Dan Singh Bisht & others vs State of U.P. through Secretary

Mr. Alok Mehra, Advocate, present for the petitioners. Ms. Vandhna Singh, Advocate (in WPSS No. 1022 of 2008), present for the petitioner Mr. N.P. Sah, Standing Counsel, present for the State of Uttarakhand Ms. Beena Pande, Advocate, present for the State of Uttar Pradesh. Hon(cid:146)ble Sudhanshu Dhulia, J. (Oral) These are the extremely old matters pertaining to the year 2001. The counter affidavit on behalf of the State of Uttar Pradesh is on record. In spite of repeated opportunities provided to the State of Uttarakhand, no 2 counter affidavit has been filed by the State of Uttarakhand, as yet. Although learned Standing Counsel for the State of Uttarakhand - Mr. N.P. Sah has submitted before the Court that he has received instructions in the matter only on 10.07.2012.

2. Heard Mr. Alok Mehra and Ms. Vandhna Singh, advocates for the petitioners, Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand and Ms. Beena Pande, Standing Counsel for the State of Uttar Pradesh.

3. All these writ petitions have been filed by the employees of (cid:145)Uttar Pradesh State Employees Welfare Corporation(cid:146) (hereinafter referred to as (cid:145)Corporation(cid:146)), which has a registered office at 742 Jawahar Bhawan, Lucknow, Uttar Pradesh. Prior to 09.09.2000, before creation of the State of Uttarakhand, there were various branches and depots of this Corporation operating in the territory of Uttarakhand. Admittedly, these employees are not the employees of State Government. It is not an organization or a Department of the State Government, the counsel for the petitioners though submits that since it is in deep and pervasive control of the State and it is amenable to writ jurisdiction under Article 226 of the Constitution of India. He has further relied upon a decision of Hon(cid:146)ble Apex Court in Virendra Kumar Srivastava Vs U.P. Rajya Karamchari Kalyan Nigam reported in (2005) 1 Supreme Court Cases 149 in support of his case.

4. Be that as it may and going with presumption said Corporation instrumentality of the State, this Court has now to examine the merit of the case. The entire case of the petitioners before this Court is that they are the employees of the 3 Corporation and prior to creation of the State of Uttarakhand they were working as members of the Corporation in the territory of Uttarakhand. However, the State had no immediate plan to create such a Corporation in the State of Uttarakhand or to grant trade tax exemption to the said Corporation, as it was getting earlier, prior creation of the State of Uttarakhand. There have been several correspondence made between State of Uttar Pradesh and State of Uttarakhand. The learned counsel for the State of Uttarakhand on the basis of the documents (instructions) received by the him, which is now a part of the record states that vide letter dated 03.11.2001 the State of Uttarakhand had already expressed its final opinion in the matter that they have no plans to establish State Employees Welfare Cooperation in the State of Uttarakhand.

5. This Court has also been apprised at the bar that many of the employees did join their services at its headquarter at Lucknow and was subsequently absorbed in State of Uttar Pradesh. The petitioners, before this Court though did not join their services in the State of Uttar Pradesh and chose to stay in the territory of Uttarakhand, though their parent organization i.e. the Headquarter of the Corporation is situated at Uttar Pradesh. Uttar Pradesh State Employees Welfare Corporation had clearly expressed its decision that it shall not be operating any further territory of Uttarakhand. At the same time, the State of Uttarakhand had also no plan to create any such Corporation in the State of Uttarakhand where such employees could be absorbed. Therefore, the only option for the petitioners was to join their services in Uttar Pradesh. There is a reference of a letter dated 03.11.2001 in the instructions received by 4 the learned Standing Counsel for the State of Uttarakhand which has been placed before this Court as well as reference of the same in the counter affidavit filed by the State of Uttarakhand in WPSS No. 4710 of 2001, Ashok Kumar & others Vs State of U.P. & others, para 9 of the counter affidavit reads as under:- (cid:147)That the contents of para 15,16, 17 and 18 the writ petition relates the State Government of U.P. hence need no comments by the answering respondents. However, it is submitted that in view of government order No. 2156/29/10/01-writ-3/2001 dated 3-11-2001, a decision has been taken by the State of U.P. that all the employees of U.P. Karamchari Kalyan Nigam, working in Uttaranchal till November 2000 will be paid salary by government of U.P. and in view of this, the salary of petitioner till November, 2000 will be paid by the Government of U.P.(cid:148)

6. In Writ Petition (S/S) No. 1022 of 2008 letter dated 03.11.2001 annexed along with supplementary affidavit filed by the State of Uttarakhand on 12.09.2005. The said letter dated 03.11.2001 was written by Secretary, Uttar Pradesh Secretariat to Executive Director, Uttar Pradesh State Employees Welfare Corporation wherein the State Government had admitted the Uttar Pradesh State Employees Welfare Corporation cannot operate outside the territory of Uttar Pradesh and its operation outside the territory of Uttar Pradesh, which is presently in the State of Uttarakhand, is wholly illegal. Moreover, it also states that these employees of the Corporation, who are working in the territory of Uttarakhand, are liable to be given salaries from Uttar 5 Pradesh and that Sections 66 and 67 of Uttar Pradesh Reorganisation Act are not applicable on them. Subsequently, a decision has been taken that all these employees, who are working in the State of Uttarakhand, should be recalled and should be given their salaries from the State of Uttar Pradesh in accordance with law. It is also stated that the stock of the Corporation should be recalled from the territory of Uttarakhand and the employees be absorbed in the territory of State of Uttar Pradesh. It has also been brought to the notice of the Court and as already referred above, many of the employees of the Corporation have joined their services in the territory of Uttar Pradesh. Therefore, the petitioners have no claim to the salary from the State of Uttarakhand.

7. The petitioners though have no claim against the State of Uttarakhand, therefore, the prayer made by them cannot be granted them against the State of Uttarakhand. Since they have chosen on their own will to remain the State of Uttarakhand whereas Corporation had no operation in the State of Uttarakhand, this Court also cannot direct the State of Uttarakhand to pay the salaries to the petitioners. However, the Uttar Pradesh State Employees Welfare Corporation shall pay the salaries to the petitioners till November 2000. A mandamus is issued to respondent No. 2/Executire Director, Uttar Pradesh State Employees Welfare Corporation to give the salaries of the petitioners for the period upto November 2000, if they had already not been paid.

8. The petitioners have not been able substantiate their claim subsequent to the above period, before this Court, however, for the remaining period, they are at liberty to make representation before the appropriate 6 authority i.e. Executive Director, Uttar Pradesh State Employees Welfare Corporation, Lucknow, who may redress the same in accordance with law.

9. With the aforesaid observation, the writ petitions are disposed of finally.

10. No order as to costs. ASWAL (Sudhanshu Dhulia, J.) 13.07.2012