Khagendra Prasad Upreti and Others vs Union of India (UOI) and Others

Barin Ghosh, C.J.—Since both these writ petitions involve the same controversy, hence they are being decided by this common order.

Public Works Department of the State of Uttar Pradesh had, since 1992, in addition to a General Cadre, a Hill Sub-Cadre. At the time of creation of the Hill Sub-Cadre, it was open to an employee in the General Cadre to opt to become a member of the Hill Sub-Cadre. Petitioners did not opt to become members of the Hill Sub-Cadre. They remained as members of the General Cadre. On 9.11.2000, by enactment of Uttar Pradesh Re-organization Act, 2000, the State of Uttarakhand was created by carving out a portion of the State of Uttar Pradesh. On that date, all the employees of the State of Uttar Pradesh, by virtue of the provisions of the said Act, became provisional employees of the State of Uttar Pradesh. On the said date i.e. on 9.11.2000, by a notification, the Hill Sub-Cadre in the Public Works Department of the State of Uttar Pradesh was brought to an end and, accordingly, all the members of the Hill Sub-Cadre of the Public Works Department became members of the General Cadre of the Public Works Department of the State of Uttar Pradesh with the status that they are only provisional employees of the State of Uttar Pradesh. The provisional employees of the State of Uttar Pradesh were to be allocated finally to the State of Uttar Pradesh and to the State of Uttarakhand by the Central Government. In order to assist the Central Government to discharge its such obligation, the Act created an Advisory Committee.

The Central Government, in 2001, decided, amongst others, that people, who were in the Hill Sub-Cadre, would stand finally allocated to the State of Uttarakhand. By virtue of the said decision of Central Government, 82 Assistant Engineers, who were in the Hill Sub-Cadre, stood finally allocated to the State of Uttarkhand.

On creation of the State of Uttarakhand, 204 posts of Assistant Engineers in the Public Works Department were allocated to it. Of them, as aforesaid, 82 came from Hill Sub-Cadre and 8 came from Haridwar District since they were then working at Haridwar. The remaining 114 posts could be supplied by allocation. However, on invitation of option, only 36 optees, including the Petitioners, opted to come to the State of Uttarakhand. In 2006, the Central Government made and published a final allocation list and thereby finally allocated the Petitioners to the State of Uttarakhand. Subsequently, the decision thus taken to finally allocate the Petitioners to the State of Uttarakhand was kept in abeyance and later, by the impugned order, the options of the Petitioners to be finally allocated to the State of Uttarakhand, were rejected on the ground only that no posts are available in the State of Uttarakhand where the Petitioners can be accommodated. In the counter affidavit filed by the Central Government, it has been stated that according to it, only one post of Assistant Engineer was available for an optee and the said post was available in the District of Haridwar. In the affidavit, nothing is being stated what happened to the other posts available in other districts. To that, the possible answer is that those were to be occupied by the people belonging to Hill Sub-Cadre. The fact remains that only 82 people were in the Hill Sub-Cadre and they have been accommodated in 82 posts available in the hill districts. It is not disputed that other posts in hill districts were available. But it was an unjust premonition on the part of the people handling the matter on behalf of the Central Government that those are to be filled up only by people belonging to Hill Sub-Cadre. As Hill Sub-Cadre came to an end, question of anyone else, except those who were earlier in the Hill Sub-Cadre, becoming part of Hill Sub-Cadre could never arise. People, who were in Hill Sub-Cadre, have already been appropriately accommodated.

In this case, it must be taken note of that when the allocation of the Petitioners had not been finally decided, steps were taken by the State of Uttarakhand to fill up some of the vacant posts, which action was challenged by filing a writ petition and when the writ petition was finally decided by dismissal thereof, it was specifically mentioned that the same is being dismissed in view of, amongst others, that the options of the Petitioners and other optees will not be rejected on the ground that no post is available. It is surprising that despite the Union of India and State of Uttarakhand being party to the said writ petition, they did not bring the said observation of this Court to the notice of the Advisory Committee.

The Central Government, in 2006, declared by the final allocation that the Petitioners stand allocated to the State of Uttarakhand. Assuming, for good reasons, the said decision could be interfered by the Central Government, but apparently, there is no just reason to interfere with the same, for the only reason is non-availability of posts, whereas as aforesaid more than 100 posts were available for being allocated to 34 optees. We, accordingly, find no reason on the part of the Central Government to interfere with its decision of 2006 and, accordingly, set aside all orders passed by the Central Government subsequent to such final allocation of Petitioners made in 2006. The writ petitions are allowed to the extent as above.