Allahabad High Court
Muradan & Others vs State Of U.P. & Others on 13 March, 2018
Author: Sudhir Agarwal
Bench: Sudhir Agarwal, Shashi Kant
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 AFR Case :- SPECIAL APPEAL DEFECTIVE No. - 277 of 2011 Appellant :- Muradan & Others Respondent :- State Of U.P. & Others Counsel for Appellant :- A.K. Srivastava,S.K.Pal,Saurabh Kumar,V.P. Singh Kashyap,Yashwant Varma Counsel for Respondent :- C.S.C.,Ashok Mehta Hon'ble Sudhir Agarwal,J.
Hon'ble Shashi Kant,J.
1. Heard learned counsel for appellants and learned Standing Counsel for respondents.
2. This intra-Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 has arisen from judgment dated 27.04.2007, passed by learned Single Judge in Misc. Company Application No. 4 of 1997 - in the matter of M/s U.P. State Government Cement Corporation Ltd. (In liquidation).
3. Appellants are employees of U.P. Cement Corporation Ltd. (hereinafter referred to as "Cement Corporation") and have been retrenched. They are claiming absorption in any other service or post under State Government in accordance with provisions of U.P. Absorption of Retrenched Employees of the State government or Public Corporation in Government Service Rules, 1991 (hereinafter referred to as the "Rules, 1991").
4. We find that much water has flown after promulgation of Rules, 1991. In view of subsequent development, the relief claimed by appellants cannot be allowed. Enactment of Rules, 1991 and subsequent development may be referred to hereinafter in detail.
5. Recruitment and appointment on various posts in various departments in Uttar Pradesh are governed by statutory Rules framed under proviso to Article 309 of Constitution of India. Since appellants are not claiming appointment/absorption in a particular department and on a particular post, therefore, at this stage we are not referring to any particular law or particular set of Rules but would refer to relevant provisions as and when occasion would arise in subsequent discussion.
6. Between 1985 to 1990, a number of undertakings/companies owned by Government were closed on account of colossal losses, etc. A large number of employees were retrenched. In some matters judicial orders were passed directing for absorption looking to general public interest and the fact that a large number of employees rendered unemployed due to closure of such Government undertakings. In some matters, Court expressed its doubt that in the teeth of statutory Rules governing recruitment and appointment of 'retrenched employees' of companies or undertakings, not holding a civil post, cannot be directed to be appointed on a civil post or any Government service governed by statutory Rules.
7. Faced with this situation, in exercise of power, under proviso to Article 309 of Constitution of India, Governor promulgated Rules, 1991, vide Notification dated 9th May, 1991. These Rules came into force immediately. Rules 2 and 3 thereof, read as under:-
"2. Unless there is anything repugnant in the subject or context, 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 or local authority constituted for the purpose of Local Self Government and includes a Government Company within the meaning of section 617 of the Companies Act, 1956 in which the State Government has prepondering interest;
(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 upto 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 conditions of service of persons appointed to the relevant service.
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 employees 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.
(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)."(emphasis added)
8. Perusal of Rules, 1991 shows that State Government was empowered to issue a notified order requiring absorption of ''retrenched employees' as defined under Rule 2 (c) in any post or services under Government. State Government in the said notified order is also empowered to prescribe procedure for such absorption including relaxation in various terms and conditions of recruitment in respect of such retrenched employee. Rule 3(2) declares that provisions made in notified order shall prevail over Service Rules of relevant post or cadre in which absorption is to be made and the relevant Service Rules shall be deemed to have been modified to that extent.
9. The term 'notified' has been defined under Section 4(29A) of Uttar Pradesh General Clauses Act, 1904 (hereinafter referred to as U.P. Act, 1904), which reads as under:-
"4(29-A). "notification" or "public notification" shall mean a notification published in the Gazette of the State, and the word ''notified' shall be construed accordingly."
10. Notified order, therefore, when read in the light of Section 4(29-A) of U.P. Act, 1904 would mean an order which is published in Gazette of State. Said order, therefore, would partake the nature of 'statutory instrument' as defined under Section 4(42-B) of U.P. Act, 1904, which reads as under:-
"4(42-B). "statutory instrument" shall mean any notification, order, scheme, rule or bye-law issued under any enactment and having the force of law."
11. Rules, 1991 contemplate absorption pursuant to a notified order and not by mere administrative order issued in exercise of power under Article 166 of Constitution of India. No such notification or order has been placed before us, but we find that Government Order dated 11th November, 1993 was issued which lays down certain relaxation and concessions for "retrenched employees" of certain Government companies.
12. Be that as it may, Rules, 1991 have been rescinded by promulgating another set of Rules vide Notification dated 8th April, 2003 i.e. ''The Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporations in Government Service (Rescission) Rules, 2003' (hereinafter referred to as ''Recession Rules, 2003'). Rule 3 of said Rules, reads as under:-
"3. (1) The Uttar Pradesh Absorption of Retrenched Employees of Government Rescission and Public Corporations 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 Corporations 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 Corporations 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." (emphasis added)
13. Rescission Rules, 2003 declare to rescind Rules, 1991. Consequences of such rescission has been provided under Rule 3 (1), stating that right of a ''retrenched employee' accrued under Rules, 1991 but who has not been absorbed till 8th April, 2003 i.e. a date on which Rescission Rules became effective, such accrued right of ''retrenched employee' shall stand terminated from the said date of rescission i.e. 8th April, 2003.
14. Another consequence of Rescission Rules, 2003, stated in Rule 3(1)(ii) is that orders of Government issued from time to time prescribing norms for absorption of ''retrenched employees' shall stand abrogated from the date of enforcement of Rescission Rules, 2003 i.e. 8th April, 2003. Having said so, Rule framing authority has also saved certain benefits already granted. Rule 3 (ii) of Rescission Rules, 2003 provides for following protections:-
(i) Benefit of pay protection already granted to an absorbed ''retrenched employee' before enforcement of Rescission Rules, 2003, shall remain intact and such employee would continue to avail same and it shall not be withdrawn.
(ii) Retrenched employee covered by Absorption Rules, 1991 as it was upto the date of enforcement of Rescission Rules, 2003 who has not been absorbed till the date of rescission, shall be entitled to get relaxation in upper age limit for direct recruitment in Group "C" and "D" posts which are outside the purview of Uttar Pradesh Public Service Commission. This relaxation in upper age limit is confined to the extent such a 'retrenched employee' has rendered continuous service in substantive capacity in public corporation in completed years or the Government department as the case may be.
15. Therefore, there are two types of protections which are saved in Rescission Rules, 2003. Firstly, pay protection already granted to those who are already absorbed. Secondly relaxation in the matter of upper age limit to the extent one has served in substantive capacity till the date of retrenchment in public corporation in completed years for the purpose of direct recruitment under relevant Rules to Group "C" and "D" posts which are outside purview of Uttar Pradesh Public Service Commission. No other benefit has been provided or saved and right of absorption, which may be claimed by ''retrenched employee' governed by Rules, 1991, stands wiped out with enforcement of Rescission Rules, 2003.
16. Aforesaid Rules, 2003 came into force on 8th April, 2003. Due to different sets of litigation wherein several orders in different manners were issued, State Legislature intervened and issued U.P. Act No.26 of 2009 i.e. ''Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporations in Government Service (Rescission of Rules) Act, 2009 (hereinafter referred to as 'Recession Act, 2009'), published in Uttar Pradesh Gazette (extraordinary) dated 27th August, 2009. The statement of 'Object and Reasons' of aforesaid Act says that retrenched employees of Government companies/ undertakings sought their absorption against Group ''B' posts which were within purview of Uttar Pradesh Public Service Commission and as per Government policy, absorption against such posts was not permitted and the situation became difficult, as a result whereof, Rules, 1991 were rescinded vide Rules, 2003. Still various Court cases have not rendered the things very clear, therefore, State Legislature decided to promulgate Rescission Act, 2009, to deal with the situation.
17. By Section 3 of Recession Act, 2009, Rules, 1991, have been rescinded and deemed to have been rescinded on 9th May, 1991. The consequences of said rescission and the extent of savings are also provided thereunder. Section 3 of Rescission Act, 2009 reads as under:-
"3. Rescission and savings.-(1) The Absorption Rules which was rescinded with effect from April 8, 2003 by the Rescission Rules shall be rescinded and be deemed to have been rescinded on May 9, 1991 and consequent upon such rescission:-
(a) the retrenched employees except those who were absorbed during the period from May 9, 1991 to April 8, 2003 shall have no claim with regard to their absorption under the said absorption rules or under any Government orders issued in regard thereto and their right regarding absorption accrued under the Absorption Rules shall be deemed terminated.
(b) 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 revoked ab-initio.
(2) Notwithstanding such rescission,-
(a) the benefit of absorption provided to the retrenched employees absorbed before April 8, 2003 under the provisions of the Absorption Rules, shall not be withdrawn.
(b) the benefit of pay protection granted to the retrenched employees absorbed prior to April 8, 2003 shall also be maintained.
(c) a retrenched employee covered by the Absorption Rules, but who has not been absorbed till April 8, 2003 shall be entitled to get relaxation in upper age limit for direct recruitment to such Group 'C' and Group 'D' posts which are outside 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 the Public Corporation in completed years." (emphasis added)
18. By Section 4, Rules 2003 have been rescinded with effect from 8th April, 2003. Therefore, Rescission Act, 2009 in fact has made entire slate clear which was initiated by Rules, 1991 and ended by Rules, 2003. Since litigation had continued, hence State Legislature intervened and both the Rules, from the date of their enforcement, have been rescinded. In respect of Rules, 1991, there is a deeming clause, rescinding the same with effect from 9th May, 1991 but subject to some protection in Section 3.
19. Section 3(1)(a) of Rescission Act, 2009 clearly declares that except those retrenched employees who were absorbed during 9th May,1991 and 8th April, 2003, all unabsorbed retrenched employees shall have no claim with regard to their absorption under Absorption Rules, 1991 or under any Government Order issued in that regard and their right relating to absorption accrued under absorption Rules shall be deemed terminated. Thus no protection has been made to a person not already absorbed till 8.4.2003. Section 3(1)(a) of Rescission Act, 2009 clearly bars any right of absorption to any retrenched employee governed by Rules, 1991, if not already absorbed and now no such right survive.
20. There is a little protection provided under Section 3(2)(c) to retrenched employees who have not been absorbed with regard to relaxations in upper age limit for direct recruitment on Group ''C' and ''D' posts. Except protection with regard to relaxations in upper age limit given vide Section 3(2)(c), appellants or any other person like them, after promulgation of Rescission Act, 2009, cannot be allowed any absorption as Rules, 1991 have been rescinded from the date of their promulgation, i.e. 9th May, 1991, leaving no such right open to the appellants or any person like them.
21. In view of above, and in the light of present scenario, where State Legislature has rescinded aforesaid Rules vide Rescission Act, 2009 with deeming clause with effect from 9th May, 1991, i.e. the date on which aforesaid Rules came into force, in that view of the matter, appellants have no right to claim absorption nor any direction in the teeth of Rescission Act, 2009 can be issued.
22. In view of aforesaid, we find no merit in the appeal.
23. Dismissed.
Order Date :- 13.3.2018 A. Verma Court No. - 34 Case :- SPECIAL APPEAL DEFECTIVE No. - 277 of 2011 Appellant :- Muradan & Others Respondent :- State Of U.P. & Others Counsel for Appellant :- A.K. Srivastava,S.K.Pal,Saurabh Kumar,V.P. Singh Kashyap Counsel for Respondent :- C.S.C., Ashok Mehta Hon'ble Sudhir Agarwal,J.
Hon'ble Shashi Kant,J.
Order on Application filed under Section 5 of Limitation Act
1. Heard.
2. This is an application seeking condonation of delay in filing appeal.
3. Delay in filing appeal is explained satisfactorily. It is hereby condoned. The application is accordingly allowed.
4. Let appeal be registered with regular number and old number shall also continued to be shown in bracket for finding out details of case, whenever required by parties with reference to either of the two numbers.
Order Date :- 13.3.2018 A. Verma