HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/S) No.1317 of 2019
Manohar Chandra Upadhyay ..….....Petitioner
Versus
State of Uttarakhand and Others ….….Respondents
With
Writ Petition (S/S) No.689 of 2018
Manohar Chandra Upadhyay ….....Petitioner
Versus
State of Uttarakhand through Secretary, Cane
Development and Sugar Industries and Ors. ….Respondents
Presence:-
Mr. M.C. Kandpal, learned senior counsel along with Mr.
Devesh Kandpal, learned counsel for the petitioner.
Mr. Sachin Mohan Singh Mehta, learned Brief Holder for the
State of Uttarakhand/respondents.
Hon’ble Pankaj Purohit, J. (Oral)
Since common question of law is involved in
both the writ petitions, hence, they are taken up
together and decided by this common judgment. For the
sake of brevity, the facts of WPSS No.1317 of 2019 are
taken into consideration.
2. By means of these writ petitions, the
petitioner has challenged the order dated 27.05.2019
passed by respondent No.2, Cane Commissioner/
Director, Ganna Kisan Sansthan evam Prashikshan
Kendra, Uttarakhand, Kashipur, by which the
petitioner was reverted from the post of Stenographer
to the post of Junior Clerk/Typist and further
direction is sought to respondent authorities to
provide 2nd Promotional Pay Scale, on the basis of
A.C.P. to the petitioner in the pay scale of Rs.9300/-
to Rs.34800/- with Grade Pay Rs.4600/- from the
date 01.09.2008, as petitioner had completed more
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that 16 years of services on 01.09.2008, from the
date of his joining as the Stenographer in the
department.
3. The facts of the case shorn-off unnecessary
details are that the petitioner was appointed on the
post of Junior Clerk on 17.12.1983 (Annexure No.1)
and posted in the office of Assistant Director, Ganna
Kisan Sansthan Evam Prashikshan Kendra,
Sahjahanpur, U.P. and from time-to-time, was
transferred to the several places in the State of Uttar
Pradesh. Subsequently, the petitioner was promoted
on the post of Stenographer vide resolution dated
25.05.1999 and since then, he has been working as a
Stenographer. The name of the petitioner was also
there in the Seniority List of the Stenographers.
4. After establishment of the new State-
Uttarakhand curved out from State of U.P., at that
juncture, the petitioner was working at Kashipur
Centre; which came within the newly created State of
Uttaranchal (Now Uttarakhand). The petitioner has
given option for being allocated to the State of
Uttarakhand. In the meeting dated 08.04.2002, the
authorities of the State of Uttarakhand resolved to
absorb the petitioner as employee in the Government
of Uttarakhand. Since then, the petitioner was
undoubtedly became an employee of the State of
Uttarakhand. Vide order dated 16.08.2004, the
Deputy Director, U.P. Ganna Kisan Sanstan,
Lucknow reverted the petitioner to the post of Junior
Clerk.
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5. The said order was challenged by the
petitioner by filing a Writ Petition No.74 of 2006 (S/S)
Manohar Chandra Upadhayay Vs. State of
Uttarakhand & Others, which came to be decided by
judgment and order dated 01.04.2010 by the
Coordinate Bench of this Court merely on the ground
that after the creation of the State of Uttarakhand
and absorption of the service of the petitioner by the
State of Uttarakhand, the officials of the State of
Uttar Pradesh has no business with the petitioner,
and therefore, no reversion order could have been
passed. Accordingly, the reversion order dated
16.08.2004 was set aside along with other orders
impugned in that writ petition dated 02.02.2006 and
14.06.2007, by which the representation of the
petitioner against the reversion order had been
rejected. However, Coordinate Bench of this Court
while allowing the said writ petition had given liberty
to the respondent-employer that in the event, if it was
found that the petitioner was not qualified under the
Rules, it would be open to respondents to take action
in accordance with law. The earlier writ petition came
to be decided vide order dated 01.04.2010, thereafter,
the petitioner has continued his service as
Stenographer with the respondent-department.
6. On 04.03.2016, petitioner moved an
application for grant of 2nd ACP w.e.f. 01.09.2008 as
he become eligible for the same. This application for
ACP worked as an explosive in the department and
instead of pursuing his case for grant of ACP, the
service of the petitioner was reverted again vide order
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dated 27.05.2019. It is feeling aggrieved by the said
reversion order, petitioner is before this Court.
7. Respondent-State has filed its counter
affidavit under the hand of Dr. Rajnish Singh posted
as Assistant Cane Commissioner/Assistant Director,
Ganna Kisan Sansthan evam Prashikshan Kendra,
Uttarakhand, Kashipur. The reversion order was
defended by filing a detail counter affidavit. In this
counter affidavit, it is submitted that as per Rules,
the petitioner does not fulfill the qualification
required for the post of Stenographer. According to
the counter affidavit, the required qualification was a
certificate of stenography.
8. It is the case of the respondents that since
the petitioner was not having the certificate of
stenography, therefore, he was afforded an
opportunity to clear the typing test conducted by the
respondent itself. But, the petitioner could not qualify
in the said typing test. He was also given opportunity
thrice to appear in the said typing test, but, he did
not participated in the same. Therefore, the petitioner
was reverted.
9. Rejoinder affidavit has been filed by the
petitioner to the counter affidavit of the State and in
the said rejoinder affidavit the case put up in the writ
petition was reiterated. In addition to it, it has been
stated that the respondent-department in the year
1991 allowed the petitioner to sit in the shorthand
and typing test and he was found satisfactory in
both-shorthand as well as typing speed (Annexure
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No. RA-2). Thereafter, petitioner was recommended
by the committee, for promotion on the post
stenographer.
10. It is submitted by learned senior counsel for
the petitioner that after setting aside of the reversion
order in the year 2010, no further typing
test/shorthand test was organized by the respondent-
employer rather employer is relying upon the typing
and shorthand test of the year 1991, which are
clearly contrary to the stand taken by the
respondent-State in the counter affidavit.
11. It is also submitted by learned senior
counsel for the petitioner that the department is
against the petitioner since beginning, when the
reversion order has been passed without any reason
and that to when the officials of State of UP has no
authority to pass such a reversion order after
absorption of the petitioner in the State of
Uttarakhand. Therefore, the said reversion order was
set aside.
12. It is also contended by learned senior
counsel for the petitioner that in the year 2010, when
the reversion order was set aside, no action has been
taken by the respondents with regard to the reversion
of the petitioner for the last almost 09 years and the
process for issuance of the reversion order was
initiated, when the petitioner moved an application
for claiming 2nd ACP to which he is entitled w.e.f.
01.09.2008.
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13. It is further submitted by the learned senior
counsel for the petitioner that in the counter affidavit,
it is submitted that the petitioner was not having the
requisite qualification of possessing a certificate of
shorthand for being appointed as Stenographer with
the department, but, the counter affidavit itself
negates the fact when it says that in the absence of
certificate of shorthand, the petitioner was directed to
appear in the shorthand and typing test. Thus, the
respondent-department cannot take a turn around
now saying that the petitioner was not having any
qualification like certificate of shorthand.
14. Having considered the rival contention of
the parties and having perused the record, it is quite
clear that the respondent has arbitrarily exercised the
power vested upon it while issuing the reversion order
without any reason. It is clear from the record that
the petitioner has qualified the typing/shorthand test
in the year 1991 in the erstwhile State of UP and
therefore, the reversion order passed on 16.08.2004
as well as the impugned reversion order dated
27.05.2019 is nothing, but a kind of sheer
harassment of the petitioner at the hand of the
respondents.
15. In this view of the matter, both the writ
petitions are allowed. The reversion order dated
27.05.2019 is hereby quashed. It is provided that the
petitioner is notionally reinstated on the promotional
post of Stenographer and the respondents are
directed to provide 2nd ACP to the petitioner as per
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law, which he is entitled to get from the date of his
entitlement. Since, the petitioner has already been
superannuated on 31.12.2020, the natural financial
and service consequential would follow in accordance
with law in favour of the petitioner.
16. Pending application(s), if any, also stands
disposed of accordingly.
(Pankaj Purohit, J.)
30.04.2024
PN