Uttarakhand High Court
Mohan Chandra Joshi vs Union Of India And Others on 4 March, 2020
Author: R.C. Khulbe
Bench: Ramesh Ranganathan, R.C. Khulbe
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/B) No.669 of 2018
Mohan Chandra Joshi .........Petitioner.
Vs.
Union of India and others .........Respondents.
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble R.C. Khulbe, J.
Hon'ble Ramesh Ranganathan, C.J. (Oral) Heard Mr. B.S. Adhikari, learned counsel for the petitioner, Ms. Monika Pant, learned Standing Counsel for the Union of India, Ms. Bina Pande, learned Standing Counsel for the State of Uttar Pradesh and Mr. Pradeep Joshi, learned Standing Counsel for the State of Uttarakhand.
2. The jurisdiction of this Court, under Article 226 of the Constitution of India, has been invoked seeking a writ of certiorari to quash the order dated 28.06.2018; and a writ of mandamus directing the respondents to allocate the petitioner finally to the State of Uttarakhand, and permit him to join in District Almora or the adjacent districts of the State of Uttarakhand.
3. Facts, to the limited extent necessary, are that the petitioner claims to be a permanent resident of Almora District in the State of Uttarakhand having a permanent residence at Chaper Village, Patti Dhuraphat, Ranikhet Tehsil, District Almora. His wife is stated to be working as a teacher at the Kendriya Vidyalaya, Ranikhet in Almora District. The petitioner was initially appointed, as a draftsman, at the District Rural Development Agency, Pilibhit (U.P.) on 13.02.1995. After creation of the State of Uttarakhand on 09.11.2000, the petitioner, like many other employees, exercised his option for the State of Uttarakhand both on the ground that he is a permanent resident of Uttarakhand, and that his wife is working at Almora. The petitioner's application, for allocation to the State of Uttarakhand, was forwarded by the Project Director, to the Commissioner Gram Vikas, Uttar Pradesh, on 01.03.2001. However, there appears to have been some delay in forwarding the petitioner's application, for allotment to the State of Uttarakhand, by the Government of Uttar Pradesh. The petitioner continues to work as a draftsman, at Pilibhit in the State of U.P., till date.
24. Proceedings dated 15.07.2002 were issued by the Member Secretary, State Advisory Committee and the Secretary to the Government of U.P., to all Principal Secretary/ Secretary Government of U.P., informing them that, under Section 76 of the U.P. Reorganization Act 2000, the Government of India had constituted a State Advisory Committee for ensuring division of posts and final allocation of employees between the States of U.P. and Uttarakhand; and final principles were prepared by the State Advisory Committee with immediate effect. The said proceedings dated 15.07.2002 provides for the division of posts, and the parameters and procedures for allocation of State Services Cadre Employees to the State of Uttarakhand. Among the parameters prescribed therein are that, if after fulfilling criteria no.1, (which is for allocation of option-holders against the number of cadre-wise posts to be given the first option), if any further vacancy remains, it should then be filled with permanent residents of Uttarakhand who are to be allocated to the State of Uttarakhand.
5. Para B (2) of the proceedings dated 15.07.2002 defines a permanent resident of Uttarakhand to mean those employees, in whose service records as on 01.04.2000, their declared home District is one out of the 13 districts of the State of Uttarakhand. The petitioner claims that, when he entered services as a draftsman in Uttar Pradesh, he had declared his home District as Almora, which falls within the State of Uttarakhand.
6. On the ground that his request for being considered for allotment to the State of Uttarakhand was not being processed, the petitioner invoked the jurisdiction of this Court by way of WPSB No.468 of 2016. A Division Bench of this Court, in its order dated 26.03.2018, noted that the State Government had taken a decision whereby applications were invited by 30.06.2009 from candidates who were serving in the State of U.P., and wanted to serve in the State of Uttarakhand; in similar cases, the Central Government had granted permission on 25.09.2014; and the delay in submission of the application should not come in the way of the petitioner, when it is a spouse case. The writ petition was disposed of directing both the States of Uttarakhand and Uttar Pradesh to take up the matter with the Central Government within a period of three weeks. The Central Government was directed to take a final decision, and consider the case of the petitioner very very sympathetically being a spouse case, within a further period of six months.
7. Thereafter, order dated 28.06.2018 was passed by the Government of India informing the Additional Secretary, Government of Uttarakhand that 3 the petitioner's case had been considered and rejected. The Under Secretary to the Government of India, after taking note of the aforesaid order passed by this Court, opined that the petitioner's wife was an employee of Kendriya Vidyalaya, an autonomous body under the Central Government, having an all India transfer liability; the petitioner was, therefore, not eligible for availing the benefit of the 'spouse policy' as provided in the notification dated 04.2.2009 issued by the U.P. Reorganization Coordination Department, U.P. Government; further, in the cadre of draftsman i.e. the post held by the petitioner on 09.11.2000 i.e. appointed day, all the 13 posts, allotted to Uttarakhand out of the sanctioned strength of 83 posts, belonged to the Hill Sub cadre; the petitioner, being a plain cadre employee, did not find allocation against these posts; and the request of the petitioner, for revision of his allocation from Uttar Pradesh to the Uttarakhand cadre, could not be acceded to. The State Government was directed to take up the matter for sympathetic consideration of posting of the spouse of the petitioner, at a nearby place of his posting, with the Ministry of Human Resource Development, Government of India, under whose aegis the Kendriya Vidyalaya Sangathan functioned, for redressing the grievance.
8. Mr. B.S. Adhikari, learned counsel for the petitioner, would draw our attention to the petitioner's representation dated 01.03.2001 wherein he had sought allotment to the State of Uttarakhand both on the ground that he was a permanent resident of the State of Uttarakhand, and that his wife was working at Ranikhet in Almora District. The respondents are, no doubt, justified in rejecting the petitioner's request, for allocation to the State of Uttarakhand, on spouse grounds holding that his wife was an employee of Kendriya Vidyalaya Sansthan, and the post held by her was transferable anywhere in India. The fact, however, remains that the petitioner had also sought allocation to the State of Uttarakhand on the ground that he was a permanent resident of the State of Uttarakhand. In terms of the proceedings dated 15.07.2002, (as referred to hereinabove), if vacancies remained, then a permanent resident (domicile of Uttarakhand) is required to be allocated to the State of Uttarakhand. The said clause defines a permanent resident of Uttarakhand to mean those employees, in whose service records as on 01.04.2000, their declared home District is one out of the 13 districts of State of Uttarakhand. It is the petitioner's case that he declared Almora as his home District when he had entered service as a draftsman in the then State of Uttar Pradesh; and his service record, even as on 01.04.2000, reflected that his home District was Almora in the State of Uttarakhand.
49. The petitioner's claim was considered and rejected on the ground that he was not entitled for allotment to the State of Uttarakhand on spouse grounds since his wife was not a State Government employee, and was even otherwise holding an all-India transferable post in an autonomous body under the control of the Government of India. While the petitioner may, therefore, not be entitled to be allocated to the State of Uttarakhand on spouse grounds, the fact remains that he had also sought allocation to the State of Uttarakhand on the ground that he was permanent resident of this State. This aspect has not been considered by the Government of India in the proceedings impugned in the writ petition.
10. Suffice it, in such circumstances, to direct both the States of Uttar Pradesh and Uttarakhand to take up the matter with the Government of India within four weeks from today regarding the writ-petitioner's request for allotment to the State of Uttarakhand on the ground that he is a permanent resident of the State. It does appear that the petitioner had made an application for allotment to the State of Uttarakhand within time on 01.03.2001, and the responsibility for the delay appears to lie solely with the State of Uttar Pradesh which forwarded his application more than eight years thereafter in the year 2009. The Government of India shall consider the petitioner's request, in terms of the policy dated 15.07.2002, for allocation to the State of Uttarakhand after examining whether he fulfills the requirement of being a permanent resident of the State of Uttarakhand. Since the conditions, in the policy dated 15.07.2002, stipulate that there must have been a vacancy, among the 13 posts allotted to the State of Uttarakhand, it is also made clear that it is only if any one of the 13 posts of draftsman, allocated to the State of Uttarakhand at the time of its creation remained unfilled by then, and a vacancy existed in any one of the thirteen posts allocated to the State of Uttarakhand, would the petitioner then be entitled to be considered, for being allotted to the State of Uttarakhand, in terms of the policy dated 15.07.2002. The entire exercise, culminating in an order being passed by the Government of India, shall be completed at the earliest and, in any event, not later than four months from the date of production of a certified copy of this order.
11. The writ petition is disposed of accordingly. No costs.
(R.C. Khulbe, J.) (Ramesh Ranganathan, C.J.)
04.03.2020
Balwant/Sukhbant