- (1.) Heard Mr. Anil Kumar Tiwari, learned Senior Counsel assisted by Mr. Apoorva Tiwari, learned counsel for the petitioner, Mr. H.G.S. Parihar, learned Senior Counsel assisted by Mr. B.R. Singh, learned counsel for the respondents, Mr. Raj Kumar Singh, learned counsel for the Union of India as well as Mr. Anand Vikram, learned counsel for the Union Public Service Commission and Mr. R.K. Chaudhary, learned Additional Advocate General.
(2.) The dispute confines between Mr. Baleshwar Singh and Mr. Mahendra Pratap Singh, who on re-organization of State of Uttar Pradesh(U.P.) were allocated to different States.
(3.) In exercise of power provided under the provisions of Section 73(2) of the Uttar Pradesh Reorganization Act, 2000, the Central Government allocated Mr. Baleshwar Singh to the State of U.P. and Mr. Mahendra Pratap Singh to the State of Uttranchal (now Uttarakhand) by means of final allocation order dated 30/31.10.2006, which was given effect to w.e.f. 09.11.2000. In the meanwhile, the Government of India had issued guidelines about mutual transfer. Since the Central Government had already issued final allocation order, it found no reason to entertain such requests of mutual transfer. However, it kept open to the successor State Governments to consider requests of mutual transfer based on broad consensus arrived at between the State Government, inter alia either defining the terms and conditions for such consideration or by framing suitable rule for this purpose. In furtherance thereof, the State Government issued circular dated 06.09.2006, whereby it laid down the terms and conditions of mutual transfer. At the same time, the State of Uttarakhand also issued circular of mutual transfer. Mr. Baleshwar Singh and Mr. Mahendra Pratap Singh both had submitted their representations for their mutual transfer, which was allowed by the U.P. Reorganization Coordination Department vide order dated 06.08.2008. Consequently Mr. Mahendra Pratap Singh was allocated to the State of U.P. and Mr. Baleshwar Singh was allocated to the State of Uttarakhand. Mr. Baleshwar Singh joined in the State of Uttarakhand on 30.08.2008 and Mr. Mahendra Pratap Singh joined in the State of U.P. on 15.09.2008. The High Court of Uttarakhand at Nainital dealt with the issue of allocation as well as mutual transfer in writ petition no.79 (S/B) of 2008; M.C. Joshi & others v. State of Uttarakhand & others. On the subject of mutual transfer, the Hon'ble High Court held as under: "...we are of the considered view that the Central Government could not have issued directions to the executive of the successor States, requiring them to carry out the exercise of framing a policy, laying down a criterion, for transfer of employees of one State to another by mutual consent, after they had been finally allocated to a particular State by the Central Government under Section 73 of the Reorganization Act, 2000. As already noticed hereinabove, the authority/jurisdiction vested in the Central executive can be delegated to a State executive only in accordance with the procedure envisaged under Article 258 of the Constitution of India. From the factual position narrated above, it is apparent, that the aforesaid procedure had not been followed, and that, the Central Government had issued the letters/orders dated 15.09.2004/08.06.2006 on its own accord. Thus viewed, the directions contained in the letters/orders dated 15.09.2004/08.06.2006, requiring the successor States of Uttarakhand and Uttar Pradesh to carry out the responsibility of transferring employees from one State to another, was wholly impermissible under the provisions of the Constitution of India. We are also satisfied, that under the federal scheme envisaged under the Constitution of India, it is not open to individual State Governments, to singularly or jointly issue a policy decision in the discharge of their executive/administrative authority, so as to transplant employees of one State into another. In our view, executive/administrative functions of a State under the mandate of Article 162 of the Constitution of India extends to matters with respect to which the legislature of the State has power to make laws, limited to the geographical boundaries of the State concerned. The action of a State in dealing with employees of another State, would transgress both the aforesaid limitations. Even the power to frame rules under Article 309 of the Constitution of India, has consciously been confined to the scheme of distribution of powers and governance, envisaged in Parts VI and XI of the Constitution of India. Under Article 309 of the Constitution of India, the power vested in the Governor of a State to frame rules regulating recruitment and conditions of service is limited to the "...services and posts in connection with the affairs of the State..." alone. Even the authority to frame rules under Article 309 of the Constitution of India vested in the Governor of a State, in our view, could not have extended to "...services and posts..." of another State. We are, therefore satisfied, that the exercise carried out jointly, even though by consensus, by the successor State of Uttarakhand and Uttar Pradesh, so as to transfer employees of one State to the other, was in clear violation of the distribution of executive/administrative functions envisaged under the Constitution of India.";