Dr. Vikramajeet Tiwari (P.C.S.) vs State of U.P. and Others

The amendment application is allowed. Let the amendment be carried out during the course of the day.

We have heard Shri B.P. Singh Dhakray assisted by Shri H.P. Dubey for the Petitioners. Learned Standing Counsel appears for Respondent Nos. 1 and 2. Shri Hem Pratap Singh appears for Respondent No. 3. Shri R.B. Singhal, Asstt. Solicitor General of India appears for Respondent No. 4.

The Petitioner is a senior PCS officer serving in the State of U.P. since after his selection in the Combined Civil Services Examination/PCS in the year 1979, through the Public Service Commission, U.P. He is 59 years old and has one year to retire.

In pursuance to the option invited by G.O. dated 23.9.2000 after bifurcation of the State of U.P. by the U.P. Reorganization Act, 2000 the Petitioner opted for allocation to the State of Uttaranchal (now Uttarakhand). It is alleged that he withdrew the option on 21.10.2000, before the date of withdrawal. By a Government Order dated 15.7.2002 the Petitioner was allocated to the cadre in the State of Uttaranchal. He filed a Writ Petition challenging the allocation to the State of Uttarakhand on the ground that the option given by him was withdrawn within the final date of withdrawal of option. The Writ Petition No. 19389 of 2003 was dismissed on 11.12.2003 along with bunch of other writ petitions. The Petitioner filed SLP (C) No. 24078-24085 of 2003 in the Supreme Court of India. By order dated 18.12.2003 the Petitioner''s allocation to the State of Uttaranchal was stayed by the Supreme Court.

During the pendency of the SLP (C) in the Supreme Court, in pursuance tot he policy framed by the Government of U.P. and Government of Uttarakhand, the Petitioner applied for mutual transfer along with one Shri Vinod Kumar Sharma serving in the State of Uttarakhand. It is alleged that the Petitioner was assured by the State Government that if he withdraws special leave petition, his application for mutual transfer will be considered favourably. The Petitioner applied for withdrawal of the special leave petition. By an order dated 18.5.2007 the SLP was withdrawn with following order:

>Learned Counsel for the Petitioner in SLP (C) No. 24084/2003 seeks permission to withdraw the petition. Permission granted. The SLP is dismissed as withdrawn.

A Writ Petition No. 79 of 2008 (S/B) was filed by M.C. Joshi and others in the Uttaranchal High Court challenging the policy of mutual transfer. Shri Vinod Sharma and Petitioner were arrayed in this writ petition as Respondent Nos. 5 and 6. The High Court of Uttaranchal allowed the writ petition on 26th July, 2010 with following observations in para 7 and 49:

The Central Government then issued the Final Allocation Lists on 22.04.2003, u/s 73 of the Reorganization Act, 2000. All the Petitioners were shown as having been finally allocated to the State of Uttarakhand in the said Final Allocation List. Insofar as Respondent Nos. 5 and 6 are concerned, while the name of Respondent No. 5 - Vinod Kumar Sharma was included in the list of officers finally allocated to the successor State of Uttar Pradesh, the name of Respondent No. 6 - Vikramajit Tiwari was included in the list of officers finally allocated to the State of Uttarakhand. Neither Respondent No. 5, nor Respondent No. 6, filed any representation to the Central Government or to the State Advisory Committee or to the States to which they were finally allocated or even to the States to which they subsequently desired allocation, to contest their final allocation by Final Allocation Lists issued by the Central Government on 22.04.2003. In the aforesaid view of the matter, according to the Petitioners, it is imperative to infer, that Respondent Nos. 5 and 6 happily accepted their allocation to the successor States of Uttar Pradesh and Uttarakhand respectively.

In view of the conclusions recorded by us herein above, the instant writ petition is liable to be allowed and the same is accordingly allowed. The impugned letters/orders issued by the Central Government dated 15.09.2004/08.06.2006 are hereby set aside, as the same have been issued in violation of the provisions of the Constitution of India. The aforesaid orders are hereby also set aside because they had been issued beyond the power vested in the Central Government under the provisions of the Reorganization Act, 2000. The policy decisions dated 06.09.2006/19.07.2007 of the successor States of Uttarakhand and Uttar Pradesh, are set aside, as the same were in excess of the power vested in the State executive/administration under the Constitution of India, as also, under the Reorganization Act, 2000, and also, because they had been issued without the active consensus of the successor States of Uttarakhand and Uttar Pradesh. The impugned orders of transfer dated 18.05.2007 are also hereby set aside, as the same were unsustainable under the provisions of the Constitution of India, as also under the provisions of the Reorganization Act, 2000. The said transfer orders are also set aside because they had been issued in violation of the guidelines issued by the State Governments, without application of mind, on extraneous considerations and because they were actuated by legal mala fides.

In pursuance to the judgment of the Uttarakhand High Court dated 26th July, 2010 the order of mutual transfer of Shri Vinod Sharma was cancelled by the State Government of Uttarakhand on 12.8.2010. He was relieved and has joined in the State of U.P. on 13.8.2010. In compliance with the same judgment of the High Court of Uttarakhand, the Government of Uttar Pradesh also cancelled the mutual transfer order of the Petitioner on 31.8.2010 and has relieved the Petitioner by impugned Government Order dated 28.4.2011 to join in the State of Uttarakhand, giving rise to this writ petition.

It is submitted by Shri Dhakray that the Petitioner has been treated unfairly. The State Government had promised to consider the application of mutual transfer on the condition that the Petitioner withdraws his SLP challenging the judgment of the High Court and the final allocation made by the State Advisory Committee. He submits that though the Petitioner was party in Writ Petition No. 79 of 2008 in Uttaranchal High Court and was impleaded as Respondent No. 6, he did not receive any notice, and had no knowledge of the judgment dated 26th July, 2010. The Petitioner was not represented in the case in the Uttarakhand High Court.

Shri Dhakray further submits that the Petitioner''s daughter is going to marry, and that with only one year left to serve, the Petitioner''s transfer to the State of Uttarakhand will visit him and his family with serious hardships.

The Petitioner''s final allocation by the State Advisory Committee to the State of Uttarakhand was challenged by him in this Court. The writ petition was dismissed against which he filed special leave petition. The Petitioner withdrew the SLP voluntarily. There is no material brought on record to show that the withdrawal of the SLP was conditional on mutual transfer.

So far as the judgment dated 26th July, 2010 of the State of Uttarakhand is concerned, the question whether he was not served with the notices and whether the order adversely affects him can be decided only by the Uttarakhand High Court. This Court does not have jurisdiction to hear the plea of recall of the order of the Uttarakhand High Court.

The Petitioner''s assertion that he was not served and did not have an opportunity to defend himself in Uttarakhand High Court can be found out from the record maintained at Uttarakhand High Court. The finality of the orders passed in Writ Petition No. 79 of 2008 filed in Uttarakhand High Court can be considered only by the same Court.

In view of the finality of the orders of the High Court at Allahabad against which SLP was withdrawn and the judgment of the Uttarakhand High Court, we cannot consider and grant any relief to the Petitioner on the grounds of equity or compassion.

The writ petition is dismissed with liberty to the Petitioner to approach the Uttarakhand High Court, or the Supreme Court as he may be advised.

A copy of the order be given to learned Counsel for the Petitioner tomorrow.