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Vikramaditya Pandey And Others v. State Of U.P. And Others - WRIT - A No. 22728 of 2006 [2007] RD-AH 1131 (17 January 2007)


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Vikrmaditya Pandey & others  v. State of U.P. & others.

Hon'ble D.P. Singh, J.

Heard learned counsel for the petitioners and Sri Ashok Mehta for the respondent no.4, the Official Liquidator and the learned Standing Counsel for the other respondents.

This petition is directed against an order dated 31.3.2006 by which the claim of the petitioners for absorption in other Government Department under the U.P. Absorption of Retrenched Employees of Government or Public Corporation in Government Services Rule, 1991 (hereinafter referred to as the Absorption Rule, 1991) has been rejected.

In spite of sufficient time being granted even by a stop order on 26.9.2006 the State respondent has not filed any counter affidavit. The only counter affidavit filed is by the respondent no.2 to the effect that respondent no.3 is the Competent Authority, but no counter affidavit on his behalf has been filed. The Official Liquidator has filed a comprehensive counter affidavit.

Thus, the Court is left with no other option but to proceed to decide the writ petition on the basis of the material available on record.

The State Government was running two Cement factories at Dala and Churk and on the incorporation of the U.P. Cement Corporation, the assets of both the factories with its entire share capital were transferred to the said Corporation. The said Corporation was wound up by this Court in its Company jurisdiction vide order dated 8.12.1999 and all the employees of the Corporation stood retrenched. The winding up order dated 8.12.1999 was challenged before the Apex Court but the same was dismissed on 9.5.2000. The petitioners claimed absorption in other Government departments under the Absorption Rules, 1991 and also on the basis of the judgment of this Court rendered in the case of Bageshwari Prasad Srivastava and others  v. State of U.P. and others (Writ Petition No.17195 of 1998) decided on 29.4.1999, which judgment was upheld by the Apex Court through its judgment dated 18.3.2002. They also relied upon another judgment of this Court rendered in the case of Shailendra Kumar Pandey and others v. State of U.P. and others (Writ Petition No.36644 of 2003) decided on 6th January, 2004. Since their claim was not being considered, they preferred Writ Petition No.52929 of 2004 (Vikramaditya Pandey and others v. State of U.P. and others). A learned Single Judge of this Court vide order and judgment dated 21.2.2006 disposed off the writ petition with a direction to consider the claim of the petitioner by a reasoned order, keeping in mind the judgment rendered by this Court in Shailendra Kumar Pandey's case (supra). In pursuance thereof, the impugned order has been passed rejecting their claim on the ground that the petitioners had not been declared retrenched employees and that the recession Rules of 1991 have since been replaced by the Absorption Rules of 2003. The third ground for rejection is that the Apex Court in Special Leave Petition No.7235 (State of U.P. and another v. Makund Lal Singh) has passed an interim order on 23.1.2006.

Learned counsel for the petitioner has rightly urged that once the claim of the petitioner had been verified by the Official Liquidator in furtherance of the certificate issued by the Manager of the Corporation who was their appointing authority, there was no necessity of filing any retrenchment certificate. A perusal of the judgment in Shailendra Kumar Pandeys case (supra) shows that such identical objections of the State Government was considered and repelled in the following words:

" The respondents have not denied that the petitioners were employed in the Corporation which was wholly owned and controlled by the State Government from before 1.10.1986 and that the company was subsequently wound up by the Court. The Ex. General Manager of the Company (in liquidation) has issued the certificate and the Official Liquidator has forwarded the same to the State Government for action. It has not been denied by the State Government that the petitioners were not the employees of the U.P. State Cement Corporation (Liquidation). The object of the retrenchment certificate is to certify requisites of the retrenched employee as defined under Rule 2(c) of the Absorption Rules, 1991. As held in Bageshwari Prasad Srivastava's case the Managers certificate can be treated as retrenchment certificate. The Managing Director in the present case was the appointing authority. After the liquidation the affairs of the company are being looked after by the Official Liquidator and that relying upon the certificate of the General Manager, the Official Liquidator had conveyed his no objection to the absorption of the petitioners in the service of the State Government. The petitioners, therefore, fulfilled the eligibility conditions of retrenched employees for seeking employment with the State Government."

Thus, the first argument of the learned counsel for the petitioner is bound to be accepted.

The second objection mentioned in the impugned order is also covered by the judgment in Shailendra Kumar Pandey's  case. Further, it would be relevant to note that the Absorption Rules, 2003 came into force on 8.4.2003 while the rights of the petitioners to be considered for absorption stood crystallized under the Absorption Rules, 1991 much prior to that date. Inaction on the part of the State respondent or the Official Liquidator cannot deprive the petitioners of their rights which already accrued to them under the Absorption Rules of 1991.

So far as the order of status-quo passed in the Special Appeal relating to Mukund Lal Singh's case is concerned it is not denied on behalf of the respondents that on the basis of the judgment of this Court Sri Mukund Lal Singh had already been absorbed and is working and drawing his salary. Further, the Hon'ble Apex Court has yet not set aside the judgments passed by this Court in various identical cases.

Normally, the Court after quashing the order should remand it back to the Authority for reconsideration. However, as already noted above, in the earlier petition the matter was sent to the Authority for considering it in the light of the judgment rendered in the case of Shailendra Kumar Pandey (supra) but the Authority without application of mind and in a pre-determined manner rejected the claim on those very grounds which has been repelled earlier. On these facts, the Court would only be prolonging the harassment of the petitioners by sending the matter back.

For the reasons given above, this petition succeeds and is allowed and the impugned order dated 31.3.2006 is hereby quashed and the respondents are directed to absorb the petitioners in any vacancy in Group-C post outside the purview of U.P. Public Service Commission within a period of two months from the date of production of a certified copy of this order. No order as to costs.

D/- 17.1.2007



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