Devi Prasad Singh, J. - (1.) HEARD learned Counsel for the parties. Since these Bunch of writ petitions involves common question of law and facts, I proceed to decide these writ petitions by passing a present common judgment. The controversy under the present Bunch of writ petitions relates to transfer of petitioner employees by the impugned order to State of Uttaranchal in pursuance to provision contained in U.P. Reorganization Act, 2000 (Act No. 29 of 2000) (hereinafter referred as Act). The Act was promulgated by Parliament on 25th August, 2000 and it was notified in the Official Gazette on 9.11.2000 which is the "appointed day" for the purpose of bifurcation of State of U.P. into two States, other one is State of Uttaranchal.
(2.) IN the State of U.P. the Department of Horticulture and Food Processing was created sometime in the year 1974. Admittedly, petitioners were appointed on the different post of Group 2 and Group 1 in the hill area of State of U.P. At that time there was only one Horticulture Department in the State of U.P. However, by Government Order dated 3.2.1984 the Directorate of Horticulture Hill Region and Directorate of Plain Region merged into one Directorate. Thereafter, again by means of another Government Order dated 4.9.1989 the State Government had created two separate Directorate for Hill Region as well as Plain Region know as "Directorate of Horticulture and Food Utilisation (Hill U.P.)" which was having its Head Office at Chhaupati Ranikhet (now within the State of Uttaranchal and Directorate of Horticulture and Food Processing (plain U.P.) having Head Office at Lucknow respectively. A copy of Government Order dated 6th April, 1989 has been filed as Annexure 5 to the writ petition. The Director of both the wings were having independent powers to function within their respective jurisdiction subject to Government Order issued from time to time. Separate funds were allocated for both the wings. All the employees working in the hill area as well as plain area were under the administrative control of respective Directors with separate cadres under the technology of service. By Government Order dated 17th September, 1990 different terminology was adopted for both the wings viz. Directorate of Horticulture and Food Processing (Hill Region) and Directorate of Horticulture and Food Processing (Plain Region). The service condition of the employees of Group A category were governed by service Rule namely the U.P. Horticulture and Food Processing Group A Service Rules, 1991 (in short hereinafter referred as 1991 Rule), a copy of which has been filed as Annexure CA -5 to the counter -affidavit. According to Rule 4 of 1991 Rule two separate cadres were created vis. Plain cadre and Hill cadre. Rule 4 further provides that transfer of officer working in plain region to hill region or hill region to plain region shall not be permissible. For convenience Rule 4 of the Service Rule is reproduced as under: - "4. Cadre of Service. -(1) The strength of the service and of each category of posts therein shall be such as may be determined by the Governor from time to time. (2) The strength of the service and of each category of posts therein shall, until orders varying the same are passed under Sub -rule (1), be as given in Appendix A(1) and Appendix A(2) in respect of Plains Cadre and Hill Cadre respectively: Provided that - (a) The appointing authority may leave unfilled or the Governor may hold in abeyance any vacant post without thereby entitling any person to compensation; (b) The Governor may create such additional permanent or temporary posts, from time to time as he may consider proper; (c) The Governor may merge two or more sections or subsections or create new sections or sub -sections in the cadre with a view to promoting efficiency. (3) The various categories of posts in the service shall be divided into the following sections: PLAINS CADRE Section A : Direction and Administration. Section B : Horticulture Development. Section C : Food Processing. Section D : Experiment and Training. Section E : Statistics. HILL CARDE Section A : Direction and Administration. Section B : Horticulture Development. Section C : Food Processing. Section D : Experiment and Training. Notes. -(1) Transfers of officers from plains to the hills and from hills to the plains shall not be permissible. (2) Transfers of officers from one section and from one sub -section to another sub -section shall not be permissible."
(3.) U .P. Horticulture and Food Processing Rules, 1993 framed in pursuance to power conferred by Article 309 of the Constitution of India it was notified on 19.6.1993 (in short hereinafter referred as 1993 Rule) a copy of which has been filed as Annexure -CA -7 to the counter -affidavit. One another Rule was framed for Group B services namely U.P. Horticulture Food and Processing, U.P. Service Rule, 1993 filed as Annexure -6 to the counter -affidavit by the State. A perusal of 1993 Rule a copy of which has been filed as Annexure -7 of writ petition shows that Director is the appointing authority for employees of subordinate services. According to Rule 4 of 1993 Rule separate cadre was created for the hill area and plain area. A person working in one cadre were not entitled for transfer to other cadre i.e. from hill cadre to plain cadre or from plain cadre to hill cadre. For convenience Rule 4 of 1993 Rule is reproduced as under: - ..[VERNACULAR TEXT COMITTED].. It is not disputed that all the petitioners were appointed in hill cadre and their service conditions were governed by 1993 Service Rules. Their initial appointment were done in the hill cadre and from the date of their appointment they have been continuing to discharge duty in the hill cadre till their services were transferred to State of UP. after coming into force of Act in the manner discussed hereunder. A copy of one such appointment letter has been filed as Annexure -3 to the Writ Petition No. 5459/SS of 2004. At the face of record the appointment order was passed by the Additional, Director, Horticulture and Food Processing, Ranikeht. It appears that after enactment of the Act by the Parliament certain conversation took place at various level. After enactment of the Reorganization Act the Government of India had sent a letter dated 13.9.2000 to the State of U.P. alongwith certain guidelines containing the principles and modalities for handling the personal and service matters during the course of bifurcation of State of U.P. into two States. A copy of Government of India's letter dated 13.9.2000 has been filed as Annexure -2 to the supplementary affidavit in Writ Petition No. 5459/SS/ 2004. While issuing the guideline the Government of India had categorically provided that posts relatable to a territory which includes village, Tehsil, District, division or region including projects undertaking where such territories have been transferred in their entirity to the Successor State of Uttaranchal shall deem to be post of Successor State of Uttaranchal on or from the appointed day. The guidelines further provided that all recruitment against the vacancies in term i.e. till issuance of final allocation order shall be kept in abeyance. It further provides that all transfers which have been planned and within jurisdiction through out the State may be with held inpursuance till reorganization of the States is affected. Wherever transfer order has been issued but the same not executed may be cancelled. The guideline further provides that all persons working in the Successors State shall continue to work in the Successor State till final allocation is done. However, Reorganization Committee was directed to prepare a list of personnel for provisional allocation to Successor State of Uttaranchal. The State employees were further permitted to submit their option in designated proforma. The relevant portion of the guidelines as provided in circular dated 15.9.2000 meant for the purpose of allocation is reproduced as under: - "Allocation of personnel. -State Cadre personnel should be allocated on the following lines - (a) Those serving in village, Tehsil, District, division or region who are normally liable for transfer with in such area and are part of such territorial cadres, shall be deemed to have been appointed to such post by the Successor State of Uttaranchal on and from the appointed day in whose territory the area has been included. (b) Those recruited specifically or projects or undertaking where such projects/undertaking are part of the Successor State of Uttaranchal on and from the appointed day would be deemed to be working in connection with the affairs of the Successor State of Uttaranchal. However, those serving in the project or undertaking if they belong to an organized State cadre shall be dealt in the manner as indicated in para below. (c) The list of personnel for provisional allocation to the Successor State of Uttaranchal against each cadre/category of posts may be prepared by the Reorganization Committee of the existing State of Uttar Pradesh keeping in view the preference of such employees and other relevant factors like maintaining the balance within each cadre/category of post, Domicile States, ethnic affinity etc. (d) In making allocations as indicated in the para above, the importance of ensuring in each case as far as possible a composite and balanced cadre with age and seniority groups evenly distributed should be born in mind. (e) In cadres/categories where the composition and balance of the cadres have not been achieved, to the extent of shortfall, the list may be completed by including the names of the juniors most personnel of the respective cadres/category." Option from employees. -(A) State Services employees whose services are transferable with in the State may be asked to indicate their preference in the designed Performa to serve in either of the Successor State after the reorganization of States is given effect to Performa is enclosed as Annexure 'A'. (B) However, it should be made clear to these employees that without prejudice to their rights it would be open for the Government to post them either provisionally or on final basis in any Successor State in administrative interest or in the exigencies or public service. The preference performance from may be got legally vetted before issue to the employees, so that this does not confer on them any right for allotment to any State or any post.";