Hon'ble Pankaj Mithal,J.
Petitioner was appointed as an Agronomist/Soil Conservation Officer in the year 1981 on selection by the U.P. Public Service Commission, Allahabad through the Combined State Services Examination 1979. He was promoted and posted as Project Officer (Agriculture) Nainital w.e.f. 1.1.2000. During his service, he opted for the Hill Sub-cadre constituted for the agriculture department in pursuance to the Government Order dated 23.3.1982.
In accordance with the U.P. Reorganization Act, 2000 (hereinafter referred as Act) a new State Uttrakhand (previously Uttaranchal) was constituted comprising 13 districts of the erstwhile State of of U.P. On the creation of the new State of Uttrakhand options were invited from the employees of the State of U.P. as to whether they would like to remain in service in the State of U.P. or would prefer services in the new State of Uttrakhand. The petitioner submitted option on 8.10.2000 for remaining in the State of U.P. on account of his heart ailment. A fresh option on demand, to the same effect was submitted by him on 2.11.2000. However, the Reorganization Commissioner, Uttrakhand vide orders dated 4.4.01 and 5.5.2001 notified that the State Advisory Committee has recommended that all the employees working in the Hill Sub-cadre be allocated the services of new State of Uttrakhand. It was followed by a similar order dated 10.5.01 and on that basis Additional Director Agriculture and Soil Conservation, Government of Uttrakhand issued an order dated 21.5.01 to the effect that the options of the employees of the Hill sub-cadre, who have opted to remain in the State of U.P. have been rejected. These orders have been impugned by the petitioner in the present writ petition with the further prayer that a suitable direction be issued to the respondents to absorb him as a Class-1 employee in the Agriculture Department of the State of U.P.
It is not disputed that the petitioner had previously opted for the U.P. Hill sub-cadre and he had remained posted in the hill area. Even today he is posted and working in the State of Uttrakhand.
We have heard Sri Adarsh Bhushan holding brief of Sri Aditya Kumar Singh, learned counsel for the petitioner and learned Standing Counsel appearing for the respondent Nos. 2, 3, 6 and 9. We have also perused the record of the writ petition. There is no counter affidavit on record and in view of the fact that the petition is pending since 2001 and sufficient time was earlier allowed to the Standing Counsel to file counter affidavit, we propose to dispose of the writ petition in the absence of the counter affidavit.
The submission of learned counsel for the petitioner is that petitioner is admittedly a heart patient and is not suited to serve in the hill area. On the creation of the State of Uttrakhand, he had opted for the State of U.P. The said option has not been considered individually. It cannot be rejected on a general ground merely for the reason that he had earlier opted for Hill sub-cadre.
On the other hand, learned Standing counsel has submitted that the rejection is on the basis of the advice of the State Advisory Committee constituted by the Central Government and therefore there is no scope for any interference in the said decision in exercise of powers under Article 226 of the Constitution of India.
In deciding the controversy at hand, it would be appropriate to deal in brief with the scheme of U.P. Reorganization Act 2000 viz-a-viz creation of the new State of Uttrakhand out of the 13 hill districts of the erstwhile State of U.P. and the allocation of the State of Uttrakhand to the employees of the State Government.
Section 73(1) of the Act provides that every person serving in connection with the affairs of the existing State of Uttar Pradesh before the appointed date, shall on or before that day continue to serve in the State of Uttar Pradesh provisionally unless he is required by general or special order of the State Government to serve in connection with the affairs of the State of Uttrakhand provisionally.
Section 73(2) of the Act empowers the Central Government to determine by general or special order the successor State in reference to every person referred to in Sub-section (1) of Section 73 of the Act for final allotment. In other words the power of final allocation of a successor State to an employee vest with the Central Government.
Further Section 76 of the Act empowers the Central Government to appoint Advisory Committee for assisting it in discharging its functions, ensuring fair and equitable treatment to all persons likely to be affected and for proper consideration of representation of such persons. Central Government is also authorized to give direction to the State Government as may be necessary for giving effect to the provisions of part VIII of the Act. In exercise of the above powers Central Government constituted a State Advisory Committee for the purposes of bifurcation of the cadres and allocation of the successor State to the employees. The State Advisory Committee so constituted consisting of senior and experienced civil servants, on 2.7.2002 finalized the norms and criteria for allocation of the successor State to the employees. A revised government order dated 15.7.2002 regarding final allocation on the basis of norms/criteria so laid down by the State Advisory Committee was issued incorporating the following principles:-
(1) The first of be allotted will be optees to Uttranchal.
(2) Those whose home district as declared in service records lies within Uttaranchal, will be allotted to that State.
(3) If vacancies persist, the junior most as on the appointed day in the desired pay scale would be allotted.
(4) While carrying out the exercise care would be taken to observe the criteria regarding reservation of SCs/STs/OBCs and others. Care would also be taken to allocate personnel pro rata according to the total strength of the batch, as far as possible.
(5) If both husband and wife are in service, allotment would be in accordance with the option of the senior with reference to the pay scale. In case of officers finally allotted to Uttaranchal vide Government of India's order dated 11.9.2001, the spouse would be allotted Uttaranchal only and not Uttar Pradesh.
(6) Female employees would be allocated according to their options, subject to the condition that those whose spouses are covered by Point 2 or Point 3 would be allotted Uttaranchal only and not Uttar Pradesh.
(7) Those employees who are due to retire within two years will be allotted as per their option.
(8) Handicapped employees, if not finally allotted to Uttaranchal vide orders dated 11.9.2001 issued by Government of India would be allotted as per their options.
A Division Bench of this court in Pushpak Jyoti vs. State of U.P. and others 2004 (1) UPLBEC 547 : 2004(55) ALR 28 observed that the aforesaid norms/criteria laid down by the State Advisory Committee are objective in nature and have been designed to avoid arbitrary action in the matter of allocation of State to the employees. The said norms/criteria were held to be fair and reasonable. It was further held that the aforesaid norms/criteria laid down by the State Advisory Committee will be deemed to be guidelines of the Central Government since it was set up by the Central Government and was required to assist it in the matter of allocation of the successor State to the employees.
The aforesaid norms/criteria were however subject to genuine and extreme hardship of individual employee to be considered and decided at the discretion of the State Advisory Committee. Thus it was envisaged that on the consideration of the above norms/criteria, the State Advisory Committee would issue a tentative final allocation list whereupon employees affected by such tentative allocation would be entitle to make representation regarding their personal difficulties and hardships; whereupon on consideration of individual representations central government would finalise the allocation of the State to each employee.
In the case of Purushottam Kumar Jha Vs. State of Jharkhand and others 2006 (9) SCC 458 an employee of the Bihar was provisionally allocated the State of Jharkhand under the Bihar Reorganization Act, 2000. He was provisionally transferred to the State of Jharkhand. It was held that such transfer was not in contravention of any provision of the Act and as such requires no interference of the court.
In the case of Indradeo Paswan Vs. Union of India and others 2007(7) SCC 250 the Supreme Court held that the matter of allocation of the State to the employees under the Reorganization Act would not require any interference unless a clear illegality or wednesbury unreasonableness is shown.
A Division Bench of this Court in the case of Sanjay Kumar Singh and another vs. State of U.P. and others 2009 (8) ADJ 49 held that the norms/criteria laid down by the State Advisory Committee are neither unreasonable or irrational. Therefore, where the objections of each Officer were considered before making allocation, there is no violation of the principles of natural justice and such allocation cannot said to be arbitrary or whimsical warranting interference by the High Court.
In the present case, petitioner was allocated the State of Uttrakhand vide order dated 4.4.2001 annexure-9 to the Writ Petition. In the joint meeting of the Central Government and the two States held on 4.4.2001, it was decided as a policy that all employees of the Hill Sub-cadre would remain posted in Uttrakhand as would be evident from the communication dated 5th May, 2001 annexure-12 to the Writ Petition. The State Advisory Committee thereafter in its meeting held on 16.5.2001 recommended for the rejection of all options of the employees of the Hill Sub-cadre for the allocation of the State of Uttar Pradesh. This decision was communicated vide order dated 21st May, 2001 annexure-14 to the Writ Petition. Finally, the Central Government in exercise of powers under Section 73(2) of the U.P. Reorganization Act vide order dated 11.9.01 annexure-15 to the Writ Petition in accordance with the aforesaid policy took a decision that all employees belonging to the Hill Sub-cadre as on the appointed date i.e. 9.11.2000 would remain in Uttrakhand and as such all options/representations for serving in the State of U.P. would stand disposed of.
Such decision of allocation of the State of Uttrakhand to the petitioner on the basis of the above policy decision is not shown to be suffering from any arbitrariness or wednesbury unreasonableness.
The option of the petitioner to be posted in State of U.P. was thus considered and disposed of as aforesaid and no other representation in this regard remained pending. There is nothing on record to indicate the developments after 2001 and the petitioner who admittedly belong to the Hill Sub-cadre as per the Uttar Pradesh Hill Sub-cadre Rules 1992 as such continued to remain posted in the State of Uttrakhand even after the devision of the erstwhile State of Uttar Pradesh.
In view of the aforesaid facts and circumstances, as the petitioner admittedly belong to the Hill-Sub-cadre and had always remained posted in the hilly region of the State of U.P. which now constitutes the State of Uttrakhand, no prejudice has been caused to him by the final allocation of the State of Uttrakhand.
Accordingly, we are of the opinion that the petitioner has failed to make out a case for interference with the impugned orders in exercise of the extra-ordinary jurisdiction under Article 226 of the Constitution of India.
Writ Petition as such lacks merit and is accordingly dismissed but with no order as to costs.
Order Date :- 6.1.2011 piyush