Case: State Of Uttaranchal Vs. Alok Sharma

2. Interpretation and/ or application of various circular letters issued by the State of Uttar Pradesh which have been adopted by the State of Uttarakhand after it was formed in terms of the U.P. State Reorganisation Act is in question in these appeals.3. Two government companies being M/s. Teletronix Ltd. and Kumaon Television Ltd. were the subsidiary companies of Kumaon Mandal Vikas Nigam Ltd. The employees of the said government companies were retrenched. The State of Uttar Pradesh took a policy decision to appoint the employees of the said government companies. For the said purpose, it framed rules purported to be in exercise of its power under the proviso appended to Article 309 of the Constitution of India, known as the Uttar Pradesh Absorption of Retrenched Employees of Government of Public Corporations in Government Services Rules, 1991 (for short "the Rules").4. The term "retrenched employee" is defined in Rule 2(c) of the Rules as"retrenched employee" means a person who was appointed on a post under the Government or a public corporation on or before October 1, 1986 in accordance with the procedure laid down for 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 the 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 his appointingcharging provision is contained in Rule 3(1) of the Rules, which reads asNotwithstanding anything to the contrary contained in any other service rules for the time being in force, the State Government may by 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.Admittedly, except Karan Pal, respondent No. 1 in Civil Appeal arising out of SLP (C) No. 6451 of 2005 who was appointed in the month of January, 1980 and Vijay Kumar Joshi, respondent No. 1 in Civil Appeal arising out of SLP (C) No. 8239 of 2005 who was appointed on 1.07.1983 (they were absorbed in the services of the State on 14.12.2005), other respondents herein were appointed after the cut-off date provided for in the Rules, viz., 1.10.1986.6. It also does not appear that pursuant to or in furtherance of the provisions contained in Rule 3(1) of the Rules, the State Government has issued any notified order requiring absorption of retrenched employees in any post or service under the Government or prescribed any procedure therefore including relaxation in various terms and conditions of recruitment in relation to the retrenched employees.The State of Uttar Pradesh, however, issued a letter to the Managing Director of Kumaon Mandal Vikas Nigam Ltd on 30.12.1995. While informing that approval has been granted by the Governor for winding up of the aforementioned companies, it wasOrder for adjustment of the employees retrenched in result of the winding up of the aforesaid units and relaxation in age will be issued separately by the Personnel Department.4. Retrenched employees will be adjusted/ re- appointed on their equivalent posts in view of their qualification in Kumaun Mandal.It is contended that in terms of paragraph 3 of the said circular letter, no such order had been issued by the Personnel Department of the State of Uttar Pradesh. However, it appears that the Secretary to the Government of Uttar Pradesh issued a letter addressed to all Principal Secretaries /Secretaries of the Government of Uttar Pradesh, all Heads of the Departments and all Commissioners, Uttar Pradesh stating that on humanitarian ground a decision has been taken by the State for adjustment of the employees/ officers retrenched from the said units, subject to the terms and conditions laid down therein; some of which are inter aliaFor the Government/ Corporations/ Enterprises service only such employees will be eligible whose services had been regularized with M/s. Teletronics and Kumaun Television Limited, the sister units of Kumaun Mandal Vikas Nigam Limited on or before 1st October 1986 and have been continuously working with the aforesaid Teletronics and Kumaun Television on the date of its windingsaid orders were issued with the consultation and approval of the Personnel Department.8. As despite framing of the aforementioned rules and issuance of the aforementioned circulars, respondents had not been absorbed in the services of the State, they filed writ applications before the High Court of Uttaranchal.9. The case of Vijay Kumar Joshi, respondent No. 1 in the Civil Appeal arising out of SLP (C) No. 8239 of 2005 was decided first wherein having regard to the fact that he was appointed prior to the cut-off date, his writ petition was allowed by an order dated 03.11.2004. Following the said judgment, other writ petitions were also allowed by an order dated 6.06.2005,Counsel for the petitioners has filed the copy of the judgment passed in Civil Writ Petition No. 6609 of 2001 (S/S) Vijay Kumar Joshi & others Vs. State of Uttar Pradesh & others and has submitted that this Court has allowed the writ petition of certain other retrenched employees with the directions that the State of Uttar Pradesh and the counter part of respondent No. 1 and 2 i.e. Director, Training and Employment, Government of U.P., Lucknow, in the State of Uttaranchal to give appointment to the petitioners in suitable post in compliance of the Government Orders dated 30.12.1995 and 26.02.1996 with full salary w.e.f. 1st April, 1996.Intra-court appeals preferred thereagainst were dismissed by the High Court opining that this Court had issued limited notice in the special leave petitions filed thereagainst. It wascontroversy was involved in earlier Civil Writ Petition No. 1322/2003 (S/S) which was decided by the Court per judgment dated 26.10.2004 and the State instead of preferring Special Appeal before the Division Bench went up in S.L.P. before the Honble Supreme Court S.L.P. (Civil) No. 6451/2005 was registered and by order dated 7.3.2005 the Honble Judges of the Apex Court admitted the S.L.P. only on the point of direction of payment of back wages to that petitioner. Learned Brief Holder for the State submits that the petitioners of the earlier Writ Petition [(1322/2003(S/S)] had already been given appointment in compliance of the order dated 26.10.2004. There can be no controversy that the respondent - petitioners shall also be placed on same footing by the State in regard to the compliance to the direction of the Court regarding appointment as contained in the impugned judgment dated 6.6.2005 and the respondent - petitioners have to be given appointment in the establishments of the State as observed in the judgment under appeal."

Reasoning:
18. Keeping in view the principles laid down by the Constitution Bench of this Court in Umadevi (supra), there cannot be any doubt whatsoever that any condition laid down in any rules which is in derogation of the recruitment rules framed by the State, should receive strict construction.19. The learned Single Judge committed an error insofar as it proceeded on the basis that the decision of the High Court in Vijay Kumar Joshi was not under challenge. Vijay Kumar Joshi is subject matter of the Civil Appeal arising out of SLP(C) No. 8239 of 2005. The High Court also failed to take into consideration that the circular letters dated 30.12.1995 and 26.02.1996 being not notified orders as envisaged in the Rules would not be law within the meaning of Article 13 of the Constitution of India.20. The High Court did not find that thedate to be arbitrary or discriminatory and was, thus, liable to be struck down being ultra vires Article 14 of the Constitution of India. It did not hold that the conditions precedent contained in the Rules prescribing procedure for such recruitment and/ or grant of power of relaxation have been complied with. An authority, unless a power is conferred on it expressly, cannot exercise a statutory power. Power of relaxation must be specifically conferred. Such power having been envisaged to be conferred by reason of a rule made under the proviso appended to Article 309 of the Constitution of India, the contention of the learned counsel for the respondents that relaxation must be deemed to have been granted cannot be accepted.It is in the aforementioned backdrop, the circular letters dated 30.12.1995 and 26.02.1996 are required to be construed. Although in the former, nodate as such has been mentioned and paragraph 4 thereof refers to retrenched employees, by reason whereof they were to be adjusted/on their equivalent posts in view of their qualification in Kumaun Mandal, the term `retrenched employees would carry the same meaning as contained in the rules. Furthermore, the circular letter dated 26.02.1996 was issued in continuation of the earlier letter dated 30.12.1995, which provided for adate. Both the circular letters are to be read together. If, thus, the respondents were kept outside the purview of the said circular letters, indisputably, they cannot be said to have derived any legal right so as to enable them to pray for issuance of a writ of or in the nature of mandamus.