# State of U.P. and others v. Sunil Kumar Verma and others

- **Citation:** (2010) 2 ILRA 807
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-07-29
- **Bench:** Ashok Bhushan, Virendra Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-and-others-v-sunil-kumar-verma-and-others-41698
- **Pages:** 38

## Headnote

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,

## Text

_Characters 0–39,993 of 130,825. This is a partial read: ask again with offset=39993 for what follows._

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
808 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

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 vs. 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 employees of Bhadohi Woollen
Mills praying for a direction to absorb them
on equivalent post in the department of the
2 All] State of U.P. and others V. Sunil Kumar Verma and others
809
State Government pursuant to the order dated
11th
November,
2002
of
the
State
Government has been allowed. The said
group of appeals are represented by Special
Appeal No.1113 (defective) of 2009. The
fourth group of the appeals are the appeals
filed by the State of U.P. through Secretary,
Sugar Cane Development challenging the
judgment and order of the learned Single
Judge dated 12th December, 2003 by which
the writ petitions filed by the retrenched
employees of various Sugar Mills run by the
U.P. State Sugar Corporation, were allowed
insofar as the employees who were
appointed prior to 1st October, 1986 were
concerned by issuing a direction for their
consideration for absorption under the 1991
Rules, if they accept the retrenchment
compensation and obtain a certified in this
regard from the Corporation. The said group
of appeals are represented by Special Appeal
No.165 of 2010.

6. For appreciating the issues raised in
these appeals, it is sufficient to note the facts
in detail of Special Appeal No.1034
(defective) of 2009 and some relevant facts
of other appeals.

7. The facts giving rise to Special
Appeal No.1034 (defective) of 2009 are as
follows:

The respondents No.1 to 9 were
employees of U.P. State Cement Corporation
(hereinafter referred to as the Corporation),
which was earlier a government company
under Section 617 of the Companies Act,
1956. The respondents claimed to have been
appointed on different dates between 1978 to
1983 on the post of Clerk/Steno-Typist in the
Corporation. The High Court passed an order
dated 8th December, 1999 for winding up of
the Corporation. Notice for discharge was
issued to the employees of the Corporation.
The respondent-employees claimed to have
been retrenched with effect from 31st July,
2001. The respondent-employees praying for
their absorption in accordance with the 1991
Rules submitted representation dated 16th
November, 2001 to the State Government.
The
respondent-employees
filed
Writ
Petition No.42550 of 2001 claiming that they
are entitled to be absorbed in accordance
with the 1991 Rules. Learned Single Judge
by order dated 26th November, 2002 issued
an interim mandamus to absorb the
respondent-employees in accordance with
1991 Rules or to show cause. No order for
absorption was passed by the State
Government and the writ petition was
ultimately disposed of on 12th April, 2006
with a direction that in case the respondentemployees file a fresh comprehensive
representation
before
the
Secretary,
Department of Industrial Development, the
same shall be considered and decided in
accordance with law. The order of the High
Court dated 12th April, 2006 was submitted
by the respondents before the State
Government. The State Government passed
an order on 24th May, 2006 rejecting the
claim of the respondent-employees for their
absorption. Writ Petition No.51252 of 2006
was filed by the respondent-employees
praying for quashing the order dated 24th
May, 2006 as well as for a direction in the
nature of mandamus to declare Rule 3(1)(i)
of the U.P. Absorption of Retrenched
Employees of State Government or Public
Corporation
in
Government
Service
(Rescission) Rules, 2003 as ultra vires and
further a mandamus commanding the
respondents to absorb the respondentemployees against Class-III post of the State
Government or undertaking in accordance
with the 1991 Rules. The writ petition was
heard by the learned Single Judge. The
respondent-employees before the learned
Single Judge placed reliance on an order
810 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

dated 6th January, 2004 passed by this Court
in
Writ
Petition
No.36644 of
2003
(Shailendra Kumar Pandey and others vs.
State of U.P. and others) and another order
passed in Writ Petition No.36007 of 2004
(Vinod Kumar Kushwaha and another vs.
State of U.P. and others) decided on 30th
June, 2008. Learned Single Judge vide
impugned judgment dated 4th February,
2009 quashed the order dated 24th May,
2006 and directed the Principal Secretary,
Department of Industrial Development to
absorb the respondent-employees in some
department of the State Government in terms
of 1991 Rules within a period of three
months. Special Appeal No.1034 (defective)
of 2009 has been filed challenging the said
order dated 4th February, 2009.

8. Brief facts of other appeals are also
need to be noted.

Special Appeal No.1158 (defective) of
2009 has been filed against the judgment and
order dated 30th June, 2008 of learned Single
Judge by which the writ petition filed by the
respondent-employees has been allowed.
The respondent No.1 was appointed on 15th
May, 1986 and respondent No.2 was
appointed on 24th May, 1986 in the
Corporation.
The
respondent-employees
claimed to have submitted representation. A
writ petition being Writ Petition No.28405 of
1999 is claimed to have been filed by
respondent No.2 styled as Association of
Cement Corporation through Members Ajeet
Kumar and others, which was disposed of on
29th July, 1999 directing the Chief Secretary
to pass appropriate order. In pursuance of the
said order, the State Government by order
dated
3rd
April,
2000
decided
the
representation taking the stand that the
employees of three units of the Corporation
have not yet been declared retrenched
employee, hence no steps for absorption
could be taken. The respondent-employees
again claim to have submitted some
representation on 14th February, 2003. It
appears that a writ petition being Writ
Petition No.11488 of 2004 was filed by
respondent No.1 which was disposed of on
22nd
March,
2004
permitting
the
respondent-employees
to
file
fresh
representation. The said representation was
decided on 21st July, 2004 rejecting the
representation against which order Writ
Petition No.36007 of 2004 has been filed
praying for quashing the order dated 21st
July, 2004 and further for a mandamus
directing the respondents to absorb the writ
petitioners. The said writ petition has been
allowed on 30th June, 2008 quashing the
order dated 21st July, 2004 and direction was
issued to the State Government to absorb the
respondent-employees in some department
of the State Government in terms of the 1991
Rules. Against the said order Special Appeal
No.1158 (defective) of 2009 has been filed
by the State of U.P.

9. Special Appeal No.1068 (defective)
of 2009 has been filed against the judgment
and order dated 19th May, 2009 by which
order the writ petition filed by the
respondent-employees was allowed quashing
the order dated 7th June, 2006 passed by the
State
Government
rejecting
the
representation of the respondent-employees
claiming absorption. Claiming absorption the
respondent-employees had filed Writ Petition
No.7415 of 2005, which was disposed of by
order dated 21st February, 2006 directing the
Secretary, Department of Industries to decide
the
representation
of
the
respondentemployees. The said representation was
rejected on 7th June, 2006 against which writ
petition was filed and allowed vide judgment
and order dated 19th May, 2009.
2 All] State of U.P. and others V. Sunil Kumar Verma and others
811

10.

Special
Appeal
No.1108
(defective) of 2009 has been filed against the
judgment and order dated 20th October,
2008 by which order the writ petition filed
by respondents No.1 to 7 was allowed
directing the State Government to consider
the case of the respondent-employees for
absorption in accordance with 1991 Rules.
The respondent-employees claim to have
filed Writ Petition No.15074 of 2006
(Sankatha Prasad Singh and others vs. State
of U.P. and others), Writ Petition No.19235
of 2006 (Rajendra Prasad and others vs. State
of U.P. and others) and Writ Petition
No.15076 of 2006 (Vijay Pal Singh and
others vs. State of U.P. and others), which
were disposed of by this Court directing the
State-appellants
to
consider
the
representation. The State Government in
pursuance of the orders passed in the
aforesaid
writ
petitions
rejected
the
representation by orders dated 7th August,
2006, 7th June, 2006 and 11th May, 2006
respectively. Challenging the said orders,
Writ Petition No.53276 of 2008 (Ram Pyare
and others vs. State of U.P. and others) has
been filed which was allowed vide judgment
and order dated 20th October, 2008.

11.

Special
Appeal
No.1055
(defective)
of
2009
has
been
filed
challenging the order dated 4th March, 2009
by which order Writ Petition No.28002 of
2006 (Amaresh Chand Dubey vs. State of
U.P. and others) has been allowed. By Writ
Petition No.28002 of 2006, the respondentemployees had prayed for quashing the order
dated 23rd March, 2006 by which order the
representation of the respondent-employees
claiming absorption was rejected. The said
decision was taken by the State Government
in pursuance of the order dated 21st
February, 2006 passed in Writ Petition
No.34438 of 1999.

12. Special Appeal No.90 (defective)
of 2010 has been filed against the judgment
and order of learned Single Judge dated 11th
August, 2008 by which order the writ
petition was disposed of in terms of the order
dated 17th January, 2007 passed in Writ
Petition No.22728 of 2006 (Vikramaditya
Pandey and others vs. State of U.P. and
others). The respondent-employees claimed
to be employees of the Corporation. They
claimed absorption and aggrieved by the
inaction filed Writ Petition No.19235 of
2006 (Rajendra Prasad and others vs. State of
U.P. and others) and Writ Petition No.38940
of 2008 (Ram Iqbal Singh and others vs.
State of U.P. and others), which were
disposed of directing for taking decision on
the claim of the respondent-employees. By
orders dated 10th June, 2009 and 6th July,
2006 the representations for absorption were
rejected by the State Government against
which writ petitions were filed which were
disposed of on 11th August, 2008.

13. Special Appeal No.114 (defective)
of 2010 has been filed against the judgment
and order dated 20th October, 2008 passed in
Writ Petition No.53429 of 2008 (Gyan
Shanker vs. State of U.P. and others). The
respondent-employees claimed to have
submitted a representation on 16th June,
2008, which according to them was not
decided, hence a writ of mandamus was
sought commanding the State-appellants to
absorb the respondent-employees as Law
Officer in the department of the State
Government or any Corporation or Nagar
Nigam, which writ petition has been allowed
on 20th October, 2008.

14. Special Appeal No.602 of 2010 has
been filed against the judgment and order
dated 24th July, 2009 passed in Writ Petition
No.36899 of 2009 by which order the writ
petition was allowed, the order dated 22nd
812 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

July, 2004 was quashed and a direction was
issued to absorb the respondent-employees in
accordance with the 1991 Rules. The
respondent-employees claimed to have filed
Writ Petition No.28405 of 1999 which was
disposed of on 22nd March, 2004 directing
the State-appellants to decide the matter
afresh in pursuance of which an order was
passed on 21st July, 2004 rejecting the claim
of the respondent-employees. By the writ
petition direction was sought for absorbing
the respondent-employees in any department
of the Government or in any corporation or
Nagar Nigam.

15. Special Appeal No.603 of 2010 has
been filed against the judgment and order
dated 4th August, 2009 passed in Writ
Petition No.35599 of 2005 allowing the writ
petition by issuing a direction to the Stateappellants
to
absorb
the
respondentemployees under the 1991 Rules. The
respondent-employees
claimed
to
be
appointed on Group-C/Group-D posts. They
claimed to have made a representation on 9th
January, 2005 claiming absorption and
thereafter filed a writ petition seeking
direction. The writ petition having been
allowed on 4th August, 2009 relying on the
judgment and order dated 6th January, 2004
passed in Writ Petition No.36644 of 2003
(Shailendra Kumar Pandey and others vs.
State of U.P. and others), this special appeal
has been filed.

16. Special Appeal No.195 (defective)
of 2010 has been filed against the judgment
and order dated 11th August, 2009 passed in
Writ Petition No.41058 of 2009 by which
order the writ petition was disposed of in
terms of the judgment and order dated 17th
January, 2007 passed in Writ Petition
No.22728 of 2006 (Vikramditya Pandey and
others vs. State of U.P. and others).

Group-II

17. Special Appeal No.219 (defective)
of 2008 has been filed against the judgment
and order dated 9th January, 2007 passed in
Writ Petition No.1473 of 2006 (Prabhu
Nath Prasad and others vs. State of U.P. and
others). The facts in detail of this case,
which is second group of appeals where the
writ petition claiming absorption has been
dismissed, are need to be noted. Writ
Petition No.1473 of 2006 has been filed by
Prabhu Nath Prasad and six others praying
for a writ of mandamus directing the
respondents to decide the representation
filed
by
the
appellant-employees
by
speaking order. The case of the appellantemployees in the writ petition was that they
were
employees
of
Chunar
Cement
Corporation, which was closed. They had
earlier filed Writ Petition No.26888 of
2000, which was disposed of on 18th
January 2005 permitting the petitioners to
submit a detailed representation enclosing
copy of various judgments regarding
providing of alternate appointment and the
State of U.P. was directed to pass a detailed
reasoned order. The appellant-employees in
the writ petition had relied on various orders
passed by this Court. The appellantemployees had also relied on various orders
of the State Government by which certain
employees were absorbed. Learned Single
Judge after hearing the parties took a view
that 1991 Rules having been rescinded by
2003 Rules, the right of the retrenched
employees to be considered for absorption
under the 1991 Rules stands terminated,
hence the writ petition is devoid of any
substance and dismissed. The appellantemployees has
filed by
the
appeal
challenging the order of learned Single
Judge.
2 All] State of U.P. and others V. Sunil Kumar Verma and others
813

18. Special Appeal No.130 (defective)
of 2010 has been filed by Prabhat Narain
Singh challenging the judgment and order
dated 17th January, 2007 by which order
Writ Petition No.25040 of 2006 filed by the
appellant-employee has been dismissed in
view of the judgment and order of the date
in Writ Petition No.25037 of 2006 (Suresh
Chand Vaishya vs. State of U.P. and
others). Writ Petition No.25037 of 2006
was filed challenging the order dated 23rd
March,
2006
passed
by
the
State
Government by which the claim of the
petitioner of that writ petition for absorption
was rejected.

19. Special Appeal No.131 (defective)
of 2010 has been filed against the judgment
and order dated 17th January, 2007 passed
in Writ Petition No.37325 of 2006 by which
the writ petition was dismissed following
the earlier order passed in Writ Petition
No.25037 of 2006 (Suresh Chand Vaishya
vs. State of U.P. and others). By the writ
petition,
the
appellant-employees
had
prayed for quashing the order dated 29th
March, 2006 by which the claim of the
appellant-employees for absorption was
rejected.

20. Special Appeal No.132 (defective)
of 2010 has been filed against the judgment
and order dated 17th January, 2007 by
which the writ petition filed by the
appellant-employee challenging the order
dated 23rd March, 2006 passed by the State
Government rejecting the claim of the
appellant-employees for absorption was
dismissed. Learned Single Judge took the
view that there is nothing on record to show
that appellant-employees were appointed
against any post in the Corporation. It was
held that they are not entitled to the benefit
of absorption under the 1991 Rules. In view
of the above, learned Single Judge refused
to exercise discretion in favour of the
appellant-employees.

21. Special Appeal No.133 (defective)
of 2010 has been filed against the judgment
and order dated 17th January, 2007 passed
in Writ Petition No.26390 of 2006 (Ashok
vs. State of U.P. and others) dismissing the
writ petition following the judgment and
order of the date passed in Writ Petition
No.25037 of 2006. The appellant-employee
in the writ petition had challenged the order
dated 6th January, 2006 by which the claim
of the appellant-employee for absorption
was rejected.

22. Special Appeal No.134 (defective)
of 2010 has been filed against the judgment
and order dated 17th January, 2007 passed
in Writ Petition No.25039 of 2006 (Kesh
Raj Singh vs. State of U.P. and others)
dismissing the writ petition following the
judgment and order of the date passed in
Writ Petition No.25037 of 2006 (Suresh
Chand Vaishya vs. State of U.P. and
others). The appellant-employee had filed
the writ petition challenging the order dated
23rd March, 2006 by which the claim of the
appellant-employee for absorption was
rejected.

Group-III

23.

Special
Appeal
No.1113
(defective) of 2009 has been filed against the
judgment and order dated 11th September,
2008 passed in Writ Petition No.45102 of
2008 allowing the writ petition directing the
respondent-authorities to absorb the writ
petitioners in any vacancy of Group-C post
in accordance with the 1991 Rules. The
appellant-employees by the said writ petition
had prayed for a direction to consider and
issue order of absorption in their favour in
the State Government department pursuant to
814 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

the order dated 11th November, 2002 issued
by the State Government. The order dated
11th November, 2002 was an order issued by
the State Government by which the
employees of Bhadohi Woollen Mill were to
be
considered
on
the
conditions
as
enumerated therein. The writ petition was
disposed of on 11th September, 2008 against
which appeal has been filed.

24. Special Appeal No.954 of 2009 has
been filed against the judgment and order
dated 4th August, 2008 passed in Writ
Petition No.40510 of 2005. The said writ
petition was filed by 66 petitioners praying
for a writ of mandamus commanding the
respondents to consider and issue order of
absorption in favour of the petitioners in
various State Government departments
pursuant to the order dated 11th November,
2002 issued by the State Government and the
judgments given by the Courts. The order
dated 11th November, 2002 was an order of
the State Government laying down criteria
for considering absorption of the employees
of Bhadohi Wollen Mill. The writ petition
was allowed directing to consider the case of
the writ petitioners for absorption on GroupC posts in accordance with the 1991 Rules
against which order the appeal has been filed.

25. Special Appeal No.1896 of 2009
has been filed against the judgement and
order dated 21st October, 2008 passed in
Writ Petition No.54537 of 2008 by which the
writ petition was allowed and a mandamus
was issued to absorb the petitioners in any
vacancy on Group-C post in accordance with
1991 Rules.

Group-IV

26. Special Appeal No.165 of 2010
[Special Appeal (defective) No.1061 of
2004] has been filed by the State of U.P.,
Secretary Karmik Anubhag, U.P. State Sugar
Corporation Ltd. and General Manager,
Rampur Unit, U.P. State Sugar Corporation
Ltd., Rampur challenging the judgment and
order of the learned Single Judge dated 12th
December, 2003 passed in Writ Petition
No.15459 of 2002 (Lalit Kumar Bammi and
others vs. State of U.P. and others). Brief
facts giving rise to this appeal are; the U.P.
State Sugar Corporation Limited is owned
and controlled by the State Government. The
Corporation has been running and managing
various sugar mills in the State of Uttar
Pradesh. The Corporation suffered huge
losses. The Corporation was declared as sick
industry.
The
B.I.F.R.
sanctioned
a
rehabilitation scheme for rehabilitating its
units. It was proposed that 11 closed units
shall be transferred to newly created
subsidiary company of the Corporation and
the same shall be privatised in phased
manner. The employees of the closed units
were given an invitation to retire voluntarily.
The 11 units were closed down finally in
phased manner (vide Government orders
dated 8.9.1998 and 12.11.1999). Apart from
11 units of the Corporation 8 more units
were declared unviable in the year 2003.
Writ Petition No.15459 of 2002 (Lalit
Kumar Bammi and 69 others vs. State of
U.P. and others) was filed by permanent and
seasonal employees of the Meerut Unit of the
Corporation as the unit was closed by order
dated 12.11.1999. The retrenchment notice
dated 15th March, 2002 was served
individually on 95 employees and they were
retrenched with effect from 15.4.2002. The
case of the writ petitioners was that the
Chairman of the Corporation represented to
the Government that employees of the Mills,
which have been closed down, be not
terminated and instead they shall be allowed
to continue in service and absorbed in other
functional units of the Corporation. The
2 All] State of U.P. and others V. Sunil Kumar Verma and others
815
validity of the retrenchment notice was also
challenged on the ground of contravention of
Section 6-N of the U.P. Industrial Disputes
Act, 1947. The writ petitioners claimed that
they had right to be absorbed in accordance
with the 1991 Rules. The learned Single
Judge held that the employees have no right
to be absorbed in the running units of the
Corporation and insofar as challenge to the
retrenchment notice is concerned, which
involved determination of question of fact,
the remedy under the industrial law was
directed by the availed by the workmen. The
learned Single Judge, however, in respect of
the employees, who were appointed before
1st October, 1986, directed consideration of
their claim for absorption under the 1991
Rules, if they accept the retrenchment
compensation and obtain a certificate in this
regard from the Corporation. Certain writ
petitioners, who had filed second writ
petition, were not granted any relief and their
writ petitions were dismissed. By common
judgment and order dated 12th December,
2003 the learned Single Judge disposed of
several writ petitions including Writ Petition
No.15459 of 2002.

27. Against the judgment and order
dated 12th December, 2003 deciding bunch
of writ petitions other special appeals, being
Special Appeal No.170 of 2010 has been
filed challenging the judgment and order
insofar as Writ Petition No.17847 of 2002
(Amar Nath and 82 others vs. State of U.P.)
is concerned, which writ petition had been
filed by permanent and seasonal employees
of the Rampur Unit of the Corporation,
which was closed down with effect from
17th November, 1999; Special Appeal
No.169 of 2010 has been filed challenging
the judgment and order insofar as Writ
Petition No.15781 of 2002 (Rohtas Kumar
and 14 others vs. State of U.P. and others) is
concerned, which writ petition was filed by
permanent and seasonal employees of the
Meerut Unit of the Corporation praying for
similar relief; Special Appeal No.168 of
2010 has been filed challenging the same
judgment and order insofar as Writ Petition
No.15125 of 2002 is concerned, which writ
petition was filed by the permanent and
seasonal employees of the Rampur Unit of
the Corporation praying for the similar relief
and Special Appeal No.167 of 2010 has been
filed challenging the same judgment and
order insofar as Writ Petition No.19043 of
2002 (Qumar Khan and others vs. State of
U.P. and others) is concerned, which writ
petition was filed by the permanent and
seasonal employees of the Rampur Unit of
the Corporation praying for the similar relief.

28. The issues, which have been raised
in all above special appeals, are almost
similar. The appeals filed by the State of U.P.
challenge the judgment of the learned Single
Judge directing the State Government to
absorb the writ petitioners in accordance with
the 1991 Rules. The special appeals, which
have been filed by the retrenched employees
(appeals relating to Group-II) are the appeals
which challenge the judgment and order of
learned Single Judge by which the writ
petition of the retrenched employees praying
for similar relief has been dismissed. In the
last group of appeals, which relate to
seasonal and permanent employees of the
units of U.P. State Sugar Corporation, all
reliefs have been refused except a direction
to the State of U.P. to consider the claim of
the writ petitioners for absorption in
accordance with the 1991 Rules provided the
employees
accept
the
retrenchment
compensation and obtain retrenchment
certificate.

29 We have heard Sri M.C.
Chaturvedi, learned Chief Standing Counsel,
Sri M.S. Pipersenia, learned Additional Chief
816 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

Standing
Counsel
appearing
for
the
appellants in the appeals filed by the State,
assisted by Dr. Y.K. Srivastava, Standing
Counsel. Dr. Y.K. Srivastava has also been
heard in the appeals arising out of writ
petitions filed by the permanent and seasonal
employees
of
the
U.P.
State
Sugar
Corporation. Learned counsel for the writ
petitioner-appellants, Sri K.C. Vishwakarma,
has appeared in Special Appeal No.219
(defective) of 2008 (Prabhu Nath Prasad and
others vs. State of U.P. and others). Sri
Vishwakarma has also appeared on behalf of
the respondent-writ petitioners in some of the
appeals, other learned counsels appearing on
behalf of the respondent-writ petitioners have
also been heard. Sri Ashok Mehta has
appeared for official liquidator.

30. Learned Chief Standing Counsel
appearing on behalf of the State-appellants
has contended that Rule 3 of he 1991 Rules
did not confer any right on the retrenched
employees
to
claim
absorption
in
government service, rather it was a provision
enabling the Government to consider such
retrenched employees for absorption on
terms and conditions as provided for in the
notified orders issued under Rule 3 of the
1991 Rules. He contends that the right for
consideration for absorption can be claimed
only when a notified order is issued under
Rule 3 of the 1991 Rules. He submits that no
notified order having been issued by the
Government with regard to retrenched
employees of U.P. State Cement Corporation
or U.P. State Sugar Corporation, their
employees have no right to claim absorption.
He further contends that the right of
consideration, if any, came to an end after
enforcement of the Uttar Pradesh Absorption
of Retrenched Employees of Government or
Public Corporation in Government Service
(Rescission)
Rules,
2003
(hereinafter
referred to as the Rescission Rules 2003)
with effect from 8th April, 2003. It is
submitted that after the Rescission Rules
2003, no right of absorption can be claimed
by any of the retrenched employees and only
benefit
available
to
such
retrenched
employees is relaxation in upper age limit for
direct recruitment to such Group-C and
Group-D posts as provided in Rule 3(2) of
the Rescission Rules 2003. Reliance has also
been placed on the provisions of the Uttar
Pradesh
Absorption
of
Retrenched
Employees of Government or Public
Corporation
in
Government
Service
(Rescission of Rules) Act, 2009 under which
Act the 1991 Rules have been rescinded with
effect from 9th May, 1991 retrospective
taking away the right of consideration, if any,
and saving only those employees who were
absorbed during the period 9th May, 1991 to
8th April, 2003.

31. Learned Chief Standing Counsel
submits that the writ petitions have been
allowed by the learned Single Judge without
considering the effect of Rescission Rules
2003. He contends that judgment of learned
Single Judge in Shailendra Kumar Pandey
vs. State of U.P. and others (Writ Petition
No.36644 of 2003, decided on 6.1.2004)
could not have been relied by the writ
petitioners due to two reasons, firstly the said
judgment was based on its own fact and
secondly the effect of the Rescission Rules
2003 was not correctly appreciated in the
said judgment. He further contends that
Division Bench judgments relied by learned
counsel for the writ petitioners in State of
U.P. vs. Shailendra Kumar Pandey and
others (Special Appeal No.618 of 2004,
decided on 20th November, 2004) as well as
in State of U.P. vs. Mukund Lal (Special
Appeal No.(869) of 2004, decided on 14th
October, 2004) at best laid down that the
direction for absorption of the employees
issued by the learned Single Judge is to be
2 All] State of U.P. and others V. Sunil Kumar Verma and others
817
given effect to strictly in accordance with
Rule 3(1) of the 1991 Rules. He further
contends that the Division Bench in the
aforesaid
cases
did
not
enter
into
consideration
of
the
consequence
of
Rescission Rules 2003, hence no ratio can be
read in those judgments that despite
Rescission Rules 2003 employees were
entitled for consideration for absorption.
Referring to the judgment of the Apex Court
in Civil Appeal No.788 of 2006 (State of
U.P. and another vs. Mukund Lal Singh,
decided on 31st January, 2008), it is
contended that Apex Court also laid down
that absorption has to be made strictly in
accordance with Rule 3(1) of the 1991 Rules.
Learned Chief Standing Counsel submitted
that
the
learned
Single
Judge
after
consideration
of
consequence
of
the
Rescission Rules 2003 in Prabhu Nath
Prasad's case (2007(2) UPLBEC 1307) has
rightly laid down that right of consideration
has been terminated and in view of the
Rescission Rules 2003 writ petitions could
not have been allowed. He submits that
special appeal filed against the judgment of
Prabhu Nath Prasad's case deserves to be
dismissed affirming the view taken by the
learned Single Judge.

32. Learned Chief Standing Counsel
has further contended that even in some
cases pertaining to cement corporation and
other corporations an order for absorption
has been passed by the State Government
that cannot be made basis for issuing
direction in favour of the writ petitioners
since orders for absorption of certain
employees
of
U.P.
State
Cement
Corporation were issued by the State under
the orders passed by this Court and Apex
Court including the orders passed by the
contempt court. It is submitted that there is
no question of discrimination with the writ
petitioners as compared to some employees
who have been absorbed under the orders
issued by the State Government in
obedience to various directions issued by
this Court and the Apex Court. It is further
contended that the word "may" used in Rule
3(1) of the 1991 Rules cannot be read as
"shall" and word "may" is only permissive
enabling the State Government to consider
the case of the retrenched employees for
absorption under Rule 3(1) of the 1991
Rules. It is submitted that the rights, if any,
as per Rule 3 of the 1991 Rules came to an
end after enforcement of the Rescission
Rules 2003 as well as the 2009 Act.
Reliance has also been placed on the
principles as laid down under Section 6 of
the General Clauses Act.

33. Learned counsel for the writ
petitioners, refuting the above submissions
of learned Chief Standing Counsel, has
contended that the directions issued by the
learned Single Judge directing the State
Government to absorb the retrenched
employees is perfectly in accordance with
law. It is submitted that the Rescission
Rules 2003 can have no effect on the
accrued rights of the writ petitioners under
the 1991 Rules. It is contended that the
Rescission
Rules
2003
were
not
retrospective in nature and all the writ
petitioners having been retrenched prior to
issuance of the Rescission Rules 2003, the
rights acquired under the 1991 Rules were
subsisting despite the Rescission Rules
2003.

34. Learned counsel appearing for the
writ petitioners has submitted that in
Shailendra Kumar Pandey's case (supra)
learned Single Judge after considering the
Rescission Rules 2003 has laid down that
the right which accrued to the retrenched
employees under the 1991 Rules could not
be taken away by the State Government by
818 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

not considering the cases of the employees
and by delaying the consideration for such a
long time. It is submitted that against the
judgment of learned Single Judge in
Shailendra Kumar Pandey's case Special
Appeal No.(618) of 2004 was filed which
was dismissed by the Division Bench of this
Court vide judgment and order dated 20th
November, 2004 relying on the judgment
and order dated 14th October, 2004 passed
in Special Appeal No.(869) of 2004 (State
of U.P. and another vs. Mukund Lal Singh).
It is submitted that against the judgment of
the Division Bench in the case of State of
U.P. and another vs. Mukund Lal Singh,
civil appeal was filed by the State of U.P.
before the Supreme Court, which was
dismissed on 31st January, 2008, hence the
State cannot be heard in contending that
writ petitioners are not entitled for
absorption in accordance with the 1991
Rules.