ROOP NARAIN SONKAR Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Petitioner was a sub-Registrar in the undivided Uttar Pradesh. On 2nd July 1997 he got an ad hoc promotion. The ad hoc promotion required the petitioner to work at Pilibhit. At that time, the petitioner was working at Dehradun as sub-Registrar. He did not want to go to Pilibhit and assume the charge of his office of ad hoc promotee. He approached the Hon'ble High Court at Allahabad and obtained a stay of the order giving him the said ad hoc promotion. With effect from 9th November 2000 the State of Uttar Pradesh was divided and, accordingly, the State of Uttarakhand, then known as Uttaranchal, was formed. On 31st January 2005 the petitioner was allocated to the State of Uttarakhand. In the meantime, by an order passed by the Government of Uttar Pradesh, on 7th March, 2002 the petitioner was promoted as Assistant Inspector General, Registration. In as much as the petitioner by the aforementioned subsequent order dated 31st January 2005 was allocated to the State of Uttarakhand, the said promotional order of the petitioner dated 7th March 2002, issued by the State of Uttar Pradesh subsequent to formation of the State of Uttarakhand, became of no use. The said order dated 7th March 2002 was, accordingly, cancelled by the State of Uttar Pradesh by an order dated 12th September 2005. This order has been principally challenged in the present writ petition. The fact that the petitioner having had opted for the State of Uttarakhand, although his option was finally decided by the order dated 31st January 2005, but for all practical purposes including in terms of law governing the subject, the petitioner should be deemed to have been transferred to the State of Uttarakhand w.e.f. 9th November 2000, i.e., the date when the State of Uttarakhand was formed. Accordingly, the State of Uttar Pradesh as on 7th March 2002 had no jurisdiction to grant any promotion to the petitioner. By the order dated 12th September 2005, realizing that the said grant was improper, the State of Uttar Pradesh has cancelled the same. There is no scope of interference, therefore, with the said order of the Government of Uttar Pradesh dated 12th September 2005.

(2.) The petitioner contends that there are vacancies available in the State of Uttarakhand in the posts of Assistant Inspector General, Registration. Petitioner contends that he should be, taking note of the fact that he was promoted to the post of Assistant Inspector General, Registration, be promoted to the said post. The State of Uttar Pradesh, considering the merits of the petitioner and comparing the same with others in its cadre, decided to promote the petitioner on 7th March 2002. In the event, the petitioner is to be promoted; it would be a requirement on the part of the State of Uttarakhand to compare the merit of the petitioner with the merit of all those persons working in the feeder post in the State of Uttarakhand. That process has not yet been initiated and, accordingly, the same has not been completed. There is, therefore, no question of issuing any direction upon the State of Uttarakhand to promote the petitioner as Assistant Inspector General, Registration.

(3.) The learned counsel for the petitioner submitted that, in as much as the State of Uttarakhand has not denied in its counter affidavit that the posts of Assistant Inspector General, Registration are lying vacant, a mandamus should be issued directing the State of Uttarakhand to fill up those posts. We think whether a vacant post or posts should or should not be filled up, is within the exclusive domain of the executive state, and accordingly, the judiciary is not competent to issue any direction to fill up any such vacant post or posts. The judiciary can only step in, when there is an express or implied decision on the part of the executive state to fill up a post or posts. There being nothing on record to suggest that the State of Uttarakhand has impliedly or expressly decided to fill up the vacant post or posts of Assistant Inspector General, Registration, the Court is unable to issue any such direction in the present writ petition.