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SUBODH KUMAR KAUSHIK versus STATE OF U.P. THRU' SECY. KARMIK ANUBHAG

High Court of Judicature at Allahabad

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Subodh Kumar Kaushik v. State Of U.P. Thru' Secy. Karmik Anubhag-2 & Others - WRIT - A No. 12171 of 2002 [2005] RD-AH 4225 (7 October 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

RESERVED

            Civil Misc. Writ Petition No.  12171   of 2002

Subodh Kumar Kaushik.........................................Petitioner

Versus

State of U.P. and others.....................................Respondents.

********

Hon.Tarun Agarwala,J.

Under the Census Act of 1948, a census is conducted in the country every 10 years and for this purpose a Directorate of Census Operation has been established in each State. When the time comes for carrying out the census operations, a large number of temporary posts are created for a short period in connection with the tabulation and process of the data collected. These posts are created for a fixed period and once the specified period is over, these posts are abolished and the temporary staff appointed on these posts are disengaged.

In the past, as and when the census work was completed and, the employees engaged on temporary basis were disengaged, certain benefits were given to the census workers, such as, priority in the recruitment in the vacancy in the Government service, absorption in the Government, etc. The State of U.P. issued The Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporation in Government Services Rules, 1991. Based on these Rules, the census workers were treated as retrenched employees and were given employment under these Rules in various departments of the State Government.

In the District of Jhansi, the census work was required to be completed by 2001 and therefore, the District Magistrate directed the Employment Exchange to sponsor the names of the candidates for being appointed on a temporary basis. The petitioner was registered with the Employment Exchange and his name was sponsored by the Employment Exchange and a letter of appointment dated 5.10.2000 was issued appointing the petitioner as a Junior Clerk in the pay scale of Rs.3050-4590 on a temporary basis upto 31.5.2001. The letter of appointment specifically stated that the appointment was limited till 31st May, 2001. In accordance with the aforesaid terms and conditions, the appointment of the petitioner came to an end on 31st May 2001.

The petitioner filed Writ Petition No.19514 of 2001 praying that he should be absorbed as a Junior Clerk in the vacancies lying in the office of the District Magistrate. An order dated 21.5.2001 was issued to the respondents to consider the petitioner's application for absorption according to the Rules of 1991. Based on the aforesaid direction, the District Magistrate issued an order dated 3.12.2001 rejecting the claim of the petitioner. The District Magistrate held that the appointment of the petitioner was confined only for a limited period and that he was not a retrenched employee as defined under the Rules of 1991 and therefore, cannot be given the benefit of absorption under the aforesaid Rules of 1991.

The petitioner, being aggrieved, has challenged the said order by means of the present writ petition, praying not only for the quashing of the order of the District Magistrate but also praying for a writ of mandamus commanding the respondents to absorb the petitioner.

Heard Sri G. K. Singh, the learned counsel for the petitioner, Sri Suresh Singh,  the learned Standing Counsel for respondent nos.1 and 2 and Sri G.C.Saxena, the learned counsel appearing for respondent no.3.

From a perusal of the counter affidavit, it is clear, that the Absorption Rules of 1991 has been rescinded on 8.4.2003. In any case, the State Government by G.O. dated 20.8.2001 made it clear, that a person who was appointed on a temporary post, on a temporary basis, for the census work, would not fall under the definition of a retrenched employee and would not be given the benefit of any absorption in the service of the Government.

In Union of India and others vs. Dinesh Kumar Saxena and others,  1995 ALJ 1346, the Supreme Court held that the employees working in the Census department had been engaged on a contract basis for a limited duration and, therefore, cannot be absorbed in any other department of the Government. The Supreme Court, however, directed the Director of Census Operation, U.P. to consider those employees for an appointment in a regular vacancy which may arise in the Directorate of Census Operation.

Subsequently the Supreme Court in the case of Government of Tamil Nadu and another vs. G. Ammeenudeen and others, 1999(7)SCC 499, issued directions to the State Government of Tamil Nadu to frame a scheme in order to absorb the employees working in the Census department. The said direction was passed because the Supreme Court felt that on the commencement of Census operations  persons who were registered in the Employment Exchange got a job in the Census department and their employment came to an  end  when the project came to an end thereby loosing both the employment and their position in the queue in the Employment Exchange and, therefore, in view of the peculiar circumstances, the Supreme Court directed the State Government to work out a proper scheme.

In Rajesh Kumar Gaur and others vs. Union of India (Writ Petition No.12537 of 2002), decided on 11.7.2005 a Single Judge of this Court held, that there was no conflict between the judgment of the Supreme Court in the case of Union of India vs. D.K.Saxena (S.C.) and in the case of   Government of Tamil Nadu and another vs. G. Ammeenudeen and others (supra).  The Court further held that the employees engaged as compliers in the Census operations were not entitled to be absorbed under the Absorption Rules of 1991.

In view of the aforesaid, it is clear that the petitioner having been given a fixed  term appointment was not entitled to be absorbed under the Absorption Rules of 1991. In any case, the said Rules has been rescinded and therefore, the benefit of those Rules is no longer available to the petitioner. In view of the clear dictum laid down by the Supreme Court in the aforesaid two judgments, the petitioner is not entitled to be absorbed as an employee in the Government service. However, since the Supreme Court directed the State Government of Tamil Nadu to frame a scheme for absorption of the Census employees, in my opinion, similar direction should also be given to the State Government of U.P.

In view of the aforesaid, the impugned order does not suffer from any error of law. At the present moment, no mandamus can be issued to the respondents to absorb the petitioner in the Government employment. However, a direction is issued to the State Government to   frame a scheme to absorb the employees appointed in the Census operations within six months and consider the case of the petitioner and other similarly situated persons.

Writ petition is disposed of with the aforesaid direcdtions.

A certified copy of this order shall be filed by the petitioner before the District Magistrate, Jhansi, who will forward it to the relevant department of the State Government for framing the scheme in the light of the observations made above and also as per the directions of the Supreme Court in the case of  Government of Tamil Nadu and another vs. G. Ammeenudeen and others (supra).

Dated:7.10.2005

AKJ.


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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