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Subhash Prasad v. The State Of U.P. & Others - SPECIAL APPEAL DEFECTIVE No. 233 of 2007 [2007] RD-AH 4593 (15 March 2007)


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Chief Justice's Court

Special Appeal No. 233 of 2007

  Subhash Prasad vs. The State of U.P. and others


Counsel for the appellant: Mr. P.N. Singh

Counsel for the respondents: Mr. Abhinav Upadhyaya, SC


Hon'ble H.L. Gokhale, CJ

Hon'ble Ashok Bhushan, J

1. Heard Mr. P.N. Singh, learned counsel for the appellant and Mr. Abhinav Upadhyay, learned Standing Counsel appearing for the respondents.

2. The appellant joined the services under the district Collector, Deoria on 23.5.1988 for a couple of months during the election period. He was subsequently discontinued. It is his case that he was entitled to the benefits under the Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporations in Government Service Rules, 1991.

3. He filed a writ petition before the learned Single Judge being Civil Misc. Writ Petition no. 56080 of 2005. That writ petition came to be dismissed by an order dated 9.1.2007.

4. The learned Single Judge has decided another writ petition of one Prabhu Nath Prasad being Civil Misc. Writ Petition No. 1473 of 2006 on 9.1.2007 and the learned Judge observed that since the controversy involved in the present writ was same as that one, the  petition would not be entertained and was, therefore, dismissed.

5. The case of the appellant was that he was entitled to absorption under those rules. For that, it was necessary for him to show that he was falling in the definition of a retrenched employee,  which is available under rule 2 (c) of the 1991 rules. This definition reads as follows:

"2 (c) "retrenched employee" means a person who was appointed on a post under the Government or a Public Corporation on or before October 1, 1986 in accordance with the procedure laid down for recruitment to the post and was continuously working in any post under the Government or such corporation up to the date of his retrenchment due to reduction in or winding up of any establishment of the Government or the public Corporation as the case may be and in respect of whom a certificate of being a retrenched employee has been issued by his appointing authority."

6. From the definition, it is clear that a retrenched employee had to be in the Government employment or in the Public Corporation on or before October 1, 1986.

7. Mr. Upadhyay, learned Standing Counsel appearing for the Government points out that it was a kind of one time arrangement. Since there was a large scale of retrenchment in the Public Corporation and in the Government, it came out with the scheme of absorption. It was not available for the persons, who were to be retrenched thereafter.

8. In any case, this scheme, which was created under the 1991 rules, was rescinded in 2003 by promulgation of rules known as U.P. Absorption of Retrenchment Employees of Government or Public Corporations in Government Service (Rescission) Rules, 2003.

9. By those rules, the rights under the earlier 1991 rules were specifically rescinded. Rule 3 (1) (i) of this 2003 rules reads as follows:

"3 (1) Uttar Pradesh Absorption of Retrenched Employees of Government Rescission and Public Corporation in Government Service Rules, 1991 are hereby rescinded and as a consequence of such rescission_

      (i)    the right of a retrenched employee to be considered for absorption accrued under the Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporation in Government Services Rules, 1991 but who has not been absorbed till the date of the commencement of the Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporations in Government Services (Rescission) Rules, 2003 shall stand terminated from such date,"

10. Mr. Upadhyay, therefore, submits that when rules of 2003 came up into force, the petitioner's right under the 1991 rules came to an end. There is no provision to absorb the petitioner once 2003 rules came into force.

11. The case of the petitioner is that some others were absorbed from time to time under the earlier rules. He has drawn our attention to the absorption of one Vijay Kumar Pandey by Government order dated 7.7.2001 and some persons belonging to the backlog by a further order dated 27.1.2005. He submits that on a parity, the petitioner must get an absorption similarly.

12. We have considered the submissions of the appellant and as well as of the respondents.

13. For seeking any such parity or any such right, firstly the appellant must fall within the definition of retrenched employee. The petitioner does not fall under that definition.

14. That apart, rule 3 (1) of the earlier rules meant that the persons concerned were to be considered for absorption. It could not be said that each and every one of them must be absorbed. Rule 3 (1) 1991 rules for ready reference is quoted below:

"3 (1) Notwithstanding anything to the contrary contained in any other service rules for the time being in force the State Government may by notified order require the absorption of the retrenched employee in any post or service under the Government and may prescribe the procedure for such absorption including relaxation in various terms and conditions of recruitment in respect of such retrenched employees.

15. This being the position, at the highest, the appellant had to be considered like any other employee. That right came to an end when the rules were rescinded in 2003 rules. Subsequently, there cannot be any specific performance of any such right under the earlier rules which no longer prevail. The appeal is dismissed.

16. The Counsel for the appellant had contended that certain right has crystallized under the earlier rules.

17. As pointed out above, the appellant did not fall within the category of retrenched employee which was covered under the 1991 rules. That apart, the only right under 1991 rules was for being considered for an employment. That being so, such submission can not be accepted.



RK/               (Chief Justice)

         (Ashok Bhushan,J)



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