Rajesh Tandon, J.:— Heard the learned Counsel for the parties.
2. Present writ petition has been filed for the issue of a writ order or direction in the nature of mandamus commanding the respondents to relieve the petitioners for the State of Uttar Pradesh from Uttaranchal.
3. Brief facts giving rise to the present writ petition are that the petitioners are presently posted as Constables in Civil Police at District Udham Singh Nagar. The petitioners have stated that they were appointed in the State of U.P and were transferred to various places in State of U.P before creation of State of Uttaranchal vide orders dated 25.5.1999, 1.7.1999 and 18.7.2000 but the respondents have not relieved the petitioners to their new posting in the State of Uttar Pradesh. The petitioners gave representations have prayed that they may be relieved from Uttaranchal but no orders have been passed for relieving them for the State of Uttar Pradesh.
4. Section 73 of the Uttar Pradesh Reorganization Act, 2000 provides that every person shall continue to serve provisionally and thereafter the Central Government shall determine the final allocation for service. Section 73(1), (2), (3) reads as under:—
“73. Provisions relating to other services.—(1) Every person who immediately before the appointed day is serving in connection with the affairs of the existing State of Uttar Pradesh shall, on and from that day provisionally continue to serve in connection with the affairs of the State of Uttar Pradesh unless he is required, by general or special order of the Central Government to serve provisionally in connection with the affairs of the State of Utttaranchal:
Provided that every direction under this sub-section issued after the expiry of a period of one year from the appointed day shall be issued with the consultation of the Governments of the successor States.
(2) As soon as may be after the appointed day, the Central Government shall, by general or special order, determine the successor State of which every person referred to in sub-section (1) shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect.
(3) Every person who is finally allotted under the provisions of sub-section (2) to a successor State, shall, if he is not already serving therein be made available for serving in the successor State from such date as may be agreed upon between the Governments concerned or in default of such agreement, as may be determined by the Central Government.”
5. The advisory committee has been constituted under Uttar Pradesh Reorganization Act, 2000 by virtue of section 76 of the Act. It reads as under:—
“Advisory Committees.— The Central Government may, by order, establish one or more Advisory Committees for the purpose of assisting it in regard to—
(a) the discharge of any of its functions under this part; and
(b) the ensuring of fair and equitable treatment to all persons affected by the provisions of this part and the proper consideration of any representations made by such persons.”
6. Counsel for the petitioners has also referred section 77 of the Uttar Pradesh Reorganization Act, 2000 with reference to the power of the Central Government. It reads as under:—
“Power of Central Government to give directions.— The Central Government may give, such directions to the State Government of Uttar Pradesh and the State Government of Uttaranchal as may appear to it to be necessary for the purpose of giving effect to the foregoing provisions of this part and the State Government shall comply with such directions.”
7. The grievance of the petitioners are that they may be directed to be relieved in pursuance of sub-clause (2) of section 73 of the Act, for State of Uttar Pradesh for which they have given their option.
8. In Writ Petition No. 457 (S/B) 2003 Udai Pratap Singh v. State of U.P the Division Bench of this Court has passed the following order:
“Under section 73(2), the Central Government is given the power to allocate the cadres by general or special order of allotment between the two States. Section 76 provides for setting up of an Advisory Committee to assist the Central Government. By the impugned order dated 11th September, 2002, the Central Government has issued directions allocating the various cadres between the two States. The Central Government has issued these directions pursuant to the authority given by the Legislature to the Central Government”.
“The Central Government had constituted an Advisory Committee under section 76. That Committee submitted its report on 28th April, 2001/10th May, 2001. Their report has been accepted by the Central Government as indicated by letter dated 4th September, 2001 (Annexure-4). We may clarify that the report of the Advisory Committee has not been fully accepted by the Central Government.”.
9. The Division Bench in Writ Petition No. 451(S/B)/2003 Narendra Kumar v. State of Uttaranchal has passed the following order:—
“Under section 73 of the U.P Reorganization Act, 2000, final allocation of all State Services personnel between the successor States shall be decided by the Central Government. Till date, that decision has not been taken. Therefore, the petition is premature.”
10. Similar matter was also decided by the Bench consisting of Hon'ble P.C Verma, J. His Lordship has passed the following order:—
“Heard learned Counsel for the parties. The controversy is squarely covered by the order passed by Division Bench of this Court in W.P No. 1426 (S/B) of 2001, Mulayam Singh v. State of Uttaranchal, on 3.6.2003 The petitioners are also relegated to approach the Advisory Board with fresh representation and same be disposed of as observed in the aforesaid writ petition. With the aforesaid observation, the writ petition is disposed of.”
11. In the light of the aforesaid observations the petitioners are permitted to make their representations before the Advisory Committee of Union of India.
12. The counsel for the Union of India has submitted that the Advisory Committee of the Central Government is taking suitable steps to finally allocate the persons who have given their options for the State of U.P The petitioner, therefore, is directed to approach the Advisory Committee who shall consider the same in accordance with law.
13. The petitioners apprehend that they will not be heard by the Advisory Committee for relieving the petitioners in accordance with their options.
14. The apprehensions are misconceived. Suffice it to state that it is rule of natural justice that no one should be condemned unheard.
15. In the case Smt. Maneka Gandhi v. Union of India . 1978 1 SCC 248, the Apex Court has observed as under:
“It is well established that even where there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the rights of that individual, the duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action.
“In England, the rule was thus expressed by Byles, J. in Cooper v. Wandsworth Board of Works.
“The laws of God and man both give the party an opportunity to make his defence, if he had any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence. Adam (says God), “where art. thou? Hast thou not eaten of the tree whereof I commanded the that thou shouldest not eat”. And the same question was put to Eve also.”
16. The judgment in the case of Menaka Gandhi (supra) has been followed in the case of West Bengal Electricity Regulatory Commission v. C.E.S.C Ltd. . JT 2002 7 SC 578., relying upon the case of Mrs. Maneka Gandhi v. Union of India . 1978 1 SCC 248. as under:
“The right of audi alteram partem is a valuable right recognised even under the Indian Constitution. See Mrs. Menaka Gandhi v. Union of India . 1978 1 SCC 248. wherein it is held, the principle of the maxim which mandates that no one should be condemned unheard; is a part of rule of natural justice. We have already held that such right of hearing conferred by a statute cannot be taken away even by Courts.”
17. The representations along with their options shall be considered by the Advisory Committee of the Union of India for relieving them for the State of U.P The representations of the petitioners shall be disposed of within a period of 6 weeks after production of the certified copy of the order.
18. With the aforesaid observations, the writ petition is disposed of. No. order as to costs.
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