IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/B) No. 206 of 2009 Smt. Sujata ………..Petitioner. Versus State of Uttarakhand and others. …Respondents. Mr. Manoj Tewari, Senior Advocate with Mr. Rahul Consul & Mr. Amit Chaudhary, Advocates for the petitioner. Mr. P.C. Bisht, Advocate for respondent nos. 1 and 2. None for respondent no. 3. Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. J.S. Khehar, C.J, (Oral) 1. The petitioner was inducted into the service of the composite State of Uttar Pradesh against the post of District Programme Officer on 14.5.1992. She was still holding the same post of District Programme Officer, when the State of Uttar Pradesh was reorganised with effect from 9.11.2000. At the time of reorganisation, she had rendered more than eight years of service as District Programme Officer. 2. In the State of Uttar Pradesh, the petitioner was liable to be considered for promotion to the post of Programme Officer (Headquarters) in terms of the provisions of the U.P. Child Development and Nutrition (Group A & B) Conditions of Service and Appointment Rules, 1996 (hereinafter referred to as the 1996 Rules), wherein under Rule 5(A) promotion was envisaged from the post of District Programme Officer to the post of Programme Officer (Headquarters), subject to the condition that the concerned individual has rendered seven years’ service as District Programme Officer. 3. It is not a matter of dispute that in the successor State of Uttarakhand in the department, to which the 2 petitioner belongs, there is also a post of Programme Officer (Headquarters). From time to time, the petitioner has been posted as Programme Officer (Headquarters) at Dehradun in the successor State of Uttarakhand. During the course of her employment after the reorganisation of the composite State of Uttar Pradesh, an order dated 24.11.2001 was passed whereby the administrative structure of the department was re-determined. While doing so, although the pay-scale of the post of Programme Officer (Headquarters) was higher than the pay-scale of the post of District Programme Officer, the same was brought at par with the post of District Programme Officer. The petitioner was dissatisfied with the order dated 24.11.2001, inasmuch as, according to her, the same resulted in divesting her of the rights conferred on her under the proviso to Section 74 of the U.P. Reorganisation Act, 2000. Section 74 of the U.P. Reorganisation Act, 2000 is being extracted hereunder:- “74. Other provisions relating to Services.—(1) Nothing in this section or in Section 73 shall be deemed to affect on or after the appointed day, the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to determination of the conditions of service of persons serving in connection with the affairs of the Union or any State: Provided that the conditions of service applicable immediately before the appointed day in the case of any person deemed to have been allocated to the State of Uttar Pradesh or to the State of Uttaranchal under Section 73 shall not be varied to his disadvantage except with the previous approval of the Central Government. (2) All services prior to the appointed day rendered by a person,-- (a) if he is deemed to have been allocated to any State under Section 73, shall be deemed to have been rendered in connection with the affairs of that State: (b) if he is deemed to have been allocated to the Union in connection with the administration of the 3 Uttaranchal, shall be deemed to have been rendered in connection with the affairs of the Union, for the purposes of the rules regulating his conditions of service. (3) The provisions of Section 73, shall not apply in relation to members of any All India Service.” 4. So as to preserve her rights under the proviso to Section 74 of the U.P. Reorganisation At, 2000, the petitioner approached this Court by filing Writ Petition (S/B) No. 1267 of 2002. The aforesaid writ petition was, however, transferred for adjudication to the Public Services Tribunal, Uttarakhand. 5. During the pendency of the proceedings before the Public Services Tribunal, Uttarakhand, another order dated 7.11.2002 was passed in exercise of powers vested in the State Government under Section 87 of the U.P. Reorganisation Act, 2000. Vide the instant order dated 7.11.2002, no amendment whatsoever was made to Rule 5 of the 1996 Rules, however, the pay-scale envisaged under Rule 22 of the 1996 Rules was sought to be modified so as to reduce the pay-scale of the post of Programme Officer (Headquarters) to the level of the post of District Programme Officer. Since the instant order was also detrimental to the petitioner, she impugned the same before the Public Services Tribunal, Uttarakhand along with the earlier pleas, referred to hereinabove. 6. The Public Services Tribunal, Uttarakhand disposed of Writ Petition (S/B) No. 1267 of 2002 (which was re- numbered as Claim Petition No. 126/T/2003) by an order dated 31.10.2007. The Public Services Tribunal vide its order dated 31.10.2007 arrived at the conclusion that the order dated 24.11.2001, as also, the order dated 7.11.2002 would not be applicable to the petitioner. The instant determination was rendered on account of the 4 sole consideration that the aforesaid orders would violate the rights vested in the petitioner under the proviso to Section 74 of the U.P. Reorganisation Act, 2000. It is not a matter of dispute that the order dated 31.10.2007 passed by the Public Services Tribunal, Uttarakhand disposing of Claim Petition No. 126/T/2003 was not assailed at the hands of the respondents, and as such, has attained finality between the parties. 7. During the course of hearing before us, it is the vehement contention of the learned counsel for the petitioner that the claim of the petitioner should have been considered for promotion to the post of Programme Officer (Headquarters) in terms of the decision rendered by the Public Services Tribunal, Uttarakhand, yet the same has not been done despite the fact that more than two and a half years have passed since then. Rather than doing so, it is submitted that the petitioner has been transferred from the post of Programme Officer (Headquarters) to the post of District Programme Officer, Dehradun vide order dated 3.9.2009. The petitioner has assailed the order dated 3.9.2009, by which she has been transferred and in her place respondent no. 3 has been accommodated as Programme Officer (Headquarters). 8. In sum and substance, two submissions have been advanced by the learned counsel for the petitioner. The first is based on the proviso to Section 74 of the U.P. Reorganisation Act, 2000. In this behalf, it is the submission of the learned counsel for the petitioner that Rule 5 of the 1996 Rules has remained unamended till date, and as such, the claim of the petitioner, who was eligible for the same, was liable to be considered. This has not been done despite the determination rendered by the Public Services Tribunal vide its order dated 5 31.10.2007. It is also the contention of the learned counsel for the petitioner that the respondents have chosen to keep the post of Programme Officer (Headquarters) occupied ever since the creation of the State of Uttarakhand, meaning thereby, that the respondents are aware of the requirement of manning the post. So as to assert that the petitioner is liable to be considered for promotion to the post of Programme Officer (Headquarters), learned counsel for the petitioner has placed reliance on the decision rendered by a Constitution Bench of the Supreme Court in Mohd. Sujat Ali vs. Union of India (1975) 3 SCC 76, wherein the Apex Court held that consideration for promotion constitutes a condition of service. Reference in this behalf was made to the following observations recorded in the aforesaid judgment :- “15. In the first place, it is not correct to say that there was any variation in the condition of service in regard to promotion applicable to non-graduate Supervisors from the erstwhile State of Hyderabad immediately prior to November 1, 1956. It is true that a rule which confers a right of actual promotion or a right to be considered for promotion is a rule prescribing a condition of service. This proposition can no longer be disputed in view of several pronouncements of this Court on the point and particularly the decision in Mohammad Bhakar v. Y. Krishna Reddy where this Court, speaking through Mitter, J., said : “Any rule which affects the promotion of a person relates to his condition of service”. But when we speak of a right to be considered for promotion, we must not confuse it with mere chance of promotion—the latter would certainly not be a condition of service. This Court pointed out in State of Mysore v. G.B. Purohit that though a right to be considered for promotion is a condition of service, mere chances of promotion are not. A rule which merely affects chances of promotion cannot be regarded as varying a condition of service. What happened in State of Mysore v. G.B. Purohit (supra) was that the districtwise seniority of Sanitary Inspectors was 6 changed to Statewise seniority and as a result of this change, the respondents went down in seniority and became very junior. This, it was urged, affected their chances of promotion which were protected under the proviso to Section 115, sub-section (7). This contention was negatived and Wanchoo, J. as he then was, speaking on behalf of this Court observed : “It is said on behalf of the respondents that as their chances of promotion have been affected their conditions of serve have been changed to their disadvantage. We see no force in this argument because chances of promotion are not conditions of service”. Now, here in the present case, all that happened as a result of the application of the Andhra Rules and the enactment of the Andhra Pradesh Rules was that the number of posts of Assistant Engineers available to non-graduate Supervisors from the erstwhile Hyderabad State for promotion, was reduced : originally it was fifty per cent, then it became thirty-three and one-third per cent, then one in eighteen and ultimately one in twenty-four. The right to be considered for promotion was not affected but the chances of promotion were severely reduced. This did not constitute variation in the condition of service applicable immediately prior to November 1, 1956 and the proviso to Section 115, sub-section (7) was not attracted. This view is completely supported by the decision of a Constitution Bench of this Court in Ramchandra Shankar Deodhar v. The State of Maharashtra.” Despite the right of the petitioner to be considered for promotion, it is submitted, that the petitioner has not been subjected to said consideration and the respondents are manning post of Programme Officer (Headquarters) at their own whims and fences by choosing to post officers from the cadre of District Programme Officer, despite the fact that they were far junior to the petitioner. It is pointed out that respondent no. 3 who has now replaced the petitioner is also far junior to her. It is the submission of the learned counsel for the petitioner that the petitioner has an indefeasible right of consideration for promotion to the post of Programme Officer 7 (Headquarters) on account of her unblemished service, coupled with the fact that she is the senior most in the cadre of District Programme Officer. 9. Insofar as the first contention advanced by the learned counsel for the petitioner is concerned, the three facts which constitute the basis of the claim of the petitioner have not been disputed by the learned counsel for the respondents, namely, firstly, that Rule 5 of the 1996 Rules which envisage promotion from the post of District Programme Officer to the post of Programme Officer (Headquarters) is intact till date and has not been amended. Secondly, the petitioner being the senior most member of the cadre of District Programme Officer is eligible for consideration for promotion to the post of Programme Officer (Headquarters) having rendered service as District Programme Officer far in excess of the prescribed seven years. And thirdly, the respondents have not constituted any Departmental Promotion Committee to consider the claim of the petitioner, as also, other eligible District Programme Officers for promotion to the post of Programme Officer (Headquarters). 10. The solitary contention of the learned counsel for respondent nos. 1 and 2, while opposing the claim of the petitioner, is based on the orders dated 24.11.2001 and 7.11.2002. It is the submission of the learned counsel for respondent nos. 1 and 2 that the administrative set up of the department having been reorganised, and the post of Programme Officer (Headquarters) having been equated with the post of District Programme Officer insofar as pay-scales is concerned, the same resulted in constitution of a common cadre of Programme Officers (Headquarters) and District Programme Officers, and as such, there was no question of there being any avenue of 8 promotion available to the petitioner. In the absence of any avenue for promotion, it is submitted, that there was no question for considering the petitioner for promotion to the post of Programme Officer (Headquarters). 11. We have given our thoughtful consideration to the contentions advanced before us by the learned counsel for the rival parties. We, however, find no merit whatsoever in the contention advanced at the hands of the learned counsel for the respondents. Reliance on the orders dated 24.11.2001 and 7.11.2002 at the hands of the learned counsel for the respondents is wholly misconceived, on account of the fact that the aforesaid two orders were expressly set aside by the Public Services Tribunal while disposing of Claim Petition No. 126/T/2003. The Tribunal clearly held that the aforesaid two orders would not adversely affect the petitioner. In fact, the instant stand adopted at the hands of the respondents, despite the fact that the order passed by the Public Services Tribunal dated 31.10.2007 has attained finality, in our view, ought not to have been raised by the respondents. Further more, since it is not disputed that Rule 5 (A) of the 1996 Rules, which provides for promotion from the post of District Programme Officer to the post of Programme Officer (Headquarters) is still intact, and has not been amended, there can be no doubt whatsoever that it is imperative for the respondents to follow the mandate of Rule 5 of the 1996 Rules, rather than to make ad-hoc arrangements by posting all and sundry from the cadre of District Programme Officer. In this view of the matter, we hereby direct respondent nos. 1 and 2 to carry out the exercise of promotion in terms of Rule 5 of the 1996 Rules without any delay whatsoever, preferably within a period 9 of two months from the date of receipt of the certified copy of this order. 12. We shall now embark on the second submission advanced by the learned counsel for the petitioner. The petitioner, who is admittedly the senior most member of the cadre of District Programme Officer, by the impugned order dated 3.9.2009/15.9.2009, has been transferred and posted as District Programme Officer, Dehradun. A perusal of the impugned orders reveal that the petitioner has, inter alia, been transferred so as to prevent the petitioner from interfering with certain enquiries being conducted against her in respect of alleged financial irregularities. Insofar as the aforesaid observations contained in the impugned order is concerned, learned counsel for the petitioner, so as to repudiate the same, invited our attention to the averments made in paragraph 20 of the Writ Petition. Paragraph 20 of the Writ Petition is accordingly being extracted hereunder :- “20. That the malicious intention of the Respondent authorities becomes even more evident when the Respondent no. 1 in his order dated 15.09.2009 goes on to say that the petitioner is being transferred because “Certain” enquiries pertaining to certain irregularities are pending against the Petitioner in respect of certain charges during which her posting in the headquarters and the cancellation of the order dated 03.09.2009 would not be in the administrative interest. It is pertinent to mention here that no such irregularities have ever been committed by the Petitioner and hence for any such allegation the Respondent are put to strict proof.” In the counter affidavit filed on behalf of respondent no. 1, the response thereto is contained in paragraph 23. Paragraph 23 of the counter affidavit filed on behalf of respondent no. 1 is also being reproduced hereunder :- “23. That in reply to para 20 of the writ petition it is submitted that order no. 1341/XVII(2)/2009 dated 10 15-09-2009 is self explanatory and based on records, which if directed shall be submitted before the Hon’ble Court, by the State Government. Copy of order dated 15-9-2009 is being filed herewith and is marked as ANNEXURE NO. C.A.3 to this counter affidavit.” Deceptively it is averred therein, that if this Court requires, the necessary records can be produced, but then the truth emerges from the supplementary counter affidavit filed on behalf of respondent no. 1, wherein in respect to the averments made in paragraph 20 of the writ petition, as also, in the rejoinder affidavit filed by the petitioner, the assertions on behalf of respondent no. 1, (in respect to the pleadings in paragraph 20 of the writ petition) are contained in paragraph 17. Paragraph 17 of the supplementary counter affidavit is also being extracted hereunder :- “17. That the contents of para 20 of the rejoinder affidavit as stated are not correct as such same are not admitted and denied. The special audit was ordered vide letter dated 1-9-2008 for the period 2005-06, 2006-07, 2007-08 and it is evident from the letter that the following subjects files were under special audit :- 1- fd’kksjh 'kfDr ;kstuk ds rgr bafXy’k Lihfdax dkslZA 2- vkaxuokM+h dsUnz gsrq dz; jftLVj @iaftdk] xzksFk pkVZ] foHkkxh; dyS.Mj dh NikbZA 3- iks"kkgkj <qyku njksa dh i=koyh rFkk fcu iSysV dz; i=koyhA 4- izf’k{k.k lEcaf/kr leLr i=koyh] mfn’kk] vkaxuokM+h ,oa vU; izf’k{k.k lEcU/kh i=kofy;kaA 5- lw[kk jkgr esa dz; iks"kkgkj ls lacaf/kr i=koyhA From the perusal of representation dated 3-9- 2009 submitted by the petitioner (Annexure-9 to the writ petition), it is clear that the petitioner herself has admitted that during the period of two years in the Directorate she was entrusted with the work of above subjects and till final report has come she can not say that irregularities were not committed by her. The contents of para 24 of the counter affidavit are correct and the same are being reiterated.” 11 All that emerges from the averments made in paragraph 23 of the counter affidavit and paragraph 17 of the supplementary counter affidavit is, that certain audit objections were pending consideration, in respect of the petitioner, at the hands of the Audit Department. There is as of now no finding of any financial irregularity at her hands. 13. Having demonstrated that the petitioner’s record is unblemished, learned counsel, asserted that the record of respondent no. 3 (who has been ordered to replace the petitioner through the impugned orders), is positively blemished. In order to substantiate the instant claim, learned counsel invited our attention to the averments made in paragraphs 21 and 22 of the writ petition, as also the response thereto by the official respondents. A perusal of the aforesaid pleadings reveals, that it has not been disputed that a report has been received from the Audit Department depicting irregularities. Since it is not denied that such a report has been received, the allegations levelled by the petitioner in paragraphs 21 and 22 of the writ petition, as against respondent no. 3, cannot presently be discounted. Allegations of mala fide have also been levelled by the petitioner against respondent no. 3 alleging that favour is being shown to respondent no. 3 despite the fact that there are a large number of senior District Programme Officers, who have a superior claim viz respondent no. 3 for posting as Programme Officer (Headquarters). Interestingly, despite personal service having been effected on respondent no. 3, he has not entered appearance to repudiate any of the allegations levelled against him. The issue, therefore, assumes further significance. 12 14. In the facts and circumstances, noticed hereinabove, we are of the view that the impugned order dated 3.9.2009/15.9.2009 cannot be stated to be wholly bona fide. The transfer and posting of the petitioner so as to replace her by respondent no. 3 is accordingly liable to be set aside. The same is hereby set aside. As a matter of stop gap arrangement, we are of the view that neither the petitioner nor respondent no. 3 should be posted as Programme Officer (Headquarters) till the selection process, as directed hereinabove, is finalised. Respondent nos. 1 and 2 may choose the senior most District Programme Officer subject to his suitability, to man the post till then. 15. As and when, the selection process conducted under Rule 5 of the 1996 Rules is finalised, the same shall be given effect to. In case the petitioner is found suitable for promotion, she shall be entitled to be posted as Programme Officer (Headquarters). Needless to mention, that if any enquiries on account of irregularities are pending consideration against the petitioner at that juncture, it will be open to the respondent nos. 1 and 2 to take appropriate action to avoid the petitioner from manning the post of Programme Officer (Headquarters), even by placing her under suspension, if required. 16. The instant Writ Petition stands disposed of in the aforesaid terms. (Sudhanshu Dhulia, J.) (J.S. Khehar, C.J.) 23.3.2010 Avneet