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Article 226 in The Constitution Of India 1949
C.C.E vs I.T.C. Limited on 17 February, 1994

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Uttaranchal High Court
Mussoorie Dehradun Development vs Public Service Tribunal, ... on 9 May, 2011

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition No. 56 of 2007 (S/B)

[

Mussoorie Dehradun Development

Authority, through its Secretary,

12 -A, Pritam Road, Dehradun.

................ Petitioner

Versus

1. Public Service Tribunal, Uttaranchal Dehradun.

2. Sri Yashpal Sharma

S/o Sri R.S. Sharma,

R/o 149 / 1, Bhandari Bagh,

Dehradun.

3. State of Uttaranchal (now State of Uttarakhand) through its Secretary,

Awas and Shahri Vikas Vibhag, Dehradun.

4. State of Uttar Pradesh

through its Secretary

Awas Avam Shahri Vikas Vibhag, Lucknow.

................ Respondents

Ms. Puja Banga, Advocate, present for the writ petitioner. Mr. Subhash Upadhyay, Brief Holder, present for respondents No. 1 & 3. Mr. I.P. Kohli, Advocate, present for respondent No. 2. Ms. Preeta Bhatt, Advocate, holding brief of Mrs. Bina Pande, Standing Counsel of State of U.P., present for respondent No. 4.

Coram : Hon'ble Prafulla C. Pant, J. Hon'ble V. K. Bist, J.

Prafulla C. Pant, J. (oral)

By means of this writ petition, moved under Article 226 of the Constitution of India, the writ 2

petitioner has challenged the order dated 27.01.2003, passed by respondent No. 1 (Public Service Tribunal, Uttarakhand, Dehradun), whereby said authority has quashed the order dated 23.01.2002, and notice dated 25.01.2002, issued in pursuance thereof by the present writ petitioner Mussoorie Dehradun Development Authority (for short MDDA).

2) Heard learned counsel for the parties and perused the papers on record.

3) Brief facts of the case are that respondent No. 2 Yashpal Sharma joined his service as Junior Engineer on 19.05.1964, in the Regulated Area under the U.P. Regulation of Building Operations Act, 1958, and thereafter transferred to Regulated Area, Dehradun. Later, with effect from 29th of October 1984, the Regulated Area of Dehradun merged into MDDA (present writ petitioner), and the respondent No. 2 Yashpal Sharma (petitioner before the Tribunal) started working under new employer i.e. MDDA. Initially, his services stood transferred on deputation with the new employer. The case of respondent No. 2 before the Tribunal where he filed Claim Petition No. 103 of 2002, is that he consented vide application dated 10.06.1986, for his absorption in MDDA. In July 1987, the Government of Uttar Pradesh allowed his absorption under the new employer. It was further pleaded by Yashpal Sharma (present respondent No. 2) 3

that after his services were absorbed he cannot be treated to have been retired w.e.f. 30th of April 2001, from the State of Uttar Pradesh. On the other hand, the MDDA took the plea before the Public Service Tribunal (respondent No. 1) that the lien of the employee (Yashpal Sharma) continued with State of Uttar Pradesh and his absorption with the MDDA was provisional. The Tribunal took the view that the record showed that MDDA itself had treated the claimant (Yashpal Sharma) as person absorbed with said Authority, and as such, merely on the basis of word 'ANANTIM' (provisional) in the absorption order dated 30th of January 1995, it cannot be said that the claimant (Yashpal Sharma) is divested of his rights accrued in MDDA. Accordingly, the Tribunal quashed the order issued by MDDA (present writ petitioner) that the employee (Yashpal Sharma) has been retired from the State of Uttar Pradesh. Hence, this petition by the MDDA.

4) Admittedly, the respondent No. 2 was an employee of Regulated Area under the State of Uttar Pradesh. It is also not disputed that Regulated Area, Dehradun, where present respondent No. 2 was posted merged with MDDA, and the employee (Yashpal Sharma) started serving the new employer on deemed deputation. It is also clear from the papers on record that the employee (Yashpal Sharma) stood absorbed with MDDA which was allowed by the Government of 4

Uttar Pradesh in July 1987, whereby the lien of the employee stood automatically terminated from the post held under previous employer (State of U.P.). That being so, the absorption order in which word 'ANANTIM' (provisional) is mentioned does not help the present writ petitioner. An absorption normally cannot be provisional for the reason that the deputationist, if required to be continued in service temporarily, his term on deputation would be extended and he would never be absorbed. Not only this, in the present case, as is apparent from the record (Annexure -8 filed before the Tribunal) makes things further clear. Relying on said document in paragraph 18 of the impugned order, the Tribunal has observed as under:

"To count it all, we have an order passed by the MDDA itself in April, 1995, contained in Annexure -8. A perusal thereof would show that at one stage its Secretary had passed an order for relieving the petitioner from its charge, but the Vice Chairman of the MDDA issued specific directions cancelling that effort and also conceding that the petitioner had already been absorbed in the MDDA. The Tribunal, therefore, is of the considered opinion that now it is too late in the day for the MDDA to withdraw from its earlier position or to allege that the petitioner was not their employee." 5

5) In view of the above fact, we do not find any illegality committed by the Tribunal as it was conceded by the MDDA itself in its correspondence that respondent No. 2 (Yashpal Sharma) had already been absorbed with said Authority.

6) Therefore, this writ petition has no force. The same is dismissed. No order as to costs.

(V.K. Bist, J.) (Prafulla C. Pant, J.)

Dt. May 09, 2011.

H. Negi