# Pawan Kumar v. Union of India and other

- **Citation:** (2011) 1 ILRA 111
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-01-06
- **Case number:** Civil Misc Writ Petition No. 37121 of 2001
- **Bench:** Satya Poot Mehrotra, Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pawan-kumar-v-union-of-india-and-other-41796
- **Pages:** 5

## Headnote

U.P. Reorganization Act 2000-Section
76-Petitioner working as sil conservation
officer-opted
and
always
remained
posted in Hill area-after existence of new
state of Uttarakhand-representated on
ground of heart trouble to remain in
state of U.P. The Committee took policy
decision to post those who were already
working in Hill District-which resulted
rejection-held-No
prejudice
causeddismissed.

Held: Para 18 & 19

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.

Case law discussed:
2004 (1) UPLBEC 547:2004(55) ALR 28,2006
(9) SCC 458,2007(7) SCC 250, 2009 (8) ADJ

## Text

1 All] Pawan Kumar V. Union of India and other
111
rate of 10% p.a. commencing from the
date of death of petitioner's husband till
actual payment.

10. If the petitioner or any other
legal
heir
apply
for compassionate
appointment in accordance with law, the
same may also be accordingly considered
as per the rules.

11. The petitioner shall also be
entitled to cost which is quantified to Rs.
10,000/- (Rupees ten thousand).
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.01.2011

BEFORE
THE HON'BLE SATYA POOT MEHROTRA, J.
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc Writ Petition No. 37121 of 2001

Pawan Kumar

 ...Petitioner
Versus
Union of India and other ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare
Sri Aditya Kumar Singh
Sri Adarsh Bhushan
Sri Vishnu Shanker Gupta

Counsel for the Respondents:
Sri S.N. Srivastava (S.S.C.)
C.S.C.

U.P. Reorganization Act 2000-Section
76-Petitioner working as sil conservation
officer-opted
and
always
remained
posted in Hill area-after existence of new
state of Uttarakhand-representated on
ground of heart trouble to remain in
state of U.P. The Committee took policy
decision to post those who were already
working in Hill District-which resulted
rejection-held-No
prejudice
causeddismissed.

Held: Para 18 & 19

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.

Case law discussed:
2004 (1) UPLBEC 547:2004(55) ALR 28,2006
(9) SCC 458,2007(7) SCC 250, 2009 (8) ADJ
49.

(Delivered by Hon'ble S.P. Mehrotra, J.)

1. 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.

2. In accordance with the U.P.
Reorganization
Act,
2000
(hereinafter
112 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
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.

3. It is not disputed that the petitioner
had previously opted for the U.P. Hill subcadre and he had remained posted in the hill
area. Even today he is posted and working
in the State of Uttrakhand.

4. 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.

5. 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 subcadre.

6. 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.

7. 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.

8. 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
1 All] Pawan Kumar V. Union of India and other
113
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.

9. 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.

10. 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.

11. 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
114 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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 Subcadre for the allocation of the State of Uttar
Pradesh. This decision was communicated
vide order dated 21st May, 2001 annexure14 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
1 All] Pankaj Kumar V. State of U.P. and others
115
would remain in Uttrakhand and as such all
options/representations for serving in the
State of U.P. would stand disposed of.

17. 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.

18. 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.

19. 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.

20. 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.

21. Writ Petition as such lacks merit
and is accordingly dismissed but with no
order as to costs.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.01.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 41701 of 2008

Pankaj Kumar

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.P.S. Chauhan
Sri Durga Singh
Sri Sandeep Srivastava

Counsel for the Respondents:
Sri D.S. Srivastava
Sri Kshetresh Chandra Shukla
C.S.C.

U.P. Govt. Servant Seniority Rules 1991Rule 5-readwith Food Inspectors Service
Rules 1992, Rule 20-claim of seniorityon basis of fortuitous date of joiningignoring substantive date of selectionheld-misconceived-there are so many
unforeseen reasons for late joiningcannot be basis to ignore the placement
of merit list-if late joining for valid
reason, candidate not to suffer-petition
dismissed with cost of 20,000/-

Held: Para 36

Answer to this submission is that Rule 5
takes care of such circumstances. It says
that if a late joining is for valid reason,
the candidate would not suffer. The
decision in this regard is to be taken by
the appointing authority whose decision
has been declared final. No such decision
in respect of any individual case has
been challenged before this Court on the
ground that such discretion has been
exercised by appointing authority in
reference to any individual candidate
arbitrarily or illegally. In absence of any
such challenge, if for valid reasons, the