PRABHU NATH PRASAD Vs. STATE OF U P

JUDGEMENT

(1.) 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 fulfil 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.

(2.) 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 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) Rules, 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. 5203 of 2004, Awas Vikas Sansthan & Anr. v. Awas Vikas Sansthan Engineers Association & Ors. , 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.

(3.) 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.