KRISHAN KUMAR MADAN AND ORS. versus ASHOK KUMAR AND ORS. on 29 August 2018

1. Applications for impleadment are allowed.

2. On 17 November 2011, the Division Bench of the High CourtGallowed the Writ Petition filed by respondents 1 to 5 and held that theappellants are not employees of the State of Uttarakhand. The HighCourt held that the appellants, who were initially appointed by the Stateof Uttar Pradesh shall remain employees of that State. The review petitionpreferred by the appellants was also dismissed by the High Court by its H

order dated 23 March 2011. These appeals arise out of the judgmentand order of the Uttarakhand High Court in the Writ Petition and inreview.

3. On 28 March 1999, the U.P. Public Service Commission issuedan advertisement, inviting applications for 170 vacancies in the post ofPersonal Assistant in the U.P. Secretariat. The results of the selectionprocess were published in the newspapers on 3 March 2000. Theappellants were selected. The U.P. Public Service Commission directedthe appellants to furnish certified copies of certain documents. Theselection process was challenged before the High Court of Allahabadand was stayed. Meanwhile, the erstwhile State of Uttar Pradesh wasreorganized into the State of Uttar Pradesh and the State of Uttaranchal(now Uttarakhand) under the Uttar Pradesh Reorganization Act, 2000,which came into force on 9 November 2000. Following the dismissal ofthe Writ Petition before the Allahabad High Court, the appellants wereappointed as Personal Assistants on 29 January 2001 in the U.P.Secretariat at Lucknow.

4. The State of U.P. provided options to its employees, includingthe appellants on whether they desired to serve in the State of UP or thereorganised state of Uttarakhand. The appellants exercised the optionto serve the State of Uttarakhand and expressed their willingness forappointment in the Uttarakhand State Secretariat. The State of U.P.issued orders on 22 May 2001 and 28 July 2001 listing out employeeswho were approved for appointment in the Uttarakhand State Secretariatby the Governor of the State of Uttar Pradesh. The appellants joined theUttarakhand Secretariat on 23 May 2001 and 1 August 2001.

5. As the newly formed State of Uttarakhand was facing a scarcityof employees to run the administration, the Government of Uttarakhandissued two orders dated 28 November 2001 and 7 January 2002transferring employees working in various departments to the statesecretariat. Respondent Nos. 1 to 5 who were working in otherdepartments joined the Uttarakhand Secretariat as Stenographers. On28 September 2004, the services of these Respondents were confirmedin the cadre of Personal Assistant/Private Secretary by Government ofUttarakhand. The appellants, pursuant to an order dated 22 November2004 issued by Uttarakhand government, made a representation fortransfer of their services to the State of Uttarakhand upon a direction of A

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Athe Central Government dated 15 September 2004 permitting the transferof employees on the basis of mutual consent of the reorganized states.The consent of the State of Uttar Pradesh was received by a letterdated 22 November 2005 written by Chief Secretary of the State ofU.P. for transfer of the appellants to the State of Uttarakhand.

B6. In the meantime, a challenge was made to the seniority list inthe cadre of the appellants posted to the Uttarakhand secretariat byRespondents 1 to 5, in Writ Petition no 1313 of 2005 filed before theUttarakhand High Court. The challenge by Respondent 1 to 5 was onlyto the seniority list but not to the letter issued by the Central Governmenton 15 September 2004 permitting the transfer of employees with theCconsent of the reorganized state. The consent of the State of UttarPradesh granted by its letter dated 22 November 2005 relieving theappellants for transfer to the State of Uttarakhand was not subjected tochallenge in the proceedings before the High Court.

7. The final allocation list published by the Central GovernmentDon 7 August 2009 excluded the appellants for transfer of services to theState of Uttarakhand as they were appointed after the cut-off date. Theappellants preferred a representation to the Central Governmentrequesting allocation of their services to the State of Uttarakhand. Inresponse to the representation, a letter dated 3 September 2009 wasEcommunicated to the appellants denying them allocation to the State ofUttarakhand as they were appointed after 9 November 2000. The letterstated that while they are not eligible for allocation under the U.P.Reorganisation Act, 2000 and neither the State Advisory Committee northe Central Government has anything to do with the appellants, the StateGovernments of U.P. and Uttarakhand may take mutual action forFresolving the issue.

8. The High Court in its judgment dated 17 February 2011 observedthat the appellants cannot be termed as employees of the State ofUttarakhand as they were appointed by the State of U.P. Therefore, inthe view of the High Court, they shall continue to remain employees ofGthe State of Uttar Pradesh. The review petition filed by the appellantswas dismissed by the High Court on 23 March 2011 by reiterating theposition earlier taken by High Court in its judgment dated 17 February2011. The High Court has held that the appellants shall continue to remainemployees of the State of U.P.

9. Aggrieved by the decision of the High Court, the appellantsapproached this Court under Article 136 of the Constitution. This Court,by its order dated 25 April 2011 granted status quo with regard to thepresent posting of the appellants. Leave was granted on 26 September2011.

10. During the course of the hearing, learned counsel for appellantshas drawn our attention to a letter dated 13 September 2000 issued bythe Union Ministry of Personnel, Public Grievances & Pensions. Theletter deals with the subject of “Reorganisation of States-Allocation ofpersonnel” and contains guidelines for allocating personnel belonging toservices (other than All India Services) to the State of Uttar Pradesh.Para (5)(c) of the guidelines is relevant and is reproduced below:

“(5)(c) All recruitments against vacancies in the interim i.e. tillthe issue of the final allocation orders, may be kept in abeyance.Wherever panels have been drawn but not published, they maybe kept in abeyance till reorganization of States is given effect to.Wherever panels have been recently published, selected candidatesmay be notified that their services in the existing State of UttarPradesh may not be required beyond the “Appointed Day” andthat they are liable to serve the Successor State of Uttaranchalafter Reorganization, as the case may be.”

The above guidelines were issued by the Central Governmentprior to the reorganization of the State of Uttar Pradesh for allocation ofpersonnel belonging to the state service to the newly formed state ofUttarakhand. Paragraph (5)(c) of the guidelines speaks of differenteventualities. Recruitments against vacancies until the issuance of finalselection orders were to be kept in abeyance. Similarly, where panelswere drawn but had not been published, they were to be kept in abeyanceuntil the reorganization of states was given effect to. Moreover, in caseswhere panels had been recently published, the selected candidates wereto be notified that they may not be required beyond the appointed day inthe State of Uttar Pradesh and would be liable to serve the successorstate of Uttaranchal.

11. It has been submitted by the learned counsel for the appellantsthat the results of the recruitment process in which the appellantsparticipated and were selected were published prior to the issuance of A

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Athe guidelines and therefore their recruitment is squarely covered byaforesaid guidelines. Hence, according to the appellants, the optionprovided to them and their subsequent transfer to the State of Uttarakhandis valid. It has been also submitted that the appointment letters of theappellants issued by the competent authority of the Government of UttarPradesh specifically mentions that the services of appellants may beBallotted to the States of Uttar Pradesh or Uttarakhand after the appointedday.

12. We have heard learned counsel for the parties and perusedthe counter affidavit filed on behalf of Respondent nos 1 to 3 and 5 whoare presently employees in the Uttarakhand secretariat and wereCpetitioners before the High Court. They had challenged the seniority listof employees in the Uttarakhand Secretariat and the inclusion of theappellants as employees of Uttarakhand.

13. It has been submitted by the Respondents that:

D(i) The appellants were appointed by the State of Uttar Pradeshto the posts of Personal Assistant through the Uttar Pradesh PublicService Commission and they were called upon to join the U.P.Secretariat at Lucknow after the reorganisation of the State of U.P.Later, they were directed to join the Uttarakhand Secretariat situated atDehradun; andE(ii) Government of Uttarakhand by an order dated 22 November2004 stated that the appellants could not be allocated to the State ofUttarakhand.

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14. In response, the State of Uttarakhand in its counter statedthat:F

(i) The State Reorganization Committee advised that with theconsent of the State of U.P., the appellants can be taken on transfer tothe State of Uttarakhand as there was an acute shortage of officers inthe newly constituted State of Uttarakhand;

(ii) Transfer was done only with the mutual consent of both theStates and the appellants; and G

(iii) Transfer of the services of the appellants was affected afterthe creation of the State of Uttarakhand is, therefore, not covered byany of the provisions of the U.P. Reorganization Act, 2000, which has H

also been mentioned in the letter dated 3 September 2009 of theGovernment of India; and

iv) The Guidelines dated 13September 2000 clearly envisage inrespect of recruitment against vacancies, that wherever panels havebeen drawn but not published, they may be kept in abeyance tillreorganization is given effect to. But these guidelines did not contemplatewhat action is to be taken in a situation where the selection has beenmade. Hence, in the absence of any specific provision in the guidelinesprovided by the Government of India, the decision arrived with the mutualconsent of the two State governments does not suffer from any infirmityand is justified.

15. In the counter affidavit filed on behalf of Union of India by theUnder Secretary, Department of Personnel & Training, Government ofIndia, it was stated that:

(i) Although the Central Government was made a party to WritPetition no 1313 of 2005, before the High Court, it did not file a Counteraffidavit as none of its decisions was under challenge; and

(ii) The case was contested between private parties where theState Governments were to furnish a reply. The Central Governmenthas nothing to say in the matter except that the appellants could not beallocated as they were out of the purview of the U.P. ReorganisationAct, 2000 as they were inducted into service in 2001, which is after theappointed day, 9 November 2000.

16. The State of Uttar Pradesh and the State Advisory Committee,who have been arrayed as Respondent 8 and 9 in the instant appeals,have not filed counter affidavits. No counter affidavit has been filed onbehalf of Respondent 4 who was one of the petitioners before the HighCourt.

17. The U.P. Reorganisation Act, 2000 empowered the CentralGovernment to issue directions to the State Governments of Uttar Pradeshand Uttarakhand from time to time to resolve any issues envisaged underthe Act. The power of the Central Government under Section 77 of U.P.Reorganisation Act, 2000 is in the following terms:

“77. Power of Central Government to give directions. — TheCentral Government may give such directions to the State A

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AGovernment of Uttar Pradesh and the State Government ofUttaranchal as may appear to it to be necessary for the purposeof giving effect to the foregoing provisions of this Part and theState Government shall comply with such directions. “

18. The High Court has overlooked the guidelines issued by theBCentral Government on 13 September 2000. Para (5)(c) of the guidelinesrefers to cases of selections where results were published prior to thecut-off date but appointment letters were not issued to candidates. Para(5) (c) contemplates that recruitments would be kept in abeyance untilfinal allocation orders were made. This was to be so even where panelswere drawn but not given effect to. The High Court has directed itsCattention to a sole consideration, namely whether there existed anystatutory provision for transferring an employee from one state to anotherstate. The appellants were declared to be employees of the State ofUttar Pradesh by the High Court without noticing that the appointmentletters issued to them clearly stipulated that their services couldDtransferred to the successor state of Uttarakhand. Such a transfer tookplace with the consent of both the states.

19. The State of Uttarakhand was created with the enactment ofthe U.P.Reorganisation Act, 2000 which reorganized the State of UttarPradesh into two states namely, the successor State of Uttar PradeshEand the State of Uttarakhand. Under the Act, 9 November 2000 was theappointed day. During the initial days after its formation, the State ofUttarakhand was facing an acute shortage of officers in variousdepartments including the Secretariat. The State of Uttarakhand wasseeking help from the State of Uttar Pradesh and the Central Governmentto provide human resources. The Central Government, by its letter datedF15 September 2004, permitted the transfer of employees on the basis ofthe mutual consent of both the States. The State of U.P. gave options toexisting employees appointed before 9 November 2000 for transfer oftheir services to the State of Uttarakhand. However, despite those efforts,a number of vacancies continued in the newly formed State ofGUttarakhand. Hence, various employees who were already employedwith the State of U.P. prior to the appointed day were provided with achoice of permanent transfer of service to the State of Uttarakhand. Inthe meantime, in the case of persons such as the appellants whererecruitments were completed but appointment letters were not issuedthe appointment letters indicated that their services may be allotted eitherH

to the State of Uttar Pradesh or the State of Uttarakhand after theappointed day. The services of the appellants were transferred andabsorbed by the State of Uttarakhand with the mutual consent of boththe states. Since then the appellants have been continuing as employeesof the State of Uttarakhand.

20. There is no infirmity in the procedure adopted by both thestates in the transfer of employees, on the basis of mutual consent. Thiswas clearly contemplated by the letter dated 15 September 2004 of theGovernment of India in the Ministry of Personnel, Public Grievancesand Pensions. Hence, we are unable to agree with the view of HighCourt.

21. Accordingly, we allow the appeals and set aside the impugnedjudgment and order of the High Court. There shall be no order as tocosts.

Ankit Gyan

Appeals allowed.

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