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Judgment
V.K. BIST, J.
Facts, in brief, are that on 24.01.1994 the respondent no.4 was appointed as Junior Clerk in Department of Fisheries, Uttar Pradesh under the
Dying-In-Harness Rules. On 22.05.1998 an office order was issued by the Director, Fisheries, Uttar Pradesh stating therein that on examining the
application and record of respondent no.4, it is found that at the time of appointment of the petitioner under Dying-in-Harness Rules, as per his
qualification, the respondent no. 4 should have been given appointment on the post of Fishery Development Officer instead of Junior Clerk. By this
order, the respondent no.4 was appointed as Fishery Development Officer. Thereafter, by considering the satisfactory service of respondent no.4, he
was promoted as Fisheries Inspector on 30.12.2003 and to the post of Senior Fisheries Inspector on 02.11.2009. On the other hand, the petitioners
were appointed as Fisheries Inspector in the year 2006 vide order dated 24.04.2006. Since they are junior to respondent no.4 and their further
promotions are affected, they filed present writ petition with the following prayers:
“(i) Issue a writ, order or direction in the nature of Quo-Warranto Remove/ Struck down the respondent no.4 from the post of Senior Insepctor
Fisheries, Udham Singh Nagar, Uttarakhand.
 (ii) Issue a writ, order or direction in the nature of certiorari quashing the re-appointment order dated 22.05.1998 appointing the petitioner on the
post of Fishery Development Officer in Department of Fisheries.â€
Argument of learned counsel for the petitioner is that the impugned order dated 22.05.1998 appointing the respondent no.4 on the post of Fishery
Development Officer is absolutely illegal. He submitted that appointment order issued to respondent no.4 on compassionate ground could not be
modified after a period of four years. He submitted that appointment on the post of Fisheries Development Officer is governed by the provisions of
Uttar Pradesh Subordinate Fishery Service Rules, 1994 and appointment of respondent no.4 was not made under that rule. Learned counsel for the
petitioners referred to letter dated 16.01.2017, written by the Additional Secretary, Government of Uttarakhand to the Director, Fisheries in which it is
stated that after making appointment under the Dying-In-Harness Rules, there is no provision for making appointment on another post. It is also
written in the said letter that after appointing the respondent no. 4 on new post, about 16 years have passed and it would not be appropriate to open his
case. The learned counsel for the petitioners referred paragraphs 18, 19 & 20 of judgment of this Court in the matter of Hanuman Singh Nabiyal vs.
State of Uttaranchal and others, reported in (2005) 2 UC 1134. Paragraph 18, 19 & 20 read as follows:
“18. As if this is not sufficient, the petitioner, specifically, admits that even before the creation of State of Uttaranchal, when the joining of the
petitioner was asked for, he had, specifically, opted for the State of Uttaranchal and ultimately, by the final order passed u/s 73 (2) of the U.P.
Reorganisation Act, he has been permanently allocated to the State of Uttaranchal. We, therefore, fail to see as to how the petitioner can claim that
he could have been validly promoted by the State of Uttar Pradesh and the State of Uttar Pradesh could have passed the promotion order even after
09.11.2000, when he was not, admittedly, the Government servant serving in Uttar Pradesh, but was serving in the area allotted to State of
Uttaranchal.
Even u/s 75 of the U.P. Reorganisation Act, it is specified that every person, who, before the appointed day, is holding or discharging the duties of
any post in connection with the affairs of the existing State of Uttar Pradesh in any area, which on that date falls within any of the successor State;
shall continue to hold the same post or office in that successor State. Now, with this it is clear that the petitioner, who was working in connection with
the affairs of State of Uttar Pradesh, but was serving at Rudrapur, which is within the area of Uttaranchal after 09-11-2000; would continue to hold
the same post and office in the successor State i.e. the State of Uttaranchal. There is a further, reiteration as under:
and shall be deemed, on and from that day, to have been duly appointed to the post or office by the Government of, or any other appropriate authority
in that successor State.
Therefore, by the deeming clause, the petitioner would be deemed to have been appointed in his capacity as an Assistant Commissioner in the
State of Uttaranchal. When we apply the language of Section 75, the cobwebs of any confusion are clear straight away. The petitioner was, actually,
working at Rudrapur, which area fell, after 09- 11-2000, to Uttaranchal and therefore, the petitioner would be deemed to have been appointed by the
State of Uttaranchal and would continue to work in the same capacity as if he is appointed by the State of Uttaranchal.â€
On the other hand, the learned counsel for the respondent no.4 submitted that petitioner has no locus to challenge the appointment of the respondent
no.4, as admittedly the petitioners were born in the cadre of Fisheries Inspector in the year 2006, whereas the respondent no.4 was appointed as
Junior Clerk and later on the department corrected its mistake and appointed the respondent no. 4 as Fisheries Development Officer on 22.05.1998
and again he was promoted as Fisheries Inspector in the year 2003, much prior to the appointment of the petitioners in the year 2006 as Fisheries
Inspector. He further submitted that this writ petition is filed challenging the appointment of the respondent no.4, which was made in the year 1998 and
there is no reason given in the writ petition for such inordinate delay in challenging the said appointment. The writ of quo-warranto has been sought
against the appointment of the respondent no.4, however, the fact remains that the appointment of respondent no.4 as Junior Clerk & Fisheries
Development Officer was made as the respondent no.4 is having the requisite educational qualification for the said post, as such, the writ of quo-
warranto does not lie. He referred to the paragraph 11 of the judgment given by the Division Bench of this Court in Writ Petition (S/B) No.102 of
2017, decided on 08.03.2018. Paragraph 11 of the judgment reads as under:
“11. From the aforesaid statements of law contained in paragraph nos. 11 and 12 of the judgment of the Hon’ble Apex Court, we can deduce
two principles, as laid down by the Hon’ble Apex Court. Firstly, in respect to any rights that the persons, who are allocated or working after the
creation of the State of Uttarakhand is concerned, which relates to the period anterior to the date of the creation of the State of Uttarakhand, the
proper and competent authority would be the State of Uttar Pradesh. The State of Uttarakhand could not have the authority to deal with such a
matter. Secondly, in relation to any such complaint, the proper forum to ventilate the grievance would be the High Court of Allahabad or the Tribunal
created under the law passed by the State of Uttar Pradesh.â€
I have considered the submission of learned counsel for the parties. It is a fact that the respondent no.4 was appointed as Fishery Officer in the
year 1998. At that time, the Appointing Authority was under the State of Uttar Pradesh and, as per law settled by, the Hon’ble Apex Court in
State of Uttarakhand & another vs. Umakant Joshi, reported in 2012 (1) U.D. 583, the High Court of Uttarakhand, having come into existence w.e.f.
09.11.2000, does not have the jurisdiction to entertain such writ petition. That petition filed by the respondent for issue of mandamus to the State
Government to promote him w.e.f. 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 U.P. to promote another person w.e.f. 16.11.1989 and other officers, who were promoted to Class-I post, vide
order dated 22.01.2001 with retrospective effect. In this case also, the challenge is to the order dated 22.05.1998, which was passed by the Director,
Fisheries, State of Uttar Pradesh who has not been impleaded as respondent. Therefore, writ petition filed by the petitioners against the order dated
22.05.1998 issued by the Director, Fisheries, State of U.P. appointing respondent no. 4 as Fishery Officer is not maintainable.
Apart from above, it is to be noted that the petitioners have challenged the order dated 22.05.1998, when they were not born in the department.
They were appointed in the year 2006. Further, the order of appointment has been challenged by them after a long delay.
In view of the above discussion, the writ petition fails and is dismissed as not maintainable.
It is made clear that this Court has not given any opinion about the validity of subsequent appointment of a person after joining one post on
compassionate ground under the Dying-in-Harness Rules, as this writ petition is dismissed as non-maintainable.