IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. (S/S) 1225 of 2009 Smt. Bhagirathi Agnihotri …Petitioner Versus State of Uttarakhand and others ….Respondents Present : Mr. C. D. Bahuguna, Advocate for the petitioner. Mr. N. P. Sah, Learned Standing Counsel for the State of Uttarakhand. Sudhanshu Dhulia, J. (Oral) Supplementary affidavit filed by the petitioner in the Court today is taken on record. Heard Mr. C. D. Bahuguna, Advocate for the petitioner, and Mr. N. P. Sah, Standing Counsel for the State of Uttarakhand. The petitioner is an employee of Rural Development Services in the State of Uttarakhand. Her services are governed by rules known as Uttar Pradesh Agriculture Production and Rural Development Departmental Ministerial Service Rules, 1980 (from hereinafter referred to as 1980 Rules). The learned Standing Counsel appearing for the State of Uttarakhand has admitted that the same rules are also applicable in Uttarakhand as well. There are various categories of post in the said department which are broadly categorized as (a) Headquarter (b) Zonal Office and (c) District Office. Admittedly, the petitioner is in a District Office of Rural Development Department. She was appointed as a Junior Assistant (earlier known as Junior Clerk) in the year 1988. Subsequently thereafter she was promoted to the next higher post of Senior Assistant (earlier known as Senior Clerk) on 24.7.1997. The husband of the petitioner is also working in a District Rural Development 2 Agency at Almora. In order that both husband and wife should stay together, the petitioner sought transfer from District Nainital to District Almora. There was another person, namely, Mahesh Lal Verma, who was working as a Senior Assistant in District Nainital. The petitioner sought transfer to Almora and Mr. Mahesh Lal Verma sought transfer to Nainital. Since it was a case of mutual transfer, Mr. Mahesh Lal Verma was transferred to Nainital and the petitioner was transferred to Almora in the place of Mr. Mahesh Lal Verma. The petitioner joined at Almora on 23.8.1997. All the facts and dates as stated above are admitted. The petitioner is now aggrieved with the inter se seniority list published for the District Cadre Employees of Rural Development Services on 2.6.2009. In this, the name of the petitioner has been shown at serial no. 38, which is even below that of Junior Assistant. This has been done calculating the seniority of the petitioner from 23.8.1997 i.e. the date when she joined at Almora, meaning thereby that even Junior Assistants who were appointed prior to this date at Almora has been shown senior to her. It is this calculation which the petitioner has presently challenged before this Court. According to her, the seniority has be calculated district wise and since she her own sought transfer from Nainital to Almora she must be placed at the bottom of the category of the service at Almora. In other words, she should be placed at the bottom of Senior Assistant working at Almora at the time when she joined i.e. 23.8.1997. All the same what has been done is that the respondents have calculated the inter se seniority considering 23.8.1997 as the date of appointment of the petitioner in the cadre of Junior Assistant, which is patently illegal. The petitioner has relied upon Rule 21 of 1980 Rules. 3 “21. Seniority.- (1) Except as hereinafter provided, the seniority of persons in any category of post shall be determined from the date of the order of substantive appointment and if two or more persons are appointed together, by the order in which their names are arranged in the appointment order: Provided that if the appointment order specified a particular back date with effect from which a person is substantively appointed, that date, will be deemed to be in the date of order of substantive appointment and, in other cases, it will mean the date of issue of the order: Provided further that, if more than one order of appointment are issued in respect of any one selection the seniority shall be as mentioned in the combined order of appointment issued under sub-rule (2) of rule 18. (2) The seniority inter se of persons appointed directly on the result of any one selection shall be the same as determined by Selection Committee. Provided that a candidate recruited directly may lose his seniority if he fails to join without valid reasons when vacancy is offered to him. The decision of the appointing authority as to the validity of reason shall be final. (3) The seniority inter se of persons appointed by promotion shall be the same as it was in the cadre from which they were promoted. ” The respondents in their counter affidavit have stated that seniority has rightly been calculated. They have relied upon two government orders dated 2.5.1988 and 8.4.2003. The first Government Order dated 2.5.1988 pertains to the erstwhile state of Uttar Pradesh says that in case a person is transferred to another district on his personal request his seniority should be placed at the bottom of the cadre in that district. The second Government Order dated 8.4.2003 states that in case person takes transfer on his own choice to another district then his seniority be calculated under Rule 21 of 4 1980 Rules from the date when he or she joined in the new district. A perusal of order dated 8.4.2003 along with rule 21, as already been referred above, would show that what is meant by order dated 8.4.2003 is that the intention was to place the petitioner at the new place of joining at the bottom of Senior Assistants. However, the respondents have also relied upon the order dated 2.5.1988 which does not talk about category of post but says that a person shall be placed at the bottom of the “cadre”. In view of this, the correct position appears to be what has been stated in order dated 8.4.2003 which has to be read along with Rule 21 of 1980 Rules which would mean if a person takes a transfer by choice to another district he should be placed at the bottom of category of service and in the present case category of service would mean “category of Senior Assistant” in Rural Development Services. The petitioner though has not impleaded any person who may be adversely affected by any order of this Court. All the same, the petitioner in response to the impugned seniority list had already moved a representation, which has been rejected by the District Development Officer, Almora by order dated 18.7.2009. The order dated 18.7.2009 does not consider the fact that after 1997 the petitioner was promoted as Senior Assistant and her seniority has to be calculated in that category of service. It is also apparent that the said authority has misinterpreted the rules or Government Orders on which reliance has been placed. The order dated 18.7.2009 (annexure no. 1 to the writ petition) presently quashed. The District Development Officer, Almora is directed to re-fix the seniority of the petitioner afresh in the light of what has already been referred above but only after 5 hearing concerned persons including all the Junior Assistants in the district cadre of Almora who may be affected by the order. It is further directed that the District Development Officer shall decide the matter as expeditiously as possible but definitely within a period of three months from the date a certified copy of this order is produced before him. With the above observation, the writ petition is disposed of. No order as to costs. (Sudhanshu Dhulia, J.) 12.08.2011 Kuldeep