Uttarakhand High Court
Yogesh Chandra Petshal vs State Of Uttarakhand And Others on 30 August, 2016
Bench: Servesh Kumar Gupta, U.C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 114 of 2016
Yogesh Chandra Petshal ---Appellant
Vs.
State of Uttarakhand & others --Respondents
(2) Special Appeal No. 115 of 2016
Nandan Singh Bisht ---Appellant
Vs.
State of Uttarakhand & others --Respondents
(3)_Special Appeal No. 127 of 2016
Diwan Nath Goswami ---Appellant
Vs.
State of Uttarakhand & others --Respondents
Mr. C.D. Bahuguna, Senior Advocate, assisted by Mr. Anuj Kumar Verma, Advocate for
the appellants.
Mr. B.S. Negi, Deputy Advocate General for the State/respondents.
With
(4) Special Appeal No. 207 of 2016
State of Uttarakhand & others ---Appellants
Vs.
Nandan Singh Bisht ---Respondent
(5) Special Appeal No. 208 of 2016
State of Uttarakhand & others ---Appellants
Vs.
Deewan Nath Goswami ---Respondent
(6) Special Appeal No. 209 of 2016
State of Uttarakhand & others ---Appellants
Vs.
Yogesh Chandra Petshal ---Respondent
Mr. B.S. Negi, Deputy Advocate General for the State/appellants.
Mr. C.D. Bahuguna, Sr. Adv., assisted by Mr. Anuj Kumar Verma, Adv. for respondents.
Coram: Hon'ble Servesh Kumar Gupta, J.
Hon'ble U.C. Dhyani, J.
2Hon. U.C. Dhyani, J. (Oral) There is some delay in preferring the appeals by the State Government. Being satisfied with the sufficiency of reasons, we condone such delay. Delay condonation applications (CLAM 7507/16, 7510/16 and 7513/16) stand allowed accordingly.
Since the factual matrix of the judgment, under challenge, is the same against which the above mentioned special appeals have been filed, either by the petitioners or by the State of Uttarakhand, therefore, all the special appeals arising out of the orders dated 10.3.2016 and 5.4.2016 are being decided together by this common judgment and order for the sake of brevity and convenience.
The relevant portion of the order, under challenge, is being reproduced hereinbelow for convenience: -
"The petitioner before this Court is a Patwari's Peon working in the Revenue Circle, District Almora. He claims promotion from Class IV post to Class III post i.e. to a post of Patwari, which is now called as "Revenue Sub Inspector". Although, in the erstwhile State of U.P. there was initially no specific Rules for promotion of Patwari Peon to the post of Patwari but under the Government Order dated 18.08.1986, 10% posts of Patwari were to be filled from amongst Patwari Peons. The educational qualification however, was High School.
On 09.11.2000 the new State of Uttarakhand came into existence by an Act of Parliament known as "Uttar Pradesh Reorganisation Act, 2000". The petitioner has since been working in Uttarakhand as Patwari's Peon. According to the petitioner, he was selected to appear in the exam of Patwari but prior to appearing in the examination, such Patwari's Peons have to be sent for training. According to the petitioner, his name was shortlisted and thereafter he was liable to be sent for training, but he has not been sent for training 3 so far. Now, the Government of Uttarakhand has framed its own Rules where 10% of Class III posts, which were to be filled from promotion amongst Class IV posts have been increased to 25%, but the qualification has also been increased from High School to Intermediate.
Indeed there was no such Rules earlier by which there was a channel of promotion from Patwari's Peon to Patwari, but in view of the Government Order dated 18.08.1986 (referred above) it became a part of the condition of service, for those who are working in the Revenue Department, whereby a Patwari having High School certificate were entitled for promotion, subject to qualifying training, test etc. According to the petitioner, this increase of qualification from High School to Intermediate has adversely affected the service conditions, which is not permissible in view of the Proviso provided under Section 74 of the Uttar Pradesh Reorganisation Act, 2000. Moreover, no permission of the Central Government has been taken before passing new Rules of 2013 known as "Uttarakhand Rajaswa Up-Nirikshak (Patwari), Sewa Niyamawali, 2013". The learned Counsel for the State in his counter affidavit has not met these legal submissions of the learned counsel for the petitioner.
It is therefore, clear that the Rules which have been referred above, will only be applicable to such employees who were not in service prior to 09.11.2000. The petitioner, while he was in service in Uttar Pradesh was qualified for the post of Patwari by way of promotion. This condition could not be changed to his disadvantage as this change would be violative of the proviso to Section 74 of the Uttar Pradesh Reorganisation Act, 2000.
In view thereof, the writ petition succeeds. However, it is made clear that the qualification of the petitioner would remain to be High School. However, whether the petitioner has to be sent for training or not has to be finally determined by the State Government or by the concerned authorities, as it is they who have to fill the existing vacancies in accordance with law, which shall be done as per the needs and exigencies of the work."
4Special appeals have been filed by the writ petitioners inter alia on the grounds that the very basis of promotion on the post of Patwari is one-year Patwari Training Course, which is imparted to every Patwari Peon, who deserves to be considered for promotion to the post of Patwari. Unless a Patwari Peon is sent for one-year training to the Patwari Training School, Almora, he cannot be considered for promotion to the post of Patwari. The writ petitioners are aggrieved by the following paragraph of the order, under challenge passed by learned Single Judge on 5.4.2016: -
"6. ............... However, whether the petitioner has to be sent for training or not has to be finally determined by the State Government or by the concerned authorities, as it is they have to fill the existing vacancies in accordance with law, which shall be done as per the needs and exigencies of the work".
Learned Senior Counsel for the writ petitioners (appellants in SPA Nos.114/16, 115/16 and 127/16) submitted that learned Single Judge has erred in giving absolute liberty to the State Government and the concerned authorities of the Department for sending the appellants for training. The same has resulted in denial to the appellants for being sent to Patwari Training School, Almora, and consequently, has resulted in denial for consideration for their promotion to the post of Patwari.
Learned Senior Counsel for the appellants (in SPA Nos.114/16, 115/16 and 127/16) has further submitted that as many as four persons, junior to the 5 appellants, have been sent for Patwari Training to Patwari Training School, Almora in the month of February-March, 2016. Names of those junior Patwari Peons are S/s Santosh Singh, Girish Chandra Joshi, Rajendra Prasad and Arjun Singh.
Learned Deputy Advocate General, who has filed Special Appeal Nos.207/16, 208/16 and 209/16, on the other hand, has submitted that the enhancement of educational qualification for the post of promotion, does not amount to change in condition of service. Provisions of Section 74 of the U.P. Re- organization Act are not applicable in the present case. Learned Single Judge has failed to appreciate that the State of Uttarakhand framed Uttarakhand Revenue Sub-Inspector (Patwari) Service Rules, 2013 in which the qualification for promotion from the post of Revenue Peon to the post of Patwari has been defined and as per Rule 17 of such Rules, the minimum qualification, required for the post of Patwari Peon by way of promotion, is Intermediate, whereas for direct recruitment, the minimum qualification described is Graduation. Though Rule 17 has been challenged but the said rule has not been struck down by learned Single Judge and it has been ruled that the qualification for promotion to the post of Patwari in the case of Patwaris will remain the high school.
In response to a query of the Court, as to why the Patwari Peons, junior to the writ petitioners, were sent for training, learned Dy. Adv. General replied that those Patwari Peons, namely, S/s Santosh Singh, Girish Chandra Joshi, Rajendra Prasad and Arjun Singh, were sent for training to Patwari Training 6 School, Almora because they were having the requisite qualification i.e. Intermediate, as per Rules, whereas the present petitioners are not having the requisite qualification, as they have passed only high school.
Learned Senior Counsel for the petitioners submitted that this question has suitably been replied by learned Single Judge in his judgment, while referring to Section 74 of the U.P. Re-organization Act, as follows: -
"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 u/s 73, shall not be varied to his disadvantage except with the previous approval of the Central Government"
Petitioners were in service prior to the appointed day i.e. 9.11.2000, therefore, the conditions of service, applicable immediately before the appointed day in their case, shall not be varied to their disadvantage except with the previous approval of the Central Government. Uttarakhand Rajaswa Up- Nirikshak (Patwari) Sewa Niyamawali, 2013 shall have applicability to those who were appointed by the Government of Uttarakhand after the appointed day and in case of the petitioners, the Rules framed in the year 2013 have not been sent to the Central Government for their approval, therefore, the Rules of 2013 cannot be read to the disadvantage of the writ petitioners. Learned Single Judge has appropriately dealt with the issue in the judgment under challenge. We are not inclined to take a view contrary to what was 7 taken by learned Single Judge while dealing with the issue of the applicability of Rules of 2013 to the writ petitioners/appellants, herein.
When the juniors to the petitioners (appellants of SPA Nos.114/16, 115/16 and 127/16) have been sent to the Patwari Training School, Almora, there is no scope of giving any room for discretion to the State Government for not sending the names of petitioners. If the petitioners are sent to Patwari Training School, Almora for training, the same will not, ipso facto, make them Patwaris, for, they will have to undergo a suitable examination for being promoted to the post of Patwari. Merely by sending them to Patwari Training School, Almora, they will not automatically become the Patwaris. The requirement and exigency of work is manifest with the very fact that four persons, junior to the petitioners, have been sent to Patwari Training School, Almora. It is being stated at the cost of repetition that mere sending them to such school, for training, does not automatically confer a right on them to become the Patwaris.
All the special appeals thus, stand disposed of with the direction to the Secretary, Department of Revenue Secretariat, Dehradun, to send the present petitioners/appellants of SPA Nos.114/16, 115/16 and 127/16, to the Patwari Training School, Almora for training, provide they possess the requisite qualification of high school or equivalent.
It is informed to the Court that this training programme is for one-year. So, in this eventuality, the aforesaid Secretary is directed to send the present petitioners/appellants in SPA Nos.114/16, 115/16 and 8 127/16, for the purpose of training at Patwari Training School, Almora, at the earliest possible.
Interim relief applications (CLMA 4799/16, 4797/16, 4890/16, 7508/16, 7511/16 and 7514/16) also stand disposed of accordingly.
(U.C. Dhyani, J.) (Servesh Kumar Gupta, J.) August 30, 2016 Rdang/JM