UNION OF INDIA Vs. K.N. UNIYAL
LAWS(UTN)-2013-7-30
HIGH COURT OF UTTARAKHAND
Decided on July 24,2013

UNION OF INDIA Appellant
VERSUS
K.N. Uniyal Respondents

JUDGEMENT

- (1.) Respondent/writ petitioner was engaged in the Peace Establishment of Gorkha Resettlement Training Unit. He was a Tailoring Instructor. On 6th February, 2003, it was decided that no more tailoring courses will be available for being pursued. Accordingly, respondent/writ petitioner became virtually jobless. Taking these aspects of the matter into consideration, on 10th September, 2004, the Government gave an offer to him. The offers were: (a) Choice of posting to suitable station; (b) Willingness to serve in equivalent/similar or lower post with pay protection. Despite knowledge of the fact that in view of the decision dated 6th February, 2003, there is no longer any necessity of having a Tailoring Instructor and despite knowledge of the fact that the respondent/writ petitioner was a Tailoring Instructor, the Government did not decide to abolish the post of Tailoring Instructor, in which post the respondent/writ petitioner was working and consequentially, declare him as surplus and, thereby, terminate his service, instead the Government decided to retain the respondent/writ petitioner at a suitable station of his choice, if the respondent/writ petitioner expresses his willingness to serve in equivalent/similar or lower post. On 7th October, 2004, respondent/writ petitioner submitted his option. He stated that the posts of Welder and Tailoring Instructor have been equated under SRO No. 231 dated 30th May, 1986. He stated that he wishes to serve as a Welder. He stated that he be adjusted in the Raiwala workshop or in a place nearby. He stated that the reason for his choice of station is that all his children were studying at Raiwala and his wife is ill. This option dated 7th October, 2004, which was received on 8th October, 2004, was dealt with by an order dated 10th January, 2005, whereby the respondent/writ petitioner was asked to report at Military Hospital, Roorkee for the purpose of stitching clothes there. Respondent/writ petitioner did not give any option, which could be accepted in the manner the same was accepted on 10th January, 2005. The order dated 10th January, 2005 was the subject-matter of challenge in a writ petition filed by the respondent/writ petitioner and registered as Writ Petition No. 794 (S/S) of 2005. The said writ petition succeeded and the order dated 10th January, 2005 was quashed with a direction to reconsider the option of the respondent/writ petitioner and to dispose of the same by a reasoned and speaking order. Accordingly, the option of the respondent/writ petitioner was reconsidered on 28th June, 2005, where it was indicated that since the respondent/writ petitioner does not have degree/diploma certificate in welding trade, he cannot be employed as Welder. The fact remains that when the option was sought from the respondent/writ petitioner to show his willingness to serve in equivalent/similar or lower post, it was not indicated that the respondent/writ petitioner must have appropriate qualification to serve in those posts. Question of a Tailoring Instructor having qualification in other trade did not arise. Keeping that in mind, by the letter dated 10th September, 2004, the Government asked willingness of the respondent/writ petitioner to serve in equivalent/similar or lower post. While exercising option, respondent/writ petitioner had indicated that he has working experience in the unit under the Training JCO Subedar Chandra Rai and such experience was gained by working when there were no training courses in progress as the respondent/writ petitioner possessed sufficient practical experience of Gas and Electric Welding work before joining the service. So, what was held out was that before the respondent/writ petitioner was appointed as a Tailoring Instructor, he had acquired sufficient practical experience of Gas and Electric Welding and knowing that when Tailoring course was abandoned since 6th February, 2003, he was utilized by Training JCO Subedar Chandra Rai to work as a Welder. By the order dated 28th June, 2005, respondent/writ petitioner has been sent to 11 FOD Bhatinda to work as a Tailor. Respondent/writ petitioner was not appointed as a Tailor. He was a Tailoring Instructor. Respondent/writ petitioner did not give an option to be appointed in a lower post of Tailor. In the letter dated 10th September, 2004, it was not indicated that in the event, respondent/writ petitioner cannot be adjusted in accordance with his option, he shall have to accept such posting as may be offered to him. The decision of the Government is one. Implementation thereof by the servants of the Government is another. In the matter of implementing the Government decision conveyed on 10th September, 2004, the officers of the Government did not make any attempt even to ascertain the true purport of the Government decision dated 10th September, 2004. That being the reason, the order dated 28th June, 2005 has been set aside by the judgment and the order impugned in the Appeal rendered on the second writ petition filed by the respondent/writ petitioner challenging the said order dated 28th June, 2005. It was open to the Government to recall its decision conveyed on 10th September, 2004, but an officer of the Government could not act contrary to what the Government had conveyed by its order dated 10th September, 2004. We have not been able to persuade ourselves to take a contrary view than what has been expressed by the learned Judge while rendering the judgment under Appeal.
(2.) We, accordingly, dismiss the Appeal. Interim order stands vacated.;


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