Heard Sri Jayes Dutt Awasthi holding brief of Sri Amit Kumar Awasthi, learned counsel for the petitioner and Dr. Udaiveer Singh, learned Additional Chief Standing Counsel for the State-respondents.
Rejoinder affidavit filed by the petitioner is taken on record.
By means of this petition the petitioner has assailed the validity of the order dated 27.2.2018 passed by the opposite party no. 3 by which the petitioner's services rendered in Lucknow Mandliya Vikas Nigam Limited was not calculated.
The learned counsel for the petitioner has drawn attention of this Court towards Annexure no. 2 which is an order dated 10.3.2017 passed by this Court in Service Single No. 5583 of 2017 : Vishnu Kumar Rawat and another vs. State of U.P. and others whereby this Court allowed the earlier writ petition of the petitioner. For the convenience the judgment and order dated 10.3.2017 is being reproduced herein below:
"Notice on behalf of opposite parties has been accepted by learned Chief Standing Counsel.
With the consent of learned counsel for parties, the writ petition is being disposed of at the admission stage.
By means of present writ petition, the petitioners are seeking a writ in the nature of mandamus commanding the opposite parties to calculate the period of services rendered by them in Mandaliya Vikas Nigam Limited. Petitioners also pray for a direction to the opposite parties to consider and decide the representation of the petitioner dated 06.01.2017, through which they have made request with respect to calculation of their services rendered by them in Mandaliya Vikas Nigam Limited.
Submission of learned counsel for the petitioners is that petitioners were initially appointed in Mandaliya Vikas Nigam Limited, which is the undertaking of Government of U.P. and on its closure, the petitioners were retrenched on 25.01.1993, By means of Government Order dated 11.11.1993, a provision was made for absorbing the retrenched employees of Mandaliya Vikas Nigam Limited in government services with the commitment that last pay drawn in Mandaliya Vikas Nigam Limited will be protected. In pursuance of Government Order dated 11.11.1993, the petitioners were absorbed in U.P. Panchayat Raj Department on 21.02.1995 on the post of Gram Panchayat Adhikari.
Grievance of the petitioners is that inspite of grievance raised by them for calculation of their earlier services in Mandaliya Vikas Nigam Limited no heed has been paid by the opposite parties whereas in the case of other similarly situated persons, who were absorbed in different government departments, services rendered by them in Mandaliya Vikas Nigam Limited have been calculated.
Learned counsel for the petitioner has drawn attention of this Court towards the judgments passed in Writ Petition No. 410 (S/B) of 2010 (Haridayesh Dayal Srivastava Vs. State of U.P. and others) and Writ Petition No. 6264 (S/S) of 2013 (Dev Pratap Pandey Vs. State of U.P. and others). It has also been informed that SLP of the State Government against the judgment passed in the case of Haridayesh Dayal Srivastava, has also been dismissed on 07.02.2013.
In this background, submission of learned counsel for the petitioners is that petitioners are also entitled to the benefit provided in the said judgments.
I have considered the submissions of learned counsel for the petitioners and gone through the record.
Admittedly, petitioner are retrenched employees of Mandaliya Vikas Nigam Limited and they were absorbed in U.P. Panchayat Raj Department on 21.02.1995, on the post of Gram Panchayat Adhikari.
As the issue with respect to counting of services rendered by the employees of Auto Tractors Limited, Pratapgarh has already been decided by this Court vide judgment and order dated 04.04.2012 passed in Writ Petition No. 410 (S/B) of 2010 (Haridayesh Dayal Srivastava Vs. State of U.P. and others) and benefit of the same was subsequently provided vide judgment and order passed in Writ Petition No. 6264 (S/S) of 2013 (Dev Pratap Pandey Vs. State of U.P. and others), this Court does not find any good reason to take a different view in the instant case.
This Court holds that petitioners are entitled for calculation of the period rendered by them in Mandaliya Vikas Nigam Limited and the period during which petitioners were retrenched due to closure of company/ Nigam. However, for the purpose of payment of salary and arrears for the period during which petitioners remained out of job will be excluded.
Accordingly, opposite parties are directed to consider and decide the case of the petitioners with regard to calculation of the earlier services render by them in Mandaliya Vikas Nigam Limited, in accordance with law, expeditiously preferably within a period of three months from the date of production of a certified copy of this order.
However, for the purposes of payment of arrears and salary, the period during which petitioners remained out of job, was to be excluded.
In view of the above, the writ petition is allowed."
The perusal of the aforesaid order clearly reveals that this Court has issued a mandamus directing the opposite parties to calculate the services of the petitioner rendered by him in Lucknow Mandaliya Vikas Nigam Limited with further observation that those period can be excluded for which the petitioner remained out of job.
It is clear that since this Court has held that the petitioner is entitled for calculation of the period rendered by him in Lucknow Mandaliya Vikas Nigam Limited, the opposite parties should pass appropriate orders in compliance of the aforesaid order calculating the earlier services of the petitioner rendered in the Nigam but without following the directions of this Court the District Panchayat Raj Officer, Hardoi has passed impugned order dated 27.2.2018 indicating therein that since the petitioner could not produce the relevant documents showing that he has discharged his duties in the Lucknow Mandaliya Vikas Nigam Limited, therefore, his services rendered in the said Nigam shall not be calculated.
The learned counsel for the petitioner has referred para 13 and 14 of the writ petition wherein he has given specific recital to the effect that one Jagdish Prasad Suman was also employee of the Nigam and after absorption in the Department of Panchayati Raj, he was getting all the benefits and his service which was rendered in the Nigam was added by the Department of Panchayati Raj itself. There was one Pradeep Kumar Srivastava who was employee of the Nigam was absorbed in the Government Department and the order was passed in his favour by this Court on 5.7.2013.
The State-respondent has filed counter affidavit and the specific reply of para 13 and 14 has not been given in the counter affidavit rather a collective reply of paras 11 to 23 of the writ petition has been given wherein it has been indicated that the authority concerned has abide by the directions of this Court. On the one hand the answering opposite party did not comply the order of this Court as by means of impugned order the earlier services rendered by the petitioner in the Nigam has not been calculated for the reason that the petitioner could not produce the relevant documents to that effect, however, such fact was not disputed in earlier writ petition i.e. W.P. No. 5583(S/S) of 2017 wherein the order dated 10.3.2017 was passed by this Court allowing the writ petition, surprisingly, on the other hand they are saying that they have followed the order of this Court. Learned counsel for the petitioner has referred the office order dated 23.11.2015 which has been filed with the rejoinder affidavit which provides that Sri P.K. Srivastava whose reference has been given in para 14 of the writ petition has been given the benefit counting his earlier services rendered in the Nigam.
Therefore, it appears that the order / modification order dated 27.2.2018 which is impugned order has been passed in the teeth of the judgment and order dated 10.3.2017 passed by this Court in Service Single No. 5583 of 2017. It further appears that the impugned order dated 27.2.2018 has been passed without verifying the factual and legal matrix of the issue properly and a mechanical order has been passed having no cogent reasons to that effect. Not only the above the answering opposite parties have not denied the specific submission of the petitioner raised in the writ petition, therefore, the specific recital to that effect in the writ petition shall be deemed to have been accepted by the answering opposite party.
Therefore, in view of the above the order dated 27.2.2018 passed by the opposite party no. 3 which is contained in Annexure no. 1 to the writ petition is nonest in the eyes of law and is liable to be quashed, accordingly the order dated 27.2.2018 (Annexure no. 1) passed by opposite party no. 3 is hereby quashed.
A writ in the nature of mandamus is issued commanding the opposite parties to recalculate the service of the petitioner rendered in the Nigam in the same manner as has been done in favour of other similarly placed employees.
In the result the present writ petition succeeds and is accordingly allowed.
No order as to costs.
Order Date :- 27.8.2019 Om [Rajesh Singh Chauhan, J.]