# Suresh Chandra and another v. State of U.P. and others

- **Citation:** (2005) 4 ILRA 1244
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-11-18
- **Case number:** Civil Misc. Writ Petition No. 15566 of 2005
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-chandra-and-another-v-state-of-u-p-and-others-40786
- **Pages:** 8

## Headnote

Sri Neeraj Tiwari
Sri C.K. Rai
S.C.

Uttar Pradesh Absorption of retrenched
Employees
of
Government
Service
Regulation, 1991-reseinded by mRrj izns'k
ljdkj ;k lkoZtfud fuxeksa ds NVuh'kqnk deZpkfj;ksa dk
ljdkjh lsok esa vkesyu (fo[kUMu) fu;ekoyh]
2003&Reg. 3-Absorbtion of retrenched
employee
of
cement
Corporationpetitioner being retrenched employee of
borrowing department can not claim
absorption as a matter of right after
completing
the
deputation
periodprovision of absorption-does not meanborrowing department bound to absorb
them.
4 All] Suresh Chandra and another V. State of U.P. and others
1245
Held: Para 17 & 18

As regards the first question as to
whether an employee on deputation
working in the borrowing department
has any lien or enforceable right for
absorption in the borrowing department,
suffice it to say that deputation is
tripartite settlement. Consent of the
concerned employee, approval of parent
department
and
acceptance
by
borrowing department are the essential
ingredients for deputation. An employee,
on
deputation,
cannot
claim
an
enforceable right for absorption in the
borrowing department. If the borrowing
department feels that the services of a
particular employee, on deputation, are
beneficial in public interest and it desires
to retain such employee permanently, it
can absorb him with the consent of
concerned employee and the parent
department. In the present case, the
borrowing department is not prepared to
retain the petitioners on expiry of their
period of deputation and the services of
all employees, including the petitioners,
in the parent department have been
terminated by virtue of closure of the
establishment by an order of this Court.
Therefore, the petitioners, cannot claim
their absorption, as a matter of right.

So far as second question as to whether
the petitioners have any legal and
enforceable right under the Rules of
1991 for being absorbed, while on
deputation, is concerned, the Rules of
1991 only provide that a retrenched
employee can be provided alternate
employment in the State Government
establishments. This does not mean that
the borrowing department is bound to
absorb the petitioners and in any case
the Rules of 1991 now stand rescinded.
In the circumstances, the petitioners
have no legal enforceable right for
absorption
in
other
Government
departments.
Case law discussed:
1999(3) AWC-1456
2004 (2) AWC-1698
2005 (5) SCC-362
2002 (9) SCC-48
2004 (III) UPLBEC-2963

## Text

1244 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
aforesaid cases and held that the rule does
not
apply
universally
and
finding
recorded by the Civil Court would not
supersede the finding recorded by the
Criminal Court. The issue involved
therein had been as to whether dismissal
of the suit for damages filed by the
complainant against the accused, would
bring the criminal proceedings to end.
The reply had been in negative observing
that criminal proceedings would not be
dropped. Thus, it depends as to what
extent the previous judgments are binding
in subsequent proceedings under Sections
40, 41, 42 and 43 of the Evidence Act.

12. Issue of title cannot be
determined in summary proceedings even
under the Statutes like the Public
Premises Act, Urban Development Act,
Municipalities Act, and for determination
of such an issue, recourse has to be taken
to the Civil Court. (Vide Govt. of Andhra
Pradesh Vs. Thummala Krishna Rao &
Anr., AIR 1982 SC 1081; State of
Rajasthan Vs. Padmavati Devi & Ors,
1995 Supp (2) SCC 290; and Mohammed
Yunus Vs. Improvement Trust Jodhpur,
AIR 1999 Raj 334).

13. Even in a suit under Section 6 of
the Specific Relief Act, the question of
title is not much relevant and matter for
that purpose has to be agitated before the
Civil Court separately. Presumption of
title on the basis of possession under
Section 110 of the Evidence Act can be
drawn only where facts disclose no title in
any party. (Vide New Service Society
Ltd. Vs. K.C. Alexendar & Ors., AIR
1968 SC 1165).

14. In view of the above, we reach
inescapable conclusion that in a matter
where the issue of title is involved, the
party has to get the grievance redressed
through the Civil Court. Petitioner ought
to have resorted to the same, and it is still
open to him, even today, to do so.
15. In view of the above, it is not a
fit case for indulgence in writ jurisdiction
and the petitioner may approach the Civil
Court for redressal of her grievances.

With the aforesaid observations, the
petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.11.2005

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 15566 of 2005

Suresh Chandra and another ..Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Ashok Khare
Sri V.D. Chauhan

Counsel for the Respondents:
Sri Neeraj Tiwari
Sri C.K. Rai
S.C.

Uttar Pradesh Absorption of retrenched
Employees
of
Government
Service
Regulation, 1991-reseinded by mRrj izns'k
ljdkj ;k lkoZtfud fuxeksa ds NVuh'kqnk deZpkfj;ksa dk
ljdkjh lsok esa vkesyu (fo[kUMu) fu;ekoyh]
2003&Reg. 3-Absorbtion of retrenched
employee
of
cement
Corporationpetitioner being retrenched employee of
borrowing department can not claim
absorption as a matter of right after
completing
the
deputation
periodprovision of absorption-does not meanborrowing department bound to absorb
them.
4 All] Suresh Chandra and another V. State of U.P. and others
1245
Held: Para 17 & 18

As regards the first question as to
whether an employee on deputation
working in the borrowing department
has any lien or enforceable right for
absorption in the borrowing department,
suffice it to say that deputation is
tripartite settlement. Consent of the
concerned employee, approval of parent
department
and
acceptance
by
borrowing department are the essential
ingredients for deputation. An employee,
on
deputation,
cannot
claim
an
enforceable right for absorption in the
borrowing department. If the borrowing
department feels that the services of a
particular employee, on deputation, are
beneficial in public interest and it desires
to retain such employee permanently, it
can absorb him with the consent of
concerned employee and the parent
department. In the present case, the
borrowing department is not prepared to
retain the petitioners on expiry of their
period of deputation and the services of
all employees, including the petitioners,
in the parent department have been
terminated by virtue of closure of the
establishment by an order of this Court.
Therefore, the petitioners, cannot claim
their absorption, as a matter of right.

So far as second question as to whether
the petitioners have any legal and
enforceable right under the Rules of
1991 for being absorbed, while on
deputation, is concerned, the Rules of
1991 only provide that a retrenched
employee can be provided alternate
employment in the State Government
establishments. This does not mean that
the borrowing department is bound to
absorb the petitioners and in any case
the Rules of 1991 now stand rescinded.
In the circumstances, the petitioners
have no legal enforceable right for
absorption
in
other
Government
departments.
Case law discussed:
1999(3) AWC-1456
2004 (2) AWC-1698
2005 (5) SCC-362
2002 (9) SCC-48
2004 (III) UPLBEC-2963

(Delivered by Hon'ble Mr. Rakesh Tiwari, J.)

1. This writ petition has been filed
by Sri Suresh Chandra and Sri Prem
Chandra Verma- petitioner nos. 1 and 2
who were appointed as Clerk and muster
roll clerk respectively in the U.P. State
Cement
Corporation
Ltd.,
Churk,
Sonbhadra (for short ''Corporation'). The
petitioners have sought the following
reliefs in the petition:-

(i) for
quashing
the
order
dated
18.2.2005 passed by the Director,
State Urban Development Agency,
U.P.,
Lucknow
repatriating
the
petitioners to the Corporation on
account of completion of five years
period of deputation in the State
Urban Development Agency;
(ii) for a direction of a suitable nature
commanding the respondents not to
interfere in the working of the
petitioners as Junior Clerk/Typist at
District Urban Development Agency
and to make regular payment of
monthly salary;
(iii) writ, order or direction of a suitable
nature commanding the respondents
to treat the petitioners as absorbed on
the post of Junior Clerk/Typist or to
absorb the petitioners in alternative
employment in Government service.

2. An advertisement dated 14.4.1999
was issued by the Director, State Urban
Development Agency, U.P., Lucknow
(for short ''SUDA") inviting applications
for appointment on deputation. The
petitioners applied and were selected.
They were consequently relieved from the
1246 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Corporation
and
joined
SUDA
on
deputation.

3. The financial condition of the
Corporation was not healthy and it
deteriorated to the extent that this Court
by
order
dated
8.12.1999
directed
winding up of the Corporation and
services of all the employees stood
terminated on the winding up. The.
Official Liquidator assumed charge of the
Corporation on 31.7.2001.

4. It may be mentioned here that the
State of U.P. had framed rules for
absorption of retrenched employees in
Government establishments known as
Uttar Pradesh Absorption of Retrenched
Employees of Government or Public
Corporations in Government Service
Rules, 1991 (in brief ''the Rules of 1991').
The aforesaid Rules of 1991 were
rescinded by Government vide order
dated 8.4.2002, which has been appended
as Annexure 15 to the writ petition.

5. Counsel for the petitioner submits
that the main prayer in the writ petition is
the third prayer, which is based upon the
fact that the petitioners were employees of
the Corporation which has been wound up
under a winding up order passed by this
Court. As a consequence thereof the
services of all the employees of U.P. State
Cement
Corporation,
including
the
petitioners stood terminated on its closure.
The counsel further submits that the
retrenched employees of the Corporation
are entitled to absorption in alternate
employment in any other Government
establishment in the State under the Rules
of 1991; and that each of the petitioners
fulfills the conditions stipulated under the
Rules of 1991 but have not been absorbed
in any Government establishment under
the respondents. It is also submitted that
this Court with regard to other retrenched
employees of the Corporation has issued
directions for their absorption and some
of such retrenched employees have
already been absorbed. In support of the
contentions, the petitioners' counsel relied
upon the judgment in Bageshwari Prasad
Srivastava V. State of U.P. and others-
1999(3) A.W.C-1456, which has been
affirmed by a Division Bench vide
judgement dated 19.11.2001 in Special
Appeal No. 540 of 1999 as well as
Hon'ble Supreme Court vide judgment
dated 18.3.2002 in Special Leave to
Appeal (Civil) No. 5397 of 2002.

6. The counsel for the petitioners
then contends that the mere fact that the
Rules of 1991 have been rescinded by
notification dated 8.4.2003 does not have
the effect of doing away with the
entitlement of a person retrenched prior to
such decisions in whose favour a right for
absorption stands accrued under the
aforesaid Rules. In support of this
contention, he placed reliance upon a
decision in Amar Nath and others V.
State of U.P. and others- 2004(2) A.W.C1698.

7. It is vehemently urged that in
view of citations above, the petitioners are
entitled to absorption in alternative
employment under the State Government
itself. He urged that prayer nos. (i) and (ii)
may be considered in the light of such
entitlement
of
the
petitioners
for
absorption and that there can be no
justification, whatsoever, for repatriation
of the petitioners to an establishment
which has ceased to exist on its closure
especially
when
there
exists
an
independent
right
of
absorption
in
alternative employment under the rules.
4 All] Suresh Chandra and another V. State of U.P. and others
1247
He urged that the only appropriate course
appears to be to direct the State
Government to absorb the petitioners in
alternative employment in any of its
establishment within a period specified by
this Court and during the intervening
period the petitioners may be continued in
SUDA as they have been serving the
Agency for the past several years.

8. The counsel for the respondents
rebutting the arguments advanced on
behalf of the petitioners submits that the
petitioners are permanent employees of
the Corporation and were working only
on deputation in SUDA. He states that the
petitioners could have been absorbed by
the borrowing department with the
consent of the lending department while
on
deputation.
An
employee
on
deputation is only sent by the parent
department for short period with the
consent of the employee concerned and he
can continu on deputation in borrowing
department only if he had his lien in the
parent department.

9. It is submitted that in the present
case, the petitioners have concealed the
fact that their parent department, i.e., the
Corporation had been wound up by the
order of this Court and services of all its
employees stood terminated upon closure
of the establishment. It is submitted that
the maximum period for deputation as per
Government Order, which has also been
adopted by SUDA is five years and on its
expiry the borrowing department has
repatriated the petitioners to their parent
department, i.e., the Corporation as it did
not want further services of the petitioner.
It is urged that had the borrowing
department been interested in retaining
the petitioners it would have certainly
made such request.
10. Counsel for the respondents has
also emphasized the fact that SUDA is an
autonomous body created under the
Societies Registration Act, 1860 and its
aim and object is only to implement
different time bound central as well as
State Government schemes and has no
permanent establishment, i.e., no one is
appointed in SUDA on permanent basis.
It is urged that the order of absorption
relied upon by the petitioners is not
applicable to the facts and circumstances
of this case and, therefore, they cannot be
absorbed permanently in SUDA which, in
fact, is a temporary establishment.

11. It is lastly urged that the interim
order dated 9.3.2005 passed by this Court
in this petition was challenged in Special
Appeal No. 451 of 2005, which was
allowed by the following judgement and
order dated 13.4.2005 by the Division
Bench of this Court holding that :-

"The appeal
is taken up and
summarily disposed of the allegations in
the stay application cannot be treated to
be admitted.
In
the
impugned
order
dated
9.3.2005, pending the disposal of the writ,
the Hon'ble Single Judge has stayed the
operation of the order by which the
petitioners were repatriated to their parent
organization.
It
might
be
that
the
parent
organization is in doll drums or that the
official liquidator has already taken over
but this does not mean that the appellant
is compelled to keep the writ petitioners
in their payroll and by doing so in many
similar cases itself become sick.
The paper book contains instances
where similar stay order have already
been set aside in appeal. The interim order
impugned in this appeal is set aside. The
1248 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
writ petitions will be at liberty to pursue
their remedies or obtain employment
elsewhere as they might be entitled.
The appeal is allowed.
Dt. 13.4.2005 Sd/- Ajoy Nath Ray, C.J
Sd/- Ashok Bhusan, J"

12. Counsel for the respondents, in
support of his contentions, placed reliance
on the decisions in Kunal Nanda Vs.
Union of India and another-(2005)5
SCC-362; Mahesh Kumar Parmar and
others V. S.I.G of Police and others-
(2002)9
SCC-48
and
State
Urban
Development Agency (SUDA), Lucknow
V. Dinesh Chandra Saxena and others-
(2004)3 UPLBEC-2963.

13. The questions for consideration
in the present case are (i) whether an
employee on deputation working in the
borrowing department has any lien or
enforceable right for absorption in the
borrowing department and (ii) whether
the petitioners have any legal and
enforceable right under the Rules of 1991
for
being
absorbed
in
borrowing
department claiming to be on deputation?

14. The absorption Rules of 1991
provide
that
an
employee
of
a
Government company on winding up
would be a retrenched employee and he
shall be entitled for absorption in
Government service in accordance with
orders issued from time to time. Since
provisions of the Rules have been heavily
relied upon by the parties in support of
their case, for better understanding of the
controversy they are quoted below:-

"In pursuance of the provisions of
clause (3) of Article 348 of the
Constitution, the Governor is pleased to
order the publication of the following
English translation of notification no.
1/4/90 Karmik 2 dfated May 9, 1991:-
No. 3/4/90- Karmik-2
Dated May 9, 1991
In exercise of the powers conferred
by the proviso to Article 309 of the
Constitution, the Governor is pleased to
make the following rules to provide for
the absorption in Government service of
the
retrenched
employees
of
the
Government or of public Corporations:
The Uttar Pradesh Absorption of
Retrenched Employees of Government or
Public
Corporations
in
Government
Service Rules, 1991.
1. (1) These rules may be called the
Uttar Pradesh Absorption of Retrenched
Employees of Government of Public
Corporations in Government Service
Rules, 1991.
(2) They shall come into force at
once.
(3) They shall apply to the posts
under the rule making power of the
Governor of Uttar Pradesh under the
proviso to Article 309 of the constitution.
2. Unless there is anything repugnant in
the subject or context, the expression -
(2) "appointing authority" in relation to
any post for which an employee was
retrenched
means
the
authority
empowered to make appointment to such
post:
(a) "Public Corporation" means a body
corporate established or constituted by or
under any Uttar Pradesh Act except a
University or local authority constituted
for the purpose of Local Self Government
and includes a Government Company
within the meaning of Section 617 of the
Companies Act. 1956 in which the State
Government has prepondering interest:
(b) "retrenched
employee"
means
a
person who was appointed on a post
under the Government or a public
4 All] Suresh Chandra and another V. State of U.P. and others
1249
Corporation on or before October 1,1986
in accordance with recruitment to the post
and was continuously working in any post
under
the
Government
or
such
Corporation
upto
the
date
of
his
retrenchment due to reduction in or
winding up of, any establishment of
Government or the public Corporation, as
the case may be, and in respect of whom a
certificate of being a retrenched employee
has been issued by the appointing
authority.
(c) "service rules" means the rules made
under the proviso to Article 309 of the
Constitution, and where there are no such
rules, the executive instructions issued by
the
Government,
regulating
the
recruitment and conditions of service of
persons appointed to the relevant service.

3. (1) Notwithstanding anything to the
contrary contained in any other service
rules for the time being in force, the State
Government may be notified order require
the
absorption
of
the
retrenched
employees in any post or service under
the Government and may prescribe the
procedure for such absorption including
relaxation in various terms and conditions
of
recruitment
in
respect
of
such
retrenched employees.

(2) The provisions contained in relevant
service rules shall be deemed to have
been modified to the extent of their
inconsistency with the provisions made in
the notified order referred to in sub-rule
(1).
By order
Neera Yadav
Secretary"

15.

The
aforesaid
rules
for
absorption remained in force for about 12
years and were rescinded by Government
order dated 8.4.2003. The rescinding
order is contained in Annexure 15 to the
writ petition, relevant portion of the said
Rules,2003 is as under :-
" mRrj izns'k ljdkj ;k lkoZtfud fuxeksa ds Nvuh'kqnk
deZpkfj;ksa dk ljdkjh lsok esa vkesyu (fo[kaMu)
fu;ekoyh] 2003

lafo/kku ds vuqPNsn 309 ds ijUrqd Onkjk iznRr 'kfDr dk
iz;ksx djds jkT;iky mRrj izns'k ljdkj lkoZtfud fuxeksa
ds Nvuh'kqnk deZpkfj;ksa dk ljdkjh lsok esa vkesyu
fu;ekoyh]1991 dks fo[kafMr djusa dh n`f"V ls fuEufyf[kr
fu;ekoyh cukrsa gSa %&

1& laf{kIr uke vkSj izkjEHk & (1& ;g fu;ekoyh mRrj
izns'k ljdkj ;k lkoZtfud fuxeksa ds Nvuh'kqnk deZpkfj;ksa
dk ljdkjh lsok esa vkesyu (fo[kaMu) fu;ekoyh] 2003
dgh tk;sxh A
2& ;g rqjUr izo`Rr gksxh A

2& ifjHkk"kk,a& tc rd fo"k; ;k lanHkZ esa dksbZ izfrdwy
ckr u gks bl fu;ekoyh esa
 d& lafo/kku dk rkRi;Z Hkkjr ds lafo/kku ls gS
 [k& jkT;iky dk rkRi;Z mRrj izns'k ds jkT;iky ls gS
A
3& fo[kaMu vkSj O;ko`fr & 1& mRrj izns'k ljdkj ;k
lkoZtfud fuxeksa ds Nvuh'kqnk deZpkfj;ksa dks ljdkjh lsok
esa vkesyu fu;ekoyh]1991 ,rnOnkjk fo[kafMr dh tkrh gS]
vkSj ,sls fo[kaMu ds QyLojQi &
,d& mRrj izns'k ljdkj ;k lkoZtfud fuxeksa ds Nvuh'kqnk
deZpkfj;ksa dk ljdkjh lsok esa vkesyu fu;ekoyh]1991 ds
v/khu izsknHkwr vkesyu ds fy, fopkj fd;s tkus okys fdlh
Nvuh'kqnk dEkZpkfj;ksa dk vf/kdkj] fdUrq ftudk mRrj
izns'k ljdkj ;k lkoZtfud fuxeksa ds Nvuh'kqnk deZpkfj;ksa
dk ljdkjh lsok esa vkesyu (fo[kaMu) fu;ekoyh]2003
ds izkjEHk gksus ds fnukad rd vkesyu u fd;k x;k gks]
,sls fnukad ls lekIr gqvk le>k tk;sxk A
nks& ljdkjh lsok esa fdlh fof'k"V ljdkjh foHkkx ;k
lkoZtfud fuxe ds Nvuh'kqnk deZpkfj;ksa ds fy, vkesyu ds
lfUu;e fofgr djusa esa vkSj osru laj{k.k lfgr ikfj.kkfed
izlqfo/kkvksa dsk iznku djusa esa le; le; ij tkjh fd;s x;s
ljdkj ds vkns'k] mRrj izns'k ljdkj ;k lkoZtfud fuxeksa
ds Nvuh'kqnk deZpkfj;ksa dk ljdkjh lsok esa vkesyu
(fo[kaMu) fu;ekoyh]2003 ds izkjEHk gksus ds fnukad ls
fujkd`r gks tk;saxs A
2& ,sls fo[kaMu ds gksrs gq, Hkh &
,d& mRrj izns'k ljdkj ;k lkoZtfud fuxeksa ds Nvuh'kqnk
deZpkfj;ksa ds ljdkjh lsok esa vkesyu (fo[kaMu) fu;ekoyh]
1250 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
2003 ds izkjEHk gksus ds fnukad ds iwoZ fdlh Nvuh'kquk
vkesyu deZpkjh dks iznku dh xbZ osru laj{k.k dh izlqfo/kk
okil ugha yh tk;sxh A
nks & mRrj izns'k ljdkj ;k lkoZtfud fuxeksa ds Nvuh'kqnk
deZpkfj;ksa dk ljdkjh lsok esa vkesyu (fo[kaMu)
fu;ekoyh] 2003 ds izkjEHk gksus ds fnukad ds iwoZ mRrj
izns'k ljdkj ;k lkoZtfud fuxeksa ds Nvuh'kqnk deZpkjh]
ftls ,sls fnukad rd vkesfyr u fd;k x;k gks] ,sls lewg x
vkSj lewg ?k ds in] tks mRrj izns'k yksd lsok vk;ksx dh
ifjf/k ds ckgj ds gksa] ij lh/kh HkrhZ ds fy,] mPprj vk;q
lhek esa ml lhek rd f'kfFkyrk izkIr djusa dk gdnkj gksxk]
ftruh mlus lEcfU/kr ljdkjh foHkkx ;k lkoZtfud fuxe
esa ekSfyd gSfl;r ls iw.kZ fd;s x;s o"kksZ rd fujUrj lsok dh
' gks !"

16. The question of absorption of
retrenched employees was considered in
the
case
of
Bageshwari
Prasad
Srivastava (supra) wherein the Court,
after
considering
the
question
of
retrenchment and its meaning as well as
Rules of 1991 decided the same on the
anvil of object of framing of the Rules for
absorption, quashed the order and directed
the respondents to absorb the petitioners
of that case, who were employees of
Bhadohi Woolens Limited in Government
service
in
accordance
with
their
qualifications in class III and IV posts
forthwith. The aforesaid order was passed
in
the
backdrop
that
the
employees/petitioners in that case were
not being issued retrenchment certificate
but the Managing Director had written for
absorption of all the employees to the
State Government. It was not a case of
employees who were working in another
concern on deputation or closure of parent
establishment or winding up of the same.
Thus this case is not applicable to the
facts and circumstance of the present
case. In this backdrop, neither the
decision
in
Bageshwari
Prasad
Srivastava
(supra)
nor
subsequent
decisions in consequence thereof are
applicable to the present case.

17. As regards the first question as
to whether an employee on deputation
working in the borrowing department has
any
lien
or
enforceable
right
for
absorption in the borrowing department,
suffice it to say that deputation is tripartite
settlement. Consent of the concerned
employee, approval of parent department
and acceptance by borrowing department
are
the
essential
ingredients
for
deputation. An employee, on deputation,
cannot claim an enforceable right for
absorption in the borrowing department.
If the borrowing department feels that the
services of a particular employee, on
deputation, are beneficial in public
interest and it desires to retain such
employee permanently, it can absorb him
with the consent of concerned employee
and the parent department. In the present
case, the borrowing department is not
prepared to retain the petitioners on
expiry of their period of deputation and
the services of all employees, including
the petitioners, in the parent department
have been terminated by virtue of closure
of the establishment by an order of this
Court. Therefore, the petitioners, cannot
claim their absorption, as a matter of
right.

18. So far as second question as to
whether the petitioners have any legal and
enforceable right under the Rules of 1991
for being absorbed, while on deputation,
is concerned, the Rules of 1991 only
provide that a retrenched employee can be
provided alternate employment in the
State Government establishments. This
does not mean that the borrowing
department is bound to absorb the
petitioners and in any case the Rules of
1991 now stand rescinded. In the
circumstances, the petitioners have no
4 All] Virendra Pd. Dubey V. Senior Divisional Security Commissioner R.P.F. and others
1251
legal enforceable right for absorption in
other Government departments.

19. For the reasons stated above, the
writ petition fails and is dismissed without
any order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.07.2005

BEFORE
THE HON'BLE V.C. MISRA, J.

Civil Misc. Writ Petition No.32302 of 1997

Virendra Prasad Dubey
...Petitioner
Versus
Senior Divisional Security Commissioner,
RPF, Allahabad and others ...Respondents

Counsel for the Petitioner:
Sri P.N. Saxena
Sri R.K. Tiwari
Sri M.M. Srivastava
Sri R.K. Srivastava

Counsel for the Respondents:
Sri B.B. Paul
Sri Govind Saran
S.C.

Railway Protection Force Rules 1987Rule-148, 153 read with fundamental
Rules-Rule-56-Compulsorily RetirementPetitioner-a
constable
in
R.P.F.
proceeded
on
medical
leave-w.e.f.
4.11.93-10.11.94-time
to
time
leave
application-duly
received
by
the
authorities-after 10 years services-major
punishment of compulsorily retirement
awarded at the age 35 years-without
serving
the
chargesheet,
without
affording opportunity-absence from duty
cannot be termed as will full absence-No
grave misconduct-impugned order can
not sustained.

Held: Para 11
It is settled law that the order of
dismissal/ removal from service can be
awarded only for the acts of grave
nature
or
as
cumulative
effect
of
continued
misconduct
preventing
incorrigibility or complete unfitness for
police service. Merely one incident of
absence and that too because of bad
health and being on valid and justified
grounds/ reasons cannot become basis
to award such punishment. It is an
admitted fact that the respondents had
received
the
application
for
leave
alongwith medical certificates. In such
circumstances it can never be termed as
willful absence without any information
to the competent authority and also can
never be termed as grave misconduct.
Under
the
above
said
facts
and
circumstances and the pleadings of the
instant case, in my view no case to
award such major punishment to the
petitioner is made out and the decision
of the disciplinary authority inflicting a
penalty of removal from service by the
impugned
order
dated
6.10.1994
(Annexure No. 1 to the writ petition) is
ultra vires of Rule 56 (j) of the
Fundamental Rules and is liable to be set
aside. The major punishment of removal
from service by way of compulsory
premature
retirement
is
thus
also
excessive and disproportionate.
Case law discussed:
AIR 1985 SC-931
2004(2) UPLBEC-1294

(Delivered by Hon'ble V.C. Misra, J.)

1. Heard Sri P.N. Saxena, Senior
Advocate assisted by Sri R.K. Tiwari,
learned counsel for the petitioner and Sri
Govind Saran, Advocate learned standing
counsel on behalf of the respondents
Nos.1, 2 and 3.

2. The facts of the case in brief are
that the petitioner was appointed as a
constable in Railway Protection Force by
posting at Allahabad on 18.5.1984. In