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2012 DIGILAW 2186 (ALL)

CHANDRA PAL SINGH v. STATE OF U. P.

2012-09-19

D.P.SINGH

body2012
JUDGMENT Hon’ble D.P. Singh, J.—Heard learned counsel for the petitioner, learned Standing Counsel and perused the record. 2. This petition is directed against a notice dated 10.9.2008 issued by the respondent No. 2 retiring the petitioner on attaining the age of 58 years. 3. The petitioner was initially appointed as a Statistician in a project of the State Government in the Office of the District Cane Officer, Modi Nagar, Ghaziabad on 29th November 1975. Subsequently he was promoted as Statistical Assistant on 24.6.1993. However, the Project, in which the petitioner was appointed by the State Government, was scrapped vide Government Order dated 7.4.1998 and all the employees were retrenched with the stipulation that they will be absorbed on equivalent posts in the Cane Department and till then they would continue to draw their salary from the sugar account. The State Government enhanced the age of the Government employees from 58 to 60 years through a Government Order dated 28.11.2001 and the Cane Commissioner followed it through his order dated 29.6.2005. 4. The petitioner and five others, who were holding group I posts and the remaining employees of the erstwhile project, continued to work in the cane department but were drawing their salary from the sugar account of the Government. However, 72 Cane Development Inspectors, who were also working in the Statistical Project like the petitioner, were absorbed as Cane Development Inspector in the Cane Department with the approval of the Public Service Commission on 1.6.2006 on the basis of the approval dated 23rd March 2006. In fact all 108 employees of the Project were absorbed on different posts in the Cane Department. But the Group-I employees, were not absorbed as no action was taken despite the recommendation of the Cane Commissioner through his letters dated 26.3.2007, 19.6.2007, 7.12.2007 and 3.1.2008 sent to the State Government. In fact the Deputy Cane Commissioner wrote a letter to the Cane Commissioner dated 10.10.2008 informing him that the petitioner would be reaching his superannuation age of 58 years and, therefore, he may be absorbed before the said date. However, the State Government did not move in the matter and subsequently the Cane Commissioner issued a notice dated 10.9.2008 to the petitioner that he would stand retired on 31st of May 2009 having attaining the age of 58 years. However, the State Government did not move in the matter and subsequently the Cane Commissioner issued a notice dated 10.9.2008 to the petitioner that he would stand retired on 31st of May 2009 having attaining the age of 58 years. As the respondents were not taking any effective action, the petitioner was forced to file the present writ petition for quashing the retirement notice on the ground that he is bound to be absorbed in the Cane Department where the retiring age has already been increased to 60 years. A Single Judge of this Court considering the entire facts, passed the following order on 16th December 2008: “It is apparent that juniors to the petitioner have already been absorbed in the Cane Department and though there are several recommendations in his favour, no action has been taken by the Cane Commissioner and the petitioner would stand retired in May, 2009. Learned Chief Standing Counsel may obtain instructions as to why the petitioner has been discriminated and no action has been taken. Let a copy of this order be given to the learned Chief Standing Counsel within 24 hours. Put up day after tomorrow i.e. 18.12.2008.” 5. However, the State Government kept silent and thus, a peremptory order was passed on 18th December 2008, the relevant portion is quoted below : “Learned Standing Counsel states that the matter is engaging the attention of the Secretary of the Department. In case no counter is filed by the next date or the petitioner is not absorbed, the Cane Commissioner shall appear in person. Let a copy of this order be given to the learned Chief Standing Counsel within three days. List this case on 6.2.2009.” 6. Confronted with the aforesaid order, the Cane Commissioner on 21st of January 2009 wrote a desperately detailed letter to the Principal Secretary, Sugar Industries for absorption of the remaining 6 employees, including the petitioner and informed them that the Court has taken a serious note of the situation and has summoned him, yet no action was taken. On 3rd of January 2009 a counter-affidavit was filed stating that since the petitioner has yet not been absorbed in any Government Department, his retirement at the age of 58 years was justified as 58 years was retirement age for the employees of the Project. On 3rd of January 2009 a counter-affidavit was filed stating that since the petitioner has yet not been absorbed in any Government Department, his retirement at the age of 58 years was justified as 58 years was retirement age for the employees of the Project. However, the counter-affidavit conveniently remained silent as to what steps were taken by the State Government to ensure similar treatment to the petitioner qua 108 employees, including 72 employees who were absorbed after approval from the U.P. Public Service Commission. 7. During the pendency of the petition, the petitioner stood retired and subsequently acting upon the letter of the State Government dated 7th June 2009, the Public Service Commission vide its letter dated 9th September 2009 granted permission for absorption of all the remaining 6 employees, including the petitioner. However, the remaining employees have been absorbed, but since the petitioner stood retired, he has not been extended the benefit. Thus, he has amended the writ petition by adding certain factual averments, grounds and prayers. He has now prayed that he may be treated to be an absorbed employee from the date of his retirement or from 13th November 2009 on which date the remaining entire employees were absorbed in the Cane Department. It would be worthy of note that the Project employees are not entitled to any retirement benefits. 8. It is urged on behalf of the petitioner that he should not suffer due to inaction on the part of the Government as he is entitled to be absorbed in the department alongwith the other employees of his group since 13.11.2009 or from the date of his retirement. 9. It is admitted by the respondents in para 6 of the supplementary counter-affidavit that with respect to the six employees, including the petitioner, the Cane Commissioner had sought orders for their absorption in the Cane department vide letters dated 26.3.2007, 19.6.2007, 7.12.2007, 3.1.2008, 21.1.2009 and 25.2.2009, but yet no action was taken. The oral explanation given by the learned Standing Counsel that since the post on which these employees were to be absorbed was within the purview of the U.P. Public Service Commission, therefore, the delay in obtaining its approval was natural. Firstly, that is not the explanation given by the Government in either of the counter-affidavits filed. The oral explanation given by the learned Standing Counsel that since the post on which these employees were to be absorbed was within the purview of the U.P. Public Service Commission, therefore, the delay in obtaining its approval was natural. Firstly, that is not the explanation given by the Government in either of the counter-affidavits filed. Secondly, it is evident from paragraph 2 of the second supplementary affidavit read with its Annexures SA I and SA II, that the State Government for the first time sent letter dated 7.6.2009 to the U.P. Public Service Commission seeking approval for absorption of these six employees in pursuance of which the U.P. Public Service Commission vide its order dated 9.9.2009 granted approval. There is nothing on record to show that any effort was made by the State Government prior to this to obtain approval of the Commission. So much so that even the orders of this Court dated 16.12.2008 and 18.12.2008 failed to awaken the slumbering Government. The desperate letters of the Cane department met the same fate. Further, it is not denied that upon the request of the State Government, the U.P. Public Service Commission had granted similar approval for absorption of 72 Cane Development Inspectors in the Cane department vide approval dated 23.3.2006 as their posts were also within the purview of the U.P. Public Service Commission, but yet no reason has been given as to why the approval could not be sought for these employees in 2006 itself. It is not the case of the respondent that these six employees, including the petitioner, were not fit or eligible for absorption or their conduct was wanting in anyway. In fact, in the letters sent by the Cane Commissioner, it is mentioned that the petitioner is a honest, hardworking and excellent employee. 10. Examining it from any angle, the only conclusion that can be drawn is that there was hopelessly acute inaction on the part of the Government in handling the claim of these employees and neither the petitioner nor the Cane Commissioner can be blamed at any level for this fatal delay. Any unfair action or inaction would attract the doctrine of arbitrariness and is ante thesis to law. Though equity can only supplement the law, but it does arouse the Court when action or inaction is based on unguided power. Any unfair action or inaction would attract the doctrine of arbitrariness and is ante thesis to law. Though equity can only supplement the law, but it does arouse the Court when action or inaction is based on unguided power. In the present case, the arbitrariness is writ large and the case of the petitioner and his likewise was discriminated while seeking permission of the U.P. Public Service Commission in respect to the 72 Cane Development Inspectors. All the others have been absorbed except the petitioner, without any fault except that he was to retire. Accordingly, equity and fair play in action demands that the petitioner be compensated for the inaction on the part of the respondents. 11. For the reasons above, this petition succeeds and is allowed and the impugned retirement notice dated 10th September 2008 is hereby quashed and the petitioner would be deemed to be notionally absorbed in pursuance of the approval of the U.P. Public Service Commission from the date of his retirement at the age of 58 years and would be deemed to have continued till the age of 60 years. He would be entitled to consequential benefits of retirement as applicable to similarly placed employees. 12. In the circumstances of the case, no order as to costs. ——————