MOHAN SINGH BISHT vs STATE OF UTTARAKHAND AND OTHERS

K.M. JOSEPH, C.J

Petitioner has approached this Court seeking the following reliefs:

(i) Issue a writ, order or direction in the nature of Certiorari quashing the rejection order dated 29- 01-2014 (Annexure No. 2 to the writ petition)

(ii) Issue a writ, order or direction in the nature of Mandamus directing the respondent no. 2 to provide the benefit of selection grade and time scale to

the petitioner since due date in the tune of Government Order dated 27-02-2009 which has been given effect since 01-01-1996 on the basis of length

of service and recommendations of Pay Commission 1997-1999.

(iii) Issue a writ, order or direction in the nature of Mandamus directing the respondent no. 2 to provide arrears of selection grade and re-fix the

pensionary benefits on the basis of length of service as treating as a deprived Officer, who has not given the benefit of Pay Commission 1997 to 1999

as provided in Clause-7 and which is implemented by Government Order dated 27-02-2009 since 01-01-1996.â€​ Â

Briefly put, the case of the petitioner is as follows:

Petitioner retired on 30.06.1995 from the post of Assistant Regional Manager (Finance). He completed 18 years’ service from year 1977 to

30.06.1995. He has not been given promotion to the next post because of shortage of the sanctioned posts. His retiral benefits have been fixed as

per the scale of Rs. 8000-13500. On the basis of the length of service, he was entitled for selection grade of Rs. 1430018300. In this regard,

State of Uttar Pradesh had issued an Order on 27.02.2009 for giving benefits to the deprived employees of U.P.S.R.T.C. The same is produced as

Annexure No. 1. On the basis of the same, the petitioner has sought benefit and that is rejected by Annexure No. 2. The petitioner made a

representation to the respondent no. 2 (it may be noticed that respondent no. 2 is the State of Uttar Pradesh through Managing Director, State

Roadways Transport Corporation, Government of Uttar Pradesh, Lucknow). It is this order, which the petitioner has challenged in the first relief.Â

Thereafter, the petitioner would claim that he has filed representation i.e. Annexure No. 3 dated 02.10.2013 again before the second respondent for

execution of the same order. Counter affidavit is filed on behalf of respondent no. 2 and respondent no. 3. In the counter affidavit of respondent

no. 2, it is, inter alia, stated as follows:Â

 “5. That the petitioner retired on 30-06-1995. The U.P.S.R.T.C. has all its establishment in the State of U.P. only. The Respondent has been

dismissed from the head office situated at Lucknow i.e. beyond the territorial jurisdiction of Uttarakhand and therefore the petitioner cannot maintain

the writ petition before this Hon’ble Court just because he is resident of Nainital.

Thereafter, there is reference to laches.Â

The respondent no. 2 has been arrayed as follows:

 “State of Uttar Pradesh, through Managing Director, State Roadways Transport Corporation, Government of Uttar Pradesh, Lucknowâ€​.

Whereas the U.P.S.R.T.C. is a Corporation and wrongly added the Government of Uttar Pradesh.

We heard Mr. S.S. Yadav, learned counsel on behalf of the petitioner, Smt. Monika Pant, learned counsel on behalf of respondent no. 2 Â and Mr.

J.C. Pande, learned Brief Holder on behalf of the State of Uttarakhand/respondent no. 1.  Â

There is a question relating to jurisdiction, which is raised.What the petitioner is seeking is the benefit of an order issued by the State of Uttar

Pradesh on 27.02.2009. The State of Uttarakhand was created by the U.P. States Reorganisation Act, 2000 from the appointed day, which is

09.11.2000. The relief, which the petitioner is seeking, is on the basis of the order issued by the Government of Uttar Pradesh for the benefit of

deprived employees of U.P.S.R.T.C., who could not get the selection grade from 01.01.1996.  Â

Respondents have a case that the petitioner, even on merits, is not entitled, as the petitioner retired in the year 1995 whereas the order issued in the

year 2009 is to have effect from 01.01.1996. Â

Mr. S.S. Yadav, learned counsel for the petitioner also has a case that even now the fixation of the petitioner has not been made. He has a case

that the petitioner is entitled to the benefit of the Government Order as he is a deprived person ( ).Â

Learned counsel for the petitioner would seek to get over this hurdle relating to jurisdiction by placing reliance on Article 226 (3) of the Constitution

of India on the basis that part of cause of action has arisen within the State of Uttarakhand. He would further submit that the petitioner retired while

he was serving within the territory of Uttarakhand at District Nainital. This question is no longer res integra. In the case of State of Uttarakhand

and another Vs. Umakant Joshi reported in 2012 (1) U.D. 583, the Hon’ble Apex Court has, inter alia, held as follows:

 “11. We have considered the respective submissions. It is not in dispute that at the time of promotion of Class-II officers including Shri R.K.

Khare to Class-I posts with effect from 16.11.1989 by the Government of Uttar Pradesh, the case of respondent No.1 was not considered because of

the adverse remarks recorded in his Annual Confidential Report and the punishment imposed vide order dated 23.1.1999. Once the order of

punishment was set aside, respondent No.1 became entitled to be considered for promotion to Class-I post with effect from 16.11.1989. That exercise

could have been undertaken only by the Government of Uttar Pradesh and not by the State of Uttaranchal (now the State of Uttarakhand), which was

formed on 9.11.2000. Therefore, the High Court of Uttarakhand, which too came into existence with effect from 9.11.2000 did not have the

jurisdiction to entertain the writ petition filed by respondent No.1 for issue of a mandamus to the State Government to promote him to Class-I post with

effect from 16.11.1989, more so because the issues raised in the writ petition involved examination of the legality of the decision taken by the

Government of Uttar Pradesh to promote Shri R.K. Khare with effect from 16.11.1989 and other officers, who were promoted to Class-I post vide

order dated 22.1.2001 with retrospective effect. It appears to us that the counsel, who appeared on behalf of the State of Uttarakhand and the

Director of Industries did not draw the attention of the High Court that it was not competent to issue direction for promotion of respondent No.1 with

effect from a date prior to formation of the new State, and that too, without hearing the State of Uttar Pradesh and this is the reason why the High

Court did not examine the issue of its jurisdiction to entertain the prayer made by respondent No.1.12. In view of the above, we hold that the writ

petition filed by respondent No.1 in 2008 in the Uttarakhand High Court claiming retrospective promotion to Class-I post with effect from 16.11.1989

was misconceived and the High Court committed jurisdictional error by issuing direction for his promotion to the post of General Manager with effect

from 16.11.1989 and for consideration of his case for promotion to the higher posts with effect from the date of promotion of his so called juniors.â€​

In this case also, we notice that the exercise, which has been challenged, was done by the second respondent, which is State Roadways Transport

Corporation, Government of Uttar Pradesh. The mandamus, which the petitioner is seeking, is also against the second respondent. The matter

relates to the period prior to the creation of the State of Uttarakhand and even proceeding on the basis of Government Order dated 27.02.2009 the

argument of the petitioner is that it should have operation for the period prior to the U.P. States Reorganisation Act, 2000, it has to be worked out with

effect from the date prior to the date of reorganization. If that is so, the principles enunciated by the Hon’ble Apex Court would squarely

apply. It may be true that in this case, the second respondent has been made a party i.e. State Roadways Transport Corporation, Government of

Uttar Pradesh, but in view of the judgment of the Hon’ble Apex Court in the case of State of Uttarakhand and another Vs. Umakant Joshi

reported in 2012 (1) U.D. 583, we would think that this court has got no jurisdiction to issue directions to respondent no. 2. This petition must be

dismissed as not maintainable before this Court since this court has no jurisdiction to grant the relief sought by the petitioner.Â

Accordingly, the writ petition is dismissed as not maintainable. We make it clear that we must not be treated as having made any observations on

the merits of the petitioner’s claim. This dismissal, necessarily, will not preclude the petitioner from seeking appropriate remedy before the

appropriate forum. Â

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