Dismissed

Anil Kumar Sinha v. State Of Chhattisgarh

Chhattisgarh HC6 Nov 2015WPS/2702/2015

Case brief

AI extract

What is this about?

This common order dismissed multiple writ petitions wherein ex-MPSRTC employees of CIDC sought absorption in Government Departments. The High Court held that a Government circular dated 29-6-2010 restricted absorption only to corporations/authorities and denied any right to absorption in Government Departments.

What did the court decide?

Petitioners directed not to be absorbed in Government Departments and denied negative parity; writs dismissed.

Anil Kumar Sinha Vs State Of Chhattisgarh — Pension and Retirement Benefits | Chhattisgarh HC (2015)

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W.P.(S)No.2697/2015 and other connected matters

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Page 1 of 10

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Writ Petition (S) No.2697 of 2015

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Karam Singh Sengar, S/o Late Shri Hanuman Singh Sengar, aged about 60 years, working as Assistant Grade3, Office of Collector (Food Branch), Jashpur, District Jashpur, Chhattisgarh

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---- Petitioner

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Versus

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State of Chhattisgarh, Through Secretary, Transport Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, District Raipur, Chhattisgarh

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Secretary, Revenue Department, Mahandi Bhawan, Mantralaya, Naya Raipur, District Raipur, Chhattisgarh.

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Collector, Jashpur, District Jashpur, Chhattisgarh.

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---- Respondents

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Writ Petition (S) No.2702 of 2015

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Anil Kumar Sinha, S/o Shri Raj Kishor Sinha, aged about 59 years, working as Assistant Grade-3, Tahsil Office Kunkuri, P.S. Kunkuri, District Jashpur, Chhattisgarh.

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---- Petitioner

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Versus

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State of Chhattisgarh, Through Secretary, Transport Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, District Raipur, Chhattisgarh

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Secretary, Revenue Department, Mahandi Bhawan, Mantralaya, Naya Raipur, District Raipur, Chhattisgarh.

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Collector, Jashpur, District Jashpur, Chhattisgarh.

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---- Respondents

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Writ Petition (S) No.2699 of 2015

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Dilip Kumar Tiwari, S/o Udhav Prasad Tiwari, aged about 57 years, working as Assistant Grade-3, Tahsil Office, Manora, P.S. Manora, District Jashpur, Chhattisgarh.

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---- Petitioner

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W.P.(S)No.2697/2015 and other connected matters

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Page 2 of 10

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Versus

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State of Chhattisgarh, Through Secretary, Transport Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, District Raipur, Chhattisgarh

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Secretary, Revenue Department, Mahandi Bhawan, Mantralaya, Naya Raipur, District Raipur, Chhattisgarh.

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Collector, Jashpur, District Jashpur, Chhattisgarh.

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---- Respondents

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Writ Petition (S) No.3021 Of 2015

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Babulal Marmat, S/o Nanak Ram, aged about 52 years, working as Assistant Grade-3, Tahsil Baghbahar, P.S. Baghbahar, Tahsil Pathalgaon, District Jashpur, Chhattisgarh.

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---- Petitioner

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Versus

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State of Chhattisgarh, Through Secretary, Transport Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, District Raipur, Chhattisgarh

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Secretary, Revenue Department, Mahandi Bhawan, Mantralaya, Naya Raipur, District Raipur, Chhattisgarh.

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Collector, Jashpur, District Jashpur, Chhattisgarh.

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Tahsildar, Pathhalgaon, Tahsil Pathhalgaon, District Jashpur, Chhattisgarh.

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---- Respondents

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Writ Petition (S) No.3022 of 2015

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Krishna Kumar Singh, aged about 58 years, S/o Ramadhar Singh, working as Assistant Grade-3, I.T.I. Patthalgaon, P.S. Patthalgaon, District Jashpur, Chhattisgarh

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---- Petitioner

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Versus

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State of Chhattisgarh, Through Secretary, Transport Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, District Raipur, Chhattisgarh

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Secretary, Revenue Department, Mahandi Bhawan, Mantralaya, Naya Raipur, District Raipur, Chhattisgarh.

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W.P.(S)No.2697/2015 and other connected matters

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Page 3 of 10

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Collector, Jashpur, District Jashpur, Chhattisgarh.

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Industrial Training Institute, Pathhalgaon, District Jashpur, Chhattisgarh.

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---- Respondents

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Writ Petition (S) No.3028 of 2015

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Ramaniwas Tiwari, S/o Sudarshan Prasad Tiwari, aged about 52 years, working as Assistant Grade-3, Tahsil Office Patthalgaon, P.S. Patthalgaon, District Jashpur, Chhattisgarh.

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Vijaykant Dwivedi, S/o Late Ramlakhan Dwivedi, aged about 49 years, working as Assistant Grade-3, Tahsil Office Patthalgaon, P.S. Patthalgaon, District Jashpur, Chhattisgarh.

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---- Petitioners

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Versus

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State of Chhattisgarh, Through Secretary, Transport Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, District Raipur, Chhattisgarh

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Secretary, Revenue Department, Mahandi Bhawan, Mantralaya, Naya Raipur, District Raipur, Chhattisgarh.

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Collector, Jashpur, District Jashpur, Chhattisgarh.

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Tahsildar, Pathhalgaon, Tahsil Pathhalgaon, District Jashpur, Chhattisgarh.

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---- Respondents

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For Petitioners: Mr. C. Jayant K. Rao, Advocate. For Respondents/State: Mr. Anupam Dubey, Deputy G.A.

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Hon'ble Shri Justice Sanjay K. Agrawal

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CAV Order

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06 /11/2015

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Common question of law and fact is involved in these writ petitions, therefore, they are heard analogously and are being decided by this common order.

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W.P.(S)No.2697/2015 and other connected matters

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Page 4 of 10

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The petitioners were employees of erstwhile Madhya Pradesh State Road Transport Corporation (for short 'the MPSRTC'). Upon reorganization of the State of Madhya Pradesh with effect from 1-11-2000, the MPSRTC was continued in the State of Chhattisgarh and the employees / petitioners working under the MPSRTC within the territorial jurisdiction of the State of Chhattisgarh were allocated to the State of Chhattisgarh. The State of Chhattisgarh constituted Chhattisgarh Infrastructure Development Corporation (for short 'the CIDC') and the share of the State of Chhattisgarh on partition of MPSRTC was handed over to the newly constituted CIDC. Accordingly, the petitioners became the employees of CIDC, they are continuing as employees of CIDC and getting salary and allowances from the said Corporation.

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Now this batch of writ petitions has been filed by the present petitioners stating inter alia that they are working in various Departments of the State Government, like in lead W.P.(S)No.2697/2015, the petitioner is working in the District Office, Jashpur, and claimed absorption on the State Government. By the impugned order Annexure P-1, the Collector, Jashpur has rejected their application absorption relying upon memo dated 5-6-2015 in which the Government has clearly informed to the Collector, Jashpur

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W.P.(S)No.2697/2015 and other connected matters

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Page 5 of 10

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that as per circular dated 29-6-2010, services of employees of the CIDC can only be absorbed in Corporations, Authorities and other Mandal Boards, but their services cannot be dissolved in the Government Departments. The petitioners have also pleaded that some of the employees in District Narayanpur have been absorbed in the Collectorate / District Officer, Narayanpur which is the Department of the Government and, therefore, the petitioners are also entitled to be absorbed on the principle of parity.

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Return has been filed by the respondent State stating inter alia that the petitioners upon dissolution of the MPSRTC became employees of the CIDC and they have been sent on deputation to some Departments and autonomous bodies vide policy decision dated 29-6-2010 and they can only be absorbed only in autonomous bodies, not in Government Departments as per the memo dated 29-62010 and, therefore, the petitioners are not entitled for negative parity, as such, the writ petitions deserve to be dismissed.

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Mr. C. Jayant K. Rao, learned counsel for the petitioners, would submit that the petitioners are working in Government Departments being employees of CIDC as right has been accrued in their favour to be absorbed in

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W.P.(S)No.2697/2015 and other connected matters

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Page 6 of 10

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Government Department. In Narayanpur District, similarly situated employees have been absorbed in Government Department i.e. Collectorate, Narayanapur, the petitioners are also entitled to be absorbed in the Government Department and the impugned orders deserve to be set aside. Therefore, the respondents be directed to consider the case of the petitioners for absorption in the Government Department with other employees.

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On the other hand, Mr. Anupam Dubey, learned Deputy Govt. Advocate appearing on behalf of the State/ respondents, would submit that the petitioners have no right to be absorbed in particular Government Department, absorption is always made and considered on the basis of rules and regulations in force for absorption. The Government has taken a policy decision on 29-6-2010 for absorption that CIDC employees can only be absorbed only in Corporations, Boards, Authorities, etc., and they cannot be absorbed in Government Departments and, therefore, the petitioners are not entitled to be absorbed in Government Departments dehors the policy framed by the State Government relating to absorption.

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I have heard learned counsel for the parties, perused the orders impugned and copies of other documents with utmost circumspection.

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W.P.(S)No.2697/2015 and other connected matters

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Page 7 of 10

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The only short question that arises for consideration is whether the petitioners are entitled to be absorbed in Government Departments dehors the applicable policy decision/ circular and whether they are entitled for negative parity.

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It is not in dispute that the petitioners were originally the employees of MPSRTC which stood dissolved and it has not been constituted in the State of Chhattisgarh and their services have been placed under the disposal of CIDC, and pursuant to the order of the Government, they have been posted on deputation in different Councils, Corporations, Boards and Authorities to facilitate them perform their job, as they were employees working with MPSRTC within the territorial area of the State of Chhattisgarh, which was not constituted in newly constituted State of Chhattisgarh.

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The State Government on 29-6-2010 issued a circular clearly indicating that absorption of employees of the erstwhile Corporation which are presently working with the CIDC has to be made in Corporations, Mandals, Boards and Authorities, but not in Government Departments. Relevant portion of the said circular reads as follows: -

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^^lkekU; iz'kklu foHkkx ds Kkiu dzekad 571@346@ 2010@1&3] fnukad 31-05-2010 }kjk funsZf'kr fd;k

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W.P.(S)No.2697/2015 and other connected matters

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Page 8 of 10

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x;k gS fd bl foHkkx ds lela[;d Kkiu fnukad 2004-2010 dh dafMdk 4 ds laca/k eas ;g Li"V fd;k tkuk vko';d gS fd fo?kfVr ifjogu fuxe ds dfeZ;ksa dk lafofy;u foHkkx ds v/khuLFk fuxe@ ea.My@ izkf/kdj.kkas eas gh djuk gSA 'kkldh; foHkkxksa esa mudk lafofy;u ugha fd;k tkuk gS ysfdu 'kkldh; foHkkxksa esa bu dfeZ;ks dks izfrfu;qfDr ij ysus dk izFkk tkjh jgsxkA^^

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Thus, by virtue of the aforesaid circular of the State Government, services of the petitioners can be absorbed only with the Corporations, Authorities, etc., but they cannot be absorbed in Government Departments.

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The Supreme Court in the matter of Union of India and others v. Kishan Gopal Vyas 1 has held that absorption of a person to a higher post cannot be granted by disregarding the appointment rules as it would amount to denial of equal opportunity to other eligible candidates.

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Likewise, in an another decision in the matter of State of Uttar Pradesh and another v. Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti and others 2, the Supreme Court has held that absorption can be considered subject to terms and conditions of the applicable rules only. The employee must show a subsisting and enforceable right to be absorbed and pertinently observed in paragraph

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44 as under: -

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1 (1996) 7 SCC 134

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2 (2008) 12 SCC 675

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W.P.(S)No.2697/2015 and other connected matters

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Page 9 of 10

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“It is settled law that there can be no estoppel against a statute. If the field was occupied by statutory rules, the employees could get right only under those rules. The High Court was equally bound to consider those rules and to come to the conclusion whether under the statutory rules, the retrenched employees were entitled to absorption either in government department or in any other public sector undertaking. Statement, assurance or even undertaking of any officer or a counsel of the respondent Corporation or of the Government Pleader of the State is irrelevant. The High Court, in our view, ought to have considered the prayer of the Corporation and decided the question if it wanted to dispose of the matter on merits in spite of availability of alternative remedy to the employees.”

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Thereafter, in the later part of judgment, Their Lordships further held that court of law cannot issue mandamus to act in violation of statutory provisions by observing as under in paragraph 46 of the report: -

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“It is well settled that a court of law can direct the Government or an instrumentality of State by mandamus to act in consonance with law and not in violation of statutory provisions. Unless a court records a finding that act of absorption of all employees of the Corporation either in government department or in any other public sector undertaking is in accordance with law, no writ can be issued. Therefore, even on that ground, the directions of the High Court deserve to be set aside.”

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In the case in hand, there is a clear cut policy decision of

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the Government that services of the petitioners being exemployees of the erstwhile MPSRTC can be absorbed only in certain Corporations / Authorities and they cannot be absorbed in Government Departments contrary to the

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W.P.(S)No.2697/2015 and other connected matters

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Page 10 of 10

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policy. Therefore, the petitioners cannot be claimed to be absorbed in Government Departments.

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15.Now, coming to issue of the parity claimed on the basis of the order passed by the Collector, Narayanpur in respect of some employees, it is well settled law that Article 14 of the Constitution of India carries with it a positive concept, it would have no application in the matter of enforcement of an order which has its source in illegality. In other words, equality cannot be applied in illegality. ( See Post Master General v. Tutu Das (Dutta) 3 and Punjab SEB v. Gurmail Singh 4.)

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16.The conclusion that emerges from the abovestated discussion is that the petitioners have no enforceable right to be absorbed in Government Departments contrary to the policy dated 29-6-2010 of the State Government and they are not entitled for negative parity.

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17.In consequence of the aforesaid discussion, all the writ petitions deserve to be dismissed and are accordingly dismissed. No order as to costs.

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Sd/(Sanjay K. Agrawal) Judge

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Soma

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3 (2007) 5 SCC 317 : (2007) 2 SCC (L&S) 179

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4 (2008) 7 SCC 245 : (2008) 2 SCC (L&S) 539

Anil Kumar Sinha v. State Of Chhattisgarh

Case brief

What is this about?

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Anil Kumar Sinha v. State Of Chhattisgarh

Case brief

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