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2010 Supreme(All) 2441

[2010(10) ADJ 125 (DB)]
ALLAHABAD HIGH COURT
BEFORE : ASHOK BHUSHAN AND VIRENDRA SINGH, JJ.
STATE OF U.P. AND OTHERS .....Appellants
Versus
SUNIL KUMAR VERMA AND OTHERS .....Respondents
(Special Appeal No. 1034 (defective) of 2009 with 1158,1068,1108, 1055, 1113, 954, 1896 (defective) of 2009 with Special Appeal No. 219 (defective) of 2008, with Special Appeal No. 90 (defective), 114, 602, 603, 195, 130, 131, 132, 133, 134, 165, 170, 169, 168 and 167 (defective) of 2010,
decided on 29th July, 2010)

Advocates:
Counsel :
M.C. Chaturvedi, C.S.C. for the Appellant; K.C. Vishwakarma and Devesh Vikram for the Respondents.

Headnote:U.P. Absorption of Retrenched Employees of the Government or Public Corporation in Government Service Rules, 1991—Rule 3—U.P. General Clauses Act, 1904—Section 6—Absorption—Retrenched employees—As per 1991 Rules—Effect of Rescission Rules of 2003—Retrenched employees of U.P. State Cement Corporation Sought quashing of order dated 24.5.2006 by which their claim for absorption in a Government Department was rejected—Single Judge allowed the same quashing the aforesaid order—And directed State Government to absorb petitioner in some department of State Government in terms of 1991 Rules—Challenge against—What are consequences of 2009 Act and Rescission Rules of 2003 on right of retrenched employees covered by 1991 Rules who could not be absorbed upto 8.4.2003 ? Act of 2009 and 2003 Rules expressly provide for terminating the right of consideration of retrenched employees as accrued under 1991 Rules—Thus, right of retrenched employees for absorption acquired under 1991 Rules stands terminated w.e.f. 8.4.2003—And no such right could have been enforced by retrenched employees after expressly terminating their right w.e.f. 8.4.2003—Rescission Rules, 2003 has no retrospective operation but it terminated the right of consideration for absorption as acquired under 1991 Rules—Those retrenched employees who were absorbed between 9.5.1991 to 8.4.2003 were clearly saved—Word "may" as used in Rule 3 of 1991 cannot be read as word "shall"—Rule 3 which gave enabling power to the State to consider for absorption also intended a corresponding right in the employee that his case for consideration for absorption be considered by the still till the 1991 Rules were in force—Plea against discrimination also negatived—An right of consideration for absorption under 1991 Rules having come to an end after the 2003, Rescission Rules, no mandamus can be issued for enforcing their right—However, petitioners entitled for benefit as contemplated under Rule 3(ii) of 2003 Rules. [Paras 60 87]

       Result; Appeals Partly Allowed

       

JUDGMENT

Hon’ble Ashok Bhushan, J.—These appeal raise similar issues and have been heard together. Special Appeal No. 1034 (defective) of 2009 (State of U.P. and others v. Sunil Kumar Verma and others) has been treated as leading appeal in which submissions in detail have been addressed by the learned counsel for the parties.

2. Special Appeal No. 1034 (defective) of 2009 has been filed by the State of U.P. challenging the judgment and order of learned Single Judge dated 4th February, 2009 by which order the writ petition filed by respondent Nos. 1 to 9 (Sunil Kumar Verma and 8 others), retrenched employees of the U.P. State Cement Corporation, praying for quashing the order dated 24th May, 2006 by which their claim for absorption in a Government department was rejected, has been allowed. The writ petitioners in the writ petition had further prayed for a direction to absorb them in accordance with the Uttar Pradesh Absorption of Retrenched Employees of the State Government or Public Corporation in Government Service Rules, 1991 (hereinafter referred to as the 1991 Rules). The writ petition was allowed by the learned Single Judge quashing the order whereby the claim of the writ petitioners for absorption was rejected and further a direction was issued directing the State Government to absorb the writ petitioners in some department of the State Government in terms of the 1991 Rules.

3. The other special appeals also raise almost similar issue.

4. The special appeals filed by the State of U.P. were barred by time. In some of the appeals delay condonation applications have already been allowed by this Court and in some of the appeals including Special Appeal No. 1034 (defective) of 2009 the delay condonation applications are pending consideration. There is delay of 171 days in filing Special Appeal No. 1034 (defective) of 2009. The grounds for condonation of delay in the appeals filed by the State are almost similar. In Special Appeal No. 1034 (defective) of 2009, the judgment was delivered by the learned Single Judge on 4th February, 2009. The copy of the judgment was received in the office of the State Government on 16th February, 2009. The matter was referred to the Law Department. The Law Department gave permission for filing special appeal on 3rd July, 2009. Thereafter instructions were issued to the competent authority, who contacted the office of the Chief Standing Counsel and in preparation of the appeal some time was taken. Thereafter appeal has been filed. Similar plea for condonation of delay has been taken in other time barred appeals of the State Government. In several appeals, e.g. in Special Appeal No. 170 of 2010 (State of U.P. and others v. Amar Nath and 82 others) there was delay of 246 days and similar ground was taken for condonation of delay, this Court vide its order dated 27th January, 2010 has already allowed the delay condonation application. We are of the view that sufficient grounds have been made out for condonation of delay in the appeals in which delay condonation applications are still pending. The delay condonation applications, which are pending consideration, are allowed.

5. This bunch of special appeals can be divided in four groups. The first group of appeals are the appeals filed by the State of U.P. challenging the judgment and orders of learned Single Judge by which the writ petitions filed by the respondent-employees praying for direction for absorption in Government service have been allowed, which group of appeals are represented by Special Appeal No. 1034 (defective) of 2009. The second group of appeals are Appeal No. 219 of 2008 and other appeals in which appeals the employees have come up challenging the order of learned Single Judge by which the writ petitions claiming direction for absorption in Government service have been dismissed. The third group of appeals are the appeals arising out of judgments of learned Single Judge by which judgment the writ petitions filed by the retrenched
















































































































































































































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