Allahabad High Court
Suresh Chand Vaishya S/O Late Sri Ram ... vs State Of U.P. Through Secretary ... on 17 January, 2007
Author: D.P. Singh
Bench: D.P. Singh
JUDGMENT D.P. Singh, J.
1. Heard learned Counsel for the petitioners and Sri Ashok Mehta for the respondent No. 3, the Official Liquidator and the learned Standing counsel for the other respondents.
2. Inspite of the time being granted learned Standing counsel has not filed any counter affidavit. In connected matters, the official Liquidator has filed his counter affidavit.
3. This petition is directed against an order dated 23.3.2006 by which the claim of the petitioners for absorption in Government departments 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.
4. The petitioners claiming to be retrenched employees of the U. P. cement corporation sought absorption under the Absorption Rules, 1991 but as no action was taken they preferred writ Petition No. 34438 of 1999 (Subhash Chandra and 12 Ors. v. State of U.P. and 4 Ors.) and a learned Single Judge of this Court disposed off the petition vide order dated 21.2.2006 directing the respondents to consider their claim by a reasoned order, in pursuance thereof, by the impugned order the claim has been rejected on the ground that their case is not covered by the earlier judgment of this Court rendered in the case of Bageshwari Prasad Srivastava and Ors. v. State of U.P. and Ors. Writ Petition No. 17195 of 1998 decided on 29.4.1999 and also that no retrenchment certificate has been issued by the State and further that they cannot be appointed in view of the fact that 1991 Rule has been rescinded and replaced by 2003 Rules. These very grounds were raised in the connected petition No. 22728 of 2006 (vikrmaditya Pandey and Ors. v. State of U.P. and Ors.) and the objections have been overruled.
5. However, the learned Counsel for the state and the official Liquidator have urged that even according to the own showing of the petitioners they are not covered under the Absorption Rules of 1991.
6. The Absorption Rules of 1991 defines "retrenched employee" as follows:
"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.
7. From a perusal of the aforesaid definition, it would be apparent that only those employees who had been appointed against any post prior to 1st of October, 1986 in accordance with the procedure laid down for recruitment are entitled to the benefit of the aforesaid Rules.
8. From a perusal of the averments made in the writ petition it is evident that the petitioners were appointed as Apprentice clerks in 1983. They were never appointed in accordance with the Recruitment Rules to any post in the corporation, in fact, as they were not given appointment in the permanent establishment of the Corporation and were not appointed against any post and were also not being paid regular salary even after continuing for several years, they approached the Industrial Tribunal for the aforesaid reliefs. The industrial Tribunal I, vide its award dated 10th of May, 1990, though granted minimum pay scale but did not grant any regular appointment against any post nor granted yearly increments. The petitioner through its union preferred writ Petition No. 17317 of 1990 claiming regular appointment and quashing of the award to that extent. This petition still remains pending. Though, it is contended, that a settlement was arrived at on 24th September, 1993 but there is nothing on record to show that the said settlement was ever acted upon or registered under the U.P. Industrial Disputes Act. There is nothing on record to show that the petitioners were ever appointed against any post in the Corporation, on these facts it cannot be said that the petitioners held any post in the corporation and as such would not be entitled to the benefit of the Absorption Rules, 1991.
9. However, the learned Counsel for the petitioner has urged that the impugned order cannot be justified on any fresh grounds and has to be supported by its own reasonings. No doubt, normally an order cannot be supported by fresh grounds taken in the counter affidavit, but as has been noted above, from the own pleadings of the petitioner it is evident that their case is not covered by the Absorption Rules, 1991. Even during arguments sufficient opportunity was given to the petitioners to demonstrate how their case is covered by the Absorption Rules, but the petitioner failed to satisfy the Court. The argument that no such issue was raised when the petitioners had preferred their first writ petition carries no weight. A perusal of the order of this Court dated 21.2.2006 shows that the merits of the claim of the petitioners vis-a-vis, applicability of the 1991 Rules were never examined. Once the Court, on the own pleadings of the petitioners comes to the conclusion that they are not eligible for the benefits under the Absorption Rules, 1991, it would be failing in its duty by refusing to examine the legality of their claim. The Courts cannot be a mute spectator citing technical rules of procedure and will not allow exercise of its discretionary jurisdiction under Article 226 of the Constitution of India to perpetuate an illegality. The discretion under Article 226 has to be exercised in the interest of justice and cannot be made a tool to perpetuate an illegality. Thus, even though the impugned order appears to be illegal, on these facts, the Court can refrain to exercise its discretionary power.
10. For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected.