Uttarakhand High Court
Sagir Ahmad vs State Of Uttarakhand & Another on 18 April, 2024
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE MS. RITU BAHRI
AND
HON'BLE SRI JUSTICE ALOK KUMAR VERMA
WRIT PETITION (S/S) NO. 1854 OF 2007
Sagir Ahmad .....Petitioner.
Versus
State of Uttarakhand & another ....Respondents.
Counsel for the Petitioner : Mr. Siddhartha Singh, learned
counsel.
Counsel for the Respondent No.1 : Mr. P.C. Bisht, learned Additional
Chief Standing Counsel.
Counsel for the Respondent No.2 : Mr. Ashish Joshi, learned counsel.
Judgment Reserved on: 08.04.2024
Judgment Delivered on:18.04.2024
The Court made the following:
JUDGMENT:
(per Hon'ble The Chief Justice Ms. Ritu Bahri)
Petitioner has sought a direction to declare the
Uttarakhand Public Service Commission (Absorption Against
the Posts of Assistant Accountant/ Typist) (Amendment)
Rules, 2007 (Annexure-1) as ultra vires to the Constitution of
India, with a further prayer to issue a writ, order or direction
in the nature of certiorari quashing the office order dated
12.12.2007 (Annexure-2) and the order dated 17.12.2007
(Annexure-3) passed by respondent no.2.
2. The relevant portion of the notification dated
08.05.2007 is as under:-
"2. Substitution of sub rule (1) of rule 6
In the Uttarakhand Public Service Commission
(Absorption Against the Posts of Assistant Accountant/
Typist) Rules, 2004 (hereinafter referred to Principal Act)
the following sub rule (1) of rule 6 as set out in column 1
shall be substituted by the rule as set out in column 2 as
follows:-
Column-1 Column-2
(Existing rule) (rule as hereby
substituted)
Determination 6(1) The date of 6(1) The date of
of conditions attachment to the order of absorption
of absorption Uttarakhand Public against the post of
Service Commission Assistant
shall be the date of Accountant/ Typist
the initial in the Uttarakhand
recruitment of the Public Service
concerned employee Commission shall be
in Uttarakhand considered as the
Public Service date of substantive
Commission. After appointment of the
his absorption concerned employee
against the post of on the concerned
Assistant post in the
Accountant/ Typist Uttarakhand Public
the seniority, Service Commission
promotion and other and there after his
service matters shall seniority on the
be dealt with under post, promotion and
the relevant service other service
rules for the post. matters shall be
dealt with under the
relevant service
rules of the post."
3. The petitioner, in the present case, was serving as
Junior Clerk in the Department of Village Development and he
was posted in the office of District Development, Roshnabad,
District Haridwar. His date of substantive appointment in the
original department is 17.08.1995. The Uttarakhand Public
Service Commission- respondent no.2 sent a proposal with
regard to the sanction of creation of 57 seats of different
categories, and invited applicant from the employees of other
departments for imminent attachment and absorption with
respondent no.2. The petitioner, along with other persons,
preferred his willingness for attachment and absorption with
the Uttarakhand Public Service Commission- respondent no.2.
The petitioner has placed on record a copy of letter dated
12.06.2001 (Annexure-4), whereby respondent no.2 issued a
list of employees of different departments who had given
their willingness for their attachment in the department of
respondent no.2. Thereafter, the Secretary- respondent no.1
issued a letter dated 09.07.2001 (Annexure-5) with regard to
the attachment of employees, including the petitioner, with
respondent no.2. Vide letter dated 19.07.2001 (Annexure-6),
the petitioner was informed with respect to his attachment
with the Commission- respondent no.2, and pursuant to the
letter dated 19.07.2001, the petitioner joined his services
with respondent no.2 on 19.07.2001. In Annexure-6, the
name of the petitioner- Sagir Ahmad is at Sl. No.4.
4. Thereafter, respondent no.2 issued a letter dated
08.11.2001 (Annexure-7) to respondent no.1 for the transfer
of services of the petitioner from the concerned department
to respondent no.2 with immediate effect. A reminder was
also issued on 28.06.2002 (Annexure-7A) by respondent no.2
with regard to the transfer of service.
5. No objection certificate (Annexure-8) was also
given in favour of the petitioner by his parent department.
Another letter dated 07.06.2003 (Annexure-9) was sent by
the Commission- respondent no.2 to respondent no.1 with
request to grant a formal recommendation for absorption of
employees by granting them promotion.
6. Since respondent no.1 did not issue any order with
regard to the absorption of the petitioner along with other
employees, therefore, respondent no.2 sent letters dated
25.11.2003, 05.12.2003 and 02.06.2004 (Annexure-10) to
respondent no.1 with regard to grant recommendation for
absorption of the petitioner.
7. On 30.07.2004 (Annexure-11), respondent no.1
framed Uttaranchal Public Service Commission (Absorption
against the Post of Assistant Accountant/ Typist) Rules, 2004.
8. Relevant portion of Rule 6 of the above said Rules
is as under:-
"6(1) The date of attachment to the Uttaranchal
Public Service Commission shall be the date of the
initial recruitment of the concerned employee in
Uttaranchal Public Service Commission. After his
absorption against the post of Assistant Accountant/
Typist the seniority, promotion and other service
matters shall be dealt with under the relevant service
rules for the post."
9. Thereafter, a Selection Committee was constituted
for the purpose of absorption, and vide office memorandum
dated 07.02.2005 (Annexure-12), the petitioner was
absorbed w.e.f. 19.07.2001 on the post of typist (in the pay-
scale of Rs.3050-4590).
10. The grievance of the petitioner is that after the
order dated 07.02.2005 (Annexure-12), an amendment in the
Rules was carried out vide notification dated 08.05.2007
(Annexure-1), and as per these above said Rules, the date of
attachment would be the date of initial appointment of the
concerned employee. As per the original Rules, the petitioner
was to be absorbed w.e.f. 19.07.2001, and as per the
amended Rules, it was to be from the date of his substantive
appointment. After the amendment, respondent no.2
cancelled the order of absorption vide order dated
12.12.2007 (Annexure-2), and thereafter, order dated
17.12.2007 (Annexure-3) was passed directing the petitioner
to handover the charge.
11. The petitioner has challenged the said orders on
the following grounds:-
"i. That the petitioner had joined the services of
respondent no.2 on 19.07.2001, and he was attached
with the department on that very day.
ii. That the petitioner was absorbed on 07.02.2005
w.e.f. 19.07.2001 and respondent no.1 had framed
the Rules on 30.07.2004 and in those rules, it was
specifically provided that the date of attachment with
the Commission would be the date of substantive
appointment, and as per Rule 8, the petitioner had
given his consent for absorption. The valuable rights
of the petitioner cannot be snatched by amending the
rules in the year 2007 vide notification dated
08.05.2007 with retrospective effect, i.e.
30.07.2004."
12. After notice, a counter-affidavit has been filed by
the Secretary, Uttarakhand Public Service Commission. The
stand taken in the counter-affidavit is that, at the time of
establishment of Uttarakhand Public Service Commission, no
fresh recruitment was made nor any employee from the U.P.
Public Service Commission was transferred to the
Uttarakhand Public Service Commission. The State
Government has sought willingness of the employees from
different departments for their consent to temporary
attachment in Public Service Commission, subject to their
absorption or relieving by their parent department. Petitioner,
along with five other employees, was attached to the
Commission's office vide order dated 19.07.2001 of
Secretary, Uttarakhand Public Service Commission
(Annexure-6 to the writ petition), in view of Government
Order dated 09.07.2001. Since the attachment was purely
temporary, it was clarified that the salary will be paid by the
concerned Department. Hence, for all intents and purposes,
by virtue of the attachment, the services of these employees
were not transferred to the Uttarakhand Public Service
Commission.
13. The petitioner was previously working as Junior
Clerk in department of Rural Development, office of District
Development Officer, Roshnabad, Haridwar, and he was
attached as Typist with the Uttarakhand Public Service
Commission. The petitioner was absorbed in Public Service
Commission in the post of Typist vide Commission's office
order dated 07.02.2005 (Annexure-12). This order was
passed in view of the un-amended Rules, 2004. Further, it
was found that the absorption order of the petitioner was not
in accordance with the existing service rules. As per Rule 4(4)
of the 2004 Rules, absorption could be made in existing
vacancy against direct recruitment vacancy. That on the date
of attachment of the petitioner, no post of typist was created/
sanctioned. Prior to petitioner's absorption, two posts of
typist were created by the State Government, and the same
were filled up by direct recruitment on 30.04.2004 and
06.05.2004. These two posts were occupied by two
dependants, whose father and husband had died in-harness,
and their services were regularized on these two permanent
posts. Since, as per the 2004 Rules, absorption could only be
made on the existing vacancy, the petitioner was working on
the post of clerk, and was absorbed on the post of Typist, and
there was no sanctioned post of typist at the time of his
absorption, when the order dated 07.02.2005 (Annexure-12)
was passed, and the order of absorption was reviewed, and in
this backdrop, vide order dated 12.07.2007, the petitioner
was relieved to join his parent department.
14. Relevant portion of Rule 4(4) of the 2004 Rules is
as under:-
"4(4). Absorption shall only be against the available
vacancies to be filled through direct recruitment."
15. The petitioner has filed rejoinder-affidavit to the
counter-affidavit filed by respondent no.2. In the rejoinder-
affidavit, the petitioner has admitted the contents of
Paragraph No.14 of the counter-affidavit. Hence, as per Rule
4(4) of the 2004 Rules, the absorption of the petitioner could
be in the existing vacancy of typist, which was to be filled up
by direct recruitment, and in Paragraph No.14 of the counter-
affidavit, it is further stated that the State Government
sanctioned two more posts of typist vide orders dated
10.01.2005 and 08.01.2007, whereby two employees were
appoined on compassionate ground and their services were
regularized against the said two posts of typist. Hence, as per
the 2004 Rules, the petitioner could only be appointed
against the vacant post of typist, which was to be filled up by
direct recruitment. Since, at the time of petitioner's
absorption, there was no sanctioned post, the petitioner was
sent back to his parent department.
16. In this backdrop, as per the amended notification
dated 08.05.2007, it is only the date of order of absorption,
which is to be taken as the date of substantive appointment
of the concerned employee. It has nothing to do with the
retention of the petitioner in the office of Commission-
respondent no.2. This amendment with retrospective effect
has no bearing with the petitioner because, in the case of the
petitioner, he was sent back to his parent department on the
ground that, as per the 2004 Rules, the absorption had to be
made in the existing vacancy against direct recruitment, and
at the time of his absorption, there was no sanctioned post of
typist in the Commission, on which, he could have been
absorbed, and hence, the order dated 08.05.2007 has no
bearing with returning the petitioner back to his parent
department, and the same has been passed in view of Rule
4(4) of the 2004 Rules (Annexure-11).
17. The petitioner, in his rejoinder-affidavit, has not
disputed the fact that against the two sanctioned posts of
typist, the dependants of the employees, who died-in-
harness, had been appointed.
18. Since the petitioner, in the present case, after the
Commission's order, has already joined back his parent
department, no case, at this stage, is made out to interfere
with the impugned order, whereby he has been repatriated to
his parent department on the post of clerk, and no case is
made out to examine the validity of Annexure-1, as the same
has no concern with sending back of the petitioner to his
parent department.
19. For the aforesaid reasons, the writ petition is
dismissed.
20. Pending application, if any, also stands disposed of.
(RITU BAHRI, C.J.)
(ALOK KUMAR VERMA, J.)
Dated: 18th April, 2024
NISHANT
