Uttarakhand High Court
Satish Kumar Chauhan & Others ... vs Uttarakhand Forest Development ... on 12 November, 2021
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (S/S) No.1429 of 2021
Satish Kumar Chauhan & others ...Petitioners
Vs.
Uttarakhand Forest Development Corporation & others
.....Respondents
With
Writ Petition (S/S) No.1430 of 2021
Vikram Singh & others ...Petitioners
Vs.
Uttarakhand Forest Development Corporation & others
.....Respondents
Writ Petition (S/S) No.1431 of 2021
Purna Bahadur & others ...Petitioners
Vs.
Uttarakhand Forest Development Corporation & others
.....Respondents
Mr. Tapan Singh, Advocate for the petitioners.
Mr. Rajesh Sharma, Advocate, for the respondents.
Hon'ble Sharad Kumar Sharma, J (Oral)
The petitioners have preferred this writ petition for the following reliefs:-
(i) Issue a writ, order or direction in the nature of certiorari quashing the order dated 10.09.2021 passed by the respondent No.1 contained as Annexure No.10 to this writ petition.
(ii) Issue a writ, order or direction in the nature of mandamus/commanding/directing the respondents to place the entire details of class IV employees, who retired after the termination of the petitioners and 2 details of the Class IV employees, who were appointed through outsourcing or who were reappointed.
(iii) Issue a writ, order or direction in the nature of mandamus/commanding/directing the respondents to give appointment to the petitioners in the corporation on Class IV post, which are vacant due to retirement of class IV employee.
(iv) Issue any other relief, which this Hon'ble Court may deem fit and proper in the circumstances of the case be passed in favour of the petitioners.
(v) Cost of the petition be awarded in favour of petitioners.
2. In the connected matters i.e. WPSS No.1430 of 2021, "Vikram Singh & others Vs. Uttarakhand Forest Development Corporation & others", the only exception is that the petitioners have given a challenge to an order dated 13.09.2021, which was rendered by the Managing Director in compliance of the judgment of 18.08.2021, which was rendered in Writ Petition (S/S) No.1057 of 2021, "Vikram Singh & others Vs. Uttarakhand Forest Development Corporation & others", otherwise the other facts and law are common.
3. Similarly, in Writ Petition (S/S) No.1431 of 2021 "Purna Bahadur & others Vs. Uttarakhand Forest Development Corporation & others", the order which is the subject matter of challenge is an order dated 13.09.2021, which was an identically based on the basis of the directions which were issued by the judgment dated 18.08.2021, as decided by the coordinate Bench on 18.08.2021. Hence this writ petition too entails a consideration of common question of facts and law. Hence, for the purposes of brevity and the reasons given hereunder, the writ petitions are being decided together by a common judgment.
34. In fact, the petitioners have prayed for the quashing of the order dated 10.09.2021, and simultaneously relief of a writ of mandamus for calling the details of all the Class IV employees, for filling up the alleged vacancies of Group D employees, which the petitioners contend, to be available with the respondents to be filled in on the basis of the undertaking which was given to them; at the time when they were retrenched from their respective services of the respondent, way back on 26.06.1995. The impugned order dated 10.09.2021, has been passed by the Managing Director, Forest Development Corporation, on the basis of the direction which had been issued by the judgment rendered on 18.08.2021, in a Writ Petition being WPSS No.1056 of 2021 , "Satish Kumar Chauhan & others Vs. Uttarakhand Forest Development Corporation and Others".
5. But before dealing with the logic assigned in the impugned order dated 10.09.2021, certain factual backdrop of the matter is necessarily required to be considered by this Court. This Court cannot be oblivions of the fact that the petitioners of this writ petition had been appointed with the respondents, and they have been working with them in the capacity of their initial appointment, till they were retrenched from their services on 26.06.1995. What the petitioners intend to argue is that at the time when the retrenchment order was passed, their rights to be considered for reappointment was reserved in the order of the retrenchment itself. Hence, now after 26 years the petitioners contend that since there exist the vacancies with the Department, the petitioners claim for reappointment under the undertaking given to them at the time of their retrenchment order would revive back, and the petitioners would be entitled to be considered to be reappointed with the respondents.
6. This contention is not acceptable by this Court for the reason being, that initially as against the action of the retrenchment dated 26.06.1995, the record shows that the proceeding under Section 6N of UP Industrial Dispute Act 1947, was complied with and it was also made the subject matter of challenge by the petitioners, before the Labour Court. Consequently, an award was rendered, which has attained finality.
47. Not even that, the petitioners had earlier preferred a Writ Petition being WPSS No.2111 of 2015, "Satish Kumar Chauhan & others Vs. Uttarakhand Forest Development Corporation & others", before the coordinate Bench of this Court, wherein, the petitioners had sought to put a challenge to the order of the dispensation of the services, which was subsequently said to have been disposed of by the coordinate Bench of this Court vide its judgment dated 07.10.2015, whereby while considering the implications of the Labour Court's order dated 31.07.2013, the coordinate Bench has passed the following order:-
"6. In view thereof, let the petitioners move their representation to the respondent no.3-
Regional Manager 2 (Tehri Area), Uttarakhand Forest Development Corporation, which shall be decided as expeditiously as possible in accordance with law, within a period of four weeks from the date of production of a certified copy of this order."
8. The learned coordinate Bench of this Court, thus had disposed of the writ petition directing the respondent Corporation to take a decision on the representation of the petitioners; for the purposes of their absorptions into the services on the basis of the undertaking, which was alleged to have been given in the order of the dispensation of their services dated 26.06.1995. The respondent Corporation proceeded to consider the same, and ultimately on considering their claim the respondent Corporation had rejected the representation of the petitioners by an order No.2818, dated 20.11.2015.
9. This order of rejecting the representation and the claim was yet again put to challenge by the petitioners in the subsequent Writ Petition being WPSS No.414 of 2016, "Satish Kumar Chauhan & others Vs Uttarakhand Forest Development Corporation & others". The said writ petition was dismissed by the coordinate Bench of this Court on 01.10.2016, and their claim on the basis of the assurance given to them in the year 1995 for absorption, was denied to be considered.
510. The matter travelled before the Division Bench of this Court, at the behest of the petitioners by preferring a Special Appeal being Special Appeal No.319 of 2016, "Satish Kumar Chauhan & others Vs. Uttarakhand Forest Development Corporation & others". The Division Bench of this Court too by the judgment dated 16.11.2016, had dismissed the Special Appeal. The judgment of the Division Bench dated 16.11.2016, has attained finality, and that has not been put to challenge. If the reasoning of the Division Bench as given in its paragraph nos.6 and 7, is considered (as extracted below), no cause of action survived, thereafter for the petitioners.
6. We notice that this is the stand, which is also substantially reiterated before us by the learned counsel for the respondents. Denial of Paragraph - 9 of the counter affidavit is contained in Paragraph-6 of the rejoinder affidavit, which reads as follows:
"6. That in reply to the contents of paragraph no. 9, 10, 11 of the counter affidavit it is submitted that since the respondents stated in para under reply that they gave appointment on the post of Guards. The respondents gave the name of the post of chowkidar and scalar as guard. Since the respondents stated in order dated 20-11-2015 that there are 768 post of scalar, but 1289 workers are working and there are 229 post of Chowkidar/Mali/Postman/Peon/Orderly, but 1090 workers are working, therefore, the matter should be referred to the state agency to conduct an inquiry in the matter."
7. Learned counsel for the appellants would, no doubt, try to draw support from the order passed by the Managing Director, U.P. Forest Corporation in the year 2014. The stand of the respondents is that the same is not binding. By the said order, it appears that similarly situated persons have been taken back by the U.P. Forest Corporation, but here, we are dealing with the cause of action as against the Uttarakhand Forest Development Corporation, which is the respondent. Their stand is set out as stated hereinbefore and their stand appears to be that in the posts, for which the appellants can claim any right on the basis of the terms of the notice, no appointments have been made, appointments instead have been made in respect of other categories.
611. The petitioners contend, that his cause of action to file the present writ petition has arisen on account of the advertisement, which was published by the respondent, as Annexure No.7 to the writ petition, notifying for filling of the vacancies of Group D employees. The petitioners contend, that there was yet another Writ Petition preferred being WPSS No.1056 of 2021, "Satish Kumar Chauhan & others Vs. Uttarakhand Forest Development Corporation & others", and while considering the implications of the judgment rendered on 07.10.2015, passed in WPSS No.2111 of 2015, the coordinate Bench of this Court had disposed of the Writ Petition (S/S) No.1056 of 2021, vide its judgment dated 18.08.2021, whereby, yet again a decision was rendered directing the respondents to consider the representation of the petitioners. The direction as given by the coordinate Bench of this Court is extracted hereunder:-
"5. The writ petition is disposed of with the direction to the respondents to decide the representation of the petitioners, (at Annexure No.8) within a period of four weeks from today."
12. On the basis of the said decision dated 18.08.2021, the respondent Corporation had rejected the representation of the petitioners by the impugned order dated 10.09.2021, and the reason for rejection which has been assigned, therein, is particularly, contained in Clause 4, wherein, a reference has been made to the Government Order No.63 (1)/XXVII (7)(27)(8)/2011, dated 05.07.2011, wherein, the reason for rejecting the representation and denying the claim of the absorptions of the petitioners is on the ground that the Clause 4, or Group D Posts, have been declared as to be a dying cadre, and in that eventuality, in case in future any advertisement or selection process is resorted to, it is left open for the petitioners to raise their claim for appointment.
13. In fact, if the earlier phases of litigation, which was agitated before this Court are taken into consideration, in fact, all the litigations were subsequent to the issuance of the Government Order declaring the Class IV posts as to be the dying cadre by the 7 Government Order dated 05.07.2011, and that this Government Order dated 05.07.2011, has never been a subject matter of the challenge at the behest of the petitioners in any of the writ petition. In that eventuality, it will be treated, that since Class IV posts have been declared as to be the dying cadre, there cannot be an absorptions based on the executive directions of the year 1995 and that too now after more than 26 years, when the services of the petitioners were retrenched from the respondent Department.
14. The petitioners during the course of the argument sought a liberty, that they may be permitted to file an amendment application, in order to enable them to put a challenge to the Government Order dated 05.07.2011, declaring the Group D posts as to be a dying cadre, but this Court is of the view that after addressing the Court on the merits of the matter, the relief of amendment cannot be granted now at this stage, for the reason being that the Government Order dated 05.07.2011, will fall to be a document in public domain, and its knowledge would be deemed to be attributed to the petitioners, and once it is not being challenged by the petitioners in the earlier phases of litigation, which the petitioners have undertaken by way of writ petitions being WPSS No.2111 of 2015, and thereafter in WPSS No.414 of 2016, and WPSS No.1056 of 2021.
15. Even if the controversy as sought to be agitated by the petitioners by way of a writ of mandamus for absorption into their services is taken into consideration, I am of the view that an order of retrenchment was passed in the year 1995, which was a subject matter of consideration before the Industrial Tribunal, and the consequential implications flowing from the award, the same cannot be made to be overridden by a writ of mandamus, particularly when, the petitioners are now attempting, to enforce an executive direction of 1995, of retrenching, the services of the petitioners, which in fact had been earlier the subject matter of the judicial scrutiny in the earlier three phases of litigation before this Court. Hence, now at this stage, when the petitioners have attained the age of 53, 52 and 53 years respectively, they now cannot be considered to be absorbed by 8 enforcing the absorption of an executive direction of 1995, overriding the effect of the subsequent declaration of Class IV, post has to be declared dying cadre. Thus too writ petitions lack merit.
16. In that eventuality, no liberty as such as of now to challenge the Government Order, now at this belated stage could be granted in view of the bar created by Order 2 Rule 2 of the CPC, the principles of which would be applicable to the proceedings under Article 226 of the Constitution of India. In that eventuality, and for the reasons recorded above, this Court is of the view that no writ of mandamus as of now, as such which has been sought by the petitioners for their absorption on the basis of an undertaking given by the respondent Corporation while retrenching their services of the petitioners in the year 1995, could be granted until and unless the embargo of the Government Order dated 05.07.2011 exits declaring the Class IV posts, as to be a dying cadre.
17. Apart from it, no prejudice could be said to be caused to the petitioners for the reason being that the decision taken in the 3rd phase of litigation, at the behest of the petitioners yet again reserves the rights that in case if in an eventuality any selection process is resorted to it will be left open for the petitioners to apply and extend their candidature to be considered in accordance with law.
18. In view of the aforesaid reasons, I don't find any merit in the writ petition, and the writ petition is accordingly dismissed.
(Sharad Kumar Sharma, J.) 12.11.2021 NR/