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Prabhu Nath Prasad And Others v. State Of U.P. And Others - WRIT - A No. 1473 of 2006  RD-AH 483 (9 January 2007)
Civil Misc. Writ Petition No. 1473 of 2006
Prabhu Nath Prasad and others
State of U.P. and others.
Hon'ble V.K. Shukla,J.
Brief facts giving rise to the instant writ petition in brief is that petitioners had been performing and discharging their duty at Chunar Cement Factory, which was one of the Units of U.P. Cement Corporation. On account of closure of aforementioned Factory, petitioners were retrenched. Petitioners claim that in consonance with the provisions as contained in U.P. Absorption of Retrenched Employees of Government or Public corporations in Government Service Rules, 1991, as they fulfill each and every pre requisite terms and conditions envisaged therein, as such they are entitled to be absorbed in any of the post or service under Government. Petitioners have contended that various incumbent who were retrenched employee pursuant to the said rules have been offered appointment in other Government Offices. Petitioners have contended that as they have not been offered appointment, as such they preferred along with other Civil Misc. Writ Petition No. 26888 of 2000. Petitioners have contended that this court on 18.1.2005 directed for consideration of their claim in other government department but the said claim has been rejected by contending that after enforcement of U.P. Absorption of Retrenched Employees of the State Government or Public Sector Corporation in Government Service (Rescission) Rules, 2003), petitioners have got no right to claim absorption and further in the matter arising of Special Appeal, Special Leave to Appeal is pending before Hon'ble Apex Court wherein interim order has been passed, as such no action is required.
Counter affidavit has been filed and therein it has been contended that Chunar Unit of U.P. Cement Corporation was ordered to be wound up by the order of this court's dated 8.12.1999 whereby Official Liquidator was appointed. It has been further contended that in the past 1991 Rules had been issued in exercise of power vested under the proviso to Article 309 of the Constitution of India and as per said Article 309 of the Constitution of India, State Government was empowered to notify order, whereby it may provide for absorption of Retrenched Employees in any post or service under the Government and also prescribe the procedure for such absorption including relaxation in various terms and conditions of recruitment in respect of such retrenched employees. Such notified order by virtue of sub- rule (1) of Rule 3 of 1991 Rules was to have over riding effect. Said rule nowhere provide for any automatic absorption of any retrenched employee covered under the definition of "Retrenched Employee" of 1991 Rules, unless and until a notified order has been issued by the State Government and the matter of such Retrenched Employee is covered by such order and the manner and the procedure for absorption was followed in accordance with such notified order read with relevant service rules. It has been contended that thereafter, policy decision was taken by the State Government on 8.12.1991 directing all non technical post to be filled in by direct recruitment to the extent of 5% shall remain unfilled. Said decision was causing serious hindrance in absorption / alternative employment of the Ex-employee of the aforesaid companies and Corporations. Thereafter, Government Order dated 21.12.1992 was issued directing therein that the Government Order dated 18.12.1991 shall not be applicable if the vacancies are filled in by employing the retrenched employee of the aforesaid Government Companies/Corporations. It has been contended that said absorption of the aforesaid employees was having negative impact on the efficiency in the government departments and was proving counter productive to the aims and object with which the aforesaid orders were issued. It has been contended that in this backdrop entire matter was reconsidered by the Government and accordingly a Government Order dated 27.5.1993 was issued stating that there is no justification in future to absorb the employee of the Government Corporations in the government service. After issuance of the Government order dated 27.5.1993 certain clarifications were sought from the respective departments and clarification was issued clarifying that the Government Order dated 27.5.1993 would be applicable only to such Government Government Companies/Corporations which are closed/wound up after 27.5.1993. It has been contended that in the light of the judgment dated 27.4.1999 of Bhadohi Woolen Ltd. (Supra) State Government issued Government Order dated 11.11.1993. Thereafter, it has been contended that Government in exercise of power conferred under the proviso to Article 309 of the Constitution of India, promulgated the U.P. Absorption of Retrenched Employees of Government or Public Corporation in government Service (Rescission) Rule, 2003, which rescinded the 1991 Rules with immediate effect i.e. 8.4.2003 and clearly held that the right of the retrenched employees to be considered for absorption accrued under 1991 Rules but who has not been absorbed till the commencement of 2003 Rules, shall stand terminated from the date of enforcement of 2003 Rules. Reference has also been given of the judgment of Hon'ble Apex Court dated 28.4.2006 in Civil Appeal No. 520-3 of 2004 Awas Vikas Sansthan and another. Vs. Awas Vikas Sansthan Engineers Association and others, wherein it has been held that "department which was abolished or abandoned wholly or partially for want of funds, the court cannot, by a writ of mandamus, direct the employer to continue employing such employees as have been dislodged". In this background, it has been contended that writ petition is liable to be dismissed. Rejoinder affidavit has been filed disputing averments mentioned in counter affidavit and reiterating averments of writ petition.
Application has also been filed for quashing of the order dated 16.5.2005, said application has been treated to be part of the writ petition.
After pleadings mentioned above, have been exchanged, present writ petition has been taken up for hearing and disposal with the consent of the parties.
Sri A.K. Srivastava, Advocate, learned counsel for the petitioner contended with vehemence that in the present case, petitioners have been meted with arbitrary treatment as their accrued rights have been sought to be taken away and the rights which have been sought to be rescinded same ought to have operated prospectively and same cannot be permitted to operate retrospectively, as such impugned decision dated 16.5.2005 is vitiated and is liable to be quashed, and petitioners are entitled to be absorbed , as other incumbents have been absorbed.
Sri C.B. Yadav, learned Chief Standing Counsel, assisted by Sri Shashank Shekhar, Advocate, Brief holder of the State Government countered the said submission by contending that in the present case Governor has exercised his Legislative power, by framing Rules in exercise of the authority vested under the proviso of Article 309 of the Constitution of India and by means of the same so called accrued rights have been taken away, as such where rules have been framed and validity of the rules have not at all been questioned, then law has to take its own course, as such writ petition as it has been framed and drawn is liable to be dismissed.
After respective arguments have been advanced, undisputed factual position which is emerging is that U.P. State Cement Corporation (In Liquidation) was wounded up on 8.12.1999. Same was owned and controlled by the State Government and thus it is an instrumentality of the State under Article 12 of the Constitution of India. Petitioners claim that they are employees of the Corporation, appointed prior to 1.10.1986 and were working in the company on the date, when it was wound up by this Court. Petitioners have made an application for their absorption in any department of the State Government to the Secretary (Karmik) Anubhag-2 Secretariat, Lucknow. They claimed their absorption under Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporations in Government Services Rules 1991. Under Rule 3 (1) of this rules, the retrenched employees were given the rights to be absorbed on any post or service under the Government and the procedure prescribed for such absorption including relaxation in various terms and conditions of recruitment in respect of such retrenched employee.
The Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporation in Government Service Rules, 1991.,at this juncture is being looked into
1. These rules may be called the Uttar Pradesh Absorption of Retrenched employees of Government of Public Corporation in Government Service Rules, 1991.
(i)They shall come into force at once.
(ii)They shall apply to the post under the Rule making power of the Governor of Uttar Pradesh under the proviso in Article 309 of the Constitution.
2. Unless there is anything repugnant in the subject or contest the expression.
(a) Appointing Authority in relation to any post for which an employee was retrenched means the authority empowered to make appointment to such post.
(b)"Public Corporation" means a body corporate established or constituted by or under any Uttar Pradesh Act except a University of local authority constituted for the purpose of local self Government and includes a Government company within the meaning of section 517 of the Companies Act., 1955 in which the State Government has prepondering
(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.
(d) Service rules" means the rules made under the proviso to Article 309 of the Constitution and where there are no such rules, the executive instructions issued by the Government regulating the recruitment and condition of service of persons appoint similar.
3. (1) Notwithstanding anything to the contrary contained in any other service rules for the time being in force the State Government may be notified order require the absorption of the retrenched employee in any post or service under the Government and may prescribed the procedure for such absorption including relaxation in various terms and conditions of recruitment in respect of such retrenched employees.
2. The provisions contained in relevant service Rules shall be deemed to have been modified to the extent of their inconsistency with the provisions made in the notified order referred to in sub rule (1).
In respect of employees of Bhadohi Woolen Limited, this court considered the applicability of Rule, 1991 in Civil Misc. Writ Petition No. 17195 of 1998, Bageshwari Prasad Srivastava and others and State of U.P. and others decided on 29.4. 1999. This Court held as follows:-
"The purpose of retrenchment certificate is to enable the employee who will absorb him to know the reason for retrenchment. It obviates the necessity to find out whether the employee was terminated for any disciplinary action etc. An employee satisfying all the requirement of retrenchment cannot be denied absorption only because he was not possessed of the certificate. In absence of a form or manner in which a certificate should be issued, the provisions should be construed or as to advance the main objective of the rule namely Absorption of an Employee whose services have come to an end as a result of winding up of the Company. The petitioner had applied for retrenchment certificate to the Managing Director. He did not refuse to issue it nor did he hold that petitioners were not retrenched employee. Since there were 323 employees of the Managing Director instead of issuing of individual certificate wrote a letter to the Government to absorb them in Government Department. There is no reason as to why this letter of the Managing Director should not be construed as a retrenchment certificate. It is settled law that no one should fact that the petitioner applied for retrenchment certificate. Therefore, they did whatever was possible for them to avail the benefit of absorption. It the Managing Director instead of issuing certificate individually issued a letter generally for absorption then I am of the opinion that the Rule 1991 were complied and the employee could not be denied absorption as they were not possessed of retrenchment certificate. Therefore, all the impugned order could not be upheld.
The respondent while rejecting the claim of the petitioner held that even if a retrenched employee was found entitled to absorption he could be given certain marks in accordance with the order issued by the Government under Rule (3) but the order does not refer to any specific order of the Government. The petitioners have filed copy of two Government Orders issued on 4.5.1994 and 2.6.1994. The first order no. 1974 directed that any vacancy arising in future should be filed by retrenched employee and such employee should be given preferences and priority. The order further made it clear that the ban on appointment did not apply to regular appointment, promotions under Service Rule. The second order No. 2356 directed to give priority to retrenched employee in all future appointment in accordance with their qualification. These orders were issued under Rule 3 of the 1991 Rules, which, provides that the orders could be issued by the Government irrespective of any thing contained in any other service rule. The sub rule 2 of Rule 3 further provides that the relevant service rule shall stand modified to the extent an order is issued by the Government. It is, therefore, clear that a retrenched employee is not only entitled to absorption in accordance with the Government orders but he is entitled to preference and priority in Government service for which he is qualified. The order of the respondent cannot be maintained even for this reason.
In the result this petition succeeds and is allowed and the orders dated 28.4.1998 (Annexure-18 to the writ petition) are quashed. The respondents are directed to absorb the petitioners/employees of the Bhadohi Woolens Limited in Government service in accordance with their qualification in Class 3 and 4 posts forthwith.
The aforesaid judgment was upheld in Special Appeal No. 540 of 1999 decided on 19.11.2001 with the observations that the petitioners will have no right to claim appointment on Class III posts which are required to be filled up on the basis of recommendation of the U.P. Public Service Commission. The petition for Special Leave to Appeal (Civil) No. 5379 of 2002 against the order of Bageshwari Prasad Srivastava' case was also dismissed by Supreme Court on 18.3.2002".
Petitioners along with various other preferred Civil Misc. Writ Petition No. 26888 of 2000 Rajeshwar Kumar Rajesh and 21 other Vs. U.P. State and others and therein prayer was made for issuing a writ of mandamus directing the respondents to give alternative employment to the petitioners on the basis of Supreme Court judgment in the case of G. Govinda Rajula Vs. A.P.S.C. reported in 1986 (Supplement) SCC 561 and for a direction to the respondents to provide retrenchment certificate to the petitioners. Said writ petition was finally decided by this court on 18.1.2005 by passing following order.
" By means of the present writ petition, the petitioners have approached this court for issuing a writ of mandamus directing the respondents to give alternative employee to the petitioners on the basis of Supreme Court judgment reported in 1986 (Supplement) SCC 561 and for a direction to the respondents to provide retrenchment certificate to the petitioners. It has been stated that the petitioners were the employees of the Chunar Cement Factory and on the basis of closer of the said factory, the petitioners have become unemployed and in view of the various Government Orders and the judgment of the Apex Court as well as this Hon'ble Court, the petitioners are entitled to be absorbed in any other department of the State as the Chunar Cement factory was a Government organization. The petitioners have placed reliance on the judgment mentioned above and has also annexed the copy of the said judgment. The petitioners have also placed a reliance of the division bench judgment of this court reported in 1990 A.W.C. page 1463, U.P. Chalchitra Nigam Ltd, Karmachari Union Lucknow and another Vs. State of U.P. and others. The petitioners have placed reliance on the said judgment to the effect that in aforesaid case, a direction was given to the State to absorb the petitioners against the suitable alternative post.
The Standing counsel was granted time to file counter affidavit in spite of no more time, no counter affidavit has been filed. The present controversy has been settled by this court also in Writ Petition No. 17196 of 1998 Bageshwari Prasad Srivastava and others Vs. State of U.P. and others decided on 29.4.1999 and the judgment in the Writ Petition No. 38534 of 2001 decided on 25.9.2002. In view of the aforesaid fact, it is provided that if the petitioners submitted detailed representation annexing the copy of this order and the copies of the various judgment to the respondent No.1 regarding providing of the alternative employment, the respondent No.1 is directed to pass the appropriate and detailed order taking into consideration the various judgments of the Apex Court as well as this court and pass a detailed and reasoned order, expeditiously, preferably within a period of three months from the date of production of the certified copy of this order"
Pursuant to directive issued by this court, claim of petitioners have been considered and representation made was rejected on 18.5.2005 and the principal ground taken for rejection of said representation was promulgation of the Rules known as Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporations in Government Service (Rescission) Rules, 2003
Rules, 2003. Recession Rules, 2003 , is as follows:-
1.(i) These rules may be called the Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporations in Government Service (Rescission) Rules, 2003.
(ii) They shall come into force at once.
2.In these rules, unless there is anything repugnant in the subject or context.
(a)" Constitution" means the Constitution of India;
(b)"Governor" means the Governor of Uttar Pradesh.
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 Service 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 Service (Rescission) Rules, 2003 shall stand terminated from such date,
(ii) 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 abrogated from the date of the commencement of the Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporations in Government Service (Rescission) Rules, 2003
(2) Notwithstanding such rescission_
(i) the benefit of pay protection granted to an absorbed retrenched employee prior to the date of the commencement of the Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporations in Government Service (Rescission) Rules, 2003 shall not be withdrawn,
(ii) a retrenched employee covered by the Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporation in Government Service Rules, 1991 prior to the date of the commencement of the Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporations in Government Service (Rescission) Rules, 2003, but who has not been absorbed till such date shall be entitled to get relaxation in upper age limit for direct recruitment to such Group "C" and Group 'D' posts which are out aside 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 Public Corporation in completed years.
Perusal of the Rules would go to show that the Governor in exercise of his legislative power conferred by the proviso to Article 309 of the Constitution,has been pleased to make the said rules with a view to rescind the Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporation in Government Service Rules, 1991. Sub-rule (1) of Rule 3 of Recession Rules, 2003 clearly deals with consequence of such rescission by mentioning that right of the retrenched employee to be considered for absorption accrued under the Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporation in Government Service 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 Service (Rescission) Rules, 2003 shall stand terminated from such date. It further provided that 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 abrogated from the date of the commencement of the Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporations in Government Service (Rescission) Rules, 2003. Sub-rule (2) of Rule 3 of Rule, 2003, notwithstanding such rescission has saved and extended certain benefit. Benefit of pay protection already accorded prior to commencement of Rules 2003 has been saved, and further who have not been absorbed, qua them provision has been made for age relaxation in upper age limit for direct recruitment to such Group 'C' and 'D' post which are outside the purview of U.P. Public Service Commission to the extent he has rendered his continuous service in substantive capacity in the concerned Government Department or Public Corporation in completed years Except for these protection, no other benefit has been saved or extended.
On the touchstone of the rescinded Rules, 2003 claim of the petitioners is being adverted to. Undisputed factual position, which is emerging is that petitioners claim that they are retrenched employees of Chunar Unit of U.P. Cement Corporation, and under 1991 Rules, they had right to be considered for absorption. As absorption was not at all being provided to them as such they filed Civil Misc. Writ Petition No. 26888 of 2000. In the said writ petition final orders were passed on 18.1.2005. Pursuant to order dated 18.1.2005, claim of petitioners on the basis of rescinded Rules, 2003 has been non suited. The rights, which are being claimed by the petitioners are based on 1991 Rules. The rights, which had accrued on the basis of 1991 Rules, have been clearly rescinded in Rules, 2003, as in sub-rule (1) of Rule 3, the consequence of such rescinded rules has been clearly provided for in unambiguous terms. Sub-rule (1) of Rule 3 clearly provides that the right of retrenched employee to be considered for absorption accrued in 1991 Rules, but who has not been absorbed till the date of commencement of the Rules, 2003 shall stand terminated from such date.
Claim of petitioners clearly falls within the teeth of aforementioned rules, and there is no escape route for petitioners to escape from the rigors of aforementioned rules
Petitioners have contended that right had accrued in the past in their favour and as such they are entitled for absorption. The rules have been framed by the Governor by exercising his rule making power and once the aforementioned rules are clear and categorical, then legislative enactment irrespective of its consequences has to be given effect to and as such as per aforementioned rescission Rules,2003 claim of petitioners stand terminated for being absorbed on the date of enforcement of rescinded Rules, 2003 and consequently, there is no shortcoming in the in the opinion, which have has been formed by the authority concerned.
Much reliance has been placed on judgment dated 6.1.2002 passed in Civil Misc. Writ Petition No. 36644 of 2993 Shailendra Kumar Pandey Vs. State of U.P. and others. Said judgment on the fact on which it has been decided, will not at all come to the rescue of the petitioners, inasmuch in Civil Misc. Writ Petition No. 38534 of 2001 decided on 20.9.2002, this court had directed that after completion of formality regarding grant of retrenchment certificates, thereafter, the respondents of the aforementioned writ petition were required to take appropriate decision in respect of the claim of petitioners and forwarded the same to the State Government. Said exercise was required to be completed within two months. In the said case as requisite exercise was not undertaken within the prescribed period, in said background in the fact of the said case, as delay was made by Secretary (Karmik) Anubhag-2 U.P. Secretariat, Lucknow in deciding the matter, this court while deciding the matter, took the view that, if any, Rules of 2003 has been enforced, the crystallized right, which had accrued much prior to rules being rescinded, will not defeat the claim of petitioners.
Here the facts are altogether different, inasmuch as, from the own showing of the petitioners, Civil Misc. Writ Petition No.26888 of 2000 had been filed before this court wherein directives were issued on 18.1.2005 to consider the claim and consequently, thereafter decision has been taken in consonance with Rules, which holds the field. The facts of the case are clearly distinguishable and as such the decision in the case of Shailendra Kumr Pandey Vs. State of U.P. and others in Civil Misc. Writ Petition No. 36644 of 2003, will not at all come to the rescue of the petitioner by any means.
Reliance has been placed on various orders passed by this court in Civil Misc. Writ Petition No. 51034 of 2006 Deen Dayal and 10 others Versus State of U.P. and others, decided on 26.9.2006 and in Civil Misc. Writ Petition No. 378 (S/B) of 1997 U.P. Rajya Khanij Vikas Nigam Sangathan Samiti and others Vs. State of U.P. and others decided on 14.7.2006 for the proposition that in the said cases qua similarly situated incumbents, directives have been issued for consideration of their claim for absorption, ignoring the mandate of rescinded Rules, 2003. Judgment dated 14.7.2006 passed by Lucknow Bench of this court in Civil Misc. Writ Petition No. 378 (S/B) of 1997 U.P. Rajya Khanij Vikas Nigam Sangathan Samiti and othrs Vs. State of U.P. and others decided on 14.7.2006 has been perused. The Division Bench judgment has not at all considered the impact of rescinded Rule, 2003 and in the said judgment itself application moved on behalf of the State of U.P. for taking on record the supplementary counter affidavit pointing out difficulty in absorption of the employees of the Corporation has not been accepted and the impact of rescission has also not been adverted to, as such same can not be treated as binding precedent. Similarly in Civil Misc. Writ Petition No. 51034 of 2006 Deen Dayal and 10 others Versus State of U.P. and others, decided on 26.9.2006, the impact of the rescinded Rule, 2003 has not at all been considered. Similar is in the case of Rajendra Prasad and others Vs. Secretary Personnel Department decided on 3.8.2006. Said writ petition has been allowed for non recording of reason. Here on admitted position, on the face of statutory provision, claim of petitioners is of no consequence. In case benefit has been extended to group of person, ignoring the mandate of rescinded Rules, 2003, same will not at all be a binding precedent, and binding precedent would be the precedent, which is based on consideration of rules and not in ignorance and against the mandate of Rules. Hon'ble Apex Court in the case of Union of India Vs. International Trading Company and other, 2003 (5) SCC 437, took the view that a party cannot claim that since something wrong has been done in other case, direction should be issued for doing another wrong. It would not be setting wrong right, but would be perpetuating another wrong. In such matters no discrimination is involved. The concept of equal treatment on the logic of Article 14 cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not subscribe repetition of wrong action to bring both wrongs at par. Even if, hypothetically it is accepted that a wrong has been committed in some other cases by introducing concept of negative equality, the respondents cannot strengthen their case. Said view has been reiterated by Hon'ble Apex Court again in the case of U.P. State Sugar Corporation Ltd. Vs. Sant Raj Singh AIR SCW 2006 3013, by mentioning that Article 14 has positive concept and nobody can claim equality in illegality.
Here in pith and substance, notwithstanding the existence of rescission Rules 2003, petitioners are claiming that they be absorbed in similar manner as others have been done. Writ jurisdiction is meant to enforce the rule of law and not to violate the law. Once right of retrenched employee to be considered for absorption has been taken away, by framing statutory rules, and validity of said rules have not at all been questioned, then the mandate/ intention/spirit of the said rules has to be given due respect, and no directives can be issued to violate the Rules. Merely because some incumbents have been offered appointment, under the cover of the orders passed by this Court, will not improve the case of petitioners as two wrongs will not make a thing right, and equality in illegality , is totally against the rule of fair play and demand of petitioner if accepted would be clearly violative of Article 14 and 21 of Constitution of India
Lot of emphasis has also been made by contending that as per Section 6 of General Clauses Act that current law shall govern current rights. Rescission Rules, 2003 shall be treated as prospective in nature and shall not apply retrospectively and accrued right cannot be taken away. By means of 1991 framed in exercise of power vested with the Governor under the proviso to Article 309 of the Constitution of India, right had been conferred for consideration of regularization. Thereafter, Governor in his wisdom in exercise of the same power has chosen to rescind the aforementioned rules, The Governor, while exercising the power under the proviso to Article 309 of the Constitution of India, possesses of legislative power.
Hon'ble Apex Court , in the case of B.S. Yadav Vs. State of Hariyana 1980 SCC 529 , has expressed the view that Governor possesses legislative power under our constitution is incontrovertible, and therefore, there is nothing unique about the Governors power under the proviso to Article 309 being in the nature of legislative power. By Article 168, the Governor of State is a part of legislature of State, and the most obvious exercise of legislative power by the Governor is the power given to him by Article 213 of Constitution of India to promulgate ordinances when legislature is not in session. Under said Article, he exercises power of the same kind which legislature normally exercises. The power to make law. The heading of Chapter IV of Part VI of the Constitution, in which Article 213 occurs, is significant;" Legislature Power of the Governor". The power of Governor under the proviso to Article 309 to make rules is of the same kind. It is legislative power. Under Article 213 of Constitution, he substitutes for the legislature because legislature is in recess. Under the proviso to Article 309 , he substitutes for legislature because legislature has not yet exercised its power to pass an appropriate law on the subject. The authority of Governor has not at all been disputed. Rescission Rules, 2003 clearly mentions that said Rules shall come into force at once. Said Rules are not at all retrospective in nature, rather it clarifies the situation that right of a retrenched employee to be considered for absorption accrued under 1991 Rules, but who have not been absorbed till commencement of Rescission Rules, 2003 shall stand terminated from such date. Rules have been enforced on 8.9.2003, and from the said date, qua the incumbents who have not been absorbed, their right of being considered for absorption has been done away with. Seeing the purpose and object of the Rule, it cannot be said that Rule in question is retrospective in nature.
Consequently, writ petition is devoid of substance and same is dismissed.
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