# Association and another v. State of U.P

- **Citation:** (2003) 2 ILRA 546
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-07-11
- **Case number:** Civil Misc. Writ Petition No. 40420 of 2001
- **Bench:** Anjani Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/association-and-another-v-state-of-u-p-40173
- **Pages:** 4

## Headnote

Law-appointment
vacancy
arising out resignation of a general
candidate,
belonging
to
Backword
Community-claimed
by
an
OBC
candidate-such claim contrary to G.O.
dated 25.3.94-which entitles candidates
from amongst the waiting list of that
particular category-held-candidate who
resigned even though from backward
community,
ceases
to
be
as
OBC
category-claim cannot survive.

Held- Para 9

I have given my considered thought to
the
aforesaid
argument
and
gone
through the Government Order dated
25.3.1994
and
in
my
opinion,
the
contention of learned counsel for the
petitioner, cannot be accepted, in as
much as the impugned Government
Order clearly demonstrates that if the
vacancy of General Category candidate
occurs during the lifetime of panel, the
same shall be filled in amongst the
waiting list of that particular category.
Shri Rajesh Kumar Yadav who has
resigned and due to his resignation the
vacancy occurred which has given rise to
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2 All] Ram Singh Yadav V. The Commissioner/Director Handloom & Technology & anr.
547
the filing of the present writ petition, has
already been placed at Serial No. 1 of
General
Category
candidates
having
secured highest marks, therefore, he
ceases to be candidate belonging to
Other Backward Class category. That
being the factual and legal position, the
claim of petitioner, Ram Singh Yadav
cannot survive.
JT 1998 (6) SC 464 referred to .

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2003
546
observed that the Court should exercise
restraint in policy matters and should not
sit in appeal over the decision of the
Legislature. In Civil Misc. Writ Petition
No. 43985 of 1997 Kanpur Aloo Arhati
Association and another v. State of U.P.
and others decided on 1.7.2003 a
division bench of this court considered the
challenge
to
the
validity
of
the
Notification under section 7 (2) (b) of the
U.P. Krishi Utpadan Mandi Samiti Ltd.
Adhiniyam and held that the said
Notification
amounts
to
delegated
legislation and hence the Court has very
limited scoped of interference.

14. In both the aforesaid decisions
this court stressed the importance of
judicial restraint by the court towards
legislative or administrative decisions.

15. In the counter affidavit the
respondents have mentioned in paragraph
4 the reasons for issuing the impugned
orders, and we cannot say that these
reasons are arbitrary.

16. Following the decisions of this
court in Civil Misc. Writ Petition No.
34022 of 2002, XL-IIT Forum and others
v. State of U.P. and others and Civil Misc.
Writ Petition No. 43985 of 1997, Kanpur
Aloo Arhati Association and another v.
State of U.P. and others (supra), this writ
petition is dismissed. Interim order is
vacated.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.07.2003

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 40420 of 2001

Ram Singh Yadav

...Petitioner
Versus
The Commissioner/Director Handloom
and Technology Nideshalaya, U.P. and
another

 ...Respondents

Counsel for the Petitioner:
Sri Sudhakar Pandey
Sri Prabhakar Pandey

Counsel for the Respondents:
S.C.

Service
Law-appointment
vacancy
arising out resignation of a general
candidate,
belonging
to
Backword
Community-claimed
by
an
OBC
candidate-such claim contrary to G.O.
dated 25.3.94-which entitles candidates
from amongst the waiting list of that
particular category-held-candidate who
resigned even though from backward
community,
ceases
to
be
as
OBC
category-claim cannot survive.

Held- Para 9

I have given my considered thought to
the
aforesaid
argument
and
gone
through the Government Order dated
25.3.1994
and
in
my
opinion,
the
contention of learned counsel for the
petitioner, cannot be accepted, in as
much as the impugned Government
Order clearly demonstrates that if the
vacancy of General Category candidate
occurs during the lifetime of panel, the
same shall be filled in amongst the
waiting list of that particular category.
Shri Rajesh Kumar Yadav who has
resigned and due to his resignation the
vacancy occurred which has given rise to
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2 All] Ram Singh Yadav V. The Commissioner/Director Handloom & Technology & anr.
547
the filing of the present writ petition, has
already been placed at Serial No. 1 of
General
Category
candidates
having
secured highest marks, therefore, he
ceases to be candidate belonging to
Other Backward Class category. That
being the factual and legal position, the
claim of petitioner, Ram Singh Yadav
cannot survive.
JT 1998 (6) SC 464 referred to .

(Delivered by Hon'ble Anjani Kumar, J.)

1. This writ petition was directed to
be listed along with writ petition no.
25549 of 2002. For the sake of
convenience the writ petitions are being
taken up chronologically. The petitioner,
Ram Singh Yadav has earlier filed writ
petition No. 20229 of 2000 which was
finally disposed off by this Court vide its
order dated 2.5.2000 with the following
directions:

"Heard learned counsel for the
parties.

With regard to his grievance the
petitioner
has
already
made
a
representation
dated
16.12.1999,
Annexure-4 to the writ petition, before
respondent.

This writ petition is finally disposed
of with a direction to respondent to decide
the petitioner's aforesaid representation
by a speaking order, within a period of
three months from the date of production
of a certified copy of this order before
him."

2. Pursuant to the aforesaid direction
the representation filed by the petitioner,
Ram Singh Yadav was disposed off by
impugned order dated 8.8.2000 and
31.5.2001, copies whereof have been
annexed as Annexures 6 and 12, passed in
the present writ petition. Petitioner, Ram
Singh Yadav filed one more writ petition
No. 36179 of 2000 which was allowed by
this
Court
on
18.4.2001
with
the
following
directions
"Heard
Shri
Sudhakar Pandey, learned counsel for the
petitioner
and
the
learned
counsel
representing
the
respondents.
The
petitioner was appointed as Industrial
Supervisor
in
Hathkargha
Evam
Vastroudhyog, U.P. by the order dated
4.8.2000 which order has been cancelled
by the impugned order dated 8.8.2000 on
the ground that the appointment was
defective (Trutipurna). The defect has not
been depicted in the order impugned
herein. The reason which led to passing of
the impugned order was referred to be
recorded in separate office memorandum
dated
8.8.2000
referred
to
in
the
impugned order but the same has not been
brought on record. Undisputedly, the
petitioner
was
not
afforded
any
opportunity of showing cause nor was he
served the said office memorandum dated
8.8.2000, which pointed out defects on
the basis of which the appointment of the
petitioner has been cancelled.

3. In Basudev Tiwari Versus Sido
Kanhu University and others, JT 1998
(6) SC, 464, it has been held that the
question whether the appointment was
illegal or defective should be decided
without affording any opportunity of
showing cause. In my opinion, the order
impugned herein is liable to be quashed.

4. Accordingly, the writ petition
succeeds and is allowed. The impugned
order dated 8.8.2000 is quashed without
prejudice to the right of the competent
authority to pass such order as it may
deem fit and proper after affording an
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INDIAN LAW REPORTS ALLAHABAD SERIES [2003
548
opportunity of showing cause to the
petitioner. The petitioner shall be entitled
to all consequential benefits.

5. The facts leading to filing of the
aforesaid writ petitions are that the
petitioner
who
belongs
to
Other
Backward
Class
Category
applied
pursuant to the advertisement dated
10.8.1998 issued by the respondent No. 1
for appointment to the post of Industrial
Supervisor.

6. The admitted case of the parties is
that one Rajesh Kumar Yadav who also
belongs
to
Other
Backward
Class
category has secured highest marks
amongst all categories and therefore, he
was placed at Serial No. 1 amongst the
General
Category
candidates.
The
petitioner, Ram Singh Yadav was selected
and was placed at serial No. 3 in the
waiting list of Other Backward Class
candidates. Rajesh Kumar Yadav who
was placed at Serial No. 1 in General
Category,
has
resigned
after
the
appointment. Thus the petitioner, Ram
Singh Yadav filed an application that
since Rajesh Kumar Yadav has resigned,
who belongs to Other Backward Class
category, the vacancy caused by his
resignation namely resignation of Rajesh
Kumar Yadav, should now be filled in
from amongst the candidates of Other
Backward Class Category and petitioner
being candidate belonging to Other
Backward Class category, should be given
appointment. It is this contention of
petitioner Ram Singh Yadav led to filing
of the two earlier writ petitions and the
present writ petition.

7. After the order dated 8.8.2000
was quashed by this Court, the respondent
pursuant to the direction issued by this
Court afforded full opportunity to the
petitioner and stated that according to the
relevant Government Order since Rajesh
Kumar Yadav was placed in the category
of General candidates, the vacancy caused
due to resignation of Rajesh Kumar
Yadav will be filled in amongst the
candidates of waiting list of General
Category and not amongst the candidates
of waiting list of Other Backward Class
category. In this view of the matter, the
earlier letter of appointment issued in
favour of the petitioner, Ram Singh
Yadav deserves to be cancelled and is
cancelled by the order dated 31.5.2001,
which is subject matter of challenge of the
present writ petition.

8. Learned counsel for the petitioner
argued that the impugned order is illegal
as according to him the provisions of
Government Order dated 25.3.1994 are
not applicable to the case of the petitioner,
Ram Sigh Yadav.

9. I have given my considered
thought to the aforesaid argument and
gone through the Government Order
dated 25.3.1994 and in my opinion, the
contention of learned counsel for the
petitioner, cannot be accepted, in as much
as the impugned Government Order
clearly demonstrates that if the vacancy of
General Category candidate occurs during
the lifetime of panel, the same shall be
filled in amongst the waiting list of that
particular category. Shri Rajesh Kumar
Yadav who has resigned and due to his
resignation the vacancy occurred which
has given rise to the filing of the present
writ petition, has already been placed at
Serial No. 1 of General Category
candidates having secured highest marks,
therefore, he ceases to be candidate
belonging to Other Backward Class
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2 All] M/s Kailash Motors, Kanpur V. Presiding Officer, Labour Court, Kanpur and others
549
category. That being the factual and legal
position, the claim of petitioner, Ram
Singh Yadav cannot survive.

10. In view of above discussion, this
writ petition deserves to be dismissed and
is hereby dismissed. Interim order, if any,
stands vacated.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.02.2003

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE K.N. OJHA, J.

Civil Misc. Writ Petition No. 4604 of 1980

M/s Kailash Motors, Kanpur ...Petitioner
Versus
Presiding Officer, Labour Court (1),
Kanpur and others
 ...Respondents

Counsel for the Petitioner:
Sri J.N. Tiwari
Sri C.B. Gupta

Counsel for the Respondents:
Sri K.P. Agarwal
Sri Y.D. Dwivedi
Ms. Suman Sirohi
S.C.

Labour & Service- Removal- muster roll
employee
abandonment
-whether
amount
to
retrenchment?
Question
referred to larger bench- held, such
removal
amount
to
retrenchment-
without following mandatory provisions
his name can not be struck from muster
roll.

Held- Para 9

In absence of fixed term contract the
termination of service of a workman or
striking off his name from muster-roll
would not be covered in the exception to
retrenchment. The petitioner's service
had been terminated by the respondents
under the standing orders treating it to
be abandonment of employment. The
abandonment of service has not been
excluded
from
the
definition
of
retrenchment.
Therefore,
before
terminating the services of the workman
the petitioner was required to follow the
mandatory procedure of retrenchment.
The removal of the name of workman
from the register and depriving him from
work would amount to retrenchment and
would be bad, as mandatory provisions
of retrenchment had not been followed.
Case laws discussed:
1990 (61) FLR 1
1991 (63) FLR 721
1993 (66) FLR 211
1998 (79) FLR 233
2001 (88) FLR 274
2001 (88) FLR 383
2000 (85) FLR 807
2002 (95) FLR 43

(Delivered by Hon'ble V.M. Sahai, J.)

1. The question which has been
referred to larger bench by the learned
Single Judge is extracted below:-

"Whether removal of name of a
workman from the muster-roll on the
ground of abandonment amounts to
retrenchment as contemplated by the
Industrial Disputes Act, 1947 and the
Uttar Pradesh Industrial Disputes Act,
1947?"

2. The facts in brief are that the
petitioner is a small-scale unit engaged in
sales and purchase of Tata Diesel
vehicles, Bajaj Scooters and other auto
vehicles and was employing about 40
workmen. The establishment of the
petitioner is a shop within the meaning of
U.P.
Shops
and
Commercial
Establishments Act, 1962. The State of
Uttar Pradesh has framed standing orders
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