KESHAV DATT TIWARI Vs. STATE OF UTTARAKHAND
LAWS(UTN)-2013-7-100
HIGH COURT OF UTTARAKHAND
Decided on July 29,2013

Keshav Datt Tiwari Appellant
VERSUS
STATE OF UTTARAKHAND Respondents

JUDGEMENT

Sudhanshu Dhulia, J. - (1.) HEARD Mr. C.D. Bahuguna, Senior Advocate assisted by Mr. Anup Kr. Verma, Advocate for the petitioners, Mr. Avtar Singh Rawat, Additional Advocate General assisted by Mr. H.M. Raturi, Standing Counsel for the State of Uttarakhand and Mr. Ajay Veer Pundir, Advocate for private respondent Nos. 3 to 49.
(2.) THE petitioners before this Court are Firemen working in the Fire Service Department of the State. The next promotion from the post of Fireman is to the post of Leading Fireman. The service conditions of Fireman even in the erstwhile State of Uttar Pradesh was governed by the U.P. Fire Service Act, 1944 (hereinafter referred to as the Act of 1944). It is admitted case that under Section 87 of the U.P. Reorganization Act 2000, the aforesaid provisions of law is also applicable to the State of Uttarakhand. Under Section 25 of the Act of 1944, the State Government has rule making powers, which read as under: - - "25. Rule making power. - -The State Government may, by notification in the Official Gazette, and subject to the condition of previous publication, make Rules to carry out the purposes of this Act." However, the Rules for the Firemen were framed under sub -section (2) of Section 241 of the Government of India Act, 1935 which is a similar provision to what we have under Article 309 of the Constitution of India. The Government framed these rules known as "United Provinces Fire Services (Recruitment and Conditions of Service) Rules, 1945 (hereinafter referred to as the Rules of 1945). These rules were notified on 03rd October, 1945 by the Home Department (Police), Lucknow.
(3.) THE argument of the learned senior counsel for the petitioners is that all such rules have been framed under Section 241(2)(b) of the Government of India Act 1935, but the Government has rule making powers under Section 25 of the Act of 1944 and therefore these rules should be read as framed under the provisions of the Act. This Court is not inclined to accept this argument for the reason that inspite of the powers of the Government to frame rules under Section 25 of the Act of 1944, the fact of the matter is that ultimately the service rules have been framed under Section 241(2)(b) of the Government of India Act 1935, which is a "similar" provision to what we have now under Article 309 of the Constitution of India, and reads as under: - - "241. Recruitment and conditions of service. - -(1) "except as expressly provided by this Act, appointments to the civil service of, and civil posts under the Crown of India, shall after the commencement of Part III of this Act, be made - (a) in the case of services of the Federation, and posts in connection with the affairs of the Federation, by the Governor -General or such person as he may direct; (b) in the case of services of a Province, and posts in connection with the affairs of a Province, by the Governor or such person as he may direct. (2) Except as expressly provided by this Act, the conditions of service of persons serving His Majesty in a civil capacity in India shall, subject to the provisions of this section, be such as may be prescribed - (a) in the case of person serving in connection with the affairs of the Federation, by rules made by the Governor -General or by some person or persons authorized by the Governor -General to make rules for the purpose; (b) in the case of persons serving in connection with the affairs of a Province, by rules made by the Governor of the Province or by some person or persons authorized by the Governor to make rules for the purpose: Provided that it shall not be necessary to make rules regulating the conditions of service of persons employed temporarily on the terms that their employment may be terminated on one month's notice or less, and nothing in this sub -section shall be construed as requiring the rules regulating the conditions of service of any class of persons to extend to any matter which appears to the rule -making authority to be a matter not suitable for regulation by rule in the case of that class. (3) The said rules shall be so framed as to secure - (a) that, in the case of a person who before the commencement of Part III of this Act was serving His Majesty, in a civil capacity in India, no order which alters or interprets to his disadvantage any rule by which his conditions of service are regulated shall be made except by an authority which Mould have been competent to make such an order on the eighth day of March, nineteen hundred and twenty -six, or by some person empowered by the Secretary of State to give directions in that respect; (b) that every such person as aforesaid shall have the same rights of appeal to the same authorities from any order which - (i) punishes or formally censures him; or (ii) alters or interprets to his disadvantage any rule by which his conditions of service are regulated; or (iii) terminates his appointment otherwise than upon his reaching the age fixed for superannuation. As he would have had immediately before the commencement of Part III of this Act, or such similar rights of appeal to such corresponding authorities as may be directed by the Secretary of State or by some person empowered by the Secretary of State to give directions in that respect; (c) that every other person serving His Majesty in a civil capacity in India shall have at least one appeal against any such order as aforesaid, not being an order of the Governor -General or a Governor. (4) Notwithstanding anything in his section, but subject to any other provision of this Act, Acts of the appropriate Legislature in India may regulate the conditions of service of persons serving His Majesty in a civil capacity in India and any rules made under this section shall have effect subject to the provisions of any such Act: Provided that nothing in any such Act shall have effect so as to deprive any person of any rights required to be given to him by the provisions of the last preceding sub -section.. (5) No rules made under this section and no Act of any Legislature in India shall be construed to limit or abridge the power of the Governor -General or a Governor to deal with the case of any person serving His Majesty in a civil capacity in India in such manner as may appear to him to be just and equitable: Provided that, where any such rule or Act is applicable to the case of any person, the case shall not be dealt with in any manner less favourable to him than that provided by that rule or Act.";


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