Court No. - 36
Case :- WRIT - A No. - 4127 of 2009 Petitioner :- Mohd. Faheem Khan Respondent :- State Of U.P. And Others Counsel for Petitioner :- S.F.A. Naqvi,Mohd Nasir,S.R. Sharma Counsel for Respondent :- C.S.C.
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the petitioner and learned Standing Counsel.
By means at the present petition, the petitioner seeks a mandamus commanding the respondents to absorb the petitioner in other department of the State Government in terms of the U.P. Absorption of Retrenched Employees of Government or Public Corporation Service Rules, 1991 (hereinafter referred to as the "Rules, 1991"). Further relief has been sought to seek arrears of back wages with interest.
The contention in the writ petition is that the petitioner was appointed as a casual welder in the U.P. State Cement Corporation Ltd. (A U.P. Government undertaking) at Churk, Mirzapur on 09.10.1986 and remained in the said job up-till 08.12.1999 i.e. till the date when the Cement Corporation of India was declared sick by the State Government. In order to absorb the retrenched employees of the U.P. State Cement Corporation Ltd., Government order was issued and, thereafter, U.P. Absorption of Retrenched Employees of Government or Public Corporation Service Rules, 1991 (in short as "1991 Rules") was promulgated. The petitioner herein claims to be covered by the definition of "retrenched employees" as given in Rule 2(c) of the 1991 Rules.
It is contended that 1991 Rules, had been promulgated by the State Government providing the procedure for absorption of retrenched employee in an alternative employment in different departments of the State Government.
It is contended that the work and conduct of the petitioner has always been satisfactory. The salary and salary certificate of October, 1994 has been brought on record to assert that the petitioner was regular employee. Further that the petitioner had filed a representation dated 14.10.2008 in the office of the Principal Secretary, Industrial Development, Government of U.P., Lucknow, which was not considered and hence, the present writ petition has been filed on 18.01.2009.
It is contended that in various writ petitions filed before this Court over the period of time, directions were issued to absorb the retrenched employees of the Government or public Corporation in different departments of the State Government in terms of the Absorption Service Rules, 1991.
The respondent, on the other hand, has taken a stand that the Rules, 1991 had been rescinded by the U.P. Absorption of retrenched employees of the Government or public in Government Services of Recession Rules' 2003. Thereafter, U.P. Act 26/09 had been framed to provide for recession of U.P. Absorption of Retrenched Employee of Government or Public Corporation in Government Service Rules, 1991 and the matter connected therewith and incidentally thereto.
Learned Standing Counsel contended that in view of the recession Rules, 2003, it is not possible for the respondent to absorb the petitioner in the department on the plea of being a retrenched employee of the U.P. State Cement Corporation Ltd.
It is contended that the Recession Rules, 2003 had not been declared invalid or altered or set aside by any Court of law. In view of the said statutory provision, the claim of the petitioner cannot be entertained.
It is further contended by the learned Standing Counsel that even by taking the definition of "retrenched employee" in Rules, 1991 into consideration, the petitioner would not fall within the meaning of such employee. The "retrenched employee" defined in Clause 1(c) of the Absorption Rules of 1991, means a person appointed on a post under the Government or a Public Corporation on or before October 1986, in accordance with the rules relating to recruitment to the said post and further that he had been continuously working in any post of the Government department or Corporation up to the date of his retrenchment. By placing the said certificates filed by the petitioners as annexure -'1' to the writ petition, it is contended by the learned Standing Counsel that the petitioner cannot be said to have been appointed on the post of 'Welder' by adopting due procedure prescribed for recruitment to the said post. Further the appointment letter is not on record. The certificate appended at page '15' and '16' of the paper book only indicates that the petitioner had been engaged as a 'casual Welder', that too on 09.10.1986. Further, the salary slip or pay certificate of the petitioner also indicates that the petitioner was paid salary of welder, being a casual welder.
With these submissions, learned Standing Counsel contended that there can be no direction for absorption of the service of the petitioner.
Learned counsel for the petitioner in rejoinder has pointed out that several petitions were filed by those persons who had been retrenched from the Government department or Corporation and all such petitions were entertained and direction had been given therein to decide the claim of the petitioner therein, in terms of the judgement of the Apex Court in Civil Appeal No.9165-9172 of 2010 (Sunil Kumar Verma And Others Vs. State of U.P. And Others), wherein the observation of this Court in the case of Shailendra Kumar Pandey and others Vs. State of U.P. and others decided on 06.01.2014, had been approved.
Placing the judgement of this Court in Shailendra Kumar Pandey and another Vs. State of U.P. in Civil Misc. Writ Petition No.36644 of 2003 decided on 06.01.2014, it is contended by the learned counsel for the petitioner that this Court has observed that those persons who had approached the respondents by filing representations to seek their absorption prior to Recession Rules, 2003 and whose representation were pending before the State Government, were entitled for consideration. The delay made by the Secretary (Karmik), Anubhag-2, Secretariat, Lucknow in deciding such matters cannot be a reason to refuse the due consideration, required to be made by the authority before recession of the absorption Rules' 1991. The recession of the Absorption Rules,1991 will, therefore, not come in the way of the petitioners therein in claiming absorption in Government department.
Considering the submissions of the parties and perused the record, it is found that there is no dispute about the fact that the Absorption Rules, 1991 had been rescinded with effect from 08.04.2003 by the Recession Rules' 2003 and later by means of the U.P. Act 26 of 2009 notified on 27.08.2009, the Absorption Rules; 1991 had been rescinded and be deemed to have been rescinded on 09.05.1991. The relevant provision of U.P. Act No.26 of 2009' Act Section 3, is quoted herein under:-
"3. Recession and savings.-(1) The Absorption Rules which was rescinded with effect from April 8, 2003 by the Rescission Rules shall be rescinded and be deemed to have been rescinded on May 9, 1991 and consequent upon such rescission:-
(a) the retrenched employees except those who were absorbed during the period from May 9, 1991 to April 8, 2003 shall have no claim with regard to their absorption under the said absorption rules or under any Government orders issued in regard thereto and their right regarding absorption accrued under the Absorption Rules shall be deemed terminated.
(b) the orders of the Government issued from time to time prescribing the norms of absorption for retrenched employees of a particular Government Department or Public Corporation in Government Service and granting of consequential benefits including pay protection shall stand revoked ab- initio.
(2) Notwithstanding such rescission,-
(a) the benefit of absorption provided to the retrenched employees absorbed before April 8, 2003 under the provisions of the Absorption Rules, shall not be withdrawn.
(b) the benefit of pay protection granted to the retrenched employees absorbed prior to April 8, 2003 shall also be maintained.
(c) a retrenched employee covered by the Absorption Rules, but who has not been absorbed till April 8, 2003 shall be entitled to get relaxation in upper age limit for direct recruitment to such Group 'C' and Group 'D' posts which are outside the purview of the Uttar Pradesh Public Service Commission to the extent he has rendered his continuous services in substantive capacity in the concerned Government Department or the Public Corporation in completed years."
A careful perusal of the said provision shows that benefit of absorption that was to be provided to the retrenched employees, except to those, who were absorbed during the period from May, 9, 1991 to April 8, 2003, had been discontinued under any of the absorption rules or Government Order issued in that regard. The orders of the Government issued from time to time prescribing the norms of absorption for retrenched employees of a particular Government Department or Public Corporation in Government Service and granting of consequential benefits including granting of pay protection, had been revoked ab- initio.
The benefit of absorption provided to the retrenched employees absorbed before April 8, 2003 under the provisions of the Absorption Rules, was not withdrawn. The Section 4 of 2009' Act, thus, gives effect to the Recission Rules 1991 with effect from April 8, 2003. Thus, from a reading of the said provisions, this much is clear that the retrenched employees who had been absorbed in the services of the Government departments prior to April 8, 2003, had been protected in view of the decision of this Court, wherein it was directed that the persons who had approached the State Government for their absorption in the Government department and whose representations remained pending till promulgation of the Recession Rules 2003, i.e. 8, April 2003 had to be absorbed.
The Apex Court in Sunil Kumar Verma and Others Vs. State of U.P. and Others also approves the posittion of law stated in Shailendra Kumar Pandey (supra). Accepting the observation in Shailendra Kumar Pandey (supra), it was held by the Apex Court that the appellants in Sunil Kumar Verma (supra) were entitled to reap the benefits of the absorption, as per their seniority with benefits of increments and 40% of back wages.
In so far as the present petitioner is concerned, he is not covered by the judgement of this Court in Shailendra Kumar Pandey (supra) nor by the Recession Rules 2003 or by the Act, 2009, whereby the Recession Rule, 2003 had been given effect from 08.04.2003. As the provision for absorption of retrenched employee had been withdrawn with effect from 08.04.2003, no relief can be granted to the petitioner herein. The reason being that the petitioner had approached this Court for the first time in the year, 2009 by filing the present petition with the assertion that his representation dated 14.10.2008 had not been considered by respondent no.1. In none of the paragraphs of the writ petition, it is disclosed that the petitioner had ever approached the State Government or the Authorities concerned for his absorption prior to the promulgation of the Recession Rule 2003 i.e. 08.04.2003.
For the aforesaid, the petitioner cannot get benefit of the ratio of Shailendra Kumar Pandey (supra) as approved by the Apex Court in the case of Sunil Kumar Verma and another (supra).
Moreover, there is a doubt with regard to the status of the petitioner being "retrenched employee". As seen from the certificate brought on record he can be termed as a casual labour, having not been appointed against a sanctioned post by adopting recruitment procedure, prior to 01.10.1986. The petitioner cannot, therefore, be said to be covered by the Absorption Rules, 1991.
For all the aforesaid reason, no mandamus can be issued.
The present petition is, thus, found devoid of merit and hence dismissed.
Order Date:- 26.4.2019 Radhika