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2011 DIGILAW 158 (ALL)

MOHD. UMAR v. STATE OF U. P.

2011-01-24

DILIP GUPTA

body2011
JUDGMENT Hon’ble Dilip Gupta, J.—This petition seeks the quashing of the order dated 22nd September, 2009 passed by the District Magistrate, Moradabad by which the claim of the petitioner for absorption in service as he had worked as Peon in the office of the District Magistrate, Moradabad for census work from 4th August, 2000 to 31st May, 2001, has been disposed of with a direction that it shall be considered in accordance with the Government Orders after the vacancies are advertised. 2. The records of the writ petition indicate that in the year 2000, the District Magistrate, Moradabad advertised posts of Junior Clerks and Peons for census work for the year 2000-01 and the petitioner was appointed as Peon on temporary basis from 4th August, 2000 to 31st May, 2001. It was specifically mentioned that the appointment could be terminated at any time without any notice. The petitioner worked upto 31st May, 2001. As some persons who had been given such temporary appointment for census work were absorbed in service and the petitioner was not absorbed, he filed Writ Petition No. 37589 of 2006 which was disposed of on 20th July, 2009 with the following observations : “Submissions of the learned counsel for the petitioner is that petitioner was employed as a peon (Class IV employee) in the Census Department at Moradabad in the year 2000. His services were retrenched in 2001. The Government of Uttar Pradesh has taken a decision that all the retrenched employees of the said department shall be absorbed in respective districts in various departments where vacancies existed. Submission is that several persons like Sushila Chaurasia, Devi Charan Saraswat and Ashok Kumar Bhardwaj have been absorbed and petitioner has not been absorbed till date. It is unfortunate that even after lapse of the period of 8 years petitioner’s case has not been considered by the District Magistrate while some of the persons have been absorbed. In view of the above, the District Magistrate, Moradabad is directed to be consider the petitioner’s case also in the light of relevant Government Orders in accordance with law by passing a speaking and reasoned order expeditiously and preferably within four months from the date of receipt of a certified copy of this order and communicate the decision.” 3. In view of the above, the District Magistrate, Moradabad is directed to be consider the petitioner’s case also in the light of relevant Government Orders in accordance with law by passing a speaking and reasoned order expeditiously and preferably within four months from the date of receipt of a certified copy of this order and communicate the decision.” 3. The petitioner thereafter submitted a representation before the District Magistrate, Moradabad which has been disposed of by the order dated 22nd September, 2009 which order has been assailed in this petition. 4. The District Magistrate has made reference to the two Government Orders dated 9th October, 2007 and 21st August, 2007. 5. The Government Order dated 21st August, 2007 is in connection with the concession to be given to persons who had worked on temporary basis in the 1991 and 2001 for census work while providing employment. It mentions that it has been issued for ensuring compliance of the orders passed by the Court in Writ Petition No. 12171 of 2002 (Subodh Kumar Kaushik v. State of U.P. and others) and Writ Petition No. 2905 (S/S) of 2006 (Sanjay Kumar Pandey v. State of U.P. and others). 6. The Government Order provides as follows : 1. Relaxation of three years in age shall be given to such persons who had worked in 1991 and 2001 census for continuous six months on Group ‘C’ and ‘D’ posts falling outside the purview of Public Service Commission. 2. No relaxation shall be given in the educational qualifications. 3. No seniority shall be given. 4. The Scheme shall be for a period of three years from the date of issue of the Order. 7. The Government Order dated 9th October, 2007 was issued for ensuring compliance of the order dated 18th September, 2007 passed by the Court in Contempt Petition No. 1383 of 2007 filed by Sanjay Kumar Pandey. 8. After noticing the aforesaid two Government Orders, the District Magistrate has observed that it is only when the advertisements are issued that the case of such persons can be considered. 9. Learned counsel for the petitioner has submitted that it was obligatory on the part of the District Magistrate to have passed an order for absorption of the petitioner in terms of the Government Orders dated 9th October, 2007 and 21st August, 2007 but the District Magistrate has misread these Government Orders. 10. 9. Learned counsel for the petitioner has submitted that it was obligatory on the part of the District Magistrate to have passed an order for absorption of the petitioner in terms of the Government Orders dated 9th October, 2007 and 21st August, 2007 but the District Magistrate has misread these Government Orders. 10. Learned Standing Counsel appearing for the respondents has, however, submitted that the claim of the petitioner for absorption can be considered only in accordance with the Government Orders dated 21st August, 2007. The Government Order dated 9th October, 2007 which was issued for ensuring compliance of the directions issued by the Court in Contempt Petition No. 1383 of 2007 arising out of Writ Petition No. 2905 (S/S) of 2006 does not help the petitioner. 11. I have considered the submissions advanced by the learned counsel for the parties. 12. The Government Order dated 21st August, 2007 has been issued pursuant to the directions issued by the Court in Subodh Kumar Kaushik (supra) which is as follows : “Under the Census Act of 1948, a census is conducted in the country every 10 years and for this purpose a Directorate of Census Operation has been established in each State. When the time comes for carrying out the census operations, a large number of temporary posts are created for a short period in connection with the tabulation and process of the data collected. These posts are created for a fixed period and once the specified period is over, these posts are abolished and the temporary staff appointed on these posts are disengaged. In the past, as and when the census work was completed and, the employees engaged on temporary basis were disengaged, certain benefits were given to the census workers, such as, priority in the recruitment in the vacancy in the Government service, absorption in the Government, etc. The State of U.P. issued The Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporation in Government Services Rules, 1991. Based on these Rules, the census workers were treated as retrenched employees and were given employment under these Rules in various departments of the State Government. …………................... The petitioner filed Writ Petition No. 19514 of 2001 praying that he should be absorbed as a Junior Clerk in the vacancies lying in the office of the District Magistrate. Based on these Rules, the census workers were treated as retrenched employees and were given employment under these Rules in various departments of the State Government. …………................... The petitioner filed Writ Petition No. 19514 of 2001 praying that he should be absorbed as a Junior Clerk in the vacancies lying in the office of the District Magistrate. An order dated 21.5.2001 was issued to the respondents to consider the petitioner’s application for absorption according to the Rules of 1991. Based on the aforesaid direction, the District Magistrate issued an order dated 3.12.2001 rejecting the claim of the petitioner. The District Magistrate held that the appointment of the petitioner was confined only for a limited period and that he was not a retrenched employee as defined under the Rules of 1991 and therefore, cannot be given the benefit of absorption under the aforesaid Rules of 1991. The petitioner, being aggrieved, has challenged the said order by means of the present writ petition, praying not only for the quashing of the order of the District Magistrate but also praying for a writ of mandamus commanding the respondents to absorb the petitioner. …………................... From a perusal of the counter-affidavit, it is clear, that the Absorption Rules of 1991 has been rescinded on 8.4.2003. In any case, the State Government by G.O. dated 20.8.2001 made it clear, that a person who was appointed on a temporary post, on a temporary basis, for the census work, would not fall under the definition of a retrenched employee and would not be given the benefit of any absorption in the service of the Government. In Union of India and others v. Dinesh Kumar Saxena and others, 1995 ALJ 1346, the Supreme Court held that the employees working in the Census department had been engaged on a contract basis for a limited duration and, therefore, cannot be absorbed in any other Department of the Government. The Supreme Court, however, directed the Director of Census Operation, U.P. to consider those employees for an appointment in a regular vacancy which may arise in the Directorate of Census Operation. Subsequently the Supreme Court in the case of Government of Tamil Nadu and another v. G. Ammeenudeen and others, 1999(7)SCC 499, issued directions to the State Government of Tamil Nadu to frame a scheme in order to absorb the employees working in the Census department. Subsequently the Supreme Court in the case of Government of Tamil Nadu and another v. G. Ammeenudeen and others, 1999(7)SCC 499, issued directions to the State Government of Tamil Nadu to frame a scheme in order to absorb the employees working in the Census department. The said direction was passed because the Supreme Court felt that on the commencement of Census operations persons who were registered in the Employment Exchange got a job in the Census department and their employment came to an end when the project came to an end thereby loosing both the employment and their position in the queue in the Employment Exchange and, therefore, in view of the peculiar circumstances, the Supreme Court directed the State Government to work out a proper scheme. In Rajesh Kumar Gaur and others v. Union of India (Writ Petition No. 12537 of 2002), decided on 11.7.2005 a Single Judge of this Court held, that there was no conflict between the judgment of the Supreme Court in the case of Union of India v. D.K.Saxena (S.C.) and in the case of Government of Tamil Nadu and another v. G. Ammeenudeen and others (supra). The Court further held that the employees engaged as compliers in the Census operations were not entitled to be absorbed under the Absorption Rules of 1991. In view of the aforesaid, it is clear that the petitioner having been given a fixed term appointment was not entitled to be absorbed under the Absorption Rules of 1991. In any case, the said Rules has been rescinded and therefore, the benefit of those Rules is no longer available to the petitioner. In view of the clear dictum laid down by the Supreme Court in the aforesaid two judgments, the petitioner is not entitled to be absorbed as an employee in the Government service. However, since the Supreme Court directed the State Government of Tamil Nadu to frame a scheme for absorption of the Census employees, in my opinion, similar direction should also be given to the State Government of U.P. In view of the aforesaid, the impugned order does not suffer from any error of law. At the present moment, no mandamus can be issued to the respondents to absorb the petitioner in the Government employment. At the present moment, no mandamus can be issued to the respondents to absorb the petitioner in the Government employment. However, a direction is issued to the State Government to frame a scheme to absorb the employees appointed in the Census operations within six months and consider the case of the petitioner and other similarly situated persons.” (emphasis supplied) 13. The relevant portion of the judgment in Sanjay Kumar Pandey (supra) is as follows : “Therefore, it would be appropriate that the State Government may like to consider formulation of a scheme for absorption of such employees as the petitioners, particularly, when several other persons as detailed in the writ petition, have been given benefit of absorption by the State Government from time to time.” 14. It is pursuant to the aforesaid directions issued by the Court that the State Government issued the Government Order dated 21st August, 2007. The Government Order dated 21st August, 2007 does not provide for automatic absorption of any employee who has worked in 1991 census for six continuous months or in the 2001 census for six continuous months. It only provides that while providing employment to such persons, three years relaxation in age can be given to the employees and that there would be no relaxation in educational qualifications. The Government Order dated 9th October, 2007 was issued for ensuring that the directions issued in the Contempt Petition filed by Sanjay Kumar Pandey were complied with. It, therefore, is of no benefit to the petitioner as he was not a petitioner in the writ petition filed by Sanjay Kumar Pandey. 15. The District Magistrate has, therefore, correctly held that it is only when the advertisement is issued that the petitioner can be considered for appointment by giving him benefit of three years age relaxation. 16. Such being the position, there is no infirmity in the impugned order. 17. The writ petition is, accordingly, dismissed. —————