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2002 DIGILAW 1223 (ALL)

RAM UGRAH v. STATE OF U. P.

2002-09-10

R.K.AGRAWAL, S.K.SEN

body2002
R. K. AGARWAL, J. ( 1 ) SPECIAL Appeal No. 519 of 2000 has been filed by Ram Ugrah against the judgment and order dated 14. 7. 2000 passed by the learned single Judge in civil misc. writ petition no. 29840 of 2000, whereby the learned Single Judge has dismissed the writ petition and held that there is no error in the decision making process so far as the discretion exercised by the authorities in the matter of the age relaxation is concerned. ( 2 ) SPECIAL Appeal No. 520 of 2000 has been filed by Ram Sumer against the judgment and order dated 14. 7. 2000 passed by the learned Single Judge in civil misc. writ petition no. 29839 of 2000, whereby the writ petition has been dismissed with similar observation. ( 3 ) SINCE both the special appeals raise common question of law, they have been heard together and are being decided by a common judgment. ( 4 ) RAM Urgah, appellant in Special appeal No. 519 of 2000 was appointed as collection peon for realization of Takavi revenue in the agriculture department on 1. 2. 967. He worked regularly till 1. 8. 1975. Thereafter, he was retrenched. ( 5 ) RAM Sumer, appellant- writ petition in special Appeal No. 520 of 2000 worked as temporary peon for realization of Takavi revenue in agriculture department from 1. 7. 1969 to 31. 8. 1975, when he was retrenched. It appears that some vacancy occurred in gandak Samadesh Kshetra Vikas Scheme under Pariuyojana Adhikari, Gorakhpur, whereupon, both the appellants made applications for absorption vide application dated 12. 12. 86. According to the appellants- writ petitioners, their cases were not considered and instead were assured that in the next vacancy, they shall be absorbed. ( 6 ) WHEN after waiting for a considerable period, the services of both the appellants - writ petitioners were not absorbed, they approached this Court by filing separate writ petitions being civil misc. writ petition no. 3791 and 3790 of 1989 respectively, which were disposed of by separate judgment and orders dated 25. 4. 1997 with a direction to make representations to be decided by the authority concerned by a speaking order within two months. The appellants- writ petitioners made separate representations on 15. 5. 97, which was, however, rejected by the Deputy Director of Agriculture, gorakhpur, vide identical order dated 5. 5. 2000. 4. 1997 with a direction to make representations to be decided by the authority concerned by a speaking order within two months. The appellants- writ petitioners made separate representations on 15. 5. 97, which was, however, rejected by the Deputy Director of Agriculture, gorakhpur, vide identical order dated 5. 5. 2000. The writ petitions challenging the aforesaid order have been dismissed by the learned Single Judge by the impugned judgement and orders. ( 7 ) WE have heard Sri A. K. Srivastava, learned counsel for the appellant and Sri Ran Vijay Singh, learned standing counsel for the respondents. ( 8 ) THE learned counsel for the appellant- writ petitioner submitted that it is not in dispute that both the appellant-writ petitioners have worked as a peon (a class -IV post) in the Agriculture department for more than six years and they were retrenched not on account of their fault, but in view of the policy decision taken by the State Government. They were entitled for absorption. According to the learned counsel for the appellants- writ petitioners, since, both the appellants- writ petitioners have worked for considerable long period and they have attained the status of a permanent employee and in any event they acquired the right of permanent absorption in terms of the various government orders dated 6. 7. 1977, 21. 12. 1981 and 21. 7. 1984. They were also entitled for relaxation of upper age limit for absorption. Learned counsel for the appellants - writ petitioners has relied upon a Division Bench decision of this court in the case of Ganga and another v. Chief Development Officer, Gorakhpur (writ petition no. 7590 of 1987), decided on 5. 5. 1988, wherein this court under similar circumstances had held that when petitioner no. 1 therein had applied for reemployment on his application dated 20. 9. 1986, he could not be ignored in pursuance of the Government order dated 23. 5. 1981, as it mentions that there is no impediment of age, but merely that a retrenched employee must seek reemployment within a span of ten years since when he was last employed. According to the learned counsel for the appellants - writ petitioners, the appellants- writ petitioners are entitled for age relaxation and therefore, they ought to have been absorbed. 1981, as it mentions that there is no impediment of age, but merely that a retrenched employee must seek reemployment within a span of ten years since when he was last employed. According to the learned counsel for the appellants - writ petitioners, the appellants- writ petitioners are entitled for age relaxation and therefore, they ought to have been absorbed. ( 9 ) SRI Ran Vijay Singh, learned standing counsel, however, submitted that the earlier application filed by the appellants- writ petitioners before the project Administrator, Gandak Samadesh kshetra Vikas Pariyojana, Gorakhpur, in the year 1981, could not be considered, as it was an independent project and nothing to do with the Agriculture Department. So far as the representation/application dated 12. 12. 1986 given by the appellants- writ petitioners are concerned, he submitted that vide Government order dated 6. 7. 1977, the relaxation in upper age limit was provided for absorption of retrenched employee. The Government order was effective for a period of three years, which was further extended vide government order dated 23. 5. 1981 and 21. 7. 1984 by which the relaxation continued only upto 22. 5. 1987. Since there was no vacancy in the year 1986, therefore, no action could be taken on the said representations. Subsequently, vide government order dated 22. 10. 1991 the relaxation of upper age limit for absorption of retrenched employee was not extended and it was decided to close the absorption of retrenched employee and on a reference being made in respect of the appellants- writ petitioners and other similarly situated employees of gorakhpur Division, the State government took a decision not to relax the upper age limit and to abide by its earlier decision, which was duly communicated vide letter dated 29. 1. 99. The learned standing counsel also took a plea of laches in approaching this court. He further submitted that creation of the post and absorption of surplus retrenched employee is the sole prerogative of the state Government and there being no violation of any Constitutional provisions or any Act or Rules, the Court should decline to interfere under Article 226 of the Constitution of India. He further submitted that creation of the post and absorption of surplus retrenched employee is the sole prerogative of the state Government and there being no violation of any Constitutional provisions or any Act or Rules, the Court should decline to interfere under Article 226 of the Constitution of India. ( 10 ) HAVING heard the learned counsel for the parties, we find that there is no dispute that both the appellants- writ petitioners are the retrenched employee of the State Government and are entitled for being absorbed on priority basis in accordance with the relevant Government orders issued by the state Government from time to time. The question is as to whether the upper age limit fixed for appointment on a class -IV post shall be applicable or stands relaxed. Vide government order dated 6. 7. 1977, which dealt with absorption of employees retrenched from class III and class IV posts, the State Government had relaxed the upper age limit. Paragraph 2-K of the said Government order is reproduced below: "relaxation OF AGE LEMIT-Aise karmchariyon ne jitane varsh ki seva apani chhatani ke purva ki ho thatha jitani awadhi ke liye vah chhatani ke karan seva se bahar rahe ho utane varsh ki aayu seema se un he chhot pradan ker di jaye. " ( 11 ) THE benefits provided under the aforesaid Government order was applicable till 5. 7. 1980. To redress the grievance of the retrenched employees, who have not been absorbed till then, the state Government vide Government order dated 23. 5. 81 again relaxed the upper age limit. Paragraph 2 kha of the Government order dated 23. 5. 1981 is reproduced below: "maximum relaxation in age limit-Aise karmchariyon ne jitney varsh seva apani chhatani se purva ki ho tatha jitney avadhi ke liye vah chhatani ke karan seva se bahar rahe ho utane varsh ki adhiktam aayu seema se unhe chhott pradan kar di jaye parantu pratibandh yah hai ki yah avadhi kisi bhi dasha me 10 varsh se adhik nahi hogi. " ( 12 ) VIDE Government order dated 21. 7. 1984, the benefits provided in the government order dated 23. 5. 1981 was extended till 22. 5. 1987. From a perusal of paragraph 2 ka of the government order dated 6. 7. " ( 12 ) VIDE Government order dated 21. 7. 1984, the benefits provided in the government order dated 23. 5. 1981 was extended till 22. 5. 1987. From a perusal of paragraph 2 ka of the government order dated 6. 7. 1977 it is clear that the State government had relaxed the upper age limit in the case of absorption of employees retrenched from class III and class IV posts to the extent the services renders prior to retrenchment and for the period after retrenchment. However, under the Government order dated 23. 5. 1981, the relaxation of upper age limit, as provided in the earlier government order dated 6. 7. 1977, was continued subject to the maximum relaxation of age of ten years only. It is not in dispute that when the appellants-writ petitioners made an application for absorption on 12. 12. 1986, there was relaxation in upper age limit for a maximum period of ten years, and therefore, they were liable to be considered for absorption by giving age relaxation of ten years, as held by a division Bench of this court in the case of ganga and another v. Chief Development officer and others (supra ). ( 13 ) THE learned single Judge was not correct to hold that the application for relaxation in the age has been rejected keeping in view the Government order dated 29. 1. 99. The said Government order would not be applicable in the present case, inasmuch as the application was made by the appellants- writ petitioners in the year 1986, when there was relaxation in upper age limit provided by the government orders dated 23. 5. 1981 and 21. 7. 1984. In this view of the matter the division Bench decision of this Court dated 5. 5. 88 in the case of Ganga and another v. Chief Development Officer and others (supra) would be fully applicable. 5. 1981 and 21. 7. 1984. In this view of the matter the division Bench decision of this Court dated 5. 5. 88 in the case of Ganga and another v. Chief Development Officer and others (supra) would be fully applicable. ( 14 ) SO far as the question of laches on the part of the appellants- writ petitioners, as raised by the learned standing counsel is concerned, it may be mentioned here that the appellants- writ petitioners had applied in the year 1986 and when the matter was kept pending before the authorities, they approached this court by filing separate writ petitions in the year 1989, which was disposed of in the year 1997 with a direction to the appellants- writ petitioners to make a representation before the concerned authority, which was decided only on 5. 5. 2000, which decision was challenged immediately by the appellants- writ petitioners before this court by filing writ petitions. Thus, there is no laches on the part of the appellants - writ petitioners so as to oust them from invoking the extraordinary jurisdiction under Article 226 of the Constitution of India. ( 15 ) THE plea that the appointment/ absorption is a policy decision to be taken by the State Government and the court should not interfere in it, is not applicable in the facts and circumstances of the present case. The Court is not interfering in any policy decision with respect to absorption/appointment of an employee, taken by the State government. It is only considering the matter in the light of the policy decision taken by the state government, as contained in the government order dated 23. 3. 1981 and 21. 7. 1984 and had come to the conclusion that the appellants - writ petitioners are entitled for relaxation of upper age limit for a maximum period of ten years. ( 16 ) IN view of the foregoing discussion, both the appeals succeed and are allowed. ( 17 ) THE impugned judgment and order passed by the learned Single Judge is set a side. The order dated 5. 5. 2000 passed by the Deputy Director of agriculture is set aside. The respondents are directed to consider the question of absorption of both the appellants- writ petitioners by giving them age relaxation often years as on 12. 12. The order dated 5. 5. 2000 passed by the Deputy Director of agriculture is set aside. The respondents are directed to consider the question of absorption of both the appellants- writ petitioners by giving them age relaxation often years as on 12. 12. 1986 i. e. from the date of making of the application within three months from the date a certified copy of this order is produced before them. ( 18 ) IN view of the foregoing discussions, both the appeals succeed and are allowed. .