Judgment - Order in - Special Appeal No. 46 of 2011 at Lucknow Dated-11.1.2012 Case Title - Jai Prakash Mishra 415 (S - S) 2005 vs. State of U.p.through Prin. Secy. - Secy

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JUDGMENT/ORDER IN - SPECIAL APPEAL No. 46 of 2011 at Lucknow Dated-11.1.2012 CASE TITLE - Jai Prakash Mishra 415 (S/S)2005 Vs. State Of U.P.Through Prin. Secy. / Secy. Nagriye Rozgar Evam
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This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Deputy Registrar(Copying). HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. 1. Special Appeal No. 46 of 2011 Jai Prakash Mishra Vs. State of U.P. and others; (1) Special Appeal No. 127 of 2011 Ramesh Singh Yadav Vs. State of U.P. and others; (2) Special Appeal No. 136 of 2011 Uma Shanker Mishra Vs. State of U.P. and others; (3) Special Appeal No. 733 of 2011 Arunodaya Tyagi Vs. State of U.P. and others; (4) Special Appeal No. 877 of 2010 Sri Madhukar Gupta and others Vs. State of U.P. and others; (5) Special Appeal No. 62 of 2011 Vineet Kumar Trivedi Vs. State of U.P. and others; (6) Special Appeal No. 63 of 2011 Prahlad Singh
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Vs. State of U.P. and others; (7) Special Appeal No. 64 of 2011 Vijay Prakash Dhar Dubey Vs. State of U.P. and others; (8) Special Appeal No. 67 of 2011 Ramesh Kumar Kardam Vs. State of U.P. and others; (9) Special Appeal No. 68 of 2011 Ram Veer Sharma Vs. State of U.P. and others; (10) Special Appeal No. 65 of 2011 Ram Singar Vs. State of U.P. and others; (11) Special Appeal No. 58 of 2011 Sanjeev Kumar Agarwal Vs. State of U.P. and others; (12) Special Appeal No. 56 of 2011 Manohar Singh Vs. State of U.P. and others; (13) Special Appeal No. 69 of 2011 Ambrish Chandra Vs. State of U.P. and others; (14) Special Appeal No. 60 of 2011 Shri Rajesh Gupta and others Vs. State of U.P. and others;
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(15) Special Appeal No. 128 of 2011 Indra Kumar Vs. State of U.P. and others; (16) Special Appeal No. 129 of 2011 Vinod Kumar Bajpai and another Vs. State of U.P. and others; (17) Special Appeal No. 126 of 2011 Prem Chand Yagik Vs. State of U.P. and others; (18) Special Appeal No. 130 of 2011 Pramod Kumar Mishra Vs. State of U.P. and others; (19) Special Appeal No. 131 of 2011 Munnu Lal Katiyar and another Vs. State of U.P. and others; (20) Special Appeal No. 132 of 2011 Ajit Kumar Seth Vs. State of U.P. and others; (21) Special Appeal No. 133 of 2011 Ashok Kumar Savita Vs. State of U.P. and others; (22) Special Appeal No. 134 of 2011 Kamlesh Kumar Dubey Vs. State of U.P. and others; (23) Special Appeal No. 135 of 2011
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Akhilesh Chand Srivastava Vs. State of U.P. and others; (24) Special Appeal No. 137 of 2011 Deen Dayal Shukla Vs. State of U.P. and others; (25) Special Appeal No. 138 of 2011 Ajab Singh Rajpoot Vs. State of U.P. and others; (26) Special Appeal No. 139 of 2011 Tirath Raj and others Vs. State of U.P. and others; (27) Special Appeal No. 49 of 2011 Tulsi Prasad Singh Vs. State of U.P. and others; (28) Special Appeal No. 48 of 2011 Laxmikant and another Vs. State of U.P. and others; (29) Special Appeal No. 59 of 2011 Indrajeet Kaur Vs. State of U.P. and others; (30) Special Appeal No. 61 of 2011 Sri Vinod Kumar Singh and others Vs. State of U.P. and others; (31) Special Appeal No. 55 of 2011 Pradeep Dutta Mazumdar and others Vs.
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State of U.P. and others; (32) Special Appeal No. 43 of 2011 Umesh Kumar Singh Vs. State of U.P. and others; (33) Special Appeal No. 47 of 2011 Ram Kailash Yadav Vs. State of U.P. and others; (34) Special Appeal No. 52 of 2011 Sri Krishna Srivastava Vs. State of U.P. and others; (35) Special Appeal No. 51 of 2011 Shipra Dutta Vs. State of U.P. and others; (36) Special Appeal No. 57 of 2011 Alok Kumar Singh Vs. State of U.P. and others; (37) Special Appeal No. 45 of 2011 Virendra Kumar Nigam Vs. State of U.P. and others; (38) Special Appeal No. 50 of 2011 Arun Kumar Srivastava Vs. State of U.P. and others; (39) Special Appeal No. 54 of 2011 Sri Guru Swaroop Chaudhary Vs. State of U.P. and others;
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(40) Special Appeal No. 53 of 2011 Mohd. Ahmad Khan Vs. State of U.P. and others; (41) Special Appeal No. 205 of 2011 Rajesh Sharma Vs. State of U.P. and others; (42) Special Appeal No. 204 of 2011 Javed Akhtar Vs. State of U.P. and others; (43) Special Appeal No. 203 of 2011 Arun Kumar Singh Vs. State of U.P. and others; (44) Special Appeal No. 202 of 2011 Gunjeshwari Prasad Narayan Singh Vs. State of U.P. and others; (45) Special Appeal No. 878 of 2010 Darsha Nand and others Vs. State of U.P. and others; (46) Special Appeal No. 879 of 2010 Swami Nath Srivastava and others Vs. State of U.P. and others; (47) Special Appeal No. 893 of 2010 Arvind Kumar Kaushal Gupta Vs. State of U.P. and others; (48) Special Appeal No. 883 of 2010 Vijay Shankar Shukla and others
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Vs. State of U.P. and others; (49) Special Appeal No. 880 of 2010 Rajnish Sharma and others Vs. State of U.P. and others; (50) Special Appeal No. 884 of 2010 Rama Shanker Sony and others Vs. State of U.P. and others; (51) Special Appeal No. 891 of 2010 Laxmi Kant Dixit Vs. State of U.P. and others; (52) Special Appeal No. 894 of 2010 Ramesh Kumar Mishra Vs. State of U.P. and others; (53) Special Appeal No. 14 of 2011 Ramesh Kumar Kaushik Vs. State of U.P. and others; (54) Special Appeal No. 74 of 2011 Harish Chandra Srivastava Vs. State of U.P. and others; (55) Special Appeal No. 44 of 2011 Ravindra Nath Mishra Vs. State of U.P. and others;
Counsel for the appellants: Sri Akhilesh Kalra, Sri Avinash Chandra, Sri Mohd. Mansoor, Sri Pankaj Khare, Dr. R.S. Pande.
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Counsel for the respondents:Chief Standing Counsel, Sri Vivek Raj Singh, Sri O.P. Srivastava, Sri Amit Chandra, Sri Asit Kumar Chaturvedi, Sri Sanjay Bhasin, Sri P.K. Sinha, Sri Manish Kumar, Sri R.C. Tiwari, Sri Anurag Kumar Singh. Hon'ble Pradeep Kant, J. Hon'ble Ritu Raj Awasthi, J. Supplementary affidavit filed today in Special Appeal Nos. 883 of 2010 and 894 of 2010 be placed on record. The delay, if any, in filing the special appeals is condoned. This is a bunch of special appeals, challenging the common order passed by the learned Single Judge, dismissing a bunch of writ petitions filed by the appellants, challenging the orders of their repatriation to their parent departments, issued by the State Urban Development Agency (SUDA). This order of the learned Single Judge is dated 9.12.2010. In some cases, the order of repatriation has been passed on the directives issued by the State Government, by SUDA and in rest of the cases, in pursuance of the terms of contract entered into between the deputationists and SUDA, the order of repatriation has been passed. The appellants, admittedly were sent on deputation/transfer of service under the orders passed by the State Government or by SUDA itself. The deputation orders range from the year 1998-99 to 2005-06. Learned counsel for the appellants Sri Akhilesh Kalra assisted by Sri Avinash Chandra have urged before this Court that it was a case where the appellants were sent on transfer of services and given appointment as employees on transfer of services and that the direction has been issued by the State Government for cancellation of deputation, though the requirement of the employees is still with the SUDA. Their submission is, that SUDA, on sending back these appellants to their parent departments, would again engage persons from various departments on deputation and, therefore, a deputationist is required to be replaced by another deputationist. Submission is that when SUDA is to make appointment only on deputation, then no fruitful purpose would be served in sending back the appellants to their parent departments and engage fresh persons on deputation. Learned counsel for the respondent-SUDA Sri Vivek Raj Singh, in response, has submitted that the appellants being deputationists have no enforceable right to continue in SUDA, moreso when five years period has lapsed, for which period, they could have remained on deputation in terms of various government orders and also in terms of the contract entered into between some of the appellants and SUDA nor they can raise any grievance, if they are being sent back to their parent departments. His further submission is that continuous working of one set of deputationists in SUDA, sometime has resulted into indiscipline and mismanagement, for the reason that SUDA is not in a position to take any action against an employee, who is on deputation and his parent department cannot be asked to take action, for which, his repatriation would be necessary. Sri Vivek Raj Singh, however, does not dispute that the employees in the entire department of SUDA and DUDA (District Urban Development Agency) are engaged on deputation and there is no provision for making any direct/regular appointment by SUDA and DUDA. We have heard the learned counsel for the parties and have gone through the judgment passed by the learned Single Judge. We find force in the plea of the respondents that the appellants being deputationists cannot insist that they should be allowed to continue in SUDA for all times to come. It is the discretion of the borrowing department as well as lending department to send back a person working on deputation to his parent department. This is known as repatriation. But the facts and circumstances, which otherwise are also very relevant and which has been taken note of, by the learned Single Judge, require us to consider the plea of the appellants that there are many departments from where the employees (appellants) have been sent on deputation to SUDA, but their parent departments have either become sick or have closed down and, therefore, if such persons are forced to go back to their parent department, they would be on streets and it will amount to termination of their services. Submission is that in terms of the directives/observations made by the learned Single Judge, protection be extended to such appellants, whose parent departments have become sick and they may be absorbed in any other department, and until this absorption is done, they may be allowed to continue in SUDA. The government departments/companies from where the employees (appellants) have been sent on deputation can be named as under: (1) U.P. State Spinning Company; (2) UPTRON; (3) Poorvanchal Sahkari Katai Mills
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(4) U.P. Handloom Corporation; (5) Bahar Leather Corporation; (6) UPICA; (7) Cement Corporation; (8) U.P. State Sugar Corporation; (9) Kisan Cooperative Sugar Mills; (10) U.P. Sugar Cooperative Federation; (11) Nagar Nigam; (12) Ganna Vikas Sansthan; (13) Jal Nigam; and (14) Nagar Palika Parishad. During the pendency of these special appeals, the State Government, considering the plight of the employees, who are working for UPTRON India Limited, which company has gone sick, has framed rules known as U.P. Absorption of Surplus Employees of UPTRON India Limited in Government Service Rules, 2011, under which, it has been provided that all employees, who were working in UPTRON and were sent on deputation to SUDA or any other government department, would be allowed to continue in the said department, till they are absorbed in any other department. This meets the grievance of the persons on deputation from UPTRON in SUDA. The consequence of the aforesaid rule is that all these employees, who were working with UPTRON and have been sent on deputation to SUDA, would be allowed to continue in SUDA itself, till they are absorbed in any other government department. Sri R.C. Tiwari, learned counsel for the U.P. State Spinning Company Ltd. submits that they have floated a scheme of voluntary retirement and, therefore, any employee who is in SUDA on deputation, if intends to have the benefit of voluntary retirement scheme, he is at liberty to claim the said benefit and for one unit of Raebareli, they have moved for closure of the unit to the State Government. Learned counsel for the appellants, representing the UPTRON employees on deputation to SUDA could not indicate any subsisting grievance after the framing of the aforesaid rules and the benefit of the same being extended to UPTRON employees, who were on deputation in SUDA. Sri Vivek Raj Singh, appearing for SUDA also says that in view of the aforesaid rules, the persons covered by the said rules would be allowed to continue on the existing terms on which they were appointed. In regard to other sick departments, namely, sick companies, the government has issued an order on 23.2.2011, saying that all such employees whose parent departments have become sick, they are free to resign from their departments, may be, government companies or public sector undertakings, as the case may be, and on submission of their resignation, they would be allowed to continue with SUDA on contract basis. Learned counsel for the appellants Sri Akhilesh Kalra, representing such employees on deputation from various sick companies/departments, initially objected to the requirement of tendering resignation, raising a plea that once they tender their resignation from the parent department, they would be at complete mercy of SUDA, who may turn them out, even after one or two years of contractual service and they would have no place of shelter at all, and in case the sick companies/departments are officially closed, they would be deprived of their closure compensation and other benefits, to which they are otherwise entitled. Sri Vivek Raj Singh, learned counsel for SUDA, clarifying the aforesaid position, submitted that it is a misapprehension in the mind of the appellants that they would be unnecessarily harassed and thrown out of the job, but of course, subject to disciplinary control, they would be allowed to continue on contract basis. In our opinion, the employees, who are working on deputation in SUDA and who belong to such departments, companies or public sector undertakings etc., which have gone sick or are on the verge of closure, also need protection like the protection given to the employees who were working in UPTRON, as their repatriation would also lead to termination or throwing them out of employment. We, however, do not find any reason for grievance in submitting their resignations in the parent department or company and public sector undertaking, but at the same time, it would be the obligation of the State Government to extend full protection to such employees by allowing them to continue in SUDA on contract basis, protecting their pay allowances and leave etc. and to absorb them in any department, and till such absorption is made, to allow them to continue on contract basis in SUDA, subject to disciplinary control. Such employees may tender their resignations in the parent departments and companies within 30 days, if they want to continue in SUDA under the conditions specified above, but if they do not want to continue as such, they would be at liberty not to tender their resignation and go back to their
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parent departments, where they would be adjusted, as per their rank and status. We, therefore, on the same principles, which have been applied by the State Government in the case of UPTRON employees, a sick company on the verge of closure, direct that all the employees of different companies/public sector undertakings etc., which are sick and are on the verge of closure, be given the same treatment, as is being given to UPTRON employees by the State Government as well as by SUDA. The State Government shall issue necessary directions/orders in this regard forthwith. The plea of Sri Mohd. Mansoor, learned counsel for the appellants that the employees belonging to healthy departments, like Nagar Nigam and Nagar Palika Parishad be also directed to be considered for absorption in SUDA cannot be accepted for the simple reason that SUDA itself is not making any regular appointment and there is no provision of absorption of a deputationist in SUDA. In regard to the employees, who are on deputation from such departments, companies, public sector undertakings etc., which are healthy departments i.e. they are not sick, like Nagar Nigam, Nagar Palika Parishad etc., have no right to continue in SUDA, they being deputationists and their period of deputation having come to an end long before. Such employees are also given thirty days' time to report to their parent departments. We, therefore, modify the order passed by the learned Single Judge to the aforesaid effect. All the special appeals relating to the employees of healthy departments, namely, Special Appeal Nos. 733 of 2011, 67 of 2011, 68 of 2011, 139 of 2011, 202 of 2011, 880 of 2010, 891 of 2010, 894 of 2010 stand dismissed. So far as Special Appeal No. 883 is concerned, the same is dismissed in respect of appellant no.1 and for rest of the appellants, it is disposed of. Rest of the special appeals stand disposed of, as per the directives issued. The dismissal of special appeals of the employees belonging to the healthy departments would not be a bar for the State Government or the SUDA to consider their cases for continuance in SUDA on deputation, if they so desire. Dated: 11.1.2012 Sachin
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Judgment - Order in - Special Appeal No. 46 of 2011 at Lucknow Dated-11.1.2012 Case Title - Jai Prakash Mishra 415 (S - S) 2005 vs. State of U.p.through Prin. Secy. - Secy

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Judgment - Order in - Special Appeal No. 46 of 2011 at Lucknow Dated-11.1.2012 Case Title - Jai Prakash Mishra 415 (S - S) 2005 vs. State of U.p.through Prin. Secy. - Secy

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