Allahabad High Court
Smt. Meena Srivastava vs State Of U.P. And Others on 30 April, 2014
Bench: Rajes Kumar, Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved
Court No. - 33
Case :- WRIT - A No. - 32890 of 2007
Petitioner :- Smt. Meena Srivastava
Respondent :- State Of U.P. And Others
Counsel for Petitioner :- R.D. Tiwari,M.D. Singh "Shekhar"
Counsel for Respondent :- C.S.C.
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Hon'ble Rajes Kumar,J.
Hon'ble Ashwani Kumar Mishra,J.
(Delivered by Hon'ble Rajes Kumar, J.) Heard Sri M.D. Singh "Shekhar", learned Senior Advocate, appearing on behalf of the petitioner and Sri Pankaj Rai, learned Additional Chief Standing Counsel, appearing on behalf of the respondents.
By means of the present petition, the petitioner is challenging the order/letter dated 20.6.2007, Anneuxre-11 to the writ petition and the order order/letter dated 11.7.2007, issued by the respondent no.3, Annexure-12 to the writ petition. The order/letter dated 20.6.2007 has been issued by the Principal Secretary, U.P. Government, Lucknow to the Director, Social Welfare, Lucknow wherein it is stated that the petitioner has been selected on the post of the Superintendent, in the year 1997, in the Hill Cadre. In view of the Clause 2 of the Government Order dated 23.10.2001, issued by the U.P. Reorganisation Coordination Department, the employees of the Hill Cadre have been allocated State of Uttaranchal by the Government of India and if any employee of such cadre is working in the State of U.P., he may be relieved forthwith. It has been further directed by the said letter that the petitioner be relieved and in case her name has been included in the seniority list, the same may be accordingly amended. Pursuant to the letter dated 20.6.2007, the Director, Social Welfare, vide letter dated 11.7.2007, relieved the petitioner and directed her to report to the Secretary, Social Welfare, Uttaranchal Shashan, Dehradoon for rendering her services in Uttaranchal.
The writ petition has been entertained on 23.7.2007 and the operation of the impugned order, dated 20.6.2007 and 11.7.2007 has been stayed with the further direction that the petitioner shall continue to serve State of U.P. and be paid salary.
The case set up by the petitioner in the writ petition is that the petitioner was selected on the post of Superintendent by the U.P. Public Service Commission and by the appointment letter dated 7.10.1997, she was given first joining as the Superintendent, Old and Infirm House, Nand Prayag, Chamoli where she joined on 20.10.1997. In the month of June, 1998, on her request, and on the approval of the State Government, the petitioner has been firstly transferred to Lucknow and on 15.6.1998 she was posted as Superintendent, Certified House (Beggars Workshop) at Lucknow. ON 18th September, 1998, she has been transferred to the Government Old and Infirm House, Lucknow. ON 21.7.2000, she has been transferred to Varanasi on the post of Superintendent, Government Certified Home (Beggars Workshop), Varanasi. At the time of filing of the present writ petition, the petitioner was working as the Superintendent, Government Certified Home (Beggars Workshop), Varanasi. Petitioner is a permanent resident of District Mirzapur, Uttar Pradesh. Her husband is working on a Clerical post in Canara Bank and was initially posted at Mirzapur and in the year 2007 he has been posted at Varanasi. In the year 2000, State of Uttaranchal was created under the U.P. Reorganisation Act, 2000 (hereinafter referred to as the 'Act, 2000'). The employees of all the departments, including that of Social Welfare Department, were asked to exercise their option for allocation of their services either at Uttar Pradesh or at Uttaranchal. The petitioner exercised option on 17.9.2000 by opting to serve in the State of U.P. She has been allowed to continue in the service of State of U.P. in the department of Social Welfare. A gradation list/seniority list was prepared by the Social Welfare Department, regarding seniority of the Superintendents of Ashram Type Schools, Beggars Workshops, Old and Infirm Homes. In the said seniority list, the name of the petitioner found place at serial no.11. The State Government on 25.7.2005, published a gradation/seniority list of the Superintendents concerning to Old and Infirm Homes and Beggars Workshops in which petitioner's name found place at serial no.2. On 15.10.2001, the Government of Uttaranchal had sought option of the employees who are willing to opt to serve the State of Uttaranchal within a week. It has been stated that in respect those employees, who would not give their option, it would be presumed that such employees are not willing to opt to serve State of Uttaranchal and a decision would be taken by the State of Uttaranchal. The State of U.P. has issued a Government Order dated 23.10.2001, in furtherance of the Central Government Order dated 11.9.2001, stating therein that those employee who are the employees of Hill Sub-cadre, they would be continued to be in the services in the State of Uttaranchal and they would not be subjected to transfer in the service of the State of Uttar Pradesh.
It is the case of the petitioner that the Departmental Promotion Committee (DPC) has found the petitioner suitable for the promotion to the post of District Social Welfare Officer, but till date the promotion has not been given to the petitioner.
Learned counsel for the petitioner submitted that the petitioner is a resident of State of U.P. By the initial appointment letter dated 7.9.1997, she has been given first posting in the District of Chamoli, but thereafter on the request of the petitioner, she has been transferred to Lucknow and thereafter to Varanasi where she remained posted and her name was also considered for promotion on the basis of the seniority list in which the petitioner's name was included. The petitioner was asked to give option exercising the option to work either in the State of U.P. or in the State of Uttaranchal in the year 2000. She gave option on 17.9.2000 opting to remain in the State of U.P. Her husband is working in the State of U.P. and her children are studying in the State of U.P. In case if the petitioner would be asked to go to Uttaranchal, great hardship will be caused to her and her family.
Sri Pankaj Rai, learned Additional Chief Standing Counsel, appearing on behalf of the respondents, submitted that the petitioner was selected by the U.P. Public Service Commission under the Hill Cadre. He produced copy of the letter dated 18.6.1997, written by the Secretary, U.P. Public Service Commission, to the Director, Social Welfare, U.P. Lucknow in which in the select list, the selection of the petitioner has been shown to have been made under Hill Cadre against four posts. The copy of the said letter is placed on record. The name of the petitioner found place at serial no.1 of the said list. In pursuance of the aforesaid selection, the petitioner has been issued the appointment letter, dated 7.9.1997, posting the petitioner as the Superintendent, Old and Infirm Home, Joshimath, District Chamoli. Therefore, it is undisputed that the petitioner's selection was against the vacancy of the Hill Cadre. He submitted that there is no averment in the writ petition to the contrary. He further referred the letter dated 6.5.1998, written by the Under Secretary, U.P. Government to the Director, Social Welfare, U.P. Government wherein it has been stated that having regard to the family problem of Smt. Meena Srivastava, Superintendent, Vridh Evam Ashakt Grih, Janpad Chamoli, she may be transferred to Varanasi/Jaunpur or at any nearby place. He also referred a request made by her husband by the letter written to the Director Social Welfare making a request for her transfer and posting at Varanasi, Allahabad, Faizabad, Kanpur, Agra or Haridwar. It is being submitted by Sri Rai that the transfer of the petitioner from Chamoli to Varanasi was a simply a transfer, made on her request and her husband's request, having regard to her family problem. There is no recital in the letter dated 6.5.1998 that her cadre has been changed from Hill Cadre to Plain Cadre. Therefore, even after the transfer to Varanasi, her cadre remained same and she continued to be the employee of the Hill Cadre. When the State of Uttaranchal has been created in the year 2000 under the Uttar Pradesh Reorganisation Act, 2000, under Section 73 of Act, 2000, the Central Government has made allocation of the employees of the State of U.P. to the State of Uttaranchal. By Clause Ga, the employees of the Hill Cadre, prior to 9.11.2000 have been allocated to the State of Uttaranchal. In pursuance of the order/letter dated 11.9.2001, issued by the Central Government, in exercise of power under Section 73 of the Act, 2000, the State Government, wrote a letter dated 23.10.2001 to all the Principal Secretaries and the Secretaries of the U.P. Government about allocation of the employees to the State of Uttaranchal and also asked the Principal Secretaries and the Secretaries of all the Departments of the State of U.P. to relieve such employees as mentioned in the Government Order, if working or attached or allowed to continue in the State of U.P. after being relieved to serve the State of Uttaranchal, any such order would stand cancelled in view of the Central Government's direction and such employees would stand immediately relieved for their joining in the State of Uttaranchal. Since the petitioner was selected under the Hill Cadre, she ought to have been relieved forth with and would have joined in the State of Uttaranchal, but even if inadvertently, she has been allowed to continue in the State of U.P. and has been asked to exercise the option either to serve State of U.P. or the State of Uttaranchal, and by exercising such option, she would not be entitled to continue in the State of U.P. Since she has been selected by the U.P. Public Services Commission against four vacancies under the Hill Cadre, none of the Officer of the State of U.P. has the authority to seek option from the petitioner nor any order of the State Government can over-ride the order of the Central Government, which has been passed in exercise of the power under Section 73 of Act, 2000, allocating such employees to serve in the State of Uttaranchal. If by mistake, the petitioner's name has been shown in the seniority list and her name has been recommended for promotion and further she has been allowed to continue in the State of U.P. would not legally entitle her to continue in the State of U.P. after the order of the Central Government. On the mistake being detected, the impugned order has been immediately passed asking the petitioner to give her joining in the State of Uttaranchal. The impugned orders are in consonance with the order of the allocation of the employees dated 11.9.2001, issued by the Central Government, passed in exercise of power, under Section 73 of the Act, 2000.
Sri M.D. Singh Shekhar, learned Senior Advocate, appearing for the petitioner, further submitted that once the petitioner has been transferred from Chamoli to Lucknow and thereafter to Varanasi, it is deemed that the Cadre of the petitioner stood changed. He submitted that those employees, who have been selected under the Hill Cadre could be posted in the 15 Hill Districts and could not be posted in any district other than those 15 Districts. But once, the petitioner has been posted in any of the District other than those 15 Districts of the Hill Cadre, that too on the approval of the State Government, the Cadre of the petitioner deemed to have been changed and the petitioner ceased to continue under Hill Cadre. Sri Shekhar further submitted that in the final list dated 19.1.2005, issued by the Central Government, relating to the allocation of the employees for the State of Uttaranchal, the name of the petitioner has not been included which is apparent from the letter dated 30.7.2007, issued by the Director, Social Welfare, Uttarakhand to the Principal Secretary, Social Welfare, Uttarakhand, Annexure-R.A.-1. He also referred order, dated 19.1.2005, issued by the Government of India, in exercise of power under Section 73 (2) of the Act, 2000 wherein it has been stated that those remaining employees, who have not been allocated to State of Uttaranchal, they may be deemed to have been allocated to the State of U.P. till any decision is taken otherwise.
We have considered rival submissions and perused the record.
Sections 73, 75 and 77 of the U.P. State Reorganisation Act, 2000 relevant for deciding the issues raised in these writ petitions are quoted as below:-
"73. Provisions relating to other services;
(1)Every person who immediately before the appointed day is serving in connection with the affairs of the existing State of Uttar Pradesh shall, on and from that day provisionally continue to serve in connection with the affairs of the State of Uttar Pradesh unless he is required, by general or special order of the Central Government to serve provisionally in connection with the affairs of the State of Uttranchal:
Provided that every direction under this sub-section issued after the expiry of a period of one year from the appointed day shall be issued with the consultation of the Governments of the successor States.
(2)As soon as may be after appointed day, the Central Government shall, by general or special order, determine the successor State to which every person referred to in sub-section (1) shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect.
(3) Every person who is finally allotted under the provisions of sub-section (2) to a successor State shall, if he is not already serving therein be made available for serving in the successor State from such date as may be agreed upon between the Governments concerned or in default of such agreement, as may be determined by the Central Government.
75. Provisions as to continuance of officers in same post-(1) Every person who, immediately before the appointed day is holding or discharging the duties of any post or office in connection with the affairs of the existing State of Uttar Pradesh in any area which on that day falls within any of the successor State shall continue to hold the same post or office in that successor State, and shall be deemed, on and from that day, to have been duly appointed to the post or office by the Government of, or any other appropriate authority in that successor State:
Provided that nothing in this section shall be deemed to prevent a competent authority, on and from the appointed day, from passing in relation to such person any order affecting the continuance in such post or office.
76. Advisory Committee- The Central Government may, by order, establish one or more Advisory Committees for the purpose of assisting it in regard to
(a) the discharge of any of its functions under this Part; and
(b) the ensuring of fair and equitable treatment to all persons affected by the provisions of this Part and the proper consideration of any representations made by such persons.
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 Uttranchal as may appear to it to be necessary for the purpose of giving to the foregoing provisions of this Part and the State Government shall comply with such directions."
Under Section 73(1) of the Act, 2000, the Central Government has been empowered to make the allocation of Every person who immediately before the appointed day is serving in connection with the affairs of the existing State of Uttar Pradesh shall, on and from that day provisionally continue to serve in connection with the affairs of the State of Uttar Pradesh unless he is required, by general or special order of the Central Government to serve provisionally in connection with the affairs of the State of Uttranchal. The proviso further provides that every direction under this sub-section issued after the expiry of a period of one year from the appointed day shall be issued with the consultation of the Governments of the successor States.
The Central Government notified 9.11.2000 as the 'appointed day', under Section 2(a) of the Act. Section 73 (2) of the Act empowers the Central Government to determine by general or special order, the successor state to which every person mentioned in sub-section (1) shall be finally allotted for service and the date with effect from which the allotment to take effect. The final allotment has to be done by the Central Government on the recommendations of the Advisory Committee appointed under Section 76 for ensuring fair and equitable treatment to all persons likely to be affected, and for proper consideration of any representation made by such person. Under Section 77, the Central Government can give directions to the State Government, as may appear to it to be necessary for the purposes of giving effect to the provisions of para 8 of the Act.
The order dated 11.9.2001, issued by the Central Government, in exercise of power under Section 73 (2) is within one year from the appointed date. Clause - Ga specifically provides that the employees of the Hill Cadre prior to 9.11.2000 are the allotted to the State of Uttaranchal. Order dated 11.9.2001 reads as follows:
la0&27@9@2001&,l-vkj-@,l-@ Hkkjr ljdkj dkfeZd] yksd f'kdk;r rFkk isa'ku ea=ky;
dkfeZd vkSj izf'k{k.k foHkkx yksd uk;d Hkou] [kku ekfdZV] ubZ fnYyh fnukad 11-9-2001 mRrj izns'k iquZxBu vf/kfu;e] 2000 dh /kkjk&¼73½ ds mi[k.M ¼2½ }kjk iznRr 'kfDr;ksa dk iz;ksx djrs gq, dsUnzh; ljdkj ,rn~ }kjk funs'k nsrh gS fd os lHkh vf/kdkjh vkSj deZpkjh%& @d@ ftudk mRrj izns'k iquZxBu vf/kfu;e] 2000 dh /kkjk & ¼73½ esa fofuZfn"V 13 ftyksa esa ls ,d ftyk Lrj vf/kdkjh fu;qfDr izkf/kdkjh gS vkSj tks fnukad 9 uoEcj] 2000 dks vkSj mlds ckn mRrjkapy jkT; esa vkrs gS vFkok ftudh lsok,a mifjfufnZ"V ftyk {ks=ksa ds Hkhrj lkekU;r% LFkkukUrj.k gsrq v/khuLFk gS vFkok] @[k@ ftudk fu;qfDr izkf/kdkjh] fnukad 9 uoEcj] 2000 dks vkSj mlds ckn mRrjkapy jkT; ds x<+oky vkSj dqekÅ¡ fMohtu dk ,d izHkkxh; Lrj dk vf/kdkjh gS vFkok ftudh lsok,a mi;qZDr fMohtu {ks=ksa ds vUnj lkekU;r% LFkkukUrj.k gsrq v/khuLFk gSa vFkok] @x@ tks 9 uoEcj] 2000 ls rRdky iwoZ fo|eku mRrjkapy jkT; ds fgy lc dkMj ls lacaf/kr gS ;k ftudh lsok,a 9 uoEcj] 2000 ls rRdky iwoZ fo|eku mRrj izns'k jkT; ds fgy lc dkMj ftyksa ds vUnj lkekU;r% LFkkukUrj.k gsrq v/khuLFk gS] vFkok @?k@ tks fnukad 9 uoEcj] 2000 dks vkSj mlds ckn mRrjkapy jkT; ds jkT; {ks= ds Hkkx esa fo'ks"k ifj;kstuk vFkok midze gsrq fu;qDr gSa vkSj ftudh lsok,sa 9 uoEcj] 2000 dks vkSj mlds ckn mRrjkapy jkT; ds jkT; {ks= ds Hkkx HkkSxksfyd {ks= ds ckgj lkekU;r% LFkkukUrj.k ;ksX; ugh gSA 9 uoEcj] 2000 dks vkSj mlds ckn mRrjkapy jkT; dh lsok gsrq vafre :i ls vkoafVr fd;s tkrs gSA g0v0 ¼vkj0vkj0 izlkn½ funs'kd ¼jk-iq-½ izfrfyfi%& 1- eq[; lfpo] mRrj izns'k 'kklu] y[kuÅ m0iz0A 2- eq[; lfpo] mRrjkapy 'kklu] nsgjknwu] mRrjkapyA 3- la;qDr lfpo @ds0ls0@ x`g ea=ky; ukFkZ CykWd ubZ fnYyhA We have perused the letter dated 18.6.1997, issued by the Secretary, U.P. Public Service Commission, to the Director, Social Welfare, which is made part of the record. Said letter reveals that the petitioner's selection has been made against four posts of the Hill Cadre. The petitioner has been transferred from Chamoli to Lucknow and thereafter to Varanasi on her and on her husband's request, having regard to the family problem faced by her, approval to such transfer has been granted by the State Government, pursuant to which she has been transferred, initially for some time to Lucknow and thereafter to Varanasi, but while granting the approval to the transfer of the petitioner, the Cadre has not been changed and it continued to remain the same, that is, Hill Cadre. No order has been placed before us to show that the Cadre of the petitioner has been changed and the petitioner has been ceased to be the employee of the Hill Cadre. Therefore, by the order of the Central Government, dated 11.9.2001, the petitioner had to give her joining at Uttaranchal and there was no question of asking for any option from the petitioner. The option could only be asked from those employees whose allocation is not being governed by the Central Government's order dated 11.9.2001. Therefore, calling for an option from the petitioner to opt for allocation either in State of U.P. Or in State of Uttaranchal is wholly irrelevant.
It appears that due to mistake or due to any other reason, the option has been called for from the petitioner and the option being given by her opting State of U.P., the name of the petitioner has not been sent to the Central Government to be included in the final list of the employees to be allocated to the State of Uttaranchal, but such a mistake cannot give any right to the petitioner, which is contrary to the Government Order 11.9.2001 to be allocated in the State of U.P. The State of Uttaranchal has to accept the employees of the Hill Cadre for which the order dated 11.9.2001 has been passed by the Government of India, in exercise of power, under Section 73 (2) of the Act, 2000. In the circumstances, we do not find any error in the impugned orders/letters. However, it is open to the petitioner to make a representation to the Central Government, through, the State of Uttar Pradesh for her allocation to the State of U.P. If any such representation is being made, the Central Government is directed to consider and dispose of the same, expeditiously, preferably, within a period of two months from the date of filing of the representation.
With the aforesaid observations and directions, the writ petition stands disposed of.
Order Date :- 30.04.2014 bgs/