# Committee of Management Adarsh Shishu Sadan v. State of U.P. and others

- **Citation:** (2010) 2 ILRA 798
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-08-31
- **Bench:** Sunil Ambwani, Kashi Nath Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/committee-of-management-adarsh-shishu-sadan-v-state-of-u-p-and-others-41697
- **Pages:** 10

## Text

798 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

beyond/ after the expiry of time schedule
prescribed under rule 4 will remain in
operation except for the period upto the
disposal of the representation.

25. On the basis of aforesaid analysis,
we are of the considered view that all these
writ petition lack merits and do not warrant
any interference by this Court.

26. Accordingly, all the writ petitions
are hereby dismissed with the observation
that in the cases where the representation
against the adverse entry has not been
disposed of in accordance with provisions
of Rule 4 of U.P. Government Servants
(Disposal
of
Representation
against
Annual Confidential Reports and allied
Matters) Rule, 1995, such report shall not
be treated as adverse for the purposes of
promotion, crossing of efficiency bar and
other service matters of the government
servant concerned as per the mandate of
Rule 5 of Rules, 1995.

27. As we are deciding these writ
petitions only on legal issues without
entering into the factual disputes, therefore,
the concerned authorities are hereby
directed to examine the individual case in
pursuance to the provisions of Rule 5 of
Rules, 1995.

28. With the aforesaid observations
and directions, all these writ petitions are
dismissed.

There shall be no order as to costs.
---------

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.08.2010

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE KASHI NATH PANDEY, J.

Special Appeal No. 143 OF 2008

Committee
of
Management
Adarsh
Shishu Sadan

 ...Applicant
Versus
State of UP & others ...Opposite Parties

Counsel for the Petitioner
Sri Siddharth Khare
Sri Awadh Narain Rai

Counsel for the Respondents
Sri Y.K.Yadav
C.S.C.

Constitution of India Art.21 A and
Art.45-read with Right of Children to
Free and Compulsory Education Act 2009
Section 12-Private management having
reorganization under Section 4 of U.P.
Recognized
Basic
School
Rules
(Appointment and Conditions of service
of teacher) Rules 1975-with condition to
arrange finance from its own sourcesrunning primary schools-whether can
claim recurring-grant as a matter of
Right? Held-'No'-only the responsibility
of giving free education cast upon the
State Govt.-which is being successfully
discharged
under
"Sarv
Shiksha
Abhiyan"-No duty cast upon Private
Management-not entitled for any kind of
aid or recurring grant

Held Para 27

The fundamental rights under Article 21A
given to the children of the age of 6 to
14 years and the corresponding duty of
the State to provide free and compulsory
education by law, now provided by the
Right of Children to Free and Compulsory
2 All] Committee of Management Adarsh Shishu Sadan V State of U.P. and others
799
Education Act, 2009 w.e.f. 26.8.2009
does
not
give
any
right
to
the
managements of the existing unaided
schools to receive any kind of aid or
recurring grant to meet its expenses
from the appropriate government or the
local authority.
Case Law Discussed:
AIR 1992 SC 1858, AIR 1993 SC 2178, (2007)
7 SCC 701, (2008) 3 SCC 315

(Delivered by Hon'ble Sunil Ambwani, J.)

1. The petitioners-appellants' are
Committees of Management of primary
schools in Districts Maharajganj and
Kushinagar. In these intra-court appeals
they are aggrieved by the judgement of
learned Single Judge dated 13.12.2007 in
Writ Petition No. 62181 of 2005 filed by
Committee
of
Management
Adarsh
Shishu Sadan Basahiya Khurd Paratawal,
District Maharajganj; and Writ Petition
No. 61435 of 2006 filed by Committees
of Managements of six primary schools,
by which he has dismissed the writ
petitions, for directions to the Staterespondents to provide recurring grant-inaid to the primary schools run by them,
owned and controlled by private societies,
recognised
by
the
Social
Welfare
Department of the State Government.

2. We have heard Shri Awadh
Narain Rai and Shri Siddharth Khare, for
the
petitioner-appellants.
Learned
Standing Counsel appears for the State
respondents.

3.

The
petitioners
are
the
management bodies of the primary
schools
recognised
by
the
Basic
Education Officers of their respective
districts, and also by the Social Welfare
Department of Government of Uttar
Pradesh.
All
these
school,
running
primary classes claim that up to half of
the number of their students belong to
Scheduled Castes. It is alleged that they
have been arbitrarily denied recurringgrant under the Circular Letter issued by
the Special Secretary, Department of
Social Welfare, Government of UP dated
31.3.1994, and thereafter under another
Circular Letter dated 20.4.1998 issued by
the Special Secretary, Department of
Social Welfare, Government of U.P.

4. By a Government Order dated
21.5.1999, a one time grant was provided
to be given by the State Government to
only those schools, which were ten years
old as on 31.3.1998, with 50% students
from Scheduled Caste/Scheduled Tribe
categories subject to certain conditions.
Condition No. 2 (4) provided for giving
an undertaking and affidavit that grant
will be accepted with no further claims in
future.

5. This Court in Writ Petition No.
36719/1999, set aside the condition No. 2
(4). The State respondents were required
to consider the claims of the qualifying
schools, for recurring grant-in-aid dehorse
the restriction. The State Government
considered and rejected their claim on
26.2.2002, on the ground that the
responsibility of primary education under
the
73rd
and
74th
Constitutional
Amendments, has been given to local
bodies/panchayats. The State Government
also
pleaded
financial
difficulty
in
funding these schools.

6. In Writ Petition No. 16529/2003
once again, the decision of the State
Government was successfully challenged.
By
the
judgement
dated
3.3.2004,
Government Order dated 31.3.2003 was
set aside and the State Government was
800 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

required to take a fresh decision in the
light of the observations made in the
judgment
and
also
keeping
the
constitutional mandate under Article 41 of
the Constitution of India.

7. The State Government once again
rejected the claim for recurring grant on
26.2.2004, and once again a Writ Petition
No. 77659/2005 was filed by these
schools. The writ petition was again
allowed on 23.3.2006 (for the third time),
and while quashing the order dated
14.1.2005 the Court observed that the
directions given by this Court for
adjudicating the dispute has not been
considered in positive perspective. The
matter was dealt with only with a negative
note. The State Government was required
to re-consider the matter.

8. By the order dated 23.10.2006,
the Principal Secretary, Government of
UP, in pursuance to the directions issued
by the Court on 23.3.2006 (under
challenge in these two writ petitions) has
observed that the State Government does
not have a policy or scheme to give
recurring grant to every primary school.
There is a primary school run by the Basic
Education Board almost in every village.
Up to the year 2008, there will be one
school, at a standard distance of one
kilometre under the 'Sarva Shiksha
Abhiyan' run by the State Government to
fulfil the mandate of Article 21A and 41
of the Constitution of India, to provide
free and compulsory education to the
children upto the age of 14 years. The
scheme provides for one primary school
on a population of 300, in one kilometre
area and one junior high school on the
population of 800 in two kilometre area.
The Principal Secretary observed that at
the relevant time and upto the year 1994,
the State Government had prepared a
scheme for primary education to the
children belonging to the Scheduled Caste
and to give them grants through the Social
Welfare
Department.
Thereafter
the
Government did not have any policy to
give recurring grant to the privately
managed primary schools.

9. In the impugned order dated
23.10.2006,
the
Principal
Secretary,
Government of U.P., further observed in
deciding the representation, that he had
taken advice of the Legal Department,
Basic Education Department, Finance
Department; the Advocate General, after
which the matter was placed before the
State Cabinet. The State Cabinet rejected
the claim for grant of recurring grant to
these private schools. The management of
the
recognised
schools
were
given
recognition with the condition that under
Rule 4 of the U.P. Recognized Basic
Schools (Appointment and Conditions of
Service of Teachers) Rules, 1975, were
required to arrange for finances from its
own
sources.
The
Social
Welfare
Department did not undertake nor gave
any
assurance
for
giving
recurring
financial aid to these schools. The
Government is fulfilling its responsibility
of
providing
free
and
compulsory
education
under
the
'Sarv
Shiksha
Abhiyan' and is not responsible, nor has
committed to give financial aid to the
private primary schools.

10. Learned Judge held that the
petitioners'
schools
were
given
recognition with a specific condition
under the Rules of 1975, to run the
schools through their own financial
resources. The State Government is
fulfilling its obligation to provide primary
education through the schools run and
2 All] Committee of Management Adarsh Shishu Sadan V State of U.P. and others
801
managed by local bodies and Zila
Panchayat. The 'Sarv Shiksha Abhiyan'
has fulfilled the obligation of the State to
provide free and compulsory education
for children upto the age of 14 years. The
management of the schools do not have a
right to claim recurring grant both under
the policy of the State Government as
well as under Article 21A and 41 of the
Constitution of India.

11. Learned counsels for the
petitioner-appellants submit that the State
is under constitutional mandate to provide
free and compulsory education to the
children upto the age of 14 years, vide
Mohini Jain and Unni Krishnan's case
and that in view of the constitutional
mandate, the petitioners' institutions,
established with the object of providing
primary education to children belonging
to the Scheduled Castes, recognised by
the Social Welfare Department, have a
right to be given recurring grant-in-aid.

12. The petitioners have established
the primary school and were recognised
by the Social Welfare Department of the
State to provide primary education with
no commitment of financial aid. Under
Rule 4 of the U.P. Basic Schools
(Appointment and Conditions of Service
of Teachers) Rules, 1975 the financial
arrangement of the costs to run the school
was to be made by the management from
its own sources. The State Government, in
order to fulfil its aim to provide free
education to primary schools recognized
by the Social Welfare Department in
which there are 50% students belonging
to scheduled caste, provided for one time
grant only by Government Order dated
21.5.1999 with the condition that they
will not claim any further grant in future
from the Government. The condition No.
2 (4), for giving undertaking and affidavit
to that effect was set aside by this Court.
Thereafter
the
matter
was
under
consideration of the State Government in
terms of the various directions issued by
the Court concerned with fulfilling the
fundamental right of the children upto the
age of 14 years under the constitutional
mandate.

13. Article 41 falling in Part IV
Directive Principles of the State Policy
provided for guidelines for securing right
to
work,
education
and
to
public
assistance in cases of unemployment, old
age sickness and disablement and in other
cases of undeserved want. In Mohini Jain
vs. State of Karnataka AIR 1992 SC
1858 the Supreme Court held that the
State is under duty not only to establish
educational
institutions
but
also
to
effectively secure the right to education
by admitting students to the seats
available at such institutions by admitting
candidates found eligible according to
some rationale principle. Even though it
was not a fundamental right and is not
judicially enforceable, once the State
provides facilities for education, its action
must conform to the standard of equality
and rationality under Article 14. In Unni
Krishnan J.P. Vs. State of A.P. AIR
1993 SC 2178 the Supreme Court found
that though right to education is not stated
expressly as a fundamental right, it is
implicit in and flows from the right to life
guaranteed under Article 21, having
regard to the broad and expansive
interpretation given by the Court. The
right to education, it was held, has been
treated as one of the transcendental
importance.
It
has
fundamental
significance to the life of an individual
and the nation. Without education being
provided to the citizen of the country the
802 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

objectives set forth in the preamble to the
Constitution, cannot be achieved. The
Supreme Court shifted the obligations
under Article 41, 45 and 46 to be included
as a fundamental right to education under
Article 21. It was held that it was not
correct to contend that Mohini Jain, was
wrong in so far as it declared that right to
education flows directly from right to life.
It is, however, not an absolute right. It
means in the context of Articles 41 and 45
that every child/children of the country
has a right to free education until he
completes the age of 14 years. After the
child completes 14 years, his right to
education is circumscribed by the limits
of the economic capacity of the State and
its development.

14. The Supreme Court thereafter
held in Unni Krishnan's case that the
obligations under Articles 41, 45 and 46
of the Constitution can be discharged by
the State either by establishing the
institutions of its own, or by aiding,
recognising and/granting affiliation to
privately educational institutions. It went
on to hold that by declaring education as a
fundamental right upto the age of 14,
years the Court was not determining the
priorities and was only reminding the
State of its solemn endeavour, within a
prescribed time.

15. The 86th Amendment Act, 2002
amending
the
Constitution
w.e.f.
12.12.2002,
substituted
Article
45
providing
for
free
and
compulsory
education for children to be provided by
the State within ten years from the date of
commencement of the Constitution, until
they complete the age of 14 years. Article
45, as it stood prior to its amendment, was
transposed by the same amendment under
Article 21A in Part III Constitution of
India. The newly inserted Article 21A and
the substituted Article 45 by the 86th
Amendment Act, 2002 provides:-

"Article 21A- The State shall provide
free and compulsory education to all
children of the age of 6 to 14 years in
such manner as the State may by law
determine.

Article 45- The State shall endeavour
to provide early childhood care and
education for all children until they
complete the age of six years."

16. The law as contemplated under
Article
21A
was
enacted
by
the
Parliament, after seven years. The Right
of Children to Free and Compulsory
Education Act, 2009 (Act No. 35/2009)
received the assent of the President on
August 26th 2009, and was published in
the Gazette of India on 27.8.2009. The
prefatory note giving 'statements of
objects and reasons' of the Act provides
that over the years there has been
significant
spatial
and
numerical
expansion of elementary schools in the
country, yet the goal of universal
elementary education continues to elude
us. The number of children, particularly
children from disadvantaged groups and
weaker sections, who drop out of school
before completing elementary education,
remains very large. Moreover, the quality
of learning achievement is not always
entirely satisfactory even in the case of
children,
who
complete
elementary
education. Consequently in pursuance to
the fundamental right inserted in the
Constitution by 86th Amendment Act,
2002 as Article 21A the right of children
to free and compulsory education was
enacted to provide:-
2 All] Committee of Management Adarsh Shishu Sadan V State of U.P. and others
803

"3. Consequently, the Right of
Children
to
Free
and
Compulsory
Education Bill, 2008, is proposed to be
enacted which seeks to provide:-

(a) that every child has a right to be
provided full time elementary education
of satisfactory and equitable quality in a
formal school which satisfies certain
essential norms and standards;

(b) 'compulsory education' casts an
obligation on the appropriate Government
to
provide
and
ensure
admission,
attendance and completion of elementary
education;

(c) 'free education' means that no
child, other than a child who has been
admitted by his or her parents to a school
which is not supported by the appropriate
Government, shall be liable to pay any
kind of fee or charges or expenses which
may prevent him or her from pursuing
and completing elementary education;

(d) the duties and responsibilities of
the
appropriate
Governments,
local
authorities, parents, schools and teachers
in
providing
free
and
compulsory
education; and

(e) a system for protection of the
right of children and a decentralized
grievance redressal mechanism.

4.
The
proposed
legislation
is
anchored in the belief that the values of
equality, social justice and democracy and
the creation of a just and humane society
can be achieved only through provision of
inclusive elementary education to all.
Provision
of
free
and
compulsory
education of satisfactory quality to
children from disadvantaged and weaker
sections is, therefore, not merely the
responsibility of schools run or supported
by the appropriate Governments, but also
of schools which are not dependent on
Government funds.

5. It is, therefore, expedient and
necessary to enact a suitable legislation as
envisaged
in
Article
21-A
of
the
Constitution."

17. The Parliament has finally
fulfilled the mandate of Article 45 by
including the duty imposed by the
Constitution
on
the
State,
as
a
fundamental right under Article 21-A to
the children of the age of 6 to 18 years to
free and compulsory education. The 86th
Amendment to the Constitution, in our
opinion, is most significant constitutional
amendment made after the Constitution
was enacted, for the development of the
Country. It serves the goals set forth in
the preamble. The fundamental right,
given
to
the
children
and
the
corresponding obligation of the State to
provide free and compulsory education to
the children of the age of 6 to 14 years is
now a real and achievable right. The
Courts
now
have
an
additional
constitutional
duty
to
enforce
the
fundamental right of free and compulsory
education for the children of the age 6 to
14, and the obligation of the State, to give
it full purpose and meaning.

18. Does this right and the
obligation of the State gives any right to
the primary schools for establishing
schools, claim exemption from municipal
laws and secure financial aid from the
State?

19. Section 6 of the Right of
Children
to
Free
and
Compulsory
804 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

Education Act, 2009 provides for the
appropriate
government
and
local
authority to establish within such area or
limits of neighbourhood as may be
prescribed a school where it is not so
established within a period of three years
from the date of commencement of the
Act. The Central Government and the
State Government have to share, under
Section 7, concurrent responsibility for
providing
funds
to
carry
out
the
provisions of the Act. The duty of
compulsory
elementary
education
to
every child is placed upon the appropriate
government defined under Section 2 (a) of
the Act, which in relation to school
established, owned and controlled by the
Central Government, means the Central
Government and other than the schools
referred
to
as
above,
the
State
Government or the Union Territory as the
case may be.

20. The Act of 2009 defines in
Section 2 (f) 'elementary education' to
mean the education from 1st class to 8th
class. The duty of local authority under
Section 9, is to provide free and
compulsory education to every child,
provided that where a child is admitted by
his or her parents or guardian, as the case
may, in a school other than a school
established,
owned,
controlled
or
substantially financed by funds provided
directly or indirectly by the appropriate
Government or a local authority, such
child or his or her parents or guardians,
shall not be entitled to make a claim for
reimbursement of expenditure incurred on
elementary education of the child in such
other school. Section 8 (b) ensure
availability of a neighbourhood school in
respect of children belonging to weaker
section and the child belonging to
disadvantaged group. Section 8 (c) and
Section 9 (c) in respect of appropriate
government
and
local
authority
responsible provide liability to ensure that
they are not discriminated and prevented
from pursuing and completing elementary
education
on
any
grounds.
The
appropriate government and the local
authority are also under duty under
Sections 8 and 9 to provide infrastructure
including school building, teaching staff,
learning equipment; and to ensure good
quality elementary education in such
neighbourhood school. The Act also gives
a corresponding liability under Section 10
on the parents and guardians to admit or
cause to be admitted his or her child or
ward, as the case may be, to an
elementary education in the neighbourhod
school.

21. Chapter IV of the Act provides
for responsibilities of the school to
provide free and compulsory education.
The school under Section 2 (n) means, (i)
a school established, owned or controlled
by the appropriate government or a local
authority; (ii) an aided school receiving
aid or grants to meet whole or part of its
expenses
from
the
appropriate
government or the local authority; (iii) a
school belonging to specified category;
and (iv) an aided school not receiving any
kind of aid or grants to meet its expenses
from the appropriate Government or the
local authority. The school, which does
not receive aid and grants under Section
12 (2), is required to provide free
education. Section 12 is quoted as below:-

"12.
Extent
of
School's
responsibility for free and compulsory
education-(1) For the purposes of this
Act, a school,-
2 All] Committee of Management Adarsh Shishu Sadan V State of U.P. and others
805

(a) specified in sub-clause (i) of
clause (n) of Section 2 shall provide free
and compulsory elementary education to
all children admitted therein;

(b) specified in sub-clause (ii) of
clause (n) of Section 2 shall provide free
and compulsory elementary education to
such proportion of children admitted
therein as its annual recurring aid or
grants so received bears to its annual
recurring expenses, subject to a minimum
of twenty-five per cent;

(c) specified in sub-clauses (iii) and
(iv) of clause (n) of Section 2 shall admit
in Class I, to the extent of at least twentyfive per cent of the strength of that class,
children belonging to weaker section and
disadvantaged
group
in
the
neighbourhood and provide free and
compulsory elementary education till its
completion;
Provided further that where a school
specified in clause (n) of Section 2
imparts
pre-school
education,
the
provisions of clauses (a) to (c) shall apply
for
admission
to
such
pre-school
education.

(2) The school specified in subclause (iv) of clause (n) of Section 2
providing
free
and
compulsory
elementary education as specified in
clause (c) of sub-section (1) shall be
reimbursed expenditure so incurred by it
to the extent of per-child-expenditure
incurred by the State, or the actual amount
charged from the child, whichever is less,
in such manner as may be prescribed:

Provided that such reimbursement
shall not exceed per-child-expenditure
incurred by a school specified in subclause (i) of clause (n) of Section 2:

Provided further that where such
school is already under obligation to
provide free education to a specified
number of children on account of if
having received any land, building,
equipment or other facilities, either free of
cost or at a concessional rate, such school
shall not be entitled for reimbursement to
the extent of such obligation."

22. In the present case the schools
were recognised by the Social Welfare
Department and were given only one time
grant. There was no assurance given by
the State Government for giving recurring
grants to the schools. The salary of the
teachers and other expenses were required
to be met by the management from its
own funds. The obligation of the State to
provide free and compulsory education,
now enacted as fundamental right, is not
to be enforced through such schools for
giving recurring grants to meet the
expenses of the salary of teachers and
other incidental expenses.

23. The right given under Article
21A to the children for free and
compulsory education and the obligation
of the State cannot be taken as a
fundamental right of the private unaided
school.
In
City
and
Industrial
Development
Corporation
of
Maharashtra vs. Ekta Mahila Mandal
and others (2007) 7 SCC 701 the
Supreme Court did not find any such right
under Article 21A to regularize the
encroachment of an area earmarked in the
development plan as green belt on the
ground that some children were taught in
the school.

24. In Superstar Educational
Society vs. State of Maharashtra and
others (2008) 3 SCC 315 the Supreme
806 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

Court held that it is the duty of the State
Government
to
provide
access
to
education. Unless new schools in the
private sector are permitted, it will not be
possible for the State to discharge its
constitutional obligation. The permission
was granted by the High Court to 1495
new schools under the order dated
16.5.2006 on permanent no grant basis
without any financial commitment or
liability on the part of the State
Government, even in future and at the
same time ensuring that the schools
follow the parameters and conditions
prescribed by the Education Code giving
liberty to the authorities to take action, if
there is any violation. The Apex Court did
not find it appropriate for the High Court
to quash the permission granted to these
schools without impleading or hearing
them and without even noticing that many
of the schools were English medium or
non-Marathi schools run by religious and
linguistic minority not entitled to be
covered by the proposed master plan.

25. We do not find any right either
under the Government orders issued from
time to time or under the Act No. 35 of
2010, enacted to fulfill the rights under
Article 21A, to any school for claiming
recurring
grant-in-aid.
The
State
Government is conscious of its obligation
and is making efforts to provide atleast
one primary school on a population of
300 within one kilometer area and a
junior high school on a population of 800
within two kilometers area under the 'Sarv
Shiksha Abhiyan'. Nothing has been
brought on record to show, that the area in
which the petitioners' schools are being
run do not have any school as is defined
in Section 2 (n) (i), (ii) and (iii), for
education of the children between the age
of 6 to 14, in the neighbourhood.

26. Section 12 (2) of the Act of
2009, provides for reimbursement to the
extent of per-child-expenditure incurred
by the State, to those schools, which are
un-aided and are not receiving any kind
of
aid
including
land,
building,
equipment or other facilities recognised
for imparting elementary education and
are providing free and compulsory
education
to
the
children.
The
reimbursement is to be made in a
manner, in which it may be prescribed.
The State shall, if there is an established
school by the appropriate government or
by a local authority, as a neighbourhood
school provide free and compulsory
education to the children of the area
through such schools. It is only when
there is no school in the neighborhood
that the State Government may provide
for a reimbursement per child to the
school, which is required for such
services by the State, in accordance with
the rules as may be prescribed.

27. The fundamental rights under
Article 21A given to the children of the
age
of
6
to
14
years
and
the
corresponding duty of the State to
provide free and compulsory education
by law, now provided by the Right of
Children
to
Free
and
Compulsory
Education Act, 2009 w.e.f. 26.8.2009
does
not
give
any
right
to
the
managements of the existing unaided
schools to receive any kind of aid or
recurring grant to meet its expenses from
the appropriate government or the local
authority.

28. The Special Appeals are
dismissed.
---------
2 All] State of U.P. and others V. Sunil Kumar Verma and others
807
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.07.2010

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE VIRENDRA SINGH, J.

Special Appeal No. 1034 (defective) of 2009.

State of U.P. and others ...Appellants
Versus
Sunil Kumar Verma and others

 ...Respondents.

Counsel for the Petitioners:
Sri M.C. Chaturvedi
C.S.C.

Counsel for the Respondents:
Sri K.C. Vishwakarma
Sri Devesh Vikram

U.P. Absorption of Retrenched Employees
of the Government or Public Corporation in
Government Service Rules 1991, Rule 3U.P. Absorption of Retrenched Employees
of State Government or Public Corporation
in Government Service (recession) Rules
2003, Rule 3(ii)-Uttar Pradesh Absorption
of Retrenched Employees of Government
or Public Corporations in Government
Service (Rescission of Rules) Act 2009, Sec
3(2)-Allahabad High Court Rules 1952
Chapter
VIII,
Rule
5-Absorption
of
retrenched employees as per 1991 RulesEffect
of
Rescission
Rules
of
2003Retrenched
employees
of
U.P.State
Cement Corporation Sought quashing of
order dated 24/05/2006 by which their
claim for absorption in a Government
department was rejected-impugned order
quashed in writ petition-Special Appeal
right of retrenched employees covered by
the 1991 Rules who could not be absorbed
upto 08/04/2003 considered-Held, no
mandamus can be issues for enforcing the
rights of appellants,since Act of 2009 and
2003
Rules
expressly
provide
for
terminating the right of consideration of
retrenched employees as accrued under
the
1991
Rules-However,
appellants
entitled for benefit as contemplated under
Rule 3(2) of 2003 Rules.

Held Para 91

We also endorse the above view of the
learned Single Judge. We having found
that
the
right
of
consideration
for
absorption under the 1991 Rules having
come to an end after the Rescission Rules
2003, no mandamus can be issued for
enforcing the said right. However, it is
relevant to note that under the Rescission
Rules 2003 as well as under the 2009 Act
certain benefits have been provided to the
retrenched employees even after 8th April,
2003. The retrenched employees, i.e. writ
petitioners are fully entitled to take the
benefit of the aforesaid Rule 3(ii) of the
Rescission Rules 2003 and Section 3 (2) of
the 2009 Act.
Case Law Discussed:
2007 (2) UPLBEC 1307; AIR 1955 SC 84; 1989
(2) SCC 557; 1996 (5) SCC 60; 2000 (2) SCC
536; 2006 (3) SCC 354; AIR 1980 SC 77; AIR
1979 SC 1977; 2009(7) SCC 658; 1997 SCC
132; 2007 (8) SCC 338; AIR 1957 SC 912;
1999 (3) AWC 1956: 2003 (2) SCC 111; 2002
(7) SCC 222; CMWP No. 36644 OF 2003;
CMWP No. 36007 OF 2004

(Delivered by Hon'ble Ashok Bhushan, J.)

1. These appeal raise similar issues
and have been heard together. Special
Appeal No.1034 (defective) of 2009 (State
of U.P. and others vs. 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 respondents No.1 to 9 (Sunil Kumar