State of Uttarakhand others v. Madan Singh Rana

Judgment

(per Manoj Kumar Tiwari, J.) Since common questions of law and fact are involved in these two Special Appeals, therefore, they are heard together and are being decided by a common judgment. However, for the sake of brevity, facts of

Special Appeal No. 981 of 2019 arising out of WPSS No. 1 465 of 2018, alone are being considered and discussed.

2. Writ petitioner Madan Singh Rana (respondent herein) was appointed on Group ‘D’ post of Cook in Garhwal Mandal Vikas Nigam (A Government Company) on 15.04.1987 and thereafter, he was promoted to Group ‘C’ post of Head Cook on

30.07.1997. After State Reorganization, he was attached in Governor’s Household Establishment w.e.f.

08.11.2000. Subsequently, by an order dated

23.03.2001 issued Secretary, Governor’s Secretariat, he was posted as Head Cook, in Governors’ Household Establishment. Services of the writ petitioner came to be absorbed in Governor’s Household Establishment vide order dated 15.12.2004, under the Absorption Rules, 2004. Since past services rendered by writ petitioner in Garhwal Mandal Vikas Nigam Ltd. were not being taken into account for benefit under Assured Career Progression (ACP) Scheme, therefore, he earlier filed Writ Petition (S/S) No. 1760 of 2015 for directing the respondents to count his services rendered in Garhwal Mandal Vikas Nigam for ACP. The said Writ Petition was disposed of vide order dated 16.05.2017 with a direction to the State Government take decision on letter dated

28.08.2017, whereby his claim for ACP was recommended. Pursuant to order passed by Writ Court, State Government considered the matter and decided against the Writ Petitioner vide order dated 19.12.2017 by holding that he cannot be given benefit of past services for ACP. He challenged the rejection order in another Writ Petition in which, he also sought a 2 declaration that non-counting of his past services for grant of ACP and other benefits in Governor’s Household Establishment is bad in law. The said writ petition was allowed by learned Single Judge vide judgment dated 22.07.2019, which is impugned in this appeal filed by State.

3. Para 11 and 12 of the impugned judgment is excerpted below: “11. 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 appointment 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 ACP. 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 3 absorption the Governor’s Household Establishment has been made by taking into account his past services rendered 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.

12. 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 ACP and other service benefits, as expeditiously as possible, preferably within a period of three months from today.”

4. Heard learned counsel for the parties and perused the record.

5. Learned counsel for the State (Appellant) submits that ACP scheme was introduced for the first time vide Government Order dated 08.03.2011, as earlier there was a separate Scheme in vogue, under which Promotional Pay Scale was to be given, after putting in specified length of service. He submits that para 2 (viii) of the Government Order dated 08.03.2011 unequivocally provides that past services rendered by an employee under Central Government/Local Body/ Autonomous Institutions/ Public Sector Undertakings 4 and Corporations shall not be counted for grant of ACP. Learned State Counsel submits that the Government Order, whereby ACP scheme was introduced itself provides that past services rendered under Central Government/Local Bodies/Autonomous Institutions/ Public Sector Undertakings and Corporations shall not be taken into account for grant of ACP, therefore impugned judgment, which was passed by ignoring Para 2 (viii) of the G.O. cannot be sustained. Para 2 (viii) of the Government Order dated 08.03.2011 is excerpted below:- “(viii) dsUnz ljdkj@LFkkuh; fudk;@Lo’kklh laLFkk@lkoZtfud midze ,oa fuxe esa dh x;h iwoZ lsok dks foRrh; LrjksUu;u ds fy, x.kuk esa ugha fy;k tk;sxkA”

6. State Counsel submits that learned Single Judge was not justified in issuing a direction to take into account the past services rendered by Writ Petitioner in Garhwal Mandal Vikas Nigam for ACP and further submits that, learned Single Judge has not considered para 2 clause (viii) of the Government order dated 8th March, 2011, which goes to the root of the matter. He thus submits that the impugned judgment is unsustainable in eyes of law.

7. Per contra, Mr. K. P. Upadhyay, learned counsel appearing on behalf of the writ petitioner referred to the Absorption Rules 2004, and relied upon Rule 5 (2) of the Absorption Rule, 2004 for contending that since the Rules provide for absorption on specific in Governor’s Household Establishment, therefore, denial of benefit of past service to the Writ 5 Petitioner was not justified. He also relies upon Sub Rule (5) (7) and (8) of Rule 7, for contending that there was no break in service of the writ-petitioner and pay and other monetary benefits which he was getting before absorption, was protected by Rule 7 (8) of the aforesaid Rules, therefore, the benefit of past services could not have been denied to him. He also refers to an amendment in the Absorption Rules made vide notification dated 30.10.2009.

8. Mr. K. P. Upadhyay, learned senior counsel further submits that after insertion of sub-rule 11 in Rule 7 through an Amendment made in 2009, past service rendered by drivers is to be taken into account for their adjustment in appropriate grade against available vacancies, and sub-rule 12 which was also added through Amendment in Rule 7, provides that Driver and Group ‘D’ employees shall be given benefit of their past services for time scale, if they were getting benefit of time scale under the previous employer. Mr. K.P. Upadhyay also refers to a Government order dated

30.11.2011, by which benefit of ACP was made available to employees of Public sector undertakings and Government Corporations, with effect

01.01.2006 and contends that if respondent was not absorbed in Governor’s Household Establishment, then also he would have got ACP, while continuing with the previous employer i.e. Garhwal Mandal Vikas Nigam.

9. Mr. Puran Singh Bisht, learned State counsel further contends that Rule 7(8) of the Absorption Rules, 2004 provides only for pay protection to ensure 6 that the increments earned by an employee and consequent pay fixation, is not lost due to absorption if upon absorption his pay is fixed at the initial stage. He submits that Rule 7(8) was never intended to give other benefits to absorbed employee and claim for ACP based on Rule 7 (8) by respondent is un-sustainable. He further submits that amendment in the Absorption Rules made in 2009 also do not help the Respondent as he neither is Driver nor Group ‘D’ employee. He further submits that grant of ACP for past services to absorbed employee is also not contemplated in the Rules, even after amendment made in 2009. As regards, the Government Order dated 30.11.2011, relied by learned Senior Counsel for the Respondent, learned State Counsel submits that employees of Government Corporations/Public Sector undertakings earlier were not entitled to ACP and vide Government Order dated 30.11.2011, benefit of, ACP scheme was extended to them. He submits that the embargo placed in Para 2 (viii) of Government Order dated 08.03.2011 was never lifted, as would be evident from Clause 7 of Government Order dated 30.11.2011, which provides that other conditions mentioned in earlier Government Order dated 08.03.2011 will remain unaffected.

10. Learned State Counsel further submits that Absorption Rules are totally silent on the point of ACP, however the Government Order, whereby ACP scheme was introduced, imposes embargo against grant of ACP, qua the past services rendered by absorbed employees in some other organization. Thus he submits that the impugned judgment rendered by 7 learned Single Judge is un-sustainable as the bar contained in para 2(viii) of the G.O. dated 08.03.2011 was not considered at all.

11. We find substance in the said submission made by learned State counsel.

12. Since, there is an express bar in the Government Order by which ACP scheme was introduced, however import of that bar has not been considered and discussed in the impugned judgment, therefore, the impugned judgment is interfereable. Grant of ACP is not regulated by any Statute but is governed by a Government order. The eligibility conditions for ACP and the services which can be taken into account for ACP etc. have been laid down in Government Order dated 08.03.2011. In the said Government Order, it is expressly mentioned that services rendered in other organizations including Government Companies/Corporations, will not be taken into account for ACP. Without dealing with the said condition and without declaring that condition bad in law, no direction could have been issued to grant ACP to the writ petitioner by adding his past services rendered in a different organization. For the aforesaid reason, we set aside the impugned judgment rendered by learned Single Judge.

13. Learned counsel for the respondent then submitted that other similarly situate persons, who were absorbed as Driver/Peon in Governor’s Household Establishment, were given benefit of past services for 8 ACP. He submits that writ petitioners may be permitted to make representation highlighting the said aspect before the competent authority.

14. We therefore, dispose of the Special Appeals with liberty to writ petitioners (respondent herein) to make representation to the competent authority. If they make representation within four weeks from today, decision thereupon shall be taken by the competent authority as per law, within a period of four months. (Manoj Kumar Tiwari, J.) (Subhash Upadhyay, J.) Dated: 04.06.2025 Kausha 9