The Chief Secretary, Government Of Uttarakhand Dehradun & Others vs PurnanAnd Sharma & Others

Ramesh Ranganathan, C.J.

Special Appeal No.860 of 2017 is preferred by the Chief Secretary, Government of Uttarakhand against the order passed by the learned Single Judge in WPSS No.1947 of 2015. Special Appeal No.857 of 2017 is preferred by the Chief Secretary, Government of Uttarakhand against the order passed by the learned Single Judge in WPSS No.1194 of 2013.

The respondent herein filed WPSS No.1194 of 2013 seeking a writ of certiorari to quash clause (3) of the order dated 15.07.2013, and the letter dated 23.07.2017; a writ of mandamus directing the official respondents to pass suitable orders of absorption ignoring clause (3) of the option form / order dated 15.07.2013; a mandamus directing the official respondents to provide seniority to the petitioner treating his service as continuous ever since 17.09.2002 from the date he joined as an Assistant Store Keeper under the sixth respondent - Director, Training and Employment, Government of Uttarakhand, and to restrain the official respondents from forcing him to again file an option form, including clause (3) of the circular dated 15.7.2013, therein.

The writ petitioner (respondent in these appeals) also filed WPSS No.1947 of 2015 seeking a writ of certiorari to quash the order dated 11.09.2015; a writ of mandamus directing the official respondents not to relieve the petitioner; and for a writ of mandamus restraining the 6th respondent - Director, Training & Employment to maintain status-quo in regard to the petitioner's order dated 6. 09.2013.

In the common order passed in both the aforesaid writ petitions on 10.04.2017, the learned Single Judge noted that the respondent - writ petitioner was working in Hiltron, a government undertaking; it was wound up and, thereafter, he was deployed in the Government ITI; according to him, similarly situated persons had been absorbed; and the petitioner was, however, not absorbed till date. Both the writ petitions were disposed of directing the appellant - official respondents to absorb the writ petitioner, and to determine his conditions of service at par with those employees who were absorbed from Hiltron in ITI. The Learned Single Judge also made it clear that the writ petitioner's services shall not be terminated, save in accordance with law. Aggrieved by the said order, the appellant - Government of Uttarakhand has come up in appeal before us.

Mr. Anil Kumar Bisht, learned Standing Counsel for the appellant - State of Uttarakhand, would submit that, in terms of the circular issued by Hiltron, the writ petitioner was required to get himself relieved from the services of the Training & Employment Department, Government of Uttarakhand, thereafter to report to Hiltron for his allotment and consequential absorption by the Training & Employment Department; the petitioner chose not to get himself relieved from the department; as he did not report to Hiltron, he could not be allotted to the Training & Employment Department for his absorption thereafter; the conditions stipulated in the said circular was that the absorption would take effect from the date the erstwhile employees of Hiltron joined the new place of posting; the appellant-writ petitioner had, instead, chosen to invoke the jurisdiction of this Court claiming seniority from the date of his initial appointment in I.T.I. i.e. from 17.09.2002; and, though he was relieved from the Training & Employment Department on 11.09.2015, the respondent-writ petitioner chose not to report to Hiltron, resulting in their inability to allot him to the Training and Employment Department for his consequent absorption into service.

On the other hand Shri S. S. Yadav, learned counsel for the respondent-writ petitioner, would submit that, on Hiltron being wound up, around 103 employees of Hiltron were deputed to work in the Government I.T.I; the respondent writ petitioner was also sent on deputation to work in the I.T.I; he started working with the I.T.I of the Government of Uttarakhand on 17.09.2002; Hiltron had issued a circular on 05.07.2013 calling upon the petitioner to give an undertaking that he would claim his seniority and all other benefits only from the date of absorption; this condition required the respondent-writ petitioner to forego the entire services rendered by him with the Government, ever since 17.9.2002; while the petitioner was issued a relieving order on 11.09.2015, the said proceedings were also subjected to challenge in the writ petition; except for the respondent - writ petitioner, all the other 102 employees of Hiltron have been absorbed in the Government; and the respondent - writ petitioner has alone been singled out for differential treatment on the sole ground that he had invoked the jurisdiction of this Court under Article 226 of the Constitution of India.

The proceedings dated 5.7.2013 issued by the Principal Secretary to the Government of Uttarakhand stipulated that eligible employees of Hiltron were to be absorbed in the Training & Employment Department, Government of Uttarakhand pursuant to the decision of the Cabinet dated 17.06.2013, subject to fulfillment of certain conditions. Clause 6 & 7 of the conditions stipulated therein are that these employees would get themselves relieved from the department where they were working at the relevant time, and report to Hiltron; and, thereafter, they would be sent from Hiltron to the Government department for absorption. The endeavour of the appellant, in issuing such proceedings, is evidently to ensure that erstwhile employees of Hiltron, who were proposed to be absorbed in the services of the Government, should be extended all benefits, such as seniority, salary, etc. only from the date on which they joined the post in which they were being absorbed, and not from an anterior date.

Sri A.K. Bisht, Learned Standing Counsel for the appellant - State of Uttarakhand, would submit that, in terms of the said proceedings dated 05.07.2013, all other employees had exercised their option, they had fulfilled the conditions stipulated in the said proceedings, and were thereafter absorbed in the Training & Employment Department of the Government of Uttarakhand from the date on which they joined duties thereat; the petitioner alone had refused to exercise the option in terms of the conditions stipulated in the said proceedings, resulting in the appellant (respondent in the writ petition) not being able to absorb him into Government service; and while the learned Single Judge had directed the appellant to absorb the respondent-writ petitioner in government service, and to determine his conditions of service at par with those employees of Hiltron who had been absorbed in the Training & Employment Department of the Government of Uttarakhand, the respondent- writ petitioner was not granted the benefit of seniority from 17.09.2002, as was sought for by him in the writ petition.

While the petitioner cannot be singled out for adverse treatment merely because he had invoked the jurisdiction of this Court, the petitioner cannot, likewise, claim a benefit which has not been extended to other employees, and contend that he alone should be extended the benefit of seniority from a date anterior to the date on which the other employees were absorbed into Government service.

Shri S. S. Yadav, learned counsel for the respondent - writ petitioner, would contend that the petitioner had sought the relief, of being extended the benefit of seniority from the date he initially joined in the Training & Employment Department, Government of Uttarakhand on 17.09.2002, in the writ petition filed by him. The fact, however, remains that the learned Single Judge has not granted the said benefit to the petitioner. Any grievance, which the respondent-writ petitioner may have regarding his not being granted the benefit of seniority by the learned Single Judge, can only be agitated in an appeal filed by him against the said order, and not in an appeal preferred by the Government against the order of the learned Single Judge.

Shri S. S. Yadav, learned counsel for the respondent-writ petitioner, would point out that the petitioner had exercised his option earlier, and new conditions were imposed asking him to exercise his option all over again subject to such conditions, including that he should forego his seniority. As has been rightly held by learned Single Judge, the petitioner can be granted the relief of absorption only on par with the other employees who had been absorbed from Hiltron in the Training and Employment Department of the Government of Uttarakhand. While the order of learned Single Judge is, no doubt, cryptic, we are satisfied that the relief granted by the learned Single Judge is not one such as to necessitate interference in an intra-court appeal.

Suffice it to make it clear that the petitioner shall be absorbed, within two months from the date of the receipt of this order, in terms of the directions of the learned Single Judge; and shall be extended the benefit of seniority on par with the other employees of Hiltron whose services were also absorbed in the Training and Employment Department of the Government of Uttarakhand.

As the petitioner has specifically sought the relief of being granted the benefit of seniority from the year 2002, when he was initially sent to work in the Training and Employment Department of the Government of Uttarakhand, in the writ petition filed by him, which relief has not been granted by the learned Single Judge, suffice it to make it clear that the order now passed by us shall not disable the respondent - writ petitioner from availing his legal remedies against the order of the learned Single Judge.

Both the Special Appeals are disposed of accordingly.