Alok Kumar Kesarwani vs State Of U.P.Thru.Secy. ...
2021 Latest Caselaw 4588 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 17
 

 
Case :- SERVICE SINGLE No. - 8868 of 2021
 

 
Petitioner :- Alok Kumar Kesarwani
 
Respondent :- State Of U.P.Thru.Secy. Agriculture Deptt. & Ors.
 
Counsel for Petitioner :- Narendra Kumar Pandey
 
Counsel for Respondent :- C.S.C.,Syed Shabab Haider Zaidi
 

 
Hon'ble Irshad Ali,J.

Heard learned counsel for the petitioner, learned Standing Counsel for respondent no.4 and Sri S.S.H. Zaidi, learned counsel for respondent nos.2 and 3.

Grievance of the petitioner is that he is contractual employee of the Mandi Parishad and working since 19.6.1996. His services were terminated in pursuance to a policy decision taken by the Mandi Parishad. Feeling aggrieved, a Writ Petition No.831 (SB) of 1999 was filed before this Cout which was allowed vide judgment and order dated 11.8.2000. In pursuance thereof, employees were reinstated in service. Against the judgment and order passed by this Court, Civil Appeal No.4101 of 2001 was filed by the Mandi Parishad as well as by the State Government which was allowed vide judgment and order dated 16.12.2005 setting aside the order passed by this Court.

It is the case of the petitioner that he filed I.A. No.15 of 2006 in the decided appeal before Hon'ble Supreme Court which was disposed of in the following terms:

"Impleadment allowed.

It is accepted that the applicants herein were not parties before the High Court. Their contention is that they were also not governed by the Government Order issued by the State of Uttar Pradesh on 12.2.1999. According to them, the Board of Directors in its 76th Meeting issued certain directions which are beneficial to the said categories of employees having regard to the fact that the Board could spend 2% of the contingency fund for such project and according to them they fall under the said category of 2%. Although the contentions of the applicants are denied and disputed, keeping in view the fact that the applicants were neither parties before the High Court nor they were parties in the Special Leave Petitions which were the subject-matter of our decision in the case of State of U.P. v. Neeraj Awasthi & Ors. reported in 2006 (1) SCC 667, we are of the opinion that these clarification applications are not maintainable for the reasons stated hereinbefore. The applicants contend and rightly so that they must have a remedy. Such remedy is therefore available to them. We would, therefore, permit the applicants to withdraw these applications with liberty to them to take recourse to such remedies which are otherwise available.

It, however appears that some applicants were parties before the High court. The writ petitions of these applicants, however, would be considered afresh in the light of the observations made in I.A. Nos.326-328 in C.A. Nos.7555-7556 & 7607/2001 subject to the condition that they are not covered by G.O. dated 12.2.1999.

According to the learned counsel, their services have not been terminated in terms of the G.O. dated 12.2.1999 but the same has been done by reason of an order dated 27.1.2006, inter alia, purported to be pursuant to or in furtherance of our judgment. According to the applicants, the said judgment has no application to their case.

For the reasons stated in the order passed in I.A. Nos.322-324 in C.A. No.7647-7748/2001, the present applicants shall be governed by the operative part thereof.

I.As. are disposed of accordingly."

While deciding the application, it was directed that the order passed shall be governed under the direction passed in I.A. Nos.326-328 in C.A. Nos.7555-7556 & 7607/2001; I.A. Nos.338-340 in I.A. Nos.336-338 in C.A. Nos.7555-7556 & 7607/2001; and in respect of applicants viz. Kiranpal Singh and Prem Shankar Mishra in I.A. Nos.349-351 in C.A. No.7626-7627 & 7601/2001 which reads as under:

"The applicants herein allegedly were appointed prior to 1.4.1996. They are said to be not covered by the circular letter dated 12.2.1999 issued by the Board which deals with the employees appointed during the period 1.4.1996 to 31.10.1997. Indisputedly, the High Court principally considered the legality and/ or validity of the said Government Order dated 12.2.1999. The applicants, however, approached the High Court aggrieved by and dissatisfied with the order dated 31.5.1999 which is in the following terms:

" This is to inform you that you were appointed at the Gate Pass Collection Centers of Krishi Utpadan Madni Samiti, Ghaziabad. However, the said Center has since been closed. Therefore, your services are no longer required and therefore your services are being terminated with immediate effect. However, if any regular vacancies arise in future, you will be allowed to participate as per rules. You are herewith being paid following compensation and one month salary in lieu of one month's notice-

Cheque No.575986 dated 31.5.1999 for Rs.13,662

1. One month salary in lieu of notice Rs.3,223.00

2. Compensation for 15 days in a year

from 1.1.996 to 31.12.1998 Rs.4,836.00

3. Arrears of earned/ working period

salary Rs.5.603.00

Total: Rs.13,662.00.

The said order was purported to have been issued pursuant to and/ or in furtherence of an order dated 20.4.1999 (There appears to be some confusion in regard to actual date thereof as it appears from another document that the said letter was dated 4.11.1998) whereby and whereunder certain conditions were laid down for effecting retrenchment of the category of employees mentioned therein. Even in the writ petition the applicants, inter alia, prayed for issuance of a writ, order or direction in the nature of certiorari quashing the impugned orders/ notices of termination dated 31.5.1999 as contained in Annexure No.1 to the writ petition.

Before us, it is not disputed that the High Court did not go into the question as regards validity or otherwise of the said order dated 31.5.1999 presumably on the premise that it had set aside the Government Order dated 12.2.1999 and directed regularisation of services of all the employees.

It has not been disputed before us that the applicants stricto sensu did not come within the purview of the said G.O. dated 12.2.1999. It is also not disputed that this Court in Neeraj Awasthi (supra) did not consider their cases specifically stating that.

"We are not oblivious of the fact that there may be some employees whose services have been terminated without any rhyme or reason. Mr. Verma appearing on behalf of the Board has assured us that the Board shall look into the cases of such employees whose termination has been effected beyond the policy decision taken by the State although we do not intend to express any opinion as regards such employees."

It is furthermore not in dispute that the services of these employees have been terminated by an order dated 26.12.2005 i.e. after the passing of the judgment of this Court.

In view of the admitted fact that the applicants did not come within the purview of the aforementioned G.O. dated 12.2.1999 and furthermore the period of their recruitment does not fall within the period 1.4.1996 to 31.10.1997; we are of the opinion that interest of justice would be subserved if the High Court is requested to consider their cases afresh. The applicants herein would be entitled to file applications for amendment of their writ petition (s) impugning the order of termination dated 26.12.2005. The respondents undoubtedly would furthermore be entitled to file additional counter affidavit if and when such applications for amendment are filed and allowed. We would make it clear that we have not entered into merit of the matter and all the contentions of the parties shall remain open before the High Court. We would request the High Court, having regard to long pendency of the matters before the High Court as also before us, to consider the desirability of disposing of the matter as expeditiously as possible and preferably within a period of three months from the date of communication of this order."

In compliance of the aforesaid orders, it is case of the petitioner that he filed amendment application in the pending writ petition referred hereinabove which is lying pending consideration and has not been decided till date.

Learned counsel for the petitioner submits that during pendency of the writ petition, the petitioner filed representation before respondent no.2 for consideration of his claim and to pass appropriate order in the light of the direction issued by the Hon'ble Supreme Court which is pending consideration and no order whatsoever has been passed till date. He next submits that in case a direction is issued to decide the representation filed by the petitioner, justice would be met.

Per contra, learned counsel for the respondents submit that once in compliance of the order passed, he has moved an amendment application in the pending writ petition, there is no justification to adopt parallel Forum by making representation before the respondents, therefore, the relief as prayed for by the petitioner cannot be granted in the present writ petition.

I have considered the submissions advanced by learned counsel for the parties and perused the material on record.

On perusal of the order passed by the Hon'ble Supreme Court, it is evident that the direction was issued to file amendment application in the pending writ petition before this Court and in compliance thereto, the petitioner has filed an amendment application which has been allowed and the writ petition is still pending, therefore, the Forum which has been adopted by the petitioner by filing representation before the respondents is not available to him.

In view of the above, no direction can be issued in exercise of power under Article 226 of the Constitution of India to initiate parallel proceeding before the State Government. If the petitioner has any grievance, he may move an application to expedite the hearing in the pending writ petition to get an order as prayed in the present writ petition.

With the aforesaid observations, the writ petition is dismissed.

Order Date :- 25.3.2021

GK Sinha