IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Court’s order whether the case is or not approved for reporting (Chapter VIII, Rule 32(2)(b) Description of Case Civil Writ petition No. 360 of 2006 (S/B) Date of decision:- 28.07.2008 A.F.R. (Approved for Reporting) Not approved fore reporting Initials of Judge Date:- 28.07.2008 Note:- Bench Reader will attach this at the top of the first page of the judgment when it is put up before the judge for signature. HIGH COURT OF UTTARAKHAND, AT NIANITAL Civil Writ Petition No 360 of 2006 (S/B) Sri Ram Datt S/o Late Sri Tilochan Paliwal R/o village Pali, P.O. Dhaula, District Almora Presently posted as S.D.M., Pithoragarh District Pithoragarh, Uttaranchal ………Petitioner Versus State of Uttaranchal and others ………….Respondents Mr. I.D. Paliwal, Advocate for the petitioner. Mr. Subhash Upadhyay, Brief Holder for respondents nos. 1, 2, & 4. Mr. Subhash Bhargava, Standing Counsel (Central Govt.) for respondent Nos. 3 & 8. Mrs. Beena Pandey, Standing Counsel (U.P. Govt.) for respondent nos. 5 & 6. Mr. B.D. Kandpal, Advocate for respondent no. 7. JUDGMENT Coram: Hon. V.K. Gupta, C.J. Hon. J.C.S. Rawat, J. Hon. J.C. S. Rawat, J. (Oral) This writ petition been filed for seeking the following reliefs:- (i) Issue a writ, order or direction in the nature of certiorari quashing the order September 2005 issued on 05.10.2005 passed by the respondent no. 3 (Annexure- 11 to the writ petition) (ii) Issue a writ, order or direction in the nature of mandamus directing the respondents to include the name of petitioner in the final allocation list issued by respondents no. 3 and also include the name of the petitioner in the seniority list in view of the Govt. Order dated 09.11.2001 Clause C and further to direct the respondents to consider the petitioner for promotion for the post of Sub Divisional Magistrate in the scheduled, with is to be held forthwith. (iii) Any other writ, order or direction which this Hon’ble Court may deem fit and proper to the facts and circumstances of the case. (iv) Award the cost of the petition to the petitioner. 2. Admittedly, the petitioner was initially appointed as Naib Tehsildar on 06.12.19993 on the recommendation of the erstwhile U.P. Public Service Commission, Allahabad by way of direct recruitment. The petitioner has been working in the Garhwal Division and he was already allotted Hill Sub-Cadre by the erstwhile State of U.P. vide its order dated 27.01.1996 (Annexure-1 to the writ petition). On 09.11.2000 the State of Uttaranchal (now Uttarakhand) was created under the U.P. Reorganization Act, 2000. The Government of India in exercise of its power conferred under Section 73 of the U.P. State Reorganization Act, 2000 issued a Government Order dated 11.09.2001 (Annexure -3 to the writ petition) by which it was provided that those employees who have already been allotted Hill Sub-Cadre or whose services were transferred in Hill Sub-Cadre before 09th November 2000 shall be treated to be finally allocated to the State of Uttarakhand. In view of the Clause (C) of the aforesaid G.O., the allocation of the petitioner to the State of Uttarakhand become final. Subsequently, on 05th June, 2003 a seniority list of the Naib Tehsildar was issued by the officer of respondent no. 2. In the meanwhile, the petitioner was promoted on the post of Tehsildar on 17th July, 2002 and confirmed on 07th February 2004. The petitioner made a representation to the respondents alleging therein that he had already been allocated to the State of Uttarakhand by virtue of an Order dated 27.01.1996 and in this regard the Government of India has already issued a G.O. on 11.09.2001. The Union of India vide its order September 2005 (actually issued on 05th October, 2005) issued a final allocation list of the members of the State of Uttarakhand in which the name of the petitioner did not find place anywhere despite of the fact that he was already allotted to the Uttarakhand Hill Cadre in the year 1996. As a consequence thereof, the petitioner was allocated to the State of U.P. Feeling arrived by the said order, the present petition has been filed before this Court. 3. Learned counsel for the petitioner contended that the petitioner had already opted for the Hill Sub-Cadre in the year 1996, he had been serving in the Hill Sub-Cadre i.e. Garhwal Division and he was allocated Hill Sub-Cadre by the erstwhile State of U.P. vide its G.O. dated 27.01.1996; the existence of he said order has not been challenged by the respondents; the petitioner is the permanent resident of District Almora, Uttarakhand; the Government of India has issued a G.O. dated 11.09.2001(Annexure-3 to the writ petition) by which it was provided that those employees who had already been allotted Hill Sub-Cadre before 09th November 2000 or whose services were transferred in Hill Sub-Cadre were finally allocated to the State of Uttarakhand. It was further contended that the subsequent order dated 05.10.2005 impugned in this petition is against the already issued G.O. dated 11.09.2001 of the Central Government. Learned counsel for the respondents contended that after creation of State of Uttarakhand the power to allocate a person to any Sate is vested with the Union of India and the petitioner has not been allocated to the State of Uttarakhand vide impugned order dated 05.10.2005 issued by the Union of India. As such, the petitioner cannot be said to have been allocated to the State of Uttarakhand; though the petitioner belongs to the revenue department but his services comes within the exclusion clause provided at serial no. 25. of Appendix (Rules 4 & 5) because the petitioner belongs to Record Operation Department. Before examining the contention of the parties, we would like to refer the relevant provisions of Rule 4(e), 5 and a Appendix of Rules 4 & 5 of the U.P. Hill Sub-Cadre Rules, 1992:- 4.“definitions. In these Rules: (a)……………. (b)……………. (C)…………… (d)…………… (e) ‘‘Hill Sub-Cadre” means the Hill Sub-Cadre constitution under Rules 5. 5. Constitution of Hill Sub-Cadre.- (1) There shall be a separate Hill Sub-Cadre in all the departments of the Government comprising all posts except the department and posts- (i) the incumbents whereof were, no the date preceding the commencement of these rules, not liable to be transferred outside the hill districts namely – Almora, Chamoli, Dehradun, Nainital, Pauri Garhwal, Pithoragarh, Tehri Garhwal. Uttarkashi and Udham Singh Nagar.” (iii) which are excluded from the Hill Sub- Cadre by the Government by notified order. (2)The strength of Hill Sub-Cadre in a Service shall be such as may be determined by the Government from time to time by notified order. “Appendix (See Rules 4 and 5) 1. ……………. 2. …………… 3. …………… 21. Revenue Department (Excluding Consolidation, Land Acquisition and Record Operation).” 4. Perusal of the above Rules clearly reveal that the Revenue Department (Excluding Consolidation, Land Acquisition and Record Operation) would be governed by the U.P. Hill Sub-Cadre Rules, 1992. There is no disputed in between the parties that the erstwhile Sate of U.P. had allotted Hill Sub-Cadre to the petitioner vide order dated 27.01.1996. It is not disputed that the petitioner did not belong to revenue department. It is also admitted that the said order allocating the petitioner to Hill Sub-Cadre in the year 1996 has not been cancelled till date by the State of U.P. or by the State of Uttarakhand. The petitioner has already been allotted to Hill Sub-Cadre of Uttarakhand vide order dated 27.01.1996 and the Union of India issued an order dated 11.09.2001 in which it was provided that those employees of the State of Uttarakhand who had already been allotted the Hill Sub Cadre before 09th November 2000 stand finally allocated to the State of Uttarakhand. Thus, the order of the petitioner being allocated to State of Uttarakhand had become final by virtue of the order dated 11.09.2001. Now, the respondents cannot say that the petitioner could not be allotted to Hill Sub-Cadre till the order dated 27.01.1996 allotting him to Hill Sub-Cadre had not been withdrawn or cancelled. The Union of India has no power to re-allocate the petitioner to the State of U.P. without recalling, canceling or withdrawing the earlier order dated 11.09.2001. 5. In view of the above, the petition is liable to be allowed and the same is allowed. The impugned order dated September 2005 actually issued on 05th October 2005 is quashed only to the extent it excludes the petitioner from allocation to Uttarakhand Cadre. A mandamus is issued commanding the respondents to issue an appointment order allocating the petitioner to Uttarakhand Cadre. It is directed that the needful shall be done by the respondent within six weeks form today. (J.C.S. Rawat, J.) (V.K. Gupta, C.J.) Dated 28th July, 2008 LSR/Shiv