005 are given below in one order and in the order of the writ petitions. Sl. No . Name of the petitioners Parent Department Post on which they were working Date of appointment in Parent Department Pay scale in which they were working Educational qualification in Parent Department Next pay scale in the parent Deptt Post on which they have been absorbed in the Secretariat Pay Scale on which they have been absorbed 1 2 3 4 5 6 7 8 9 10 1- Kailash Chandra Tewari District Inspector of Schools, Pithorgarh Stenographer 17.10.88 4000- 6000 Intermediate and 80 w.p.m. in Hindi Shorthand 5000- 8000 Personal Assistant 5500-9000 2- Mohan Lal Dobhal D.M. officer, Dehradun Stenographer 18.9.79 4500- 7000 -do- 5000- 8000 Personal Assistant 5500-9000 3- Harish Chandra Pandey District Inspector of Schools, Dehradun Stenographer r 26.8.86 -do- -do- 5000-8000 Personal Assistant 5500-9000 4- Dinesh Chandra Gairola C.D.O. Office, Pauri Stenographer 1.7.78 -do- -do- 5000-8000 Personal Assistant 5500-9000 5- Grirish Chandra Gaira Rural Engineering Service,Dehra dun Stenographer 28.1.85 -do- -do- 5000-8000 Personal Assistant 5500-9000 6- Digpal Singh Rawat A.D.M. Office, Joshimath Stenographer 18.1.80 -do- -do- 5000-8000 Personal Assistant 5500-9000 7- Rajbala Tomar Public Security Department, Dehradun Stenographer 26.4.78 -do- -do- 5000-8000 Personal Assistant 5500-9000 8- Mohan Prasad Khansali Mechanical Tools & Stores Deptt- I, Irrigation Deptt., Dehradun. Stenographer 5.5.73 5500-8000 Promotional pay scale Original pay scale 4000-6000 -do- 5000-8000 Personal Assistant 5500-9000 9- - Modan Mohan Bhardwaj S.P.O. Prosecution Deptt. Dehradun Stenographer 1.5.81 -do- -do- 5000-8000 Personal Assistant 5500-9000 10 - Shobha Bhatt Competent Authority, Urban Land Demarcation Dehradun Stenographer 12.7.76 -do- -do- 5000-8000 Personal Assistant 5500-9000 11 - Sab Singh Negi District Manager (Industries) Dehradun Stenographer 14.10.80 -do- -do- 5000-8000 Personal Assistant 5500-9000 12 - Sudhir Kumar Agarwal Tourism Directorate, Dehradun Stenographer 18.4.81 4000& 6000 -do- 5000-8000 Personal Assistant 5500-9000 13 - Suraj Singh Agarwal Project Officer (Agriculture) Tehri Stenographer 31.5.87 5000-8000 Promotional pay scale Original pay scale 4000- 6000 -do- 5000-8000 Personal Assistant 5500-9000 Sl. No. Name of the petitioners Parent Department Post on which they were working Date of appointment in Parent Department Pay scale in which They were working Educational qualification in Parent Department Next promotional pay scale in the parent Deptt Post on which they have been absorbed in the Secretariat Pay Scale on which they Have been absorbed 14- M.S. Khatri Addl. Director Animal Husbandry Deptt., Gopeshwar, Chamoli Stenographer 1.10.77 -do- Intermedi ate and 80 w.p.m. in Hindi Shorthand 5000-8000 Personal Assistant 5500- 9000 15- J.C. Pant Regional Office, Tourism Deptt., Mussoorie Stenographer 1.7.78 -do- -do- 5000-8000 Personal Assistant 5500- 9000 16- Jagdish Prasad Sharma Trade Tax Deptt., Dehradun Stenographer 18.8.81 -do- -do- 5000-8000 Personal Assistant 5500- 9000 17- Dinesh Chandra purohit Ganga Valley Water Electricity Project, Dehradun IrrigationDeptt Stenographer 20.7.71 5000- 8000 -do- 5000-8000 Personal Assistant 5500- 9000 18- Subhash Chand Panwat Tons Camp Development Zone, Irrigation Deptt. Dehradun Stenographer 4.8.78 5000- 8000 Promotional pay scale Original pay scale 4000- 6000 -do- 5000-8000 Personal Assistant 5500- 9000 19- Virendara Singh Khairola Lakhvar-Vyasi Development Division-I, Irrigation Deptt., Dehradun Stenographer 2.8.78 -do- -do- 5000-8000 Personal Assistant 5500- 9000 20- Hari Prasad Belwal Lakhvar-Vyasi Development Division-II, P.O. Irrigation Deptt., Dehradun Stenographer 22.12.78 -do- -do- 5000-8000 Personal Assistant 5500- 9000 21- Ramesh Chand Bisht Tubewell Division, Irrigation Deptt. Dehradun Stenographer 7.3.79 -do- -do- 5000-8000 Personal Assistant 5500- 9000 22- Om Prakash Pandey Irrigation Development Dividion-3, Sringar, Garhwal Stenographer 8.8.79 -do- -do- 5000-8000 Personal Assistant 5500- 9000 23- Harsh Vardhan Joshi Maneribhali Stage-II, Irrigation Zone, Uttarkashi Stenographer 1.6.75 -do- -do- 5000-8000 Personal Assistant 5500- 9000 24- Haridutt Devtala Lakhvar Dam Development Division-4 Irrigation Deptt., Dehradun Stenographer 14.4.82 -do- -do- 5000-8000 Personal Assistant 5500- 9000 25- Ashok Kumar Dak Pathar Basti & Communication Division, Irrigation Deptt. Stenographer 8.8.78 -do- -do- 5000-8000 Personal Assistant 5500- 9000 26- Bhuwan Chand Joshi Regional Division, PWD, Rudrapur Stenographer 17.3.86 -do- -do- 5000-8000 Personal Assistant 5500- 9000 27- Vani Vilas Uniya Rural Engineering Services Office, Chamoli Stenographer 16.8.86 -do- -do- 5000-8000 Personal Assistant 5500- 9000 28- Dhyan Singh Small Irrigation Deptt., Dehradun Stenographer 6.3.82 -do- -do- 5000-8000 Personal Assistant 5500- 9000 29- Rup Chand Gupta Water Corporation, Dehradun Stenographer 28.11.73 4500- 7000 -do- 5000-8000 Personal Assistant 5500- 9000 30- Ashutosh Bahuguna G.M.V.N. Dehradun Stenographer 18.4.78 1940- 2900 -do- 6500- 10500 Personal Assistant 5500- 9000 7. The newly impleaded respondents have also filed counter affidavit stating therein that the provision contained in Rule 6 of the Rules is just and equitable. No prejudice is caused to anyone by the said provision. Provision for sub-rule (2) of Rule 6 of the Rules is reasonable and is not violative of Article 14 of Constitution of India. 8. We have heard Sri S.Dhulia, Sr. Advocate, learned counsel for the petitioners, Sri K.P. Upadhyaya, Id. standing counsel for the State and Sri Manoj Tewari, Id. counsel for the private respondents. 9. In view of the facts indicated in the chart, since the petitioners’ date of initial appointments as Stenographers in the parent department is different, therefore, the petitioners are placed in the seniority list of Personal Assistants/Private Secretaries of Secretariat as per provisions contained in sub-rule (1) of Rule 6 of the Rules. The petitioners have no locus standi to challenged sub-rule (2) of Rule 6 of the Rules as they cannot be said to be aggrieved by the said provision. 10. The Personal Assistant of the Secretariat are appointed in consultation with the Public Service Commission and they are promoted to the post of Private secretaries while the petitioners’ mode of recruitment is Departmental Selection Committee, therefore, their next higher pay scale is given in the Chart quoted above. Hence, the petitioner and others Stenographers who were taken in the exigency of work as Personal Assistants in the Secretariat constituted a different class than that of Personal Assistants in the Secretariat and as such they cannot claim parity with the Personal Assistants of the Secretariat in any manner whatsoever. 11. The Rules framed under Article 309 of Constitution of India relating to conditions of service and seniority is a policy matter which falls within the domain of Executives. The judicial review of the policy is only permitted to a limited extent as to whether the policy is reasonable or not. Now we may proceed to refer to the dictums of the Hon’ble Apex Court with regard to judicial review of seniority. 12. In the case of Devi Prasad & others Vs. Govt. of Andhra Pradesh and others, reported in 1980 Supp.S.C.C. 206. the Hon’ble Apex Court has held as under:- “It is a matter of government policy to decide what weightage should be given as between two categories of government servants rendering somewhat similar kind of service. Mere hardship without anything arbitrary in the rule does not call for judicial intervention, especially when it flows out of a policy which is not basically illegal. Moreover, the government, in producing contentment and efficiency in its servants, especially in strategic areas like engineering, may have to evolve a flexible policy which will not strike a group as inflicting hardship on them. A sense of justice must permeate both the groups.” The same principle of law been further reiterated by the Hon’ble Apex Court in the cases of “State of Maharashtra and another Vs. Chandrakant Anant Kulkarni and others” (1981) 4 S.C.C. 130. V.T. Khanzode & others Vs. Reserve Bank of India and another (1982) 2 S.C.C. 7, R.S. Makashi and others Vs. I.M. Menon & others (1982) 1 S.C.C. 379, , Union of India and others Vs. S.L. Dutta & another (1991) 1 S.C.C. 505, Prafulla Kumar Das and others Vs. State of Orissa and others (2003) 11 S.C.C. 614. 13. It has been settled in the case of Chandrakant (Supra) that “the narrow and limited field within which the supervisory jurisdiction of the court can operate is the only question whether the principles agreed upon have been properly taken into account”. In the case of V.T. Khanzode (Supra), it was held by Hon’ble Apex Court that “Private interest of employees of public undertakings cannot override public interest and an effort has to be made to harmonize the two considerations. No scheme governing service matters can be foolproof and some section or the other of employees is bound to feel aggrieved on the score of its expectations being falsified or remaining to be fulfilled. Arbitrariness, irrationality, perversity and mala fides will of course render any scheme unconstitutional but the fact that the scheme does not satisfy the expectations of every employee is not evidence of these. Vested interests are prone to hold on their acquisitions.” In the case of Union of India and others Vs. Dr. S. Krishna Murthy and others (1989) 4 S.C.C.689, it has also been held by Hon’ble Apex Court that “when a particular rule conferring benefits on a particular group of government servants in recognitions of their past services in the Army, has been in operation for over twenty years, the Supreme Court will be very slow to interfere with the rule and deprive such group of government servants of the benefits so conferred on them. This, however, does not mean that the Court will shut its eyes even though such rules are illegal and are violative of Articles 14 and 16.” 14. The judicial review is essence of Rule of Law. Under Article 16 of Constitution of India, there shall be equality of opportunity in matters of public employment. Article 16 of Constitution of India is one of the many incidents of concept of equality as guaranteed under Article 14 of Constitution of India. Any classification in the matter of employment has to be reasonable. In the present case, employees from different departments were initially attached to Secretariat and thereafter the Rules were framed for their absorption in Secretariat service. In such cases, the policy was essentially required to be framed for determining the equation of posts and further for inter-se seniority. Framing of policy under the exigency of services is essentially within the domain of Government alone. It may not be possible while framing policy in these matters that no hardship may be caused to any of the employees but that alone may not be a ground to challenge such a policy. The scope of judicial review in such matters is restrictive. The Court may not sit as a Court of Appeal to determine as to what “ought to have been the policy”, especially when the policy is reasonable and not arbitrary. 15. It is argued on behalf of the petitioners that sub- rule (2) of Rule 6 of the Rules is violative of Article 14 of Constitution of India because pay scale has been made sole criterion for determination of seniority by this sub-rule. It is argued that pay scale cannot be sole criteria for determining the seniority. In support of this argument, the principle as laid down in the case of “Sub-Inspector Rooplal and another Vs. Lt. Governor through Chief Secretary, Delhi and others reported in (2000) 1 S.C.C. 644” has been referred to. 16. In Rooplal’s case (Supra), the Hon’ble Apex Court has followed the principles of law as laid down in the case of Union of India and another Vs. P.K. Roy and others reported in AIR 1968 S.C. 850. In P.K. Roy’s case (Supra), the Committee of Chief Secretaries have agreed that in determining relative seniority as between two persons holding posts declared equivalent to each other, and drawn from different States, the following points should be taken into account: - (i) Length of continuous service, whether temporary or permanent, in a particular grade; this should exclude periods for which an appointment is held in a purely stop-gap for fortuitous arrangement: (ii) Age of the person; other factors being equal, for instance, seniority may be determined on the basis of age. Note: It was also agreed that as far as possible, the inter se seniority of officers drawn from the same State should not be disturbed.” 17. The P.K. Roy’s case (Supra) was mainly regarding equation of posts and in Rooplal’s case (Supra) the question was that when a deputationist has been permanently absorbed in the transferred post, is he entitled to count his substantive service in the parent department for the purpose of seniority. In that case before absorption, the deputationists were not made aware of the Rules regarding the conditions of absorptions. In the present case, the petitioners were never taken in Secretariat on deputation. They were simply attached to facilitate the functioning of Secretariat in the beginning. The petitioners have been attached from different departments having different length of service and different pay scales. The Rules regarding Secretariat services were different and the Rules governing the petitioners were different before their absorption in Secretariat services. Before absorptions, the petitioners were given the option to opt or not to opt for Secretariat service and at the time of this option, the petitioners were well aware about sub-rule (2) of Rule 6 of the Rules. 18. The equation of posts is different than the Rules determining the inter-se seniority and both cannot be considered by clubbing him together. It is urged that the past services of the petitioners should have been given weightage to but only for determining inter-se seniority, the policy in the form of the Rules has been framed. For the purpose of inter-se seniority, the length of service in a particular pay scale has been made criterion which is not unreasonable, but under the circumstances of the case, this would only have been a reasonable criteria. It is also urged that before absorption in Secretariat services, the petitioners were given option and before exercising option to be absorbed or not, the Rules were also known to them. They have opted to be absorbed in the Secretariat services, after perusal of all the rules, which are now under challenge, therefore, it is urged that the petitioners cannot challenged the Rules, now. 19. In P.K. Roy’s case (Supra), the reasonableness of guidelines for equation of posts of merged employees from different sources was considered by the Hon’ble Apex Court and it was held to be reasonable. The guidelines were not part of the Rules framed under Article 309 of Constitution of India and these guidelines were not the guidelines laid down by the Hon’ble Apex Court in its judicial pronouncement. Therefore, those guidelines can be a guiding factor for the other States while framing the Rules relating to equation of posts. In our opinion, it cannot be a precedent under Article 141 of Constitution of India. In case of Roop Lal’s (Supra), the Apex Court again considered the question of equation of posts and decided the validity of equation of posts on these guidelines and the office memorandum which were impugned in the writ petition. 20. In the case of P.K. Roy (Supra), for seniority one of the points agreed to be considered was the length of continuous service whether temporary or permanent in a particular grade. In the case of Hari Nandan Sharan Bhatnagar Vs. S.N. Dixit and another reported in (1969) 2 S.C.C. 245, the word “grade” was defined and elaborated by the High Court and the view of the High Court was upheld by the Hon’ble Apex Court and according to High Court, “All officials working in the same scale of pay in a department, although holding posts with different designations, shall be deemed to be holding posts in the same grade, because their rank in the same department will be the same and equal to one another.” 21. Under the ‘Rules’, the pay scale in which the petitioners have been absorbed in the Secretariat service was equal to their next promotional pay scale (see the chart). Under the impugned Rules, all the employees who were attached in the Secretariat have been kept en block junior to the employee of Secretariat Services. It is only in the matter of inter-se seniority of those who have been absorbed in the Secretariat, Rules have laid down the policy. Equation of the post has never been disputed. It is not the case of the petitioners that in the matter of equation of posts, rules are arbitrary or unreasonable. In the case of “R.K. Sethi and another Vs. Oil & Natural Gas Commission & Others (1997) 10 S.C.C. 616”, the Hon’ble Apex Court while considering the question relating to seniority in the cadre of Assistant Grade II of ONGC and promotion to higher posts of Assistant Grade I and Superintendent in ONGC, upheld the validity of these office memorandums. The Rule regarding inter-se seniority has to be seen. In the case of Union of India and others Vs. Anil Kumar and others (1999) 5 S.C.C. 743, the Hon’ble Apex Court has relied upon the principles of law as laid down in the case of R.K. Sethi (Supra) wherein it was approved that “where two or more categories have been merged, for purposes of promotions to the next higher pay scale, inter