Allahabad High Court
Dr. Vijay Vikram Singh & 19 Ors. vs State Of U.P. Through Prin. Secy. Animal ... on 15 March, 2019
Equivalent citations: AIRONLINE 2019 ALL 952, (2019) 2 ESC 945, (2019) 3 ALL WC 2699, (2019) 4 ADJ 169 (ALL)
Author: Ritu Raj Awasthi
Bench: Ritu Raj Awasthi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH High Court of Judicature at Allahabad Lucknow Bench, Lucknow RESERVED Reserved on: 07.02.2019 Pronounced on: 15.03.2019 Case :- SERVICE BENCH No. - 1641 of 2011 Petitioner :- Dr. Vijay Vikram Singh & 19 Ors. Respondent :- State Of U.P. Through Prin. Secy. Animal Husbandary Lko. & O Counsel for Petitioner :- Pratyush Tripathi,Ashwani Kumar,Rajesh Kumar Counsel for Respondent :- C.S.C.,Anjima Gupta,Ashish Kumar Singh,Atma Ram Mishra,R.K.Katiyar,Samanvya Dhar Dwivedi Hon'ble Ritu Raj Awasthi,J.
Heard Mr. Kapil Dev, learned Senior Advocate assisted by Mr. Ashwani Kumar, learned counsel for the petitioners, Mr. Gyanendra Kumar Srivastava, learned Standing Counsel for the opposite parties no.1 to 3, Mr. R.K. Katiyar, learned counsel appearing on behalf of opposite parties no.4 and 5 and Mr. Samanvaya Dhar Dwivedi, learned counsel for the opposite parties no.12 to 25. The respective opposite parties have filed their counter affidavits, to which rejoinder affidavits have been filed by the petitioners.
The writ petition has been filed challenging the impugned order/letter dated 4.11.2009, copy of which is annexed as Annexure-1 to the writ petition, whereby the State Government has taken a decision that all such Veterinary Officers who were not allocated the State of Uttar Pradesh after bifurcation of the State and have been subsequently absorbed in the State of Uttar Pradesh, seniority of such employees shall be determined from the date of their absorption. The petitioners have also challenged the impugned seniority list as contained in Annexure-2 to the writ petition so far as it relate to the fixation of seniority of Veterinary Medical Officers of 1997 batch. The petitioners have prayed for a writ of mandamus commanding the opposite parties to fix the seniority of the petitioners from the date of their selection in the service as per Uttar Pradesh Government Servants Seniority Rules, 1991.
As per the facts of the case as given in the writ petition the petitioners had joined the services of the opposite parties as Veterinary Officers after their selection by U.P. Public Service Commission in the year 1997 and 1998 and they were placed in erstwhile hill sub-cadre in the State of Uttar Pradesh, but their services were transferable within the territory of entire State of Uttar Pradesh.
For the purposes of reorganizing the State of Uttar Pradesh and creating a new State of Uttarakhand the Parliament enacted U.P. Reorganization Act, 2000. Out of the territories of the hill region of the then State of U.P. a new State namely State of Uttaranchal (now Uttarakhand) was created w.e.f. 9.11.2000. The Union of India in exercise of its powers vested in it under Section 77 of U.P. Reorganization Act, 2000 issued letter/circular dated 13.9.2000 which provided that the allocation of the employees to the successor States shall be based upon their options. It was also provided that while separating the cadre and while allocating the employees to the cadre of the successor State their domicile and ethnic affinity shall be taken into consideration. In this regard the State Government had also issued similar directions vide letter dated 20.09.2000. In pursuance of the said letter options were invited from the State Government employees and they had submitted their options. The petitioners had submitted their option whereby they had opted to remain in the State of Uttar Pradesh.
The Central Government vide order dated 11.9.2011 had allocated all such employees including the petitioners who were working in erstwhile U.P. hill sub-cadre to the State of Uttarakhand. Similar orders were issued by the Government of Uttar Pradesh vide order dated 10.5.2001.
Some of the petitioners and employees of some other departments had filed various writ petitions before the High Court of Uttarakhand challenging the orders of their final allocation to the State of Uttarakhand. Said writ petitions were decided by a common judgment dated 25.3.2004 and directions were issued to consider the representation of each and every individual. The Central Government had agreed that the representations of each and every individual employee would be considered separately and orders would be passed. It was thereafter that the petitioners had submitted their options and representation to the respective State Governments and State Advisory Committee and the representation of each and every petitioner was considered and thereafter with the consent of both the State Governments the petitioners were allocated the State of Uttar Pradesh vide orders dated 25.4.2006, 25.7.2008 and 3.6.2005.
In the year 2009 a tentative seniority list of the Veterinary Officers was issued in which the petitioners were placed at the bottom on the basis of their subsequent joining back in the State of Uttar Pradesh. The petitioners had filed their objections against the said tentative seniority list. It is the case of the petitioners that all the petitioners have been finally allocated to the State of Uttar Pradesh on the basis of their options and they have never made any request for their transfer on personal grounds from State of Uttarakhand, however, by the impugned order dated 4.11.2009 they are directed to be placed at the bottom of the seniority list.
The impugned seniority list dated 16.9.2009 was published. In the impugned seniority list the petitioners are placed at the bottom on the basis of their subsequent joining back in the State of Uttar Pradesh after the final allocation and transfer from the State of Uttarakhand. The impugned act of the opposite parties is totally illegal, arbitrary, mala fide and discriminatory and their legitimate claim has been denied. The petitioners are entitled to get the seniority which is fixed by the U.P. State Public Service Commission from the date of their substantive appointment as per UP Government Servants Seniority Rules, 1991. The petitioners feeling aggrieved had preferred representations to the authority concerned, however, nothing was done by the authority, hence, they have filed the instant writ petition.
Learned counsel for the petitioner vehemently submitted that the petitioners were appointed on the post of Veterinary Medical Officers, Class-II on the basis of selection held by U.P. State Public Service Commission. The petitioners are entitled to get the seniority as determined by U.P. Public Service Commission at the time of their selection i.e. from the date of substantive appointment.
Submission is that the joining of the petitioners in the erstwhile hill sub-cadre would not mean that the service rendered by them in the hill sub-cadre would not be counted after their adjustment/absorption in the State of Uttar Pradesh and after they were allowed to join back in the State of Uttar Pradesh pursuant to final allocation to the State of Uttar Pradesh on the basis of option given by them. It is contended that the erstwhile U.P. hill sub-cadre was only a sub-cadre and after bifurcation of the State the hill sub-cadre was abolished. The erstwhile U.P. hill sub-cadre was not a separate cadre as it had no separate identity as a cadre but the same was mere an arrangement in the earlier State of Uttar Pradesh for the administrative convenience. It was only a part of the main cadre which is very much clear from the perusal of the clarification issued by the Department of Personnel State of Uttar Pradesh, copy of which is annexed as Annexure-9 to the writ petition. The State Government vide letter dated 13.5.2000 has clarified that hill sub-cadre is not a separate cadre as such no service rules are required to be framed for the employees working in the hill sub-cadre and by appropriate amendment in the existing service rules they can be applied to the employees working in the hill sub-cadre.
It is submitted that erstwhile hill sub-cadre could not be treated to be a separate cadre so far the petitioners service/cadre is concerned because a cadre will be treated as a separate cadre only when it will have its separate promotional avenues whereas in the service of the petitioners they were appointed by one authority i.e. the State Government and there was only one Director for both the places (Hill & Plain). Further the promotional avenues of all the petitioners and other Veterinary Medical Officers was up to the post of Director of the Department which was one for both the places (Hill & Plain) hence it cannot be said that there was two separate cadres in the service of the petitioners.
In fact the erstwhile hill sub-cadre was rescinded by means of Act of 2001 which was made applicable/effective from 9.11.2000, meaning thereby that at the time/on the date of creation of new State of Uttarakhand there was no hill sub-cadre in existence hence all the employees of the State of Uttar Pradesh were the employees of the single cadre in the State of U.P. It is also contended that the service of the petitioners were transferable within the entire territory of State of Uttar Pradesh which is very much clear from the perusal of letter dated 20.07.2001 written by the Government of Uttarakhand to the Reorganization Commissioner. It is also contended that even the seniority list of all the employees of the Uttar Pradesh Veterinary Medical Officers, Class-II including the petitioners was prepared commonly and there was no separate seniority list for the employees who were working in the erstwhile hill sub-cadre.
Learned Senior Advocate appearing on behalf of the petitioners submitted that after the enactment of U.P. Reorganization Act, 2000 the Central Government in exercise of powers under Section 77 vide letter dated 13.09.2000 provided that the allocation of employees to the successor states shall be based upon the options of the employees and their domicile and ethnic affinity would be taken in to consideration, copy of letter dated 13.9.2000 is on record as Annexure-5 to the writ petition. The petitioners on the basis of said letter were entitled to submit their options/choice for the allocation.
The State Government vide its order dated 10.5.2001 had also provided that the allocation of service of the employees shall be made on the basis of their options. The Government Order dated 10.5.2001 provides that the State Cadre means; (A). the cadre in which the appointing authority of the employees are the state government or the Head of the Departments of undivided State of U.P., (B). the cadre in which the services of employees are transferable in the entire undivided State of U.P. and (C). the cadre in which the seniority of the employees are maintained at the State level. The petitioners fulfill all the aforesaid three conditions mentioned in Clause-3 of Government order dated 10.5.2001 and they are members of only one cadre in the undivided State of Uttar Pradesh. The petitioners were therefore entitled to submit their option for their allocation for the State of Uttar Pradesh which was submitted by them and they were allocated to the State of Uttar Pradesh on the basis of their options, hence, they cannot be placed at the bottom of the seniority list and their seniority can only be fixed on the basis of their substantive appointment and according to their allocation/placement by the U.P. Public Service Commission, in the light of the provisions of UP Government Servants Seniority Rules, 1991.
It was on the basis of above letter that the State had also issued letter dated 20.09.2000 invited options from all the employees including the petitioners and the petitioners had submitted their options to remain in the State of Uttar Pradesh, however, the Central Government as well as the State of Uttar Pradesh issued orders by which the employees who were working in the erstwhile hill sub-cadre of the State of Uttar Pradesh before 9.11.2000 were allocated to the State of Uttarakhand without giving them any opportunity of submitting options and ignoring the letter dated 13.9.2000 and 20.9.2000.
Feeling aggrieved from the allocation to the State of Uttarakhand several employees including some of the petitioners had filed writ petitions before High Court of Uttarakhand [Writ Petition No.814 (SB) of 2001; Satish Chandra Tiwari & others Vs. State and others and other connected matters] which was decided by a common judgment and order dated 25.3.2004. High Court had directed the opposite parties to consider the representation of each and every individual and it was in compliance of the said judgment that the representations of each and every individual were considered. All those employees who had opted for the State of Uttarakhand, they were placed as per their original seniority in the State of Uttarakhand. It is also submitted that it was in pursuance of the above judgment and order that the representation of the petitioners were considered and subsequently with the consent of both the States the petitioners were finally allocated to the State of Uttar Pradesh vide orders dated 13.12.2005, 25.4.2006 and 25.7.2008, copy of which are annexed as Annexure-14 to the writ petition.
It is also submitted that the final allocation of the petitioners to the State of Uttar Pradesh was done with the consent of Central Coordination Committee constituted by the Central Government. It is also submitted that it is admitted by the State Government in the Government Order dated 3.6.2006 (Annexure-15 to the writ petition) that the petitioners are option holders of the State of Uttar Pradesh (Uttar Pradesh Rajkiya Vikalpdhari Hain).
It is also submitted that similarly some Veterinary Officers who were not in the hill sub-cadre and were sent to State of Uttarakhand from the State of Uttar Pradesh and placed at the bottom of the seniority list vide order dated 30.8.2001 by the State of Uttarakhand had challenged the said action before the High Court of Uttarakhand and the High Court vide order dated 10.4.2003 had issued directions to determine their seniority as per Uttar Pradesh Government Servants Seniority Rules, 1991 which were adopted in the State of Uttarakhand and had quashed the order dated 30.8.2001.
Learned counsel for the petitioners submitted that vide office order dated 18.10.2000 it was clarified by the State Government that in case any person working under hill sub-cadre has given his option for the general cadre/plain cadre, then all such facilities which were available to him under the hill sub-cadre would be withdrawn and in the plain cadre he will be placed as per the next below rule. The office order is annexed as Annexure-18 to the writ petition.
Learned Standing Counsel appearing for the opposite parties no.1 to 3 has submitted that in exercise of powers conferred by the proviso to Article 309 of Constitution of India the U.P. Hill Sub Cadre Rules, 1992 (hereinafter referred to as ''1992 Rules') for regulating better administrative functions in all the departments was notified on 25.11.1992 and the persons working in the hill sub-cadre were regulated by the provisions of 1992 Rules. The strength of hill sub-cadre in a service shall be such as may be determined by the government from time to time. According to Rule 4 of 1992 Rules separate cadres were created vis. ''general cadre' and ''hill cadre'. Sub Rule 1 of Rule 5 does not permit the transfer of incumbent of hill cadre to outside the hill cadre, meaning thereby that the employees working in the hill cadre were not entitled for transfer to other cadre i.e. general cadre.
It is submitted that the petitioners were appointed pursuant to the advertisement issued by the U.P. Public Service Commission for filling up 194 posts of Veterinary Officers, Grade-II in general cadre in Veterinary Department and similarly 135 posts under the hill cadre. The petitioners were appointed on the posts of Veterinary Officer, Grade-II under hill sub-cadre. It is also contended that seniority list of Veterinary Officers working under the hill sub-cadre was determined separately which is evident from the Government Order dated 22.2.1994. It is also submitted that after reorganization of State of Uttar Pradesh and creation of new State of Uttarakhand under the U.P. Reorganization Act, 2000 with effect from 9.11.2000 and 13 hill districts of erstwhile State of U.P. were allocated to the State of Uttarakhand. Under Section 73 of Reorganization Act, 2000 power of final allocation to the successor state is vested with the Central Government. Under Section 77 of Reorganization Act, 2000 the Central Government has constituted a State Advisory Committee for the purposes of bifurcation of the Cadres and allocation of employees to the successor State. In exercise of said powers the State Advisory Committee recommended for the rejection of all options of employees of hill sub-cadre for the allocation to the State of Uttar Pradesh. This decision was communicated vide order dated 10.5.2001. Finally the Central Government in exercise of powers under Section 73 (2) of U.P. Reorganization Act vide order dated 11.9.2001 took a decision that all the employees working under State of U.P. on the appointed date i.e. 9.11.2000 would remain in Uttarakhand and all options/representations for serving in the State of Uttar Pradesh would stand disposed of. Undisputedly, the petitioners were appointed and woring under the hill sub-cadre as on the appointed date i.e. 9.11.2000 and as such they were allocated to the State of Uttarakhand. It is submitted that in the case of Indradeo Paswan Vs. Union of India & others1 the Hon'ble Supreme Court has held that the matter of allocation of the employees to the Sates under the U.P. Reorganization Act would not require any interference unless a clear illegality or wednesbury unreasonableness are shown, as such, it is crystal clear that the petitioners have no right to discharge heir duties in the State of Uttar Pradesh after bifurcation of the State as undisputedly the petitioners were appointed as employees of hill sub-cadre and were posted in the hill districts on the appointed date i.e. 9.11.2000. However, after some litigation petitioners along with some other Veterinary Officers were adjusted in the State of Uttar Pradesh and Government Order dated 25.7.2008 and 25.4.2006 issued by the Government of Uttarakhand (Annexures-14 and 15 to the writ petition) and in pursuance of these government orders petitioners were permitted to join in the State of Uttar Pradesh as Veterinary Officers.
It is also submitted that all the petitioners have been adjusted in the State of Uttar Pradesh on compassionate grounds on their own request of personal difficulties. It is pointed out that all the petitioners were adjusted on the consent of both the States and this is an adjustment and not allocation by the Government of India under the Provisions of U.P. Reorganization Act, 2000. It is further submitted that in service jurisprudence the general rule is that if a government servant holding a particular post is transferred to the same post in the same cadre the transfer will not wipe out his length of service, but where a government servant is so transferred on his own request the transferred employee will have to forgo his seniority till the date of transfer and will be placed at the bottom below the junior most employee in that category in the new cadre or department. This is because a government servant getting transferred to another unit or department on his own request cannot be permitted to disturb the seniority of the employees in the department to which he is transferred. This is also because a person appointed to a particular post in a cadre should know the strength of the cadre and prospects of the promotion on the basis of seniority list prepared for the cadre and any addition from outside would disturb such prospects. Reliance is made on K.P. Sudhakaran and another Vs. State of Kerala and others2. In this regard reliance is also placed on the following judgments:-
1. Union of India and others Vs. Deo Narain and others3
2. P. Satyanarayana Rao and another Vs. S.V.P. Sarvani and others4 and
3. Surendra Singh Beniwal Vs. Hukum Singh and others5.
Mr. Samanvaya Dhar Dwivedi, learned counsel appearing for the opposite parties no.12 to 25 has adopted the arguments of learned Standing Counsel. In addition to this it has been submitted that the 1992 Rules very categorically states that there shall be a separate hill sub-cadre in all the Departments of the Government and the incumbent thereof shall not be liable to be transferred outside the hill district. The right of giving option was available only to those members of the service who were not recruited under the 1992 Rules, for allocation to hill sub-cadre, however, no such option was available to the incumbents who were appointed under 1992 Rules. It is for this reason that several officials who were earlier appointed under 1992 Rules left the service and after resignation appeared in fresh examination and in case selected in the general cadre joined the service, they did not get any benefit of services rendered by them while working in hill sub-cadre. It is submitted that the guidelines issued with regard to the reorganization of States, allocation of personnel issued by the Government of India dated 13.09.2000, U.P. State Government order dated 10.5.2001 and Central Government Order dated 11.9.2001 clearly provide that the employees who belong to hill sub-cadre or who were serving on the appointed date i.e. 9.11.2000 in the hill districts shall continue to remain in the State of Uttarakhand. The options/representations preferred in this regard shall stand rejected. It clearly means that each and every employee of the hill sub-cadre or all the employees working in the hill districts on the appointed date i.e. 9.11.2000 shall become the employees of the State of Uttarakhand and have no right to be posted in the State of Uttar Pradesh. They had no right to make any option or make a representation for allocation to the State of Uttar Pradesh. It is also submitted that the judgment of the High Court of Uttarakhand in Writ Petition No.823 (SB) of 2001 is not applicable to the petitioners. The said writ petition was filed by the persons who were recruited under the ''general cadre' and not under 1992 Rules. It is also submitted that the representation preferred by the petitioners, copy of which are annexed in the writ petition makes it clear that they were made on personal grounds for their transfer to the plain region. It is submitted that State Government could not have considered the representations of the petitioners and allowed them to join in the State of Uttar Pradesh. It was an error on the part of the State Governments. The State Government should give details as to under what provision of law the representations of petitioners were considered and accepted.
It is also submitted that the petitioners were not appointed under the ''general cadre' and were appointed in the hill sub-cadre, they have no right to be placed in the seniority list of Veterinary Officers Grade-II above the opposite parties no.12 to 25.
It is contended that the private respondents do not have any grievance against the allocation/posting of the petitioners in the ''general cadre' and they do not have any grievance against the State Government as the State Government has very categorically stated that the seniority of the petitioners shall be at the bottom in the Veterinary Officers, Grade-II cadre, however, the grievance of the private respondents would arise if the petitioners are given the seniority above the private respondents because firstly, petitioners were never supposed to be posted in the plain region, secondly, due to error of the State Government they have been allowed to join in the plain region and, thirdly, they shall not get benefit of the erroneous decision of the State Governments. It is also submitted that in the case of Smt. Meena Srivastava Vs. State of U.P. and others6 the Court vide judgment and order dated 30.04.2014 has held that posting of a teacher from hill sub-cadre to plain region was mistake as she ought not to have been posted in the plain region, therefore, her case should be referred to the Central Government and she should make a representation to the Central Government and a fresh decision be taken.
I have considered the submissions made by parties' counsel and gone through the records.
The State of Uttar Pradesh in exercise of powers under Article 309 of Constitution of India had notified the U.P. Hill Sub-Cadre Rule, 1992 which came into effect on 25.11.1992. Rule 4 (e) of 1992 Rules defines the ''hill sub-cadre' which is as under:
"(e) ''Hill Sub-Cadre means the Hill Sub-Cadre constituted under Rule 5;"
Rule 4 (d) of 1992 Rules defines ''general cadre' which is quoted as under:
"(d) ''General Cadre' means the strength of the posts in a service pertaining to all the departments, which is excluded from the Hill Sub-Cadre by the Government by notified order;".
Rule 5 of 1992 Rules defines constitution of Hill Sub-Cadre which is quoted below:
"[5. Constitution of Hill Sub-Cadre- (1) There shall be a separate Hill Sub-Cadre in all the departments of the Government comprising all posts except the department and posts:-
(i) the incumbents whereof were, on the date of preceding the commencement of these rules, not liable to be transferred outside the hill districts, namely-Almora, Chamoli, Dehradun,Nainital, Pauri Garhwal, Pithoragarh, Tehri Garhwal, Uttarkashi and Udham Singh Nagar;
(ii) the strength of Hill Sub-Cadre in a service shall be such as may be determined by the Government, from time to time, by notified order.]"
U.P. Hill Sub-Cadre was in fact created for the administrative convenience and better management of administration in the hill districts. It was created before the bifurcation of the State of Uttar Pradesh. Separate posts were marked under hill sub-cadre in all the departments and all those persons who were placed in the hill sub-cadre were required to be posted in the hill districts and under the said rules were not liable to be transferred outside the hill districts. The petitioners were appointed through U.P. Public Service Commission on the posts of Veterinary Officers, Grade-II in hill sub-cadre, meaning thereby that after their appointment they were to be posted in the hill districts of the State of Uttar Pradesh before its bifurcation.
It is to be noted that hill sub-cadre was not a separate cadre as is very much evident from its nomenclature and only certain posts in every cadre in all the services in every departments under the State of Uttar Pradesh were marked for hill sub-cadre and the employees placed in the hill sub-cadre were required to be posted in the hill districts only. However, all these employees whether working in the hill region or in the plain region were governed by same set of Service Rules and no separate Service Rules were created for the employees working in the hill sub-cadre. This fact is evident from the perusal of the clarification issued by the Department of Personnel, State of Uttar Pradesh, vide letter dated 13.5.2000, it was clarified that hill cadre is not a separate cadre as such no Service Rules are required to be framed for the employees working in the hill sub-cadre and by appropriate amendment in the existing Service Rules they can be applied to the employees working in the hill sub-cadre (Annexure-9 to the writ petition). In fact hill sub-cadre had no separate identity and it was only a sub-cadre in each cadre of various services under all the departments and it was only a part of the main cadre.
So far as the petitioners services/cadre is concerned hill sub-cadre could not be treated to be a separate cadre as there were no separate promotional avenues, the petitioners were appointed by one authority i.e. State Government, there was only one Director for both the places (hill region & plain region). The promotional avenues of all the petitioners and other Veterinary Officers working in the plain region was up to the post of Director of the Department which was one for both the regions, hence, it cannot be said that there were two separate cadres on the posts of Veterinary Officers, Grade-II in the Animal Husbandry Department, Government of Uttar Pradesh.
The State of Uttar Pradesh was reorganized into the State of U.P. and State of Uttarakhand under the U.P. Reorganization Act, 2000 which came into force on 9.11.2000. As per Section 73 of U.P. Reorganization Act, 2000 every person who immediately before the appointed date is serving in connection with the affairs of existing State of Uttar Pradesh shall on and from that date provisionally continue to serve in connection with the affairs of the State of Uttar Pradesh unless he is required to serve provisionally in the State of Uttarakhand. Section 73 of U.P. Reorganization Act, 2000 is quoted below:
"Section 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 fr m 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."
Undisputedly, the petitioners were on the appointed date serving in connection with the affairs of existing State of U.P. and shall on and from that date provisionally continued to serve in connection with the affairs of State of Uttar Pradesh, meaning thereby that after the creation of new State of Uttarakhand the petitioners were to be treated as employees of the Government of Uttar Pradesh, as such, the hill sub-cadre was in fact abolished as soon as the new State of Uttarakhand was created.
In exercise of powers conferred under Section 77 of U.P. Reorganization Act, 2000 the Central Government vide letter dated 13.9.2000 provided that the allocation of the employees to the successor states shall be based upon their options. It was also provided that while separating the cadres and while allocating the employees to the successor states their domicile and ethnic affinity shall be taken into consideration. In this regard the State Government had also issued similar directions vide letter dated 20.09.2000. In pursuance to the said letter options were invited from the State Government employees and on that basis the allocation to the successor states was required to be made. However, it appears that the Central Government vide order dated 11.9.2011 had allocated all such employees including the petitioners who were working in the erstwhile U.P. Hill Sub-cadre to the State of Uttarakhand. Similar orders were also issued by the Government of Uttar Pradesh vide order dated 10.5.2001.
Some of the petitioners and employees of some other departments had filed various writ petitions [Writ Petition No.814 (SB) of 2001; Satish Chandra Tiwari & others Vs. State and others and other connected matters] before the High Court of Uttarakhand challenging their allocation to the State of Uttarakhand. The said writ petitions were decided vide common judgment and order dated 25.3.2004 with observation that options/representations of each petitioners shall be considered individually and separately and decided by a speaking order. The Central Government had agreed that representation of each and every individual employee would be considered separately and orders would be passed. It was thereafter that the petitioners had submitted that option and representation to the respective State Governments and State Advisory Committee and the option/representation of each and every petitioner was considered and thereafter with the consent of both the State Governments i.e. the State of Uttar Pradesh as well as State of Uttarakhand vide orders dated 3.6.2005 issued by Government of U.P. and vide orders dated 25.7.2008 and 25.4.2006 issued by the Government of Uttarakhand petitioners were allocated to the State of Uttar Pradesh. In pursuance of these government orders the petitioners had submitted their joining in the State of Uttar Pradesh as Veterinary Officer, Grade-II.
It is to be noted that these government orders permitting the petitioners to join in the State of Uttar Pradesh were issued with the consent of both the State Governments and after due deliberations. It is on the basis of said government orders that the petitioners have been allowed to join back on the posts of Veterinary Officers, Grade-II in the Animal Husbandry Department, Government of Uttar Pradesh. These government orders have not been challenged by any person. The petitioners after their joining in the Animal Husbandry Department of Government of U.P. cannot be treated separately and their seniority is to be determined as per the Uttar Pradesh Government Servants Seniority Rules, 1991. Rule 5 of Uttar Pradesh Government Servants Seniority Rules, 1991 is relevant which is quoted below:-
"5. Seniority where appointments by direct recruitment only. - Where according to the service rules appointments are to be made only by the direct recruitment the seniority inter se of the persons appointed on the result of any one selection, shall be the same as it is shown in the merit list prepared by the Commission or the Committee, as the case may be :
Provided that a candidate recruited directly may lose his seniority, if he fails to join without valid reasons when vacancy is offered to him, the decision of the appointing authority as to the validity of reasons, shall be final :
Provided further that the persons appointed on the result of a subsequent selection shall be junior to the persons appointed on the result of a previous selection.
Explanation. - Where in the same year, separate selections for regular and emergency recruitment, are made, the selection for regular recruitment shall be deemed to be the previous selection."
The petitioners, as such, are entitled to get seniority which is fixed by the U.P. State Public Service Commission from the date of their substantive appointment.
By the impugned order the State Government has informed the Director, Animal Husbandry, U.P. Lucknow that all such Veterinary Officers who were not initially after bifurcation allocated to the State of U.P. and have subsequently on the basis of requests/other reasons have been absorbed in the State of U.P. their seniority shall be determined from the date of their absorption. It is on the basis of the impugned letter that the petitioners have been placed at the bottom of the seniority list of the Veterinary Officers, Grade-II 1997-1998 batch.
I am of the considered view that once the petitioners were allowed to give their option/representation and on the basis of said option the decision has been taken by the competent authority for allocating the petitioners to the State of Uttar Pradesh and said decision is not under challenge, the opposite parties cannot differentiate between the Veterinary Officers who were earlier allocated to the State of Uttar Pradesh and the petitioners who have been subsequently allocated to the State of Uttar Pradesh and the petitioners stand on the same footing as the other persons working on the posts of Veterinary Officers, Grade-II in Animal Husbandry Department, Government of Uttar Pradesh. Since it has already been held that after the creation of new State of Uttarakhand the hill sub-cadre was abolished and the petitioners were to be treated as the employees of the Government of Uttar Pradesh, moreover, the hill sub-cadre was not a separate cadre and as such there is no reason or justification for the opposite parties to treat the petitioners differently and place them at the bottom of the seniority list of the Veterinary Officers, Grade-II 1997-1998 batch. The seniority of the petitioners shall be determined from the date of their substantive appointment on the post of Veterinary Officers, Grade-II as per Uttar Pradesh Government Servants Seniority Rules, 1991 which is fully applicable in the present case.
So far as the judgments relied by parties' counsel are concerned, in the case of Indradeo Paswan Vs. Union of India & others (supra) the Hon'ble Supreme Court has held that the matter of allocation of the employees to the Sates under the U.P. Reorganization Act would not require any interference unless a clear illegality or wednesbury unreasonableness are shown. There is no dispute to the legal proposition, however, in the present case the arbitrariness and unreasonableness of the opposite parties is writ large on the face as although the petitioners were appointed by a common examination held by U.P. Public Service Commission in the year 1997-1998 and were given appointment on the post of Veterinary Officers, Grade-II in the Department of Animal Husbandry, Govt. of U.P., however, treating them to be appointed under the erstwhile hill sub cadre they are being discriminated and after their joining back in the State of Uttar Pradesh in most illegal manner are placed at the bottom in the seniority list and all those persons who are junior to them in the select list issued by U.P. Public Service Commission have been placed above the petitioners, as such, the judgment of Apex Court in the case of Indradeo Paswan Vs. Union of India & others (supra) is not applicable to the present facts and circumstances of the case.
So far as the judgments of Apex Court in the cases of K.P. Sudhakaran and another Vs. State of Kerala and others (supra), Union of India and others Vs. Deo Narain and others (supra), P. Satyanarayana Rao and another Vs. S.V.P. Sarvani and others (supra) and Surendra Singh Beniwal Vs. Hukum Singh and others (supra) which have been relied by learned Standing Counsel appearing on behalf of opposite parties no.1 to 3 are concerned, all these judgments are on the legal issue that where a government servant on his own request is transferred to a different cadre he will have to forgo his seniority. This legal proposition is based on the ground that in case a person appointed to a particular post in a particular cadre then he shall know the strength of the cadre and the prospects of promotions on the basis of seniority list prepared for the cadre and any addition from outside would disturb such prospects. There is no dispute to the said proposition, however, in the present case I have come to conclusion that U.P. hill sub cadre was not a separate cadre but only a part of the cadre of Veterinary Officers, Grade-II in the Department of Animal Husbandry, Government of U.P. and after bifurcation of the State of U.P. and creation of new State of Uttarakhand the said hill cadre was abolished and it was not in existence. There is only one cadre of Veterinary Officers, Grade-II in Animal Husbandry Department, Government of U.P. to which petitioners belong. Moreover, there is nothing on record to indicate that the transfer of the petitioners to the State of U.P. was made on compassionate grounds. In fact after bifurcation of the State petitioners have given their option to work in the State of Uttar Pradesh and considering their option the competent authority has allowed their allocation to the State of Uttar Pradesh, as such, the above judgments relied by the opposite parties are of no assistance to the opposite parties.
So far as the judgment of this court dated 30.04.2014 in the case of Smt. Meena Srivastava Vs. State of U.P. and others (supra) which has been relied by learned counsel for the opposite parties is concerned, it is to be noted that in the case of Smt. Meena Srivastava Vs. State of U.P. and others (supra) there was no approval from the Central Government for her transfer to the State of Uttarakhand, whereas in the present case all the petitioners have been allocated to the State of Uttar Pradesh after due deliberations, with the consent of government of Uttar Pradesh as well as Government of Uttarakhand and with the approval of Central Government, as such, the said judgment is not applicable to the present facts of the case.
In the case of Ajit Kumar Sachan Vs. State of Uttar Pradesh & others7 and connected case of D.S. Tiwari Vs. State of Uttar Pradesh & others8 the Division Bench of this Court vide judgment and order dated 10.08.2015 had the occasion to consider the controversy with respect to the placement of the government servant in the seniority list who was initially appointed in a erstwhile hill sub cadre in the Agriculture Department and was subsequently allowed to join back in the State of Uttar Pradesh after the creation of new State of Uttarakhand. Initially he was placed in the seniority list in the category of Soil Conservation Officer below the person who had subsequently joined on the said post after his appointment, however, on representation having been made he was given the seniority from the date of his substantive appointment which was challenged before the Court. The writ petition challenging the altercation of his seniority was dismissed with following observations:
"12. Sri Pratik Chandra, learned counsel appearing on behalf of petitioner in second petition raised only one submission that seniority of petitioner, D.S. Tiwari, having been assigned over Sri Ajit Kumar Sachan, vide final seniority list dated 30.07.2009, the same cannot be altered subsequently by taking a different view in the matter since seniority is a vested right.
13. We find that this submission is patently erroneous and misconceived. In S.S. Bola and Ors. vs. B.D. Sardana and Ors., 1997(8) SCC 522 the Supreme Court said:
"No one has vested right to promotion or seniority."
14. In Prafulla Kumar Das and Ors. vs. State of Orissa and Ors., 2003(11) SCC 614 the Constitution Bench of Apex Court has said:
"33. Under Article 309 of the Constitution of India, it is open to the Governor of the State to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the Legislature. As has been rightly pointed out by the Court in the Nityananda Kar case (supra), the Legislature, or the Governor of the State, as the case may be, may, in its discretion, bestow or divest a right of seniority. This is essentially a matter of policy, and the question of a vested right would not arise, as the State may alter or deny any such ostensible right, even by way of retrospective effect, if it so chooses or in public interest."
(emphasis added)
15. In Panchraj Tiwari vs. M.P. State Electricity Board and Ors., 2014(5) SCC 101 relying on aforesaid two decisions the Court said:
"No doubt, there is no vested right for an employee to have a particular position in the integrated or merged service."
(emphasis added)
16. The aforesaid exposition of law as such could not be disputed by learned counsel for the petitioner and he also could not place before this Court any statutory provision of law or precedence taking an otherwise view. Thus, it cannot be said that seniority once determined cannot be altered subsequently. The question formulated above is answered against petitioner, D.S. Tiwari in second petition.
17. So far as first petition is concerned, in view of subsequent alteration in seniority, it has rendered infructuous and dismissed accordingly.
18. So far as second petition is concerned, since the question formulated above is answered against petitioner, hence it is also dismissed."
(emphasis supplied) In view of above, I am of the considered view that the writ petition deserves to be allowed. It is hereby allowed. The order/letter impugned dated 4.11.2009, Annexure-1 to the writ petition as well as the impugned seniority list as contained in Annexure-2 to the writ petition so far as it relate to the petitioners are hereby quashed. The opposite parties are directed to fix the seniority of the petitioners from the date of their substantive appointments on the post of Veterinary Officers, Grade-II in the Department of Animal Husbandry, Government of Uttar Pradesh.
[Ritu Raj Awasthi, J.] Dated: 15th March, 2019.
Ram.