WPSS/357/2009 of SURENDRA SINGH and OTHERS Vs STATE and OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/S) No. 357 of 2009

Surendra Singh and others. ……… Petitioners.

Versus

State of Uttarakhand and others. ………. Respondents.

Present: Mr. S.S. Yadav, Advocate for the petitioners.

Mr. P.C. Bisht, Advocate for respondent Nos. 1 and 2.

Ms. Beena Pande, Advocate for respondent Nos. 3 and 5.

Ms. Anjali Bhargava, Advocate for respondent No. 4.

Date of decision: 05-04-2010

JUDGMENT

Coram: Hon’ble J.S. Khehar, C.J.Hon’ble Sudhanshu Dhulia, J.

J.S. KHEHAR, C. J. (Oral)

The hill sub-cadre in the composite State of Uttar Pradesh came to be created by the promulgation of the Uttar Pradesh Hill Sub-cadre Rules, 1992 (hereinafter referred to as ‘The 1992 Rules’). The aforesaid Rules were framed by the Governor of the State of Uttar Pradesh in exercise of powers vested in him under Article 309 of the Constitution of India. In so far as the present controversy is concerned, Rules 5 to 7 of the 1992 Rules are relevant. The same are being extracted hereunder:

“5.Constitution of Hill Sub-Cadre:-

(1) There shall be 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 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) which are excluded from the Hill Sub-Cadre by the Government by notified order.

(2) The strength of Hill Sub-Cadre in Service shall be such as may be determined by the Government from time to time by notified order.

6.Allocation of members of Service to Hill Sub-Cadre: -

(1) The existing members of Service shall be required by the appointing authority to exercise their option for

allocation to Hill Sub-Cadre within three months from the date of order made under sub-rule (2) of Rule 5. (2) On the commencement of Uttar Pradesh Hill Sub-Cadre (Second Amendment) Rules, 1997 the appointing authority, in case where the procedure for asking for options to Hill Sub-Cadre has not been completed or partially completed, may require the members of the General Cadre to exercise their options for allocation to Hill Sub-Cadre within three months from the date of order made under sub-rule (2) of Rule 5:

Provided that fresh options shall not be invited in respect of the Departments and posts for which options have already been asked for.

(3) Options exercised under sub-rules (1) and (2) shall be final and irrevocable.

(4) In case no option is exercised within the time specified in sub-rules (1) and (2) it will be deemed that the member of the service wants to remain in the General Cadre and does not want his allocation to the Hill Sub-Cadre. 7.Recruitment: - Posts in the Hill Sub-Cadre shall be filled by direct recruitment or by promotion, as the case may be, in accordance with the service rules or executive instructions applicable to the Service:

Provided that where recruitment to any post falling in the Hill Sub-Cadre is to be made by promotion, separate eligibility list of the members of Hill Sub-Cadre shall be prepared and recruitment made therefrom.”

perusal of Rule 5 reveals, that the same deals with the constitution of hill sub-cadre. Rule 6 authorizes one-time option to seek allocation to the hill sub-cadre. Rule 7 mandates that separate process of recruitment would be conducted for the hill sub-cadre both by way of promotion and direct recruitment.

2. After the constitution of the hill sub-cadre in 1992, an advertisement was issued for appointment, inter alia, for posts of Eye Assistants. The advertisement expressly depicted that the aforesaid recruitment would be to the hill sub-cadre. The petitioners responded to the aforesaid advertisement and were selected as Eye Assistants. Consequent upon their selection, they came to be appointed as Eye Assistants in the hill sub-cadre.

3. With effect from 09.11.2000 the composite State of Uttar Pradesh was bifurcated into two, i.e. the successor State of Uttar Pradesh, as also the successor State of Uttarakhand. At the aforesaid juncture, on the issue of allocation of employees of the composite State of Uttar Pradesh, the

Central Government in exercise of powers vested in it under section 73 of the Uttar Pradesh Re-organisation Act, 2000, issued an order dated 11.09.2001. The aforesaid order is available on the record of this case as Annexure-3. perusal of Annexure-3 reveals, firstly that, all employees who were inducted into districts, which became part of the successor State of Uttarakhand and who have the District Magistrates as their appointing authority, will stand allocated to the successor State of Uttarakhand; secondly that, employees appointed by the Divisional Commissioner in the two divisions (Garhwal and Kumaon), which became part of Uttarakhand will stand allocated to the successor State of Uttarakhand; thirdly that, all employees of the hill sub-cadre will stand allocated to the successor State of Uttarakhand; and lastly that, all employees engaged in projects within the territorial jurisdiction of Uttarakhand and are not likely to be transferred outside the State of Uttarakhand, will also stand allocated to the successor State of Uttarakhand.

4. Based on the determination of the Central Government in its order dated 11.09.2001, the petitioners were allocated to the successor State of Uttarakhand. Having served in the successor State of Uttarakhand till the year 2009, the petitioners have approached this Court by filing the instant writ petition with prayer, that they be allocated to the successor State of Uttar Pradesh. In order to assert their aforesaid claim, learned counsel for the petitioners has invited out attention to three separate sets of facts to raise pleas of arbitrariness and discrimination. Firstly it is pointed out, that one of their batchmate, Surinder Kunwar Singh, who was also inducted into the hill sub-cadre alongwith the petitioners in 1999, came to be allocated to the successor State of Uttar Pradesh, when he approached this Court by filing Writ Petition (S/S) No. 741 of 2002. Accordingly, it is submitted, that just like their batchmate Surinder Kunwar Singh, the petitioners should also be relieved, so as to enable them to work in the successor State of Uttar Pradesh. Secondly it is pointed out, that 51 Medical Officers, possessing qualifications in Ayurveda and Unani systems of medicine, were similarly appointed to the hill sub-cadre, but have recently been allocated by the State Government to the successor State of Uttar Pradesh. Herein also it is submitted, that the aforesaid 51Medical Officers had approached this Court by filing Writ Petition (S/B) No. 1358 of 2002. It is pointed out, that the instant action of the authorities relates to the year 2009, and as such, if the respondents have transferred persons similarly situated as the petitioners, as recently as in the year 2009, the petitioners being similarly situated, should also likewise be transferred to the successor State of Uttar Pradesh. Thirdly it is pointed out, that pharmacist, Sri Akhilesh Misra, who was also appointed to the hill sub-cadre, but having approached this Court by filing Writ Petition (S/S) No. 755 of 2008, has been transferred to the successor State of Uttar Pradesh, and as such, there are enough cases of persons similarly situated as the petitioners to compel the respondents to pass similar order in favour of the petitioners. It is the contention of the learned counsel for the petitioners, that denial of similar treatment to the petitioners, in the manner suggested, would result in arbitrariness and discrimination, and thus, would violate the fundamental rights of the petitioners vested in them under Articles 14 and 16 of the Constitution of India.

5. We have considered the three submissions advanced by the learned counsel for the petitioners, as have been noticed in the foregoing paragraphs. First and foremost, it needs to be clarified, that none of the allocations referred to by the learned counsel for the petitioners was based on judicial order. In the three writ petitions (referred to in the foregoing paragraphs), direction was issued by this Court to the concerned authorities to consider the claim of the petitioners therein and pass appropriate orders. It is, therefore, that the State Advisory Committee recommended their transfer to the successor State of Uttar Pradesh. The action at the hands of the respondents was, therefore, executive/administrative in nature. In order to seek parity and enforce the same under Articles 14 and 16 of the Constitution of India, it would be first imperative for the petitioners to make out case in law and then to seek parity. It has now been repeatedly held by the Apex Court, that parity cannot be claimed as against an order wrongfully passed or as against an order distinguishable on facts. The pleadings in the writ petition are silent about the reasons, which had weighed with the State Advisory Committee to recommend their transfer to the successor State of

Uttar Pradesh. None of those, whose reference has been made by the petitioners, could under ordinary circumstances seek allocation to the successor State of Uttar Pradesh, after the Central Government, in exercise of power vested in it under Section 73 of the Uttar Pradesh Re-organization Act, 2000, issued the order dated 11.09.2001. In view of the aforesaid order, all employees of the hill sub-cadre were allocated to the successor State of Uttarakhand. In the absence of extra-ordinary/ compelling circumstances, their allocation could not have been altered. If their change in allocation of State was not based on extra-ordinary/ compelling circumstances, the same is liable to be described as wrongful and unauthorized, and as such, cannot constitute valid basis for the petitioners’ claim of discrimination. In this behalf, reference may be made to the decision in Directorate of Film Festivals and others versus Gaurav Ashwin Jain and others (2007) 4 SCC 737, wherein it was held

as under:-

“22. When grievance of discrimination is made, the High Court cannot just examine whether someone similarly situated has been granted relief or benefit and then automatically direct grant of such relief or benefit to the person aggrieved. The High Court has to first examine whether the petitioner who has approached the Court has established right, entitling him to the relief sought on the facts and circumstances of the case. In the context of such examination, the fact that some others, who are similarly situated, have been granted relief which the petitioner is seeking, may be of some relevance. But where in law, writ petitioner has not established right or is not entitled to relief, the fact that similarly situated person has been illegally granted relief, is not ground to direct similar relief to him. That would be enforcing negative quality by perpetuation of an illegality which is impermissible in law. The principle has been stated by this Court in Chandigarh Admn. V. Jagjit Singh thus; (SCC pp. 750-51, para 8)

“Generally speaking, the mere fact that the respondent Authority has passed particular order in the case of another person similarly situated can never be the ground for issuing writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing writ compelling the respondent Authority to repeat the illegality or to pas another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such purpose. Merely because the respondent Authority has passed one illegal/unwarranted order, it does not entitle the High Court tocompel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law—indeed, wherever it is possible, the court should direct the appropriate authority to correct such wrong orders in accordance with law—but even if it cannot be corrected, it is difficult to see how it can be made basis for its repetition. By refusing to direct the respondent Authority to repeat the illegality, the court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be lawful and justified one it can be followed and similar relief can be given to the petitioner if it is found that the petitioners’ case is similar to the other persons’ case. But then why examine another person’s case in his absence rather than examining the case of the petitioner who is present before the court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person’s case, which other person is not before the case nor is his case. In our considered opinion such course-barring exceptional situations—would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case particular order has been passed or particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles.”

23.In Gurusharan singh v. New Delhi Municipal Committee this Court observed (SCC p. 465, para 9)

“There appears to be some confusion in respect of the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. This guarantee of equality before law is positive concept and it cannot be enforced by citizen or court in negative manner. To put it in other words, if an illegality or irregularity has been committed in favour of any individual or group of individuals, others cannot invoke the jurisdiction of the High Court or of this Court, that the same irregularity or illegality be committed by the State…..so far such petitioners are concerned, on the reasoning that they have been denied the benefits which have been extended to others although in an irregular or illegal manner. Such petitioners can question the validity of orders which are said to have been passed in favour of persons who were not entitled to the same, but they cannot claim orders which are not sanctioned by law in their favour on principle of equality before law. Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal

procedure or an illegal order for extending similar benefits to others. Before claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been discrimination.”

In view of the above, in the absence of particulars of extra-ordinary/ compelling circumstances, the illustrative cases relied upon by the petitioners, and consequential parity with such circumstances in the case of the petitioners, it is not possible for us to deal with the plea of discrimination raised on behalf of the petitioners. For the same reasons, the plea of arbitrariness raised on behalf of the petitioners is also liable to be rejected.

6. We shall now apply ourselves the task of determining whether the petitioners have justified claim for allocation to the successor State of Uttar Pradesh. In our instant determination, the first thing that comes to mind is whether the petitioners could have sought transfer out of the hill sub-cadre, had the composite State of Uttar Pradesh not been bifurcated. In our view, even if the State of Uttar Pradesh had not been bifurcated, the petitioners could not have been transferred out of the hill sub-cadre. In that event also the petitioners would have continued to serve where they are presently working. The bifurcation of the composite State of Uttar Pradesh to create separate State for the hill areas, i.e. the successor State of Uttarakhand, in our view has indeed the effect of creating new State, primarily for the areas for which the hill sub-cadre was created. The bifurcation of the composite State would further strengthen the bond of the petitioners to the area which subsequently constituted the successor State of Uttarakhand. The hill sub-cadre came to be regulated statutorily by the 1992 Rules. The petitioners were selected and appointed to the hill sub-cadre by direct recruitment under Rule 7 of the 1992 Rules. Although Rule 6 authorizes one-time option, but then the aforesaid option was not available to the petitioners who were appointed in the year 1999. An option was available to all those who did not form part of the hill sub-cadre on its constitution in 1992 (under Rule 5 of the 1992 Rules), but to no one else. The petitioners who expressly applied for appointment to posts in the hill sub-cadre by way of direct recruitment in 1999 (under Rule 7 of the 1992 Rules) certainly have no right to opt out of the same.Thus viewed, we are satisfied, that in view of the initial appointment of the petitioners to the hill sub-cadre, they could not seek transfer outside the hill sub-cadre. Moreover, the Central Government rendered its determination in exercise of powers vested under section 73 of the U.P. Re-organization Act, 2000 on 11.09.2001, by inter alia allocating all employees belonging to the hill sub-cadre to the successor State of Uttarakhand. The aforesaid allocation was fair and equitable, in as much as all the districts constituting the hill sub-cadre, on the re-organization of the composite State of Uttar Pradesh, became part of the successor State of Uttarakhand. Any challenge to the aforesaid determination rendered by the Central Government in its order dated 11.09.2001 would be an exercise in futility, more so because their continuation in the hill sub-cadre does not result in any adverse effect on the petitioners. In any case, having been allocated by the order dated 11.09.2001 to the successor State of Uttarakhand, the petitioners remained silent for period of 8 years and approached this Court only in the year 2009 by filing the instant writ petition. During this period, in the first instance, the Central Government had issued tentative final allocation list, and thereafter, the final allocation list, putting seal to the issue of allocation of employees between the two successor States. The final allocation list was issued according to the learned counsel representing the Union of India in the year 2004. In all these lists the names of the petitioners were included in the list of employees allocated to the successor State of Uttarakhand. It is now too late in the day for the petitioners to assert their claim for allocation to the successor State of Uttar Pradesh.

7. In so far as the pointed plea of discrimination raised by the petitioners relating to their batchmate Surinder Kunwar Singh, who was allocated to the successor State of Uttar Pradesh in the year 2000, and the illustrative cases of medical practitioners and pharmacists (referred to above), who despite their having been appointed to the hill sub-cadre, were eventually allocated to the successor State of Uttar Pradesh, we are of the view, that none of those orders were based on judicial pronouncement. Although, in the first instance, all the aforesaid individuals had approached this Court by filing writ petitions. The said writ petitions were disposed of by this Court, requiring the competent

authority to take final decision in the matter. The competent authority (i.e. State Advisory Committee) had considered it just and appropriate to allocate them to the successor State of Uttar Pradesh. It is neither relevant nor appropriate for us to dwell into the circumstances of each of the person involved in the aforesaid allocation process. Suffice it to state, that the petitioners have not placed before this Court any compelling circumstance on the basis of which their claim for allocation to the State of Uttar Pradesh can be considered, as matter of exception to the parameters laid. It is, therefore, not possible for us to record finding, that it would be fair or equitable to allocate the petitioners to the successor State of Uttar Pradesh. Even in the limited jurisdiction, which is presently vested in the Advisory Committee of the Central Government constituted under Section 76 of the U.P. Re-organization Act, 2000, an extra ordinary case has to be made out before the existing allocation can be changed. At the time of determination by the Advisory Committee, it was open to individual employee for reasons of compelling circumstances to claim allocation to particular State. Such persons were afforded an opportunity of hearing and appropriate orders were passed thereafter. The pleadings reveal, that the petitioners had made representations to the Advisory Committee, it is however submitted, that no final orders have been passed thereon. It is too late in the day, for the petitioners to seek consideration at the hands of Advisory Committee, in as much as even the final allocation list was issued as far back as in the year 2004. The issue of allocation, cannot be allowed to be pursued after decade of the re-organization of the composite State of Uttar Pradesh. It is now time for this Court to stop interfering in such matters, so that allocations already made are treated as final for all intents and purposes, except in circumstances where there is grave injustice. The present case definitely does not fall in that category. It is our considered view, that the Central Government, while passing the order dated 11.09.2001, had not violated any provision of the Uttar Pradesh Re-organization Act. We are satisfied, that it is fair and equitable that the employees who belonged to the hill sub-cadre had been given preferential right to be allocated to the State of Uttarakhand because the entire area of the hill sub-cadre now falls in the territory of the State of Uttarakhand.

8. For the reasons recorded hereinabove, we find no merit in the instant writ petition and the same is accordingly dismissed.

Amit

(Sudhanshu Dhulia, J.)

05.04.2010

(J.S. Khehar, C. J.) 05.04.2010