Madan Singh Rana vs State Of Uttarakhand And Others

Lok Pal Singh, J

By means of the present writ petition, petitioner has prayed for the following reliefs:

"(i) Issue a writ, order or direction in the nature of certiorari calling for the records and quashing the impugned annexure-1 order dated 19.12.2017 issued by respondent no.3.

(ii) Issue a writ, order or direction in the nature of mandamus holding and directing that non-counting of the petitioner's past services in Garhwal Mandal Vikas Nigam Ltd. for grant of ACP and others service benefits in the Governor's Household Establishment is bad in law.

(iii) Issue a writ, order or direction in the nature of mandamus directing the respondents to grant the benefit of ACP to the petitioner after counting his past services rendered in Garhwal Mandal Vikas Nigam Ltd. and release in his favour all arrears with interest."

Brief facts of the case are that the petitioner was initially appointed on the post of Cook on 15.04.1987 in Garhwal Mandal Vikas Nigam Ltd. Thereafter, on 30.07.1997, the petitioner was promoted to Class - III post of Head Cook. It is contended that at the time of creation of the State of Uttarakhand the petitioner was working against a substantive vacancy of Head Cook in Garhwal Mandal Vikas Nigam. The State of Uttarakhand came into existence on 09.11.2000 in terms of the U.P. Reorganization Act, 2000. Thereafter, by the order dated 8.11.2000, the Garhwal Mandal Vikas Nigam Ltd. attached/posted the petitioner in Governor's Household Establishment.

It is also contended that in view of the order dated 08.11.2000, the petitioner was continuing on the post of Head Cook. Subsequently, the Secretary, Governor's Secretariat vide order dated 23.03.2001 issued a separate order and posted the petitioner on deputation as Head Cook in the Governor's Household Establishment. The petitioner was posted on the post of Head Cook in the pay scale of Rs. 3050-4590. Thereafter, vide Government Order dated 19.09.2001, the State Government created the posts of the employees in the Governor's Household Establishment. By the said Government Order, one post of Head Cook in the pay scale of Rs. 3050-75-4950-80-4590 was also sanctioned. Thereafter, by a notification dated 8.10.2004, the State Government framed Absorption Rules, 2004 for the employees working in the Governor's Secretariat and also the Raj Bahwan Household Establishment. Thereafter, the Secretary, Governor's Secretariat vide his order dated 15.12.2004 absorbed the petitioner as Head Cook in the Governor's Household Establishment. Since, the services of the petitioner were absorbed in the Government Household Establishment. the service rendered by him in Garhwal Mandal Vikas Nigam Ltd. has not been considered for fixation giving the benefit of A.C.P. However, the pay has been fixed considering his past service.

It is contended that the petitioner and four other employees have filed WPSS No. 1760 of 2015. The Coordinate Bench of this Court vide order dated 16.05.2017 disposed of the said petition with the direction to the State Government to take a decision on the letter dated 28.08.2017 within a period of eight weeks from the date of the order keeping in view of the dictum of Hon'ble Apex Court in the cases of Renu Mullick Vs. Union of India reported in 1994 (1) SCC 373; Scientific Advisor to Raksha Mantri and another Vs. V.N. Joseph reported in 1998 (5) SCC 305; A.P. State Electricity Board and others Vs. R. Parthsarthi and others reported in 1998 (9) SCC 425.

Pursuant to the directions issued by the Coordinate Bench in the aforesaid writ petition, the respondent no.3 having considered that the ratio of the judgments (Supra) is not applicable in the case of the petitioners, rejected the representation vide order dated 19.12.2017. Hence, present writ petition.

Heard learned counsel for the parties and perused the material available on record.

Learned Counsel for the petitioner would submit that the petitioner was absorbed on the post of Head Cook in the Governor's Household Establishment vide order dated 15.12.2004 and in the said absorption order it was nowhere stated that the past services rendered in the Corporation i.e. Garhwal Mandal Vikas Nigam Ltd. shall not be taken into account for the purpose of promotion, time scale and pensionery benefits. He would further submit that the State Government vide notification dated 30.10.2009 inserted sub Rule (11), (12) under Rule 7 of the Absorption Rules, 2004. The Sub Rule (11) provides that the Group-D employees absorbed in the Raj Bhawan shall be entitled to the benefit of time pay scale in case they were getting the benefit of time pay scale in their parent departments.

In the counter affidavit filed on behalf of respondent no.3, it is stated that Rule 7(1) of the Governor's Household Establishment Merger Regulations Rules, 2004 (hereinafter referred to M.R. Rules, 2004) provides that the date of merger should be the date of substantive appointment, therefore, the petitioner cannot claim for the facilities/services rendered by him in previous department. It is contended that for the benefit of A.C.P, the period of eligible service is counted only from the date of substantive appointment in service and the petitioner does not fulfills the eligibility period of service.

Learned counsel for the petitioner has filed rejoinder affidavit stating therein that it is well settled that ACP or financial up-gradation cannot be denied where pay fixation of the employee at the time of merger in a Government Department is made on the basis of the past services in a Government Corporation. It is also stated that the Chief Secretary, Government of Uttarakhand issued a circular letter to Managing Director on 30.11.2011 directing all Government Servants working in their Public Corporation/Autonomous bodies shall be given the benefit of A.C.P.

The respondent in his counter affidavit has not denied the fact that the circular dated 30.11.2011 was not issued by the Chief Secretary regarding grant the benefit of A.C.P. He would further submit that while passing the impugned order the respondent no.3 did not consider the fact that since the Government itself has taken decision that those employees working in State Corporation should also be entitled to get benefit of A.C.P.

The Rule 7 of the Merger Regulations Rules, 2004 does not speak that those who are posted in Government Secretariat and Governor's Household Establishment their appointment shall be considered against the substantive appointment, therefore, their inter se seniority/promotion shall be considered. Perusal of the Merger Regulation Rules, 2004 would reveal that there is no specific bar that previous services will not be considered for the purpose of granting the benefit of A.C.P. Perusal of the circular letter dated 30.11.2011 issued by Chief Secretary, Government of Uttarakhand would reveal that all Govt. servants/Autonomous body employees were also entitled to the benefit of ACP. In view of the ratio of the judgment passed by Coordinate Bench dated 16.05.2017, this Court is of the firm opinion that the employees, who rendered his services in Government Establishment before their merger in subsequent department are entitled to continue the service benefit rendered by them in earlier establishment/corporation. The Sub rule (8) of Rule 7 further has clarified that petitioner's pay fixation on the date of his absorption in the Governor's Household Establishment has been made by taking into account his past services rendered in the corporation. This Court is of the firm view that respondent no.3 has passed the order dated 19.12.2017 in violation of Sub Rule (8) of Rule 7 the Rules.

In view of the above, this Court is of the view that the impugned order is liable to quashed. The impugned order dated 19.12.2017 is quashed. Writ petition is allowed. A mandamus is issued to the respondents to give benefit to the petitioner of his past services rendered in Garhwal Mandal Vikas Nigam for the purpose of grant of A.C.P. and other service benefits, as expeditiously as possible, preferably within a period of three months from today.

No order as to costs.