Uttarakhand High Court
Devendra Chand Ramola vs Vikram Singh Kaintunra And Others on 10 April, 2017
Author: V.K. Bist
Bench: K.M. Joseph, V.K. Bist
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 189 of 2014
Devendra Chand Ramola. .....Appellant
Versus
Vikram Singh Kaintura & another. .......Respondents
Mr. C.D. Bahuguna, Senior Advocate, assisted by Mr. Anup Kumar
Verma, Advocate for the appellant.
Mr. Bhagwat Mehra, Advocate for the writ petitioner/respondent
no. 1.
Mr. Ravindra Singh Bisht, Brief Holder for the State of
Uttarakhand/respondent no. 2.
Dated: 10th April, 2017
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble V.K. Bist, J.
K.M. Joseph, C.J.
Appellant is the second respondent in the writ petition. The writ petition was originally filed seeking the following reliefs:
"(I) Issue a writ, order or direction in the nature of mandamus commanding the respondent to consider the case of the petitioner for promotion as Driver, Grade-I in the pay scale of Rs. 5300 (unrevised) from the date when junior to the petitioner has been promoted i.e. from 30.6.2010 with all consequential benefits.
(II) Issue a writ order or direction in the nature of ad interim mandamus commanding the respondents to consider and to decide the representation of the 2 petitioner dated 16.6.2010 (Annexure no. 12 to the writ petition)."
2. Subsequently, the reliefs were got amended and prayer nos. I-A and I-B were added. The amendment was carried out on the basis of the order of the Court dated 20.08.2013. Amended prayers read as follows:
"(I-A) To issue a writ order or direction in the nature of certiorari for quashing the absorption order dated 15.12.2004 passed by the Respondent No. 1 (Page 98 of the paper book) so far as it relates to the Respondent No. 2.
(I-B) To issue a writ order or direction in the nature of certiorari for quashing the promotion order No. 981/G.S./C-109/2010 dated 30.6.2010 passed by Respondent No. 1 (Page 160 of the paper book) in favour of Respondent No. 2."
3. Brief facts, which are necessary to be noted, are as follows:
The State of Uttarakhand was carved out on the basis of the Uttar Pradesh Reorganization Act 2000, which came into force on 09.11.2000. Appellant was a Driver working with the Punjab State Council for Science and Technology. He was working in the said body since 1987. It would appear that he started working with the Raj Bhawan, Uttarakhand at Dehradun from 27.06.2001. As far as the writ petitioner is concerned, he was also working as a Driver, but in the District Information Office at Tehri Garhwal in the erstwhile State of Uttar Pradesh on 09.11.2000, which was the appointed day as per the Reorganization Act. He was asked to join the service of Raj Bhawan at Dehradun. He had been working in the District Information Office from 09.03.1993.
He joined in the Raj Bhawan from 05.04.2002. It is while so that the Rules, which were known as Absorption in Uttaranchal 3 Governor Secretariat on various posts, which included the Drivers, Rules of 2004, which were framed under the proviso to Article 309, came into being (hereinafter referred to as the Rules of 2004). On the strength of these Rules, the appellant and the writ petitioner were absorbed in service with the Governor. As far as the appellant is concerned, he was absorbed on 15.12.2004. The writ petitioner was absorbed on 18.11.2004. It is to be noted that the appellant, when he was absorbed, was absorbed in the pay scale of 4000- 6000. It is to be noted that by Annexure No. 5 dated 03.07.2006, Government of Uttarakhand has created Grade-I for the post of Driver for all departments. The lowest grade is Grade-IV and from the same, the next higher grade is Grade-III and further Grade-II and finally, a person could aspire to become Grade-I. By order- dated 11.12.2006, this has been implemented in the Governor's Office. Order dated 03.07.2006 reads as follows:
"No. 108/XXVII(7)/2006 Date: 3 July, 2006 From Indu Kumar Pandey Principal Secretary Govt. of Uttarakhand To All Principal Secretaries/Secretaries Govt. of Uttaranchal.
Sub: Reorganisation of the structure of Driver Cadre of the State.
Sir, With reference to the decision taken on the recommendations of the Pay Disparity Committee 1997-99 constituted for review of the pay-scales etc. of various categories of employees, I am directed to say that following decisions have been taken with regard to designation, pay-scales, minimum qualification for recruitment, procedure for recruitment etc. of the structure of the Drivers cadre in the State Government:-
Including the Drivers of the State Estates Department, the posts of the Driver Cadre in the State are placed in the following four grades:
4
Sl. Grade/Design Pay-Scale %age Procedure of Recruitment
No. ation of
Posts
1. Driver Gr.4 3050-459++ 35 By direct recruitment as per
the recruitment rules
2. Driver Gr. 3 4000-6000 30 By promotion from Drivers
Gr. 4 on the basis of
seniority-who have
completed 9 years
satisfactory service and
have passed the prescribed
trade test.
3. Driver Gr. 2 4500-7000 30 By promotion from Drivers
Gr. 3 on the basis of
seniority-who have
completed 6 years
satisfactory service in Gr. 3
or 15 years including the
service in Grade-4, and
have passed the prescribed
trade.
4. Driver Gr. 1 5000-8000 5 By promotion from Drivers
Gr. 2 on the basis of
seniority-who have
completed 3 years
satisfactory in Gr. 2
Note: The syllabus for the trade test for promotion from one grade of Drivers to another is placed at annexure.
2. The above arrangement may be kept separately in each cadre of the Drivers in all the Government Departments. However, in the offices under one Government Departments where there are limited promotional avenues due to less number of the posts of Drivers, a joint integrated cadre of Drivers of various offices of that Department could be constituted.
3. However, difficulty may arise in dividing the drivers on the basis of percentage in some organizations/departments where the number of posts of Drivers is too small. It will therefore be feasible that in the departments where the number of drivers is less than 10, division of various Grades of Drivers may be done as given under:-
S. No. of No. of Posts after Reorganisation
No. Drivers Driver Gr.4 Driver Driver Driver
Rs. 3050-4590 Gr. 3 Gr. 2 Gr. 1
4000- 4500- 5000-
6000 7000 8000
1 1 1 - - -
2 2 1 1 - -
5
3. 3 1 1 1 -
4. 4 1 1 1 1
5. 5 2 1 1 1
6. 6 2 2 1 1
7. 7 2 2 2 1
8. 8 3 2 2 1
9 9 3 3 2 1
4. According to the above table, the procedure for the adjustment/promotion of the Drivers in various sanctioned grades/pay-scales shall be as under:
(a) The post holder who is getting his pay in the existing pay- scale shall be adjusted in the same grade.
(b) In case the post of Motor Mechanic is in the pay-scale of Rs. 3200-4900 in the State Estates Department and the post holder is in the same pay-scale or in the personal pay-scale of Rs. 4000-
6000, then he shall be adjusted in the Driver 3's grade and if he is in the personal pay-scale of Rs. 4500-7000 then he will be adjusted in the Driver Grade-2 grade.
(c) According to above scheme if after division of posts some posts remain vacant against any grades, the same may be filled up after following the process prescribed above. Beside this, if after adjustment the number of post holders in some grade is more than the number of posts divided as per the prescribed scheme then in that case the post shall be adjusted by proportionate division in the concerned grade.
(d) Reservation rules shall be followed at the time of adjustment or promotion of Drivers in various grades.
5. The pay of the post holders who are adjusted/promoted against the Grade 3, 2 and 1 shall be fixed in accordance with Rule 22A(1) of Financial Rules Volume Part 2 to 4.
6. G.O. may be issued for implementation of the above mentioned decision after obtaining approval from the Finance Department.
(Indu Kumar Pandey) Principal Secretary Finance"
4. It would appear that a tentative seniority list was, in fact, drawn up on 09.03.2006, in which the writ petitioner was shown as senior to the appellant. The said seniority list was finalized on 16.05.2006 and the writ petitioner was shown again as senior to the appellant. It is, thereafter, alleging that the appellant was given Grade-I, ignoring the claim of seniority of the petitioner, 6 that the writ petition was originally filed with the two reliefs as we have already noticed. It is, inter alia, the case of the writ petitioner that both the appellant and the writ petitioner were placed in Grade- II by a common order dated 04.12.2009. Apart from the appellant and the writ petitioner, there was another Driver, who was placed at Serial No. 1. It is the case of the writ petitioner that promotion to the post of Driver Grade I was to be conducted on the basis of the combined seniority list issued in the year 2006, but to give undue benefit to the appellant, by order dated 26.03.2010, two separate different cadres, one known as Secretariat and the other known as Establishment were made. The writ petitioner gave representation to promote him on the basis of the seniority list of the year 2006. It would appear that the Governor obtained the legal advice, which was tendered on 24.05.2010. It is the case of the writ petitioner that the Advisor opined that two cadres, namely, in the Secretariat and another for the Household Staff, should not be created. Even if, it is created, options be called for from all the employees and a policy should be made for separating the cadre on the basis of 1:1 formula i.e. from the combined seniority list, the person placed and Sl. No. 1 be placed at the Secretariat and the person placed at Sl. No. 2 in the combined seniority list be placed in the home establishment. The objections were invited on the said basis vide Annexure No. 10 dated 08.06.2010. By Annexure No. 11 dated 11.06.2010, the writ petitioner agreed to accept the condition by the law advisor and he also expresses objection to any decision against the advice of the law advisor. According to the petitioner, on 29.06.2010, the Legal Advisor noted that the original seniority, as prepared in the year 2006, must be approved and seniority cannot be fixed on the basis of creation of two establishments. According to the writ petitioner, it was approved by the Governor also. It is, thereafter, that on 30.06.2010, the impugned order was passed, by which, according to 7 the writ petitioner, ignoring the seniority of the writ petitioner, appellant was given Grade-I.
5. The learned Single Judge accepted the contention of the writ petitioner that the very absorption of the appellant was illegal. This is for the reason that under the Absorption Rules, only Government Servants and persons working in Corporations, Local Bodies under the State of Uttarakhand could be absorbed. The appellant was admittedly working in the Punjab State Council for Science and Technology. Therefore, the absorption was without any basis. The learned Single Judge also took note of the fact that in the year 2006, appellant was ranked junior to the writ petitioner by a final seniority list, which was not subjected to any challenge. He, no doubt, also takes notice of the development in 2009, namely, both the appellant and the writ petitioner were promoted to the higher grade by the same order, but the name of the appellant was shown as senior to the writ petitioner. He took note of the argument of the writ petitioner that the writ petitioner was informed that his seniority will be determined by the seniority determined earlier in the year 2006.
6. The learned Single Judge took the view that while there can be an arrangement in regard to splitting of Raj Bhawan into Secretariat and Household, it is done without any amendment to the Rules. The Court proceeded to declare the writ petitioner as senior to the appellant. The learned Single Judge further took note of the fact that the appellant was working for a longtime, and for reasons of justice and equity, he should not be ousted totally. The learned Single Judge directed that the absorption made on 15.12.2004 can be treated as a fresh appointment in the Raj Bhawan service. It is also made clear that it will be for the appropriate 8 authority to grant him the benefit of his past service in the State of Uttarakhand in the Raj Bhawan since 27.06.2001, but he would always be junior to the appellant and other similarly situated employees who are either absorbed or appointed prior to the appellant. The Government was asked to give benefit of Grade-I w.e.f. 30.03.2010 when the same had been given to the second respondent alongwith all consequential benefits.
7. We heard Mr. C.D. Bahuguna, learned Senior Counsel assisted by Mr. Anup Kumar Verma, learned counsel for the appellant, Mr. Bhagwat Mehra, learned counsel appearing on behalf of writ petitioner and also Government counsel on behalf of the official respondents.
8. Mr. C.D. Bahuguna, learned Senior Counsel would submit that at the time when writ petition was filed, the writ petition contained only two reliefs, as already noticed. In other words, the relief, which was mainly sought, was to give the writ petitioner benefit of Grade-I. He would submit that the writ petition in this regard was not maintainable. This is for the reason that in order to be entitled for getting the benefit of Grade-I, the person should complete 18 years in service. As on the date of filing of the writ petition, namely, on 27.07.2010, the writ petitioner had not completed 18 years. He would further submit that, as already noticed, there were only two prayers; the relief seeking to challenge the absorption was incorporated by way of an amendment. The amendment application was filed only in 2013 and the amendment was allowed even though there was objection.
9. He would further submit that actually, the Court may notice that the appellant was, in fact, absorbed in the next higher 9 category when reckoned from the lowest category which is Driver Grade-IV. In other words, his pay scale was fixed with reference to Grade-III. He would further submit that the Court may consider that this is a case where there is no prayer regarding declaration of seniority of the petitioner as regards the appellant. Yet, the learned Single Judge has proceeded to declare the seniority. He would further submit that on the basis of averments made in the appeal memorandum that an order was passed on 26.03.2010, which is produced as Annexure No. 2 to the counter affidavit as also Annexure No. 7 in the writ petition. It is an Office Memorandum, wherein it is stated that in supersession of Office Memorandum dated 11.12.2006 regarding determination of the Drivers' Cadre in the Raj Bhawan, the Governor sanctioned separate structure of Drivers' Cadre in the Governor's Secretariat and the Governor's Household establishment with reference to letter dated 03.07.2006 and Raj Bhawan letter dated 07.01.2010. In other words, 5 Drivers distributed between different grades were allocated to the Household establishment, 6 Drivers were allocated to the Secretariat; they were also allocated between different grades, one Driver each for Grade-I and Grade-II inter alia. It is further provided that the provision shall be made in the relevant Rules in accordance with the names and the post, pay scale and other requisite requirements. He would, in fact, submit that actually, there were two establishments within the Raj Bhawan; one was the Secretariat and the other was the Household. The appellant was appointed in the Household establishment; whereas the writ petitioner was appointed in the Secretariat. Therefore, the Seniority List, which was brought out in 2006, in which the appellant is shown as junior to the writ petitioner is of no avail. It stands at any rate overridden by the seniority, which would follow on the basis of the bifurcation of the Governor's establishment into two, namely, 10 the Secretariat and the Household. He would further submit in this regard that by Annexure No. 14 dated 11.02.2010, (documents produced in the appeal), a separate seniority has been brought out for the Household establishment, wherein he is shown as Driver; whereas the petitioner's name is not there and that list is also finalized on 23.03.2010 and that is also not challenged by the petitioner. In fact, he would lastly submit that the petitioner himself filed an application seeking benefit of Grade-II with reference to the period of time when he completed 18 years service and was granted also, which means the petitioner himself accepted the position that unless 18 years of service is completed, he is not entitled to Grade-I.
10. Per contra, learned counsel for the writ petitioner would reiterate his contention. He would submit that he was absorbed legally, whereas the appellant was working in an organization, which did not come within the ambit of 2004 Absorption Rules. The appellant could not have been legally absorbed, as was correctly found by the learned Single Judge. Mr. Bhagwat Mehra also drew our attention to Rule 7 (4) of the Absorption Rules, as per which, according to him, the employees who are working in the Governor's Office and who are absorbed, are divided into two categories. Those who were working in the Government, they were ranked senior to those who are working in the Corporation and Local Bodies under the Government of Uttarakhand. This is besides the case that in the seniority list, date of substantial appointment of petitioner was shown as 18.11.2004 (the date of absorption which is the date in the rules to determine seniority); whereas the date of absorption of appellant was shown as 15.12.2004. Therefore, even if everything is accepted or rather if the absorption order is held valid, still the appellant would rank as 11 junior to the writ petitioner. This is besides reiterating that the appellant was not entitled to be absorbed as found by the learned Single Judge.
11. Sri C.D. Bahuguna, learned Senior Counsel for the appellant would submit that the Court may notice that the appellant was put on probation and at the end of three years, he was confirmed. With the confirmation, whatever blemish there may have been in the initial order of absorption would no longer continue. He referred Rule 7(10) of the Absorption Rules of 2004 in this regards, which reads as under:
"(10) On issuance of the Absorption Order all absorbed employees shall remain on probation for a period prescribed in the relevant Service Rules and on completion of probation period they shall be confirmed as per the provisions of the relevant Service Rules. In case any employee does not fulfill the eligibility criteria, the appointing authority may extend the period required for confirmation."
12. It is further contended that the writ petitioner got the benefit of Grade-I w.e.f. 09.03.2011 and this was done on the basis of the writ petitioner's own understanding that he is entitled to the same on completion of 18 years of service.
13. Sri Bhagwat Mehra, learned counsel for the writ petitioner would, in fact, submit that it is not as if eighteen years is there as such and it has separate periods for climbing up the ladder. Both the writ petitioner and the appellant have not completed the requisite period as such. Appellant and the writ petitioner were in different cadres. Though, there was a combined seniority list in the year 2006, in which the appellant was shown junior to the writ petitioner, the said combined seniority list no longer has meaning having regard to the subsequent developments, which took place. He would further submit that by the Rules made on 30th October, 12 2009, the Absorption Rules have been amended and Sub-rules (11) and (12) were added in Rule 7, which read as under:
"(11) For placement / adjustment against the vacancies under various Grades as per Seniority List, the past services of the Drivers absorbed in the Raj Bhawan shall be taken cognizance of.
Provided that relaxation in length of service shall be given to the Drivers eligible for promotion to the higher pay-scales only once in the selection year 2009- 10 to the extent it is necessary for promotion.
(12) Such Drivers and Group "D" employees absorbed in the Ra Bhawan who would have been getting the benefit of time-scale in their respective Departments had they not been absorbed in the Raj Bhawan, keeping this fact also in view that outside Raj Bhawan in the subordinate offices the designation and pay-scale of the said category of posts are similar. Such Drivers and Group "D' employees upon absorption in the Raj Bhawan shall be entitled to time- scale admissible to them on the basis of their past service until the period they are promoted to the higher post in the Raj Bhawan. This benefit shall not be admissible in those cases where the facility of time- scale was not admissible to the employees."
14. Placing reliance on the same, it is pointed out that, at any rate, the appellant was entitled to reckon the past service. Annexure-19 to the Special Appeal dated 07.03.2013 is produced to show that in terms of the orders dated 16.12.2010 and 17.01.2013, on the basis of the reorganization of the cadre on completion of 15 years continuous service and from the date of eligibility, the appellant was given pay scale of Grade-II with effect from 03.07.2006; whereas the writ petitioner was given the benefit only from 09.03.2008. Annexure -20 dated 8th July, 2013 is produced to show that as a result of reorganization of the cadre of motor vehicles drivers, on completion of three years continuous service in driver Grade-II, the benefit of Grade -I is sanctioned, in which the appellant gets pay-scale of Grade-I and grade pay with 13 effect from 03.07.2009; whereas the writ petitioner gets it from 09.03.2011. The communication issued by the Principal Secretary to the Government to all the Principal Secretaries dated 03.07.2006 provides for the decisions taken in regard to designation, pay- scales, minimum qualification, procedure for recruitment, etc. of the driver cadre. There are Driver Grade-IV, Grade-III, Grade II and finally, Grade-I. For promotion to Drivers Grade-III, which has to be given to the Driver Grade-IV, on the basis of seniority, they should complete nine years satisfactory service and they should pass prescribed trade test. In respect of promotion to the post of Driver Grade-II, it has to be given on the basis of seniority to Drivers Grade-III, who have completed six years satisfactory service in Grade-III, including the service in Grade-IV and have passed the prescribed trade test. As far as Driver Grade-I is concerned, it is to be given to the Drivers Grade-II on the basis of seniority, who have completed three years satisfactory service in Grade-II. This apparently is the basis for the appellant contending that in order to a person to become Driver Grade-I, he should complete 9 + 6 + 3 =18 years. According to Sri Bahuguna, learned Senior Counsel for the appellant, on 26th March, 2010, an Office Memorandum was issued, by which, the Governor sanctioned separate structures of Driver Cadre in the Governor's Secretariat and Governor's Household Establishment, and in the Governor's Household Establishment, there were to be five drivers; of which number of posts, after reorganization, two drivers were to be in Grade-IV, one Driver in Grade-III, one Driver in Grade-II and one Driver in Grade-I. In the Governor's Secretariat, there were to be six drivers, of which, two were to be in Grade-IV, two were to be in Grade-III, one in Grade-II and one in Grade-I. 14
15. With reference to the said document, Sri Bhagwat Mehra, learned counsel for the writ petitioner would immediately point out the following:
"Provision shall be made in the relevant Rules in accordance with name of post / pay-scale and other requisite requirements."
16. Thus, Sri Bhagwat Mehra, learned counsel for the writ petitioner would contend that there has been no consequential amendment in the Rules and, therefore, no store can be laid by the so called separate cadres as such.
17. Annexure -13 to the Special Appeal dated 6th February, 2006 would indicate that Jeet Singh, who was apparently senior to both the writ petitioner and the appellant, was confirmed on 18.11.2005. Thereafter, the next name is that of the writ petitioner and the same date, as that of Jeet Singh, is shown for him. Appellant is shown as confirmed with effect from 15.12.2005 and is placed at Serial No. 3. In the order, it is, however, specifically stated that this order has no relation with seniority and orders will be issued separately in respect of seniority. According to the appellant, on 11.02.2010, a cadre-wise tentative seniority list was published in a provisional manner. In the Governor's Household Establishment, in the said list, the appellant figures at Serial No. 1 in respect of category 'Vehicle Driver'. This list is referred to point out to show first that in the said list, the writ petitioner's name does not figure at all and secondly, there is a separate seniority list on the basis of separate Household Establishment. With reference to Annexure-15 to the Special Appeal dated 23rd March, 2010, it is contended that objections, which were received from several employees, were examined and the matter was disposed of and a final seniority list of employees 15 was published and, therein also, the appellant is maintained at Serial No. 1 in regard to the post of Vehicle Driver. The writ petitioner's name again does not figure at all. Annexure 10 to the writ petition dated 8th June, 2010 is a communication addressed by the Under Secretary to the Governor to the writ petitioner. Therein, it is indicated that in the Governor's House, five posts of drivers of Household Establishment and six posts of drivers of Secretariat are sanctioned for the Governor, and eleven posts were divided in four grades by re-organisation, namely, Grade-I to Grade-IV. It is indicated therein that pursuant to the proposal sent to the Government, a separate cadre of drivers was made, namely, for Governor House Household Establishment and Governor House Secretariat, in the manner, which were have already indicated. Reference is made to the earlier combined final seniority list dated 16th May, 2006. There is reference to separate seniority list and it is indicated that seniority of drivers in both the establishments is to be determined in the following manner:
Under the Household Establishment, appellant is shown at Serial No.1. In the Governor House Secretariat, Jeet Lal, who is senior to the appellant and the writ petitioner, is shown at Serial No. 1 and at Serial No. 2, writ petitioner is shown.
18. There is reference to the representation of the writ petitioner. Legal advice is alleged to have been obtained. The Legal Advisor has given the following advice:
"A policy may be framed for separating the cadre, in which as per the seniority list (combined seniority list as per the office order no. 618/G.S./7 (Adhi-23)/2006 dated 16th May 2006), formula of 1 X 1 (sr. no. 1 of seniority of Governor house secretariat and sr. no. 2 of household establishment) may be determined. By this, there will be no possibility of affecting seniority of any employee."
19. Thereafter, it is stated:
16"Please provide your consent / consensus letter to the Secretariat within 7 days from the date of issuance of the letter for taking further action on the above legal advice, on the subject of seniority determination of the vehicle drivers. On non-receipt of the expected consent / consensus within the required period, your consent shall be deemed to be for the above legal advice."
20. According to the learned Senior Counsel for the appellant, all other drivers were agreeable for separate cadre. Reference is produced to Annexure 12 of the counter affidavit of the State, which indicates that Jeet Lal has given his consent in terms of the order dated 23rd March 2010 in respect of the seniority. He has indicated that he was absorbed in the Secretariat Establishment as per the order of the Secretariat and he wishes to remain in the Secretariat Establishment. He indicated that his seniority may be determined in the cadre of vehicle drivers in the Governor House Secretariat Establishment, on the basis of his absorption. The writ petitioner is alleged to have given Annexure - 12 of the Counter Affidavit dated 11.06.2010. He states that in reference to the letter dated 8th June 2010, he is agreeable to the legal advice given in respect of separating the cadre of drivers of the Governor's House Household Establishment and the Governor Secretariat. He also stated that if any other decision is taken contrary to the legal advice of the Legal Advisor, it will not be acceptable to him. The appellant would point out that other drivers have given their letters agreeing for separation and each indicating that he will be interested to stay in separate Establishments, be it Governor Household Establishment or Governor Secretariat. Those, who wish to remain in the Secretariat, have indicated that they were absorbed in the Governor Secretariat. Those, who intended to remain in the Governor's House Household Establishment, have indicated that they were absorbed in the Household Establishment.
17It is pointed out by Sri C.D. Bahuguna, learned Senior Counsel that except for the appellant, all other drivers are agreeable for separate Establishments and separate seniority.
21. Annexure 9 to the writ petition purported to be the Noting and Orders indicating the stand of the Legal Advisor dated 24.05.2010 and also the decision, which was taken, according to the petitioner, by the Governor. It indicates that it was related to two separate cadres, namely, Governor's Secretariat and Governor's Household Establishment. There is reference to the, inter se, final seniority list of 2006. This indicated that as at the relevant time, there was one single cadre, one final seniority list was issued. It further indicates that the writ petitioner had filed objections. In the light of the decision to split the cadre of driver, the writ petitioner took the stand that the seniority should not be ignored in view of the aforesaid decision. The Legal Advisor noted the following mistakes in the proposal:
1. Single final seniority list issued earlier was not considered at the time of creation of separate care.
2. There is no cogent / well considered policy for separation of cadre.
22. It is pointed out that the person at Serial No. 2 of the Single Final Seniority List (apparently the writ petitioner) will become junior from the persons, who are much junior to him in service and then, he referred to the following points:
"1. For separation of Cadres, the single final seniority list, issued earlier, compulsorily be taken into cognizance so that any employee may not suffer in terms of seniority at the time of grant of benefit of the post of Driver Grade - I, due to Cadre separation.
2. There is no legal justification for creation of two sub-cadres, one for Household Establishment and another for Governor's Secretariat Establishment, from the Cadre of Drivers of Rajbhawan. If the creation of 18 sub cadre is of extreme necessity, then options / consent letters from all Drivers of Drivers Cadre should be obtain and they can be allotted to the sub- cadres as per their choice, or allocation policy can be framed as per law.
3. For separation of Cadres, a policy be fixed in which the formula of 1 X 1 (meaning thereby that Sl. No. 1 of seniority list at Governor's Secretariat and Sl. No. 2 at Household Establishment) can be applied. Due to the same, there will be no possibility of affecting the seniority of any person.
4. If the dispute of seniority of Sri Vikra Singh or any other Driver is not solved at the level of Rajbhawan, then possibly the concerned employee can claim justice by adopting the legal proceedings by filing Writ Petition before competent Court. In that case, the image and reputation of H.E. the Governor and Rajbhawan would be adversely affected.
The lawful action in the matter is required in view of the aforesaid points and as per the principles of natural justice, so that possibility of judicial challenge in the matter should not arise."
23. At the bottom of this document, it is stated as follows:
"Discussed. In view of the G.O. No. 618, dated 16.05.2006, the views of at "A" of L.A. be..........
Sd/- 26.05.2010 (Ashok) Secretary to Governor, Uttarakhand Sd/-"
24. It is apparently thereafter that the communication dated 08.06.2010 was issued to the writ petitioner. Therefore, it is contended by Sri Bhagwat Mehra that it is this, which was accepted by the writ petitioner, namely, that on the basis of the combined seniority list of 16th May, 2006, a formula of 1:1, namely, person at Serial No. 1 in the combined seniority list will be placed as the first in the Governor's House Secretariat and the person at Serial No. 2 in the combined seniority list will be placed as the first in the 19 seniority list for the Household Establishment. Petitioner, according to him, has only indicated that he was agreeable for the same, as we have already noticed.
25. There is no dispute that both the appellant and the writ petitioner were absorbed on the strength of the Absorption Rules of 2004. The appellant was absorbed after the writ petitioner. Further there cannot be any manner of doubt that the learned Single Judge was right in holding that the appellant was not entitled to be absorbed under the statutory Rules. We have no hesitation in rejecting the appellant's argument that the appellant was confirmed at the end of three year period of probation and holding that, if the very absorption from the date of inception has been ab initio illegal, confirmation will not clothe the appellant with legitimacy and will protect him in the Court of law against the illegal original order of absorption. There is no dispute also that the combined seniority list was prepared and the writ petitioner was treated as senior to the appellant.
26. Subsequent amendment of Rules of 2012, as rightly found by the learned Single Judge, has no retrospective operation to salvage the illegal absorption. In the circumstances of this case, as the writ petitioner has challenged the absorption when his seniority itself was sought to be imperiled, we cannot hold that it came late in the day.
There is no challenge to the seniority of the appellant
27. The writ petitioner, as per the combined seniority list made in the year 2006, was shown as senior. In the year 2010, it was overlooking the writ petitioner's seniority that the Grade I pay was sought to be given to the appellant. The challenge is 20 necessarily based on the seniority of the writ petitioner over the appellant. In the facts of this case, therefore, we would think that this argument is only to be repelled and we do so.
28. We cannot overlook the fact that even though the seniority, as such, is not challenged. The learned Single Judge has found the absorption to be illegal and also declared it so. In this regard, it is to be remembered that as long as seniority of the writ petitioner was not in peril, he may have not felt the need to challenge it. But we cannot find fault with the writ petitioner, if he challenged the absorption, when he found that even his right to seniority, which is clear, was being sought to be jeopardized. It is also to be remembered, whichever way one looks at it, the writ petitioner acquired right of seniority over the appellant. His right to seniority is clearly supportable both on the basis that under the Absorption Rules of 2004, the appellant was not entitled to be absorbed and secondly, we would also support it on the basis of Rule 7(4) of the Absorption Rules as per which, persons who have been absorbed from Government services will rank as junior in other categories. The writ petitioner is entitled to seniority on the said score also.
Writ Petitioner has not completed 18 years at the time of filing the writ petition.
29. This argument may not be open when the junior of the writ petitioner, namely, the appellant was given the benefit of Grade I overlooking the seniority of the writ petitioner. More importantly this is a case, where there was a challenge to the absorption of the appellant itself, the same being illegal and contrary to the Absorption Rules of 2004. It may be true that the 21 writ petitioner was given the benefit with effect from the year 2011 at the time when he completed 18 years, but we would think that it will not take away his right to claim the benefit with reference to the day when his junior was given the benefit.
30. Appellant, no doubt has produced the document, Annexure No. 19 to the Appeal indicating that appellant was given pay scale of Grade II with effect from 03.07.2006; whereas the writ petitioner was given pay scale benefit only from 09.03.2008. This appears to us to be the basis why the writ petitioner was in fact given the benefit of Grade I subsequently with effect from 09.03.2011. This means that it was calculating three years from the date, on which he was given Grade II, namely, 09.03.2008 that he was given benefit of Grade I from the said date. It may be true that it was counting the period of 15 years from 09.03.1993, when the writ petitioner was appointed in District Information Office and in terms of the Government Order dated 03.07.2006 that the writ petitioner was given benefit of Grade II with effect from 09.03.2008 and subsequently on completion of three years from that date, the benefit was given from 09.03.2011. In fact, even the appellant has not completed the requisite period going by order dated 03.07.2006. It is only if the appellant becomes entitled to benefit of Clause 7(11), which we have extracted hereinbefore brought in by amendment in the year 2009, which in turn depends on his right to be absorbed, that he would get the benefit. He could reckon the previous service for the purpose of promotion to higher grades. It may be true that the writ petitioner has not called in question the orders, Annexure No. 19 and Annexure No. 20 by which the appellant and the writ petitioner were given the benefit of Grade II with effect from the date, on which they completed 15 years and Grade I with effect from 03.07.2009 and the writ 22 petitioner gets it from 09.03.2011. It may be noted that neither Annexure No. 19 dated 07.03.2013 nor Annexure No. 20 dated 08.07.2013 produced in the Appeal was produced before the learned Single Judge.
31. In fact, apparently, appellant got the benefit up to Grade I by the order dated 30.06.2010, which was impugned; the same is not set aside. Subsequently by Annexure No. 20 produced in the Appeal the appellant gets Grade I with effect from 03.07.2009 whereas the writ petitioner gets it from 09.03.2011 and that is not challenged. Apparently, this, in turn, was based on making available the benefit under Rule 7(11), which provides for previous service in the matter of placement/adjustment against vacancies in various grades. But since the appellant seeks to add the previous service (prior to joining the Governor's office) and claim seniority over the writ petitioner, which in turn is based on the absorption being valid, we cannot accept it. The illegal order of absorption overhangs the appellant like a sword of Damocles and the learned Single Judge has balanced the equities and while finding that the absorption was patently illegal and declaring it so, the learned Single Judge took care to direct that the absorption from 15.12.2004 can be treated as a fresh appointment.
32. We may also proceed on the basis that even if appellant was wrongly given benefit and his absorption itself was illegal, a question could be asked whether that would entitle the writ petitioner to claim benefit of Grade I without having completed 18 years satisfactory service under the order dated 03.07.2006. But this is a question, which we have gone into only if there is an appeal filed by the State. The official respondents have accepted the judgment. In fact, it appears to have been implemented 23 also. Furthermore, as we have noticed, it may not lie in the mouth of the appellant to question maintainability in a case where his absorption itself is illegal. This is a case where, at the time the order was given, it was overlooking this seniority of the writ petitioner that appellant was given grade pay. We are, therefore, not inclined to accept the argument on behalf of the appellant.
Different cadre and separate seniority
33. As held by the learned Single Judge, this argument is not covered by the amendment to the Rules as such. Secondly, we feel that the seniority of the writ petitioner cannot be taken away, but we do notice that there is no challenge to the separate seniority list, which has been brought out by the writ petitioner. At the same time, we must notice that the writ petitioner had, in reply to the communication asking him to indicate his views in regard to the opinion of the legal advisor as to whether he is agreeable for the 1:1 ratio, in which the two wings, namely, the Governor's Secretariat and the Governor's Household Establishment were to be filled up, agreed to it. Therefore, we cannot possibly pronounce on the illegality of the same. But even when the files were called for, learned Government Counsel was not able to justify as to how even in the seniority list, after providing Jeet Lal, who is senior to both the appellant and the writ petitioner, as number 1 in the list of drivers for the Governor's House Secretariat, the appellant has been placed at Sl. No. 1 in the Governor's Household Establishment. However, we cannot set aside the list, which is not challenged before us as such, but we cannot at the same time allow the appellant to steal a march over the writ petitioner whose rights have attained finality, as is evident by the final common seniority list of the year 2006. Accordingly, we would think that the writ petitioner should continue to rank as senior to the appellant for all purposes, 24 including promotion to a still higher grade or cadre or the grant of any benefit based on seniority. The interest of justice also, however, requires that the direction that the appellant will rank as junior not only to the petitioner but also to all others should not be sustained and we set aside the same. We also make it clear, however, that the case of the appellant can be considered, as directed by the learned Single Judge himself for the purposes of calculating the past services.
34. In such circumstances, the appeal is disposed of as follows:
The writ petitioner will rank as senior to the appellant for all purposes including promotion to higher cadre/grade and for grant of any benefit based on seniority.
We set aside the direction that the appellant will be junior to the persons other than the writ petitioner. We also direct that the appellant can be considered, as directed by the learned Single Judge to reckon the previous service. In other respects, appeal will stand dismissed. There will be no order as to cost.
(V.K. Bist, J.) (K.M. Joseph, C.J.)
10.04.2017
Rahul