Uttarakhand High Court
WPSS/628/2021 on 14 July, 2022
Office Notes,
reports, orders
or proceedings
SL.
Date or directions COURT'S OR JUDGES'S ORDERS
No
and Registrar's
order with
Signatures
WPSS No.1349 of 2020
WPSS No.1355 of 2020
WPSS No.1647 of 2020
WPSS No.1710 of 2020
WPSS No.1751 of 2020
WPSS No. 628 of 2021
Hon'ble Manoj Kumar Tiwari, J.
Mr. Lalit Samant, Advocate for the petitioners.
Mr. N.P. Sah, Standing Counsel and Mr. V.S.
Rawat, Brief Holder for the State of Uttarakhand.
Heard learned counsel for the parties.
Since common questions of law and facts are
involved in these writ petitions, therefore, they are
heard together and are being decided by a common
judgment. However, for the sake of brevity, facts of
Writ Petition (S/S) No. 1349 of 2020 alone are being
considered and discussed.
Petitioners were appointed as Group 'D'
employee in different Primary/Junior High Schools
run by Basic Education Board between the year 1993
to 2005. These Primary/Junior High Schools were
run by Basic Education Board established by U.P.
Basic Education Act, 1972 and its employees were
not having the status of Government Servant.
Petitioners became Government employees w.e.f.
22.04.2006 by virtue of Section 58 of Uttarakhand
School Education Act, 2006, which reads as under:
"58. The services of teachers and employees of
Basic Shiksha Parishad to be under the control
of State Government - All the teachers, officers
and employees of Basic Shiksha Parishad, including
any supervising or inspecting officer or employee
working immediately before the date of the
commencement of this Act, shall be transferred to
the State Government and they shall become
teachers, officers and employees of the State
Government and their services shall be governed by
the service rules prescribed by the State
Government."
After their induction into Government service,
petitioners were given benefit of Assured Career
Progression (A.C.P.) Scheme, pursuant to
Government Order dated 08.03.2011, on different
dates, however, subsequently Additional Secretary,
Education Department, Government of Uttarakhand
issued a letter to Director General, School Education
on 21.09.2020, stating that past services rendered
by employees of Basic Education Board, before their
induction into Government Service, are not to be
taken into account for grant of benefit of A.C.P. and
also directed for recovery of excess amount paid as
A.C.P. to such employees. Pursuant to the said
order, Director, Elementary Education issued a
Circular dated 23.09.2020, directing the
Departmental Authorities to recover the amount paid
as A.C.P. from such employees.
Thus, feeling aggrieved by order dated
21.09.2020 passed by Additional Secretary,
Secondary Education Department, Government of
Uttarakhand and the orders passed by Departmental
Authorities consequent thereto, petitioners have
approached this Court challenging these orders.
The impugned order dated 21.09.2020 passed
by Additional Secretary relies upon paragraph no. 2
(viii) of Government Order dated 08.03.2011 for
holding that earlier services rendered by petitioners
in Basic Education Board are not to be counted for
determining eligibility for A.C.P. English translation
of paragraph no. 2 (viii) is as follows:
"Past services rendered in Central Government/
Local Bodies/Autonomous Institutions/Public Sector
Undertakings and Corporations will not be counted
for grant of A.C.P."
Heard learned counsel for the parties and
perused the record. A Division Bench of this Court in
Special Appeal No. 44 of 2010, while dealing with the
question of seniority held that services rendered by
an employee in Basic Education Board, before his
induction in Government service in terms of Section
58 of Uttarakhand School Education Act, 2006, are
liable to be added for determining his seniority in
Government service. Paragraph no. 8 of the said
judgment rendered on 28.06.2010 is reproduced
below:
"8. We have considered the rival submissions
advanced by the learned counsel for the parties. In
terms of the mandate Section 58 of the Uttaranchal
School Education Act, 2006, the service rules of the
State Government were liable to be referred to, so
as to determine the issue of seniority of the
respondent. However, in the absence of any explicit
rules, which could be made applicable to the
respondent under the Uttaranchal Government
Servant Seniority Rules, 2002, the continuous length
of service rendered by the respondent in the cadre of
Senior Clerks is liable to be given effect to, so as to
determine inter se seniority viz. the other employees
of Education Department of the State Government.
Thus viewed, the respondent is liable to be given
benefit of seniority with effect from 01.08.2000,
which admittedly, is the date when the respondent
was promoted as Senior Clerk in the Basic Education
Board. This, in our view, shall also result in giving
complete effect to the suo motu determination of the
appellants, in absorbing the respondent as a Senior
Clerk at the time of his induction into the service of
Education Department of the State Government, as
also, allowing him to draw salary at the stage he was
drawing at the time of his appointment under the
Education Department of the State Government. This
is bound the basis and the manner of determination
of the respondent's seniority also. It would be
pertinent to mention, that there was no option with
the respondent to continue in the employment of the
Basic Education Board, inasmuch as, without
obtaining his consent the respondent (as also, all
other employees earlier rendering service under the
Basic Education Board) was transferred by one
stroke of pen to the employment of the Education
Department of the State Government. The
respondent could not have unilaterally been denied
the benefit of service rendered by him as Senior
Clerk with effect from 01.08.2000."
The question, which falls for consideration in
these cases is also whether the services rendered by
petitioners in Basic Education Board, can be taken
into account for determining their eligibility for A.C.P.
after induction into Government service.
In the aforesaid judgment, Division Bench of
this Court has held that since employees of Basic
Education Board were transferred to the employment
of Education Department, without obtaining their
consent, therefore, such employees cannot be denied
benefit of their past services.
Section 58 of Uttarakhand School Education Act
provides for automatic transfer of service of
employees of Basic Education Board. Service of the
petitioners were thus transferred to Education
Department of the State Government, by operation
of law. They had no choice in the matter and status
of Government Servant was given to them on
22.04.2006, therefore, the ground on which, benefit
of A.C.P. has been withdrawn from the petitioners,
does not appear to be reasonable. Benefit of past
services rendered under Basic Education Board,
cannot be denied to them only on the ground that
earlier they were employees of Basic Education
Board.
Even otherwise also, reliance upon clause (viii)
of paragraph no. 2 of the Government Order dated
08.03.2011 is misplaced, as the said clause
contemplates a situation where a person, earlier
serving under the Central Government or in a Local
Body/ Autonomous Institution/Public Sector
Undertaking or Corporation, is re-appointed in a
Department of the State Government. It is nobody's
case that petitioners were re-appointed in Education
Department; though, petitioners were earlier serving
under a Statutory Authority, namely, Basic Education
Board, but they were not issued fresh order of
appointment by the State Government or any
departmental authority. Since they became
Government Servant by operation of law, thus, this
is not a case of re-appointment, therefore,
paragraph no. 2 (viii) of Government Order dated
08.03.2011 is not attracted to them.
For the aforesaid reasons, the impugned order
dated 21.09.2020 passed by Additional Secretary,
Education Department and consequential orders
passed by authorities of Education Department are
liable to be quashed and are hereby quashed. The
writ petitions are allowed. The amount, if any,
recovered pursuant to impugned orders, shall be
refunded to the petitioners, within a period of three
months' from the date of production of certified copy
of the order.
(Manoj Kumar Tiwari, J.)
14.07.2022
Arpan
