Case: KRISHAN KUMAR MADAN Vs. ASHOK KUMAR

order dated 22 November 2004 stated that the appellants could not be allocated to the State of Uttarakhand.14. In response, the State of Uttarakhand in its counter stated that:(i) The State Reorganization Committee advised that with the consent of the State of U.P., the appellants can be taken on transfer to the State of Uttarakhand as there was an acute shortage of officers in the newly constituted State of Uttarakhand;(ii) Transfer was done only with the mutual consent of both the States and the appellants; and(iii) Transfer of the services of the appellants was affected after the creation of the State of Uttarakhand is, therefore, not covered by any of the provisions of the U.P. Reorganization Act, 2000, which has also been mentioned in the letter dated 3 September 2009 of the Government of India; andiv) The Guidelines dated 13 September 2000 clearly envisage in respect of recruitment against vacancies, that wherever panels have been drawn but not published, they may be kept in abeyance till reorganization is given effect to. But these guidelines did not contemplate what action is to be taken in a situation where the selection has been made. Hence, in the absence of any specific provision in the guidelines provided by the Government of India, the decision arrived with the mutual consent of the two State governments does not suffer from any infirmity and is justified.15. In the counter affidavit filed on behalf of Union of India by the Under Secretary, Department of Personnel & Training, Government of India, it was stated that:(i) Although the Central Government was made a party to Writ Petition no 1313 of 2005, before the High Court, it did not file a Counter affidavit as none of its decisions was under challenge; and(ii) The case was contested between private parties where the State Governments were to furnish a reply. The Central Government has nothing to say in the matter except that the appellants could not be allocated as they were out of the purview of the U.P. Reorganisation Act, 2000 as they were inducted into service in 2001, which is after the appointed day, 9 November 2000.16. The State of Uttar Pradesh and the State Advisory Committee, who have been arrayed as Respondent 8 and 9 in the instant appeals, have not filed counter affidavits. No counter affidavit has been filed on behalf of Respondent 4 who was one of the petitioners before the High Court.17. The U.P. Reorganisation Act, 2000 empowered the Central Government to issue directions to the State Governments of Uttar Pradesh and Uttarakhand from time to time to resolve any issues envisaged under the Act. The power of the Central Government under Section 77 of U.P. Reorganisation Act, 2000 is in the following terms:"77. Power of Central Government to give directions. - The Central Government may give such directions to the State Government of Uttar Pradesh and the State Government of Uttaranchal as may appear to it to be necessary for the purpose of giving effect to the foregoing provisions of this Part and the State Government shall comply with such directions. "18. The High Court has overlooked the guidelines issued by the Central Government on 13 September 2000. Para (5)(c) of the guidelines refers to cases of selections where results were published prior to the cut-off date but appointment letters were not issued to candidates. Para (5) (c) contemplates that recruitments would be kept in abeyance until final allocation orders were made. This was to be so even where panels were drawn but not given effect to.The High Court has directed its attention to a sole consideration, namely whether there existed any statutory provision for transferring an employee from one state to another state. The appellants were declared to be employees of the State of Uttar Pradesh by the High Court without noticing that the appointment letters issued to them clearly stipulated that their services could transferred to the successor state of Uttarakhand. Such a transfer took place with the consent of both the states.19. The State of Uttarakhand was created with the enactment of the U.P.Reorganisation Act, 2000 which reorganized the State of Uttar Pradesh into two states namely, the successor State of Uttar Pradesh and the State of Uttarakhand. Under the Act, 9 November 2000 was the appointed day. During the initial days after its formation, the State of Uttarakhand was facing an acute shortage of officers in various departments including the Secretariat. The State of Uttarakhand was seeking help from the State of Uttar Pradesh and the Central Government to provide human resources. The Central Government, by its letter dated 15 September 2004, permitted the transfer of employees on the basis of the mutual consent of both the States.The State of U.P. gave options to existing employees appointed before 9 November 2000 for transfer of their services to the State of Uttarakhand. However, despite those efforts, a number of vacancies continued in the newly formed State of Uttarakhand. Hence, various employees who were already employed with the State of U.P. prior to the appointed day were provided with a choice of permanent transfer of service to the State of Uttarakhand.In the meantime, in the case of persons such as the appellants where recruitments were completed but appointment letters were not issued the appointment letters indicated that their services may be allotted either to the State of Uttar Pradesh or the State of Uttarakhand after the appointed day. The services of the appellants were transferred and absorbed by the State of Uttarakhand with the mutual consent of both the states. Since then the appellants have been continuing as employees of the State of Uttarakhand.20. There is no infirmity in the procedure adopted by both the states in the transfer of employees, on the basis of mutual consent. This was clearly contemplated by the letter dated 15 September 2014 of the Government of India in the Ministry of Personnel, Public Grievances and Pensions. Hence, we are unable to agree with the view of High Court.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]18. The High Court has overlooked the guidelines issued by the Central Government on 13 September 2000. Para (5)(c) of the guidelines refers to cases of selections where results were published prior to thedate but appointment letters were not issued to candidates. Para (5) (c) contemplates that recruitments would be kept in abeyance until final allocation orders were made. This was to be so even where panels were drawn but not given effectHigh Court has directed its attention to a sole consideration, namely whether there existed any statutory provision for transferring an employee from one state to another state. The appellants were declared to be employees of the State of Uttar Pradesh by the High Court without noticing that the appointment letters issued to them clearly stipulated that their services could transferred to the successor state of Uttarakhand. Such a transfer took place with the consent of both theState of U.P. gave options to existing employees appointed before 9 November 2000 for transfer of their services to the State of Uttarakhand. However, despite those efforts, a number of vacancies continued in the newly formed State of Uttarakhand. Hence, various employees who were already employed with the State of U.P. prior to the appointed day were provided with a choice of permanent transfer of service to the State ofthe meantime, in the case of persons such as the appellants where recruitments were completed but appointment letters were not issued the appointment letters indicated that their services may be allotted either to the State of Uttar Pradesh or the State of Uttarakhand after the appointed day. The services of the appellants were transferred and absorbed by the State of Uttarakhand with the mutual consent of both the states. Since then the appellants have been continuing as employees of the State of Uttarakhand.There is no infirmity in the procedure adopted by both the states in the transfer of employees, on the basis of mutual consent. This was clearly contemplated by the letter dated 15 September 2014 of the Government of India in the Ministry of Personnel, Public Grievances and Pensions. Hence, we are unable to agree with the view of High Court.