Uttarakhand High Court
Dr Kamaljeet Singh And Another vs State Of Uttarakhand And Others on 8 March, 2018
Bench: K.M. Joseph, Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/B) No. 102 of 2017
Dr. Kamaljeet Singh and another ........... Petitioners
Versus
State of Uttarakhand and others ............. Respondents
Mr. Rajendra Dobhal, Senior Advocate assisted by Mr. Shubhang Dobhal and Mr.
Pratul Kumar, Advocates for the petitioners.
Mr. Pradeep Joshi, Standing Counsel for the State of Uttarakhand/respondent nos.
1 and 2.
Mr. B.N. Mohlaki, Advocate for respondent no. 3.
Dated: 08th March, 2018
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble Sharad Kumar Sharma, J.
K.M. JOSEPH, C.J. (Oral) Petitioners have approached this Court challenging the order dated 20.01.2017. By the said impugned order, the third respondent has been absorbed as a Homeopathic Doctor w.e.f. 28.10.1992. The case of the petitioners, in brief, is as follows :-
The third respondent was appointed on ad-hoc basis on 01.12.1998. As far as the petitioners are concerned, they were recruited through the Public Service Commission, though the recommendations in relation to the petitioners were of dates, which preceded the creation of the State of Uttarakhand. They were appointed after the creation of the State of Uttarakhand. As far as the third respondent is concerned, he was regularized by Annexure No. 3 order dated 22.07.2010 w.e.f. 27.01.2006. In regard to the inter se seniority amongst the petitioners and the third respondent and others, after giving time for objections and considering the objections, seniority list was finalized on 30.01.2014. In the same, the petitioners are ranked above the third respondent. The third respondent filed Writ Petition (S/B) No. 412 of 2015. He claimed that he should get the 2 benefit of regularization w.e.f. 02.02.1996. The State Government filed a counter affidavit in the said litigation. Therein, the State Government defended the seniority list and also sought to discountenance the case of the third respondent. Inter alia, the stand of the State Government was as follows :-
"5- That the petitioner has filed the instant writ petition seeking benefit of the judgment 21-11-1996 passed by the Hon'ble Allahabad High Court after a long gap of more than 19 years.
6- That the petitioner has filed the instant writ petition seeking benefit of the said judgment dated 21 Nov, 1996 after a long gap of more than 19 years. The petitioner nowhere was a party in that case, therefore any direction issued in that judgment may not be applicable to the case of the petitioner.
7- That the claim which is being sought through this instant writ petition could have been sought by the petitioner during the combined state of Uttar Pradesh and any appropriate decision could have been taken by the authorities of the state of Uttar Pradesh and the authorities of the Uttar Pradesh are not made parties in the instant writ petition.
8- That however, after the creation of the State of Uttarakhand the petitioner got allotted to this State and in terms of Regularization Rules 2002 the services of the petitioner have been regularized w.e.f. 27-07-2006. That the said Regularization Order has been accepted by the petitioner without any objection, therefore now he cannot turn around and seek Regularization from prior date. The writ petition is bereft of merit and is liable to be dismissed.
10- That in reply to the contents of para no. 2 of the writ petition it is submitted that initially the petitioner was appointed as part time/daily wage Medical Office at Govt. Homeopathy Hospital, Karnprayag, keeping in view of the non availability of Medical Officers there, due to being border area. The said appointment was purely temporary arrangement to provide Medical facilities to the people and subsequently in terms of the Regularization Rules 2002 the services of the petitioner have been regularized. The petitioner is seeking benefit of judgment dated 21 Nov, 1996 passed by Hon'ble Allahabad High Court after a gap of more than 19 yearas. In this connection a true 3 copy of the Regularization Rules 2002 is being annexed and marked as Annexure C.A-1 to this affidavit.
11- That in reply to the contents of para no. 3 to this affidavit it is submitted that the petitioner is trying to take benefit of the above said judgment of the Hon'ble Allahabad High court dated 21Nov, 1996 after a long gap of more than 19 years. The petitioner was not a party in that case. The State of Uttar Pradesh and its authorities could have been the necessary party in this case, but they are not impleaded in the instant writ petition and after the creation of the State of Uttarakhand new Rules have been framed by the Uttarakhand."
2. It is the case of the petitioners, however, that despite taking such a stand in the earlier litigation, the impugned order came to be passed during the pendency of the writ petition vide order dated 20.01.2017. It is, in fact, the case of Mr. Rajendra Dobhal, learned Senior Counsel appearing for the petitioners that the third respondent was able to manage such an order from the Government despite the stand it took before this Court. The learned Senior Counsel for the petitioners, would, in fact, inter alia, point out that the relief, which the third respondent has claimed successfully before the State of Uttarakhand, is something, he could have claimed from the State of Uttar Pradesh, and instead he has approached the State of Uttarakhand and obtained the order. In this regard, he drew our attention to the judgment of the Hon'ble Apex Court in the case of State of Uttarakhand and another Vs. Umakant Joshi reported in 2012 (1) U.D. 583 and would submit that it is not open to the State of Uttarakhand to have passed the impugned order giving benefit of absorption to the third respondent w.e.f. 28.10.1992, which is the date far anterior to the appointed day under the Uttar Pradesh Reorganisation Act, 2000 (hereinafter referred to as the "Act of 2000"), namely, 09.11.2000.
3. Mr. Rajendra Dobhal, learned Senior Counsel for the petitioners would also, in fact, submit that, actually, the third respondent had been appointed as a part-time Homeopathic Doctor in the year 1991 and he was appointed as ad-hoc only in the year 1998. He would further point 4 out that as far as the litigation in the Allahabad High Court, which is relied on by Mr. B.N. Molakhi, learned counsel for the third respondent, is concerned, there, the advertisement, which was challenged by the petitioners therein was issued in the year 1989 and the writ petition was filed by those who were appointed in the year 1990, whereas, the third respondent claims to be appointed on 01.04.1991.
4. Per contra, we may refer to the stand of the third respondent in the counter affidavit. According to the third respondent, in the erstwhile State of Uttar Pradesh, there was dearth of Doctors and in the year 1987, the Government took a decision to engage the Medical Officers having the qualification of Allopathic, Ayurvedic, Unani or Homeopathic in the Allopathic, Ayurvedic, Unani, Homeopathic Hospitals in the rural areas of the hill districts of Uttar Pradesh; though they were conversant of the fact that it falls within the purview of U.P. Public Service Commission, but due to the large number of vacancies, regular selection was not possible. Accordingly, it issued the order dated 14th July, 1987 (C.A.-1). Large number of part time Medical Officers possessing the qualification of Allopathic, Ayurvedic, Homeopathic and Unani disciplines were given part-time engagement. The third respondent was also engaged as a part-time Medical Officer in the hill district of Chamoli; he gave joining on 01.04.1991. He claims to be a member of U.P. Anshkalik Chikitsak Sangharsh Samiti (Membership Certificate-C.A.-3). The said Association filed a bunch of Writ Petitions, of which the leading case was Writ Petition No. 4886 of 1990 before the High Court of Allahabad for quashing the advertisement for regular recruitment. Their Writ Petitions came to be allowed vide judgment dated 11.02.1992 and the impugned advertisement was quashed. The respondents-State was directed not to replace the Doctors and the members of the third respondent's Association and to consider their regularization within a period of six months. The respondents-State was also directed to pay full salary.
5The matter was taken up before the Hon'ble Apex Court and the Hon'ble Apex Court disposed of the matter quoting a paragraph from the counter affidavit, wherein it was stated that the State Government had taken a policy decision to regularize the part-time/daily-wager against available 703 vacancies of the Medical Officers. There arose a controversy in that. There was a ban on appointment of part-time Medical Officers vide order dated 17.05.1990 and the writ petitioners therein had been appointed after 17.05.1990. During the probe of this fact, the Government Order dated 01.10.1991, by which the policy decision was taken for regularization, was scrutinized and it was initially found that the said order will be applicable to the part-time Medical Officers, who were appointed prior to 17.05.1990, the date on which the ban was imposed. During the course of arguments, it was found that the date 17.05.1990 was wrongly mentioned in the Government Order and the correct date was 17.07.1990. Even the said date, namely, 17.07.1990 was subsequently directed to be read as 17.07.1991 by the subsequent Government Order dated 10.08.1992.
5. Accordingly, it is the case of the third respondent that the third respondent having been appointed on 01.04.1991, which is prior to 17.07.1991, was entitled to the benefit of order dated 01.10.1991, by which regularization was ordered. The third respondent has a case based on treatment accorded to one Dr. Ashok Narayan Mishra, who was given regularization, but the treatment, which was accorded to Dr. Ashok Narayan Mishra, was not accorded to the third respondent. He does agree that he was given ad-hoc appointment by order dated 01.12.1998 (C.A.-10). He submitted various representations to have his services regularized in accordance with the provisions of the U.P. Adhoc Appointments (on the post within the purview of Public Service Commission) Regularization Rules, 1979, as was done in the case of other Medical Officers including Dr. Ashok Narayan Mishra, but the same could not be processed and, in the meantime, the State of Uttarakhand was born. The third respondent also produced Annexure 6 No. C.A.-15, which purports to be the photocopy of the Office Memorandum dated 31.12.2009, by which it is sought to advance his case. There is reference to the representation filed and filing of the writ petition by him earlier, and also to the fact that better sense prevailed upon the Government in leading to the impugned order being passed. His case is that he was never satisfied with the order dated 22.07.2010, by which he was regularized w.e.f. the year 2006.
6. Mr. B.N. Molakhi, learned counsel for the third respondent would, in fact, draw our attention to Sections 74 and 75 of the Act of 2000. This reference is, apparently, an attempt to tide over the legal obstacle posed before him consequent upon the law laid down by the Hon'ble Apex Court in the case of State of Uttarakhand and another Vs. Umakant Joshi reported in 2012 (1) U.D. 583. Section 74 of the Act of 2000 reads as follows:
"74. Other provisions relating to Services.--(1) Nothing in this section or in section 73 shall be deemed to affect on or after the appointed day, the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to determination of the conditions of service of persons serving in connection with the affairs of the Union or any State:
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 under section 73 shall not be varied to his disadvantage except with the previous approval of the Central Government.
(2) All services prior to the appointed day rendered by a person,--
(a) if he is deemed to have been allocated to any State under section 73, shall be deemed to have been rendered in connection with the affairs of that State;
(b) if he is deemed to have been allocated to the Union in connection with the administration of the Uttaranchal, shall be deemed to have been 7 rendered in connection with the affairs of the Union, for the purposes of the rules regulating his conditions of service.
(3) The provisions of section 73, shall not apply in relation to members of any All-India Service."
7. Learned counsel for the third respondent would refer us to sub- section (2) of Section 74 of the Act of 2000. On the basis of this, he would, apparently, seek to contend that there was power with the Government of Uttarakhand to deal with the case of the third respondent in the manner done under the impugned order.
8. Mr. Pradeep Joshi, learned Standing Counsel appearing for the State of Uttarakhand/respondent nos. 1 and 2 would submit that the impugned order was a result of the understanding of the Government that, having regard to the judgment of the Allahabad High Court and the treatment given to the similarly situated persons, the case of the third respondent has to receive the same treatment and that the matter was also referred to the Law Department and it is in accordance with the advice given by the Law Department that the impugned order has been passed.
9. Now, it is apposite that we refer to the judgment of the Hon'ble Apex Court in the case of State of Uttarakhand and another Vs. Umakant Joshi reported in 2012 (1) U.D. 583. It is sufficient that we advert to paragraph nos. 11 and 12 of the said judgment only. The same read as follows:
"11. We have considered the respective submissions. It is not in dispute that at the time of promotion of Class-II officers including Shri R.K. Khare to Class-I posts with effect from 16.11.1989 by the Government of Uttar Pradesh, the case of respondent No.1 was not considered because of the adverse remarks recorded in his Annual Confidential Report and the punishment imposed vide order dated 23.1.1999. Once 8 the order of punishment was set aside, respondent No.1 became entitled to be considered for promotion to Class-I post with effect from 16.11.1989. That exercise could have been undertaken only by the Government of Uttar Pradesh and not by the State of Uttaranchal (now the State of Uttarakhand), which was formed on 9.11.2000. Therefore, the High Court of Uttarakhand, which too came into existence with effect from 9.11.2000 did not have the jurisdiction to entertain the writ petition filed by respondent No.1 for issue of a mandamus to the State Government to promote him to Class-I post with effect from 16.11.1989, more so because the issues raised in the writ petition involved examination of the legality of the decision taken by the Government of Uttar Pradesh to promote Shri R.K. Khare with effect from 16.11.1989 and other officers, who were promoted to Class-I post vide order dated 22.1.2001 with retrospective effect. It appears to us that the counsel, who appeared on behalf of the State of Uttarakhand and the Director of Industries did not draw the attention of the High Court that it was not competent to issue direction for promotion of respondent No.1 with effect from a date prior to formation of the new State, and that too, without hearing the State of Uttar Pradesh and this is the reason why the High Court did not examine the issue of its jurisdiction to entertain the prayer made by respondent No.1.
12. In view of the above, we hold that the writ petition filed by respondent No.1 in 2008 in the Uttarakhand High Court claiming retrospective promotion to Class-I post with effect from 16.11.1989 was misconceived and the High Court committed jurisdictional error by issuing direction for his promotion to the post of General Manager with effect from 16.11.1989 and for consideration of his case for promotion to the higher posts with effect from the date of promotion of his so called juniors."
10. Therefore, this is a case where the Court noted that the respondent therein became entitled to promotion consequent upon the order of punishment, inter alia, being set aside w.e.f. 16.11.1989. It be remembered that 16.11.1989 is a date anterior to the date of creation of the State of Uttarakhand, which took place on 09.11.2000. It is, thereafter, that the Hon'ble Apex Court proceeds to hold that the exercise, namely, the exercise of giving the benefit of promotion to 9 the first respondent therein w.e.f. 16.11.1989 could have been undertaken only by the Government of Uttar Pradesh and not by the State of Uttaranchal (now the State of Uttarakhand). It is, thereafter, that the Court proceeds to take the view that the High Court of Uttarakhand too, which came into existence w.e.f. 09.11.2000 did not have the jurisdiction to deal with the matter. The Hon'ble Apex Court further reiterates that the High Court of Uttarakhand committed jurisdictional error in giving the direction.
11. From the aforesaid statements of law contained in paragraph nos. 11 and 12 of the judgment of the Hon'ble Apex Court, we can deduce two principles, as laid down by the Hon'ble Apex Court. Firstly, in respect to any rights that the persons, who are allocated or working after the creation of the State of Uttarakhand is concerned, which relates to the period anterior to the date of the creation of the State of Uttarakhand, the proper and competent authority would be the State of Uttar Pradesh. The State of Uttarakhand could not have the authority to deal with such a matter. Secondly, in relation to any such complaint, the proper forum to ventilate the grievance would be the High Court of Allahabad or the Tribunal created under the law passed by the State of Uttar Pradesh.
12. Noticing this as the state of the law and applying it to the facts of this case, without going into any other aspect, which is projected by Mr. Rajendra Dobhal, learned senior counsel for the petitioners, we would think that the impugned order cannot be sustained. By the impugned order, the State of Uttarakhand has purported to give the benefit of absorption to the third respondent with reference to a date, which is clearly anterior to the date of the creation of the State of Uttarakhand. If at all this could have been done, it could have been done only by the State of Uttar Pradesh. On this short ground, the writ petition is only to be allowed.
13. Now, we must examine as to whether there is anything in Sections 74 and 75 of the Act of 2000, which would dislodge the 10 view, which we have taken. Sub-section (2) of Section 74 of the Act of 2000, which is relied on by Mr. B.N. Molakhi, learned counsel for the third respondent, in our view, does not create any such power with the State of Uttarakhand. Sub-Section (2) of Section 74 of the Act of 2000 only purports to declare that for the purpose of the Rules regulating the conditions of service, the service, which is rendered prior to the appointed day by a person, who is deemed to have been allocated to any State under Section 73, is to be deemed to have been rendered in connection with the affairs of that State. It is, at once, necessary to notice the provisions of Section 73 of the Act of 2000. Section 73 of the Act of 2000 reads as follows:
"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 Uttaranchal:
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 the 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."11
14. Section 73 of the Act of 2000, which purports the other services (apparently, other than All India Services, which is covered by Section 72) lays down, inter alia, that all persons working in the existing State of Uttar Pradesh are unless required by a general or special order of the Central Government to serve provisionally in the State of Uttaranchal will continue to serve in connection with the affairs of the State of Uttar Pradesh. Thereafter, sub-section (2) contemplates a final allocation of the employees to be made by the Central Government. It is in respect of such persons that sub-section (2) of Section 74 provides that in regard to his conditions of service, he will be treated as working with the State, to which he is allocated.
15. Section 75 of the Act of 2000 reads as follows:
"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 States 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."
16. Section 75 of the Act of 2000 only declares the status of a person and, no doubt, in the proviso, it declares that it would not prevent a competent authority, on and from the appointed day, from passing order in relation to such persons any order affecting the continuance in such post or office. We are unable to find out how this provision will come to the aid of the third respondent.
1217. There is yet another aspect, which we must not ignore. When the Hon'ble Apex Court decides a case and the High Court culls out the ratio decidendi, which is the law under Article 141 of the Constitution of India, then, it does not cease to be binding on the Court on the reasoning that if another argument had been raised before the Hon'ble Apex Court or if a certain provision had been brought to its notice, the decision or the principle of law would have been different. It may not lie with the High Courts to disregard the law, which is laid down on the basis that it is per incuriam. We cannot, therefore, proceed on the basis that the law, which is declared in paragraph no. 11 of the judgment of the Hon'ble Apex Court, which we have referred to, namely, that in similar circumstances, it is the State of Uttar Pradesh, which could have given any relief, would not have been arrived at, had the Court adverted to Sections 74 and 75 of the Act of 2000. In fact, we notice that Section 74 of the Act of 2000 was referred to by the Hon'ble Apex Court. No doubt, Section 75, as such, was not referred to. Quite apart from our reasoning that Section 75 of the Act of 2000 may not support the argument of the third respondent and also of the State, as already held by us, we cannot proceed on the basis that because Section 75 was not referred to, the law, as laid down by the Hon'ble Apex Court in paragraph no. 11 of the judgment, is not to be followed by us.
18. Therefore, we find no merit in the contentions of Mr. B.N. Molakhi, learned counsel for the third respondent or of Mr. Pradeep Joshi, learned Standing Counsel for the State/respondent nos. 1 and 2. Accordingly, the conclusion is inevitable that sans authority, the impugned order has been passed by the State of Uttarakhand. On this short ground only, we interfere with the impugned order.
19. Accordingly, the writ petition is allowed. The impugned order dated 20.01.2017 giving benefit of absorption to the third respondent and that too with financial benefits cannot be sustained and the same will stand quashed. There will be no order as to cost.
1320. We, however, make it clear that we have not gone into various other contentions, which have been raised by the parties.
(Sharad Kumar Sharma, J.) (K.M. Joseph, C.J.)
08.03.2018 08.03.2018
Rahul