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Judgment
,,
SHARAD KUMAR SHARMA, J.",,
The petitioner in this writ petition has put challenge to the impugned orders dated 28/31st August, 2009 and 26th August, 2016 as passed by",,
respondent no. 2 i.e. (Transport Commissioner, Uttarakhand, Dehradun) by virtue of which the claim of the petitioner for the alleged merger of his",,
services from “Regional Cadre†to the “Headquarter Cadre†has been declined. To be precise relief sough for is quoted hereunder:,,
“i) Issue a appropriate writ, order or direction in the nature of certiorari quashing the impugned order dated 28/31.8.2009 (Annexure-6) and",,
26.8.2016 (Annexure-7) issued by respondent no. 2.,,
ii) Issue an appropriate writ, order or direction in the nature of Mandamus directing respondents to merge the services of petitioner in headquarter",,
cadre from the date when he joined in headquarter cadre 4.8.03.,,
iii) Issue any other writ, order or direction, which this Hon’ble Court may deem fit and proper under the facts and circumstance of the case.",,
iv) Award the cost of the petition to the petitionerâ€,,
Admittedly, questioning the two orders, the first rejection of the claim of the petitioner for merger in the Headquarter cadre was made by the order",,
dated 28/31st August, 2009 which was not challenged by the petitioner initially within reasonable time rather it stood finalized about 7 years before,",,
and later on, when the subsequent order dated 26th August, 2016 was passed on the representation of the petitioner, the said order dated 26th August,",,
2016 was taken as to be the basis and the background for challenging the order dated 28/31st August, 2009 belatedly. Further what is revealed from",,
records is that even by the order dated 26th August, 2016, by virtue of which the claim of the petitioner for merger of his cadre into the headquarter",,
was yet again rejected, has been challenged by the petitioner by filing a belated writ petition only on 30th January, 2017. The writ petitioner does not",,
explain the reasons attributing to latches for a belated relief as has been sought, more particularly, when the principal relief of merger in headquarter",,
cadre stood rejected as back as on 28/31st August, 2009.",,
Briefly put, the case of the petitioner is that the petitioner was inducted into the services of the Transport Department as back as on 10th June,",,
1966, as a Class-IV employee i.e. Peon in the office of Assistant Regional Transport Officer, Haridwar. Subsequent to the appointment, he was",,
posted in the office of the Assistant Regional Transport, Haridwar, where he joined his services. Since 10.06.1966 till 31.07.2003, the petitioner",,
continued to discharged his duties in Regional Office.,,
The foundation of the claim of merger into the Headquarter cadre of the petitioner is based upon the order dated 31st July, 2003 which has been",,
passed by the Transport Commissioner, whereby the services of the petitioner was transferred on an administrative ground to the headquarter from",,
the office of the Regional Transport Officer where he contends to have joined on 4th August, 2003.",,
**rRdky izHkko ls fuEufyf[kr prqFkZ Js.kh deZpkfj;ksa dks iz†kklfud vk/kkj ij muds ukeksa ds lEeq[k vafdr ubZ rSukrh ds LFkku ij LFkkukUrj.k,,
djrs gq;s rSukr fd;k tkrk gSA lEcfU/kr vf/kdkjh lEcfU/kr deZpkfj;ksa dks fcuk izfrLFkkuh dh izrh{kk fd;s rRdky dk;ZeqDr djrs gq;s mUgsa u;h rSukrh,,
ds LFkku ij dk;ZHkkj xzg.k djus ds fy;s funsZf†kr dj nsaA**,,
Â,,
Learned counsel for the petitioner contends that ever since joining in the office of Head Quarter in pursuance to the transfer order dated 31st July,",,
2003, the petitioner has rendered his services satisfactorily and has an unblemished service records and there had been no complaints of any nature",,
whatsoever against him.,,
It is the case of the petitioner that as per the Service Rules applicable to the headquarters’ employee, cadre as per Rules of 2004 is depicted as",,
under:,,
**5- lsok esa fofHkUu Jsf.k;ksa ds inksa ij HkrhZ fuEufyf[kr lzksrksa ls dh tk;sxh,,
¼1½ ifjogu vk;qDr dk;kZy;,,
¼2½ laHkkxh; ifjogu dk;kZy;ksa ds lEcU/k esa**,,
In a Transport Department, Class-IV post acts as a feeder cadre for the purposes of promotion to the class-III post which is a promotional post,",,
and the criteria of promotion is based on seniority subject to rejection of unfit. Relevant part of Rule 16 of the Rules 2004 is quoted hereunder:,,
**inksUufr }kjk HkrhZ mijksDr p;u lfefr ds ek/;e ls] vuqi;qDr dks vLohdkj djrs gq, T;s’Brk ds vk/kkj ij dh tk;sxhA**",,
The contention of the learned counsel for the petitioner is that in the Transport Department, there are two distinct cadre of employees i.e. a",,
headquarter cadre and another cadre of employees is the regional cadre. It is not in dispute rather admitted, that the petitioner at the time of induction",,
into the services was appointed in the regional cadre and by virtue of an order of transfer on an administrative ground dated 31st July, 2003, the",,
petitioner has been transferred from regional office to the headquarter. The case of the petitioner is that after his joining on 4th August, 2003 and",,
looking to his service records, he was granted promotion by the Departmental Promotion Committee on the post of Junior Clerk/Junior Data Entry",,
Operator by virtue of an order dated 18th June, 2004. The order of promotion dated 18th June, 2004 apart from the fact being temporary, it was based",,
subject to the condition of the final allocation to be made of the employees under the Re-organisation Act and it was further with a period of probation,,
for two years with a rider that the petitioner could be reverted back to the previous post at any time.,,
**1- mDr dfeZdksa dh] dh x;h inksUufr dkfeZdksa ds mRrjkapy ,oa mRrj izns†ds e/; gksu oky vfUre vkoaVu dh v/khu gksxh ;fn mDr dkfeZdksa",,
esa ls fdlh dk vkoaVu mRrj izns†jkT; dks gksrk gS rks mUgsa ewy in ij izRofrZr dj fn;k tk;sxkA         Â,,
2- mDr dkfeZd dfu’V fyfid de dfu’V MkVk bUVªh vkijsVj ds in ij nks o’kZ dh ijhoh{kk vof/k esa jgsaxsA mDr dkfeZdksa dh mDr,,
inksUufr iw.kZr% vLFkkbZ gS mUgsa fdlh Hkh le; fcuk fdlh iwoZ lwpuk ds muds ewy in ij izR;kofrZr fd;k tk ldrk gSA,,
3- mDr dkfeZdksa dks dk;ZHkkj xzg.k djus ds 06 ekg ds vUnjVad.k ,oa dEI;wVj dk Kku izkIr djuk vfuok;Z gksxk rFkk mUgsa vxyh osru o`f} rHkh",,
ns; gksxh tcfd os Vad.k ,oa dEI;wVj lEcU/kh vgZrk vftZr dj ysaxsA",,
              Â,,
4- lEcfU/kr vf/kdkjh mDr dkfeZdksa dks rRdky dk;ZeqDr djrs gq;s u;h rSukrh ds LFkku ij dk;ZHkkj xzg.k djus gsrq funsZf†kr dj nsaA,,
nl,"lEijh{kd @T;s’B ys[kk
ijh{kd","LFkk;h ys[kk ijh{kdksa esa ls vuqi;qDr dks vLohdkj djrs gq,]
T;s’Brk ds vk/kkj ij inksUufr }kjkA ijUrq ;fn inksUufr gsrq ik=
vH;FkhZ miyC/k u gks rks in lh/kh HkrhZ ls Hkh Hkjk tk ldrk gSA
contends were junior to him and a sense of deprivation prevailed with him. The promotion of the two incumbents on the post of Administrative,,
Officers cannot grant a cause of action to the petitioner that to at least in 2017 to claim belated parity, when he opted for regional cadre and same was",,
accepted by order dated 28/31st August, 2009, alleging thereof that juniors have been promoted without disclosing the fact as to whether the two",,
incumbents Vipin Chand Ramola and Harsh Mani Semwal, with whom petitioner claims parity, whether they stood absorbed after exercising their",,
options on the office memorandum dated 7th January, 2006 in the headquarter cadre or in the regional cadre. Hence in the absence of pleading of fact",,
their promotions may not be construed to be the basis for filing the instant writ petition or for the purpose of claim raised petition for being merged in,,
the Headquarter cadre.,,
Similarly, the name of other incumbents as referred in para 17, which the learned counsel for the petitioner contends that the incumbents Vipin",,
Chand Ramola and Harsh Mani Semwal have been merged from the regional cadre to the headquarter cadre and they have been accorded benefit,,
thereof and thereby alleging that the action of the respondent is discriminatory, is yet again based on non-supply of the entire facts as to whether those",,
incumbents had exercised their options under the office memorandum dated 7th January, 2006 or not; and as to whether their services stood merged in",,
the headquarter cadre or not. Even this argument may not hold any water for the petitioner to press his ground of discrimination because the petitioner,,
is not equal to the persons referred in para 17 of the writ petition, nor it’s the case of the petitioner that they stand on same footing as that the",,
petitioner as there is no plea of option regards them when it was invited after establishment of Headquarter. More particularly, when petitioner",,
accepted propriety of circular of option dated 07.01.2006, when he himself on 09.01.2006 requested for allocation of Regional cadre and was",,
ultimately by the order dated 02.04.2009 was merged in Regional cadre. Now he is estopped from having a somersaulted stand.,,
Records show that later on the petitioner without even giving challenge to the order dated 28/31st August, 2009, the petitioner submitted another",,
representations on 5th August, 2015 and 30th September, 2015 after 6 years and henceforth which has been rejected by the impugned order dated",,
26th August, 2016.",,
The subsequent representations was submitted after the grant of promotion to Vipin Chand Ramola and Harsh Mani Semwal in the year 2015, for",,
the purposes of claiming a parity of merger in Headquarter based on the promotion of two incumbents as Administrative Officers alleges to be cause,,
of action by filing a representation in 2015 i.e. almost after 6 years of the rejection of the claim of the petitioner, this Court is of considered view that it",,
would not be tenable because the representations thus submitted by the petitioner, firstly because it was not a statutory representations contemplated",,
under law. This mode adopted by the petitioner cannot be permitted to be adopted by him to overcome the legal impediments of having submitted,,
option; accepted office memo dated 7.01.2006 and the allocation to regional cadre vide order No. 3093 dated 2.04.2009. Hence the Additional,,
Commissioner, Transport too vide the impugned order dated 26th August, 2016, after almost assigning the identical reasons which was assigned by in",,
the order dated 28/31st August, 2009 had proceeded to reject the representation on the ground that since the petitioner himself has opted for being",,
merged in the regional cadre on 9.01.2006 and was accordingly allocated to him by order dated 2.04.2009, hence by virtue of the representations",,
submitted in 2016, the petitioner cannot claim any lien to be absorbed in the headquarter cadre, more particularly, when even the order of inviting",,
options i.e. No. 56 dated 07.01.2006 and the subsequent order of merger No. 3093 dated 2.04.2009, of the petitioner in the regional cadre, has not",,
been challenged by him in any other proceedings or even in the present writ petition which would be deemed that petitioner stands merged in Regional,,
Cadre.,,
Thus, having said so, once the petitioner has failed to challenge the order of his merger in the regional cadre dated 02.04.2009 on the basis of",,
office memorandum dated 7th January, 2006, the petitioner is estopped from claiming for his merger in the headquarter cadre. Having said so, this",,
Court feels that the petitioner has voluntarily opted for Regional Cadre and having accepted his merger in the regional cadre hence now merely on the,,
premise that other incumbents junior to him have been merged in the headquarter cadre based on the office memorandum he cannot claim for being,,
merged in the headquarter cadre without bringing on record the material based on which the other incumbents have been merged in the Headquarter,,
cadre and once he himself not opted for allocation of the headquarter cadre on this ground itself writ petition lacks merits and deserves dismissed.,,
The respondents were noticed. They have filed their counter affidavits and in the counter affidavits, they have contended that as per the",,
“Uttarakhand Transport Department Ministerial Cadre Service Rules, 2004, (as now applicable)†it contemplated creation of two separate cadres",,
as Regional Cadre and Headquarer Cadre in the office of the Transport Commissioner. Both the cadres have got a different sanction strength and it is,,
further case of the respondent that as per the departmental re-organisation made in pursuance to Government Order No. 690/59 dated 25.06.2001,,
created the office Transport Commissioner of the State, since there was shortage of the employees in the newly created office of the Transport",,
Commissioner, Uttarakhand, the employees, who were working in the regional cadre in the office of Transport Commissioner, Headquarter, they were",,
asked upon to give their options for the merger from the regional cadre to the headquarter cadre. Accordingly, by the various orders passed by this",,
Court, the merger in the headquarter cadre employees has already taken place.",,
Based on the averments made in the counter affidavit, it would be apparent that by the office orders dated 5th March, 2002, 23rd November, 2002",,
and 8th April, 2003, the employees, who were working in the regional cadre were merged under the vacant posts which was available in the",,
headquarter cadre and after the respective orders of merger out of 14 sanctioned posts as per the roaster, 10 posts were available for direct",,
recruitment and 4 posts were available for promotion. Hence, at this stage, the petitioner’s claim for merger, according to the respondents cannot",,
be permitted, more particularly, for the reasons already dealt with hereinabove that the petitioner himself opted for the regional cadre and has been",,
accordingly merged in Regional Cadre.,,
In the counter affidavit, the respondent has submitted that when the options were invited to fill in the vacant posts in the headquarter cadre by the",,
office memorandum dated 7th January, 2006, the petitioner had given an option for the regional cadre on 9th January, 2006, which is quoted",,
hereunder:-,,
**egksn;],,
fuosnu gS fd vki ds vkns†k la[;k 56@lk0iz0@nks&89@2006 fnukad 07&01&2006 ds dze esa voxr djkuk gS fd izkFkhZ laHkkxh; laoxZ esa dk;Z,,
djus dk bPNqd gSA eSaus bl lEca/k esa iwoZ esa Hkh viuk izkFkZuk&i= fn;k gSA vr% egksn; ls vuqjks/k gS fd izkFkhZ dks laHkkxh; laoxZ esa,,
fu;qDr djus dh d`ik djsaA**,,
Whereas on the other hand, its specific case of the respondent that the claim of parity by petitioner with those promoted is not available as they",,
have opted for headquarter cadre, the pleading to this effect finds place in para 12, 13 and 14 of counter affidavit filed by respondent on 13.07.2017,",,
the pleadings of which were not denied as no rejoinder was filed by the petitioner, despite time being granted by this Court on 21.08.2017, 07.03.2018,",,
12.04.2018 and 23.05.2018 ultimately prayer for filing rejoinder was declined by this Court on 11.06.2018. The persons with whom the petitioner,,
claims parity, they have claimed to be allocated to the headquarter cadre hence there is no anomaly in granting them promotion to higher post in the",,
headquarter cadre to which they belong and are merged in it.,,
Since the petitioner himself has voluntarily chosen to give away his right of seeking merger in the headquarter cadre by submitting the,,
representation dated 9th January, 2006 which has been accepted upon by the respondent, this Court finds that there is no apparent error in impugned",,
orders by virtue of which the respondents have decline to merge services of the petitioner in the headquarter cadre.,,
In view of what has been observed above, this Court finds that there is no error in the impugned order rejecting the claim of the petitioner seeking",,
his merger in the headquarter cadre.,,
Thus the writ petition is dismissed. The impugned orders under challenge are affirmed. However, there would be no order as to costs.",,