Raja Singh vs State Of Up

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4642 OF 2019 (Arising out of SLP (C) NO. 8725 OF 2014)

RAJA SINGH & ANR. ...Appellants

VERSUS

STATE OF U.P. & ANR. ...Respondents

WITH

CIVIL APPEAL NO.4643 OF 2019 (Arising out of SLP(C) NO. 8885 OF 2014)

CIVIL APPEAL NO.4644 OF 2019 (Arising out of SLP(C) NO. 9817 OF 2014)

JUDGMENT

R. BANUMATHI, J.

Leave granted.

2. These appeals arise out of the judgment and order dated

07.03.2014 passed by the High Court of Judicature at Allahabad

Signature Not Verified in CMWP No. 13148 of 2002 and batch in and by which the High Digitally signed by MADHU BALA

Court held that the appointment to the post of District Minority Date: 2019.05.06 16:25:36 IST Reason:

Welfare Officer is to be governed by UP Minority Welfare 1 Department Gazetted Officers Service Rules 2001 and that the

appellants have no legal right to claim their absorption in the

Minority Welfare Department and the same has been rightly

rejected by the State Government.

3. In all these appeals, the point falling for consideration is one

and the same and all the appeals shall stand disposed of by this

common judgment. For easy reference, the facts in appeal

arising out of SLP(C) No.8725 of 2014 are referred to.

4. Brief facts which led to filing of these appeals are:

That the State Government of Uttar Pradesh vide its

Notification No. 4056/XX-E-95-539(2)/95 dated 12.08.1995

created four Departments known as:- (a) Minority Welfare

Department; (b) Backward Class Welfare Department; (c)

Handicapped Welfare Department; and (d) Ambedkar Village

Development Department. The Secretary, Minority Welfare and

Muslim Waqf Department, Government of U.P. vide its letter No.

2160/52/1-96-1(85)/95 dated 22.11.1996 addressed to all

Principal Secretaries/Secretaries of Government of U.P. stated

that the posts of District Minority Welfare Officer is to be filled

through U.P. Public Service Commission and due to non-

2 availability of adequate officers, it had been decided to fill such

posts by way of deputation/transfer of service of the officers

having at least twelve years of experience and working in the pay

scale of immediately below Rs.2000-3500. The Secretary

requested heads of various departments that the names of

interested applicants be forwarded for appointment for the post of

District Minority Welfare Officer on deputation/transfer of services

basis.

5. The appellants applied for the newly created post of District

Minority Welfare Officer through proper channel and they were

directed to appear for interview and selection process. After

facing the interview, the appellants were selected for appointment

for the post of the District Minority Welfare Officer vide

Government Order dated 30.12.1997. In the said appointment

orders, it was stated that their deputation/service transfer was for

a period of two years or till further orders whichever is earlier. The

appellants continued in the post even after two years. The

Government framed UP Minority Welfare Department Gazetted

Officers Service Rules 2001. The said Rules provided that 75%

post of District Minority Welfare Officer will be filled up through

Public Service Commission by direct recruitment and 25% by 3 promotion through Public Service Commission from amongst

substantively appointed Chief Waqf Inspectors and Senior Waqf

Inspectors who have completed ten years’ service as Chief Waqf

Inspector or Senior Waqf Inspector or both, on the first date of the

year of recruitment.

6. The appellants made representations before respondent

No.1 on 14.02.2002 and 16.02.2002 seeking absorption in the

cadre of District Minority Welfare Officer in the Department of

Minority Welfare and Waqf. When their representation was

pending for consideration, the appellants filed writ petition being

WP(C) No.13148/2002 seeking issuance of writ of certiorari for

quashing the UP Minority Welfare Department Gazetted Officers

Service Rules 2001 insofar as it excludes the clause of

merger/absorption on the post of District Minority Welfare Officer

and for issuance of Mandamus directing respondents to

regularize the services of the appellants on the post of District

Minority Welfare Officer. By an interim order, the High Court

protected the service of the appellants till the disposal of the writ

petition. The Government vide its order No.2188A/52-1-2002-

Writ/2002 dated 02.08.2002 rejected the appellant’s

representation seeking absorption in the cadre of District Minority 4 Welfare Officer in the Department of Minority Welfare and Waqf.

While rejecting the representation, the Government observed that

there is no provision in the Service Rules 2001 to fill the posts in

the cadre of District Minority Welfare Officers from any other

source except either by way of direct recruitment or by way of

promotion.

7. In WP(C) No.13148/2002 then pending, the appellants

moved an amendment application with a prayer for quashing the

aforesaid order dated 02.08.2002. The respondents filed their

counter opposing the writ petition as well as amendment. The

respondents averred that the appellants do not belong to the

Minority Welfare Department and that they were borrowed on

deputation basis and their lien in the Parent department still

exists. It was averred that the appellants were retained in the

Minority Welfare Department only on account of interim order

passed by the High Court and that the appellants have no right to

continue in the Department of Minority Welfare and Waqf and

claim absorption.

8. The High Court dismissed the writ petition by the impugned

order dated 07.03.2014 by stating that the issue involved in the

5 writ petition is similar to the issue involved in WP No. 44112 of

2011 and that the writ petition has no merits. In the relied upon

judgment in WP No. 44112 of 2011 titled Saeed Ahmad Khan &

Ors. v. State of U.P. Through Secretary Ministry of Welfare

Department and Others, the High Court held that the appellants

who were on deputation/transfer of service in the Department of

Minority Welfare have no legal right to claim absorption of their

services in the Minority Welfare Department.

9. We have heard the learned senior counsel appearing for the

parties and carefully considered the submissions and perused the

impugned judgment and also the relied upon judgment in WP(C)

No.44112 of 2011 and WP(C) No.44100 of 2013 and the other

materials placed on record.

10. The point falling for consideration is that the appellants

having been selected and appointed as District Minority Welfare

Officer prior to coming into force of UP Minority Welfare

Department Gazetted Officers Rules 2001, can it be said that the

appellants were only on deputation and that they have no legal

right to claim absorption as District Minority Welfare Officer.

6

11. After the separation of the Social Welfare Department, a

new department i.e. Minority Welfare Department was carved out

in the year 1995. The Government Order dated 22.11.1996 was

issued to the various departments of Uttar Pradesh inviting

applications from the eligible candidates of various departments

for the post of District Minority Welfare Officer on service

transfer/deputation basis. In the said Government order, it was

specifically pointed out that the candidates may apply for the

aforesaid post or in the pay scale of Rs.2000-3500 or just below

the pay scale of Rs.2000-3500 and he is eligible for promotion in

pay scale of Rs.2000-3500 or above.

12. Appellant Raja Singh was District Employment Officer.

Appellant Makrand Prasad was Assistant Employment Officer in

Employment Department. Appellant Dharam Deo Tripathi was

the Senior Auditor in the Office of District Audit Officer (Finance

Department) at Deoria. Appellant Hem Raj Singh was working as

Superintendent in Social Welfare Department. All the appellants

applied for the post of District Minority Welfare Officer through

proper channel and after facing interview before the Selection

Committee and undergoing the selection process, they were duly

selected for the post of the District Minority Welfare Officer. The 7 appointment letters were issued on 03.10.1997. As per the office

order dated 30.12.1997, the appellants were appointed “to the

temporary post of newly created Minority Welfare Officers under

the Minority Welfare and Waqf Department on deputation/service

transfer for the period of two years or till further orders whichever

is earlier”. In the letter of Secretary, Minority Welfare Department

dated 15.11.1997 communicated to other departments, the

employees of their departments viz. Makrand Prasad, Raja Singh,

Dharam Deo Tripathi and Hem Raj Singh were selected for

appointment ‘on the post of the District Minority Welfare Officer’

by service transfer. Even though the said letter states that the

appellants were appointed by deputation/service transfer,

considering the surrounding circumstances that the appellants

have undergone the selection process by appearing for interview

before the Committee and that they were selected for

appointment shows that it was ‘selection and appointment’ in the

Department of Minority Welfare and not ‘deputation’. As pointed

out earlier, even though, the appellants were appointed for the

period of two years, after two years, no order was passed

repatriating them to their Parent department. Of course, in the

meanwhile, writ petitions came to be filed by the appellants.

8 However, there was no communication from the Department of

Minority Welfare and Waqf to the other departments proposing for

repatriation of the appellants to their Parent department.

13. In Managing Director, UP Rajkiya Nirman Nigam v. P.K.

Bhatnagar and others (2007) 14 SCC 498, it was held that the

mere fact the employee has spent several years in service in the

Department where he has been sent on deputation, will not alter

the position from that of a deputationist to a regular employee. Of

course, it is well-settled that the employee who has been sent on

deputation, has no right to claim absorption. But in the case in

hand, as we have discussed earlier, appointment was not on

deputation; but by transfer of service much prior to coming into

force of the Service Rules 2001.

14. UP Minority Welfare Department Gazetted Officers Service

Rules 2001 came into force w.e.f 02.07.2001. Rule 3(h) of the

said Rules defines ‘Member of the Service’ as under:-

3(h) ‘Member of the service’ means a person substantively appointed under these rules or the rules or orders in force prior to the commencement of these rules to a post in the cadre of the service.

Rule 3(k) defines ‘Substantive appointment’ as under:-

3(k) ‘Substantive appointment’ means an appointment not being an ad hoc appointment, on a post in the cadre of the service, made after

9 selection in accordance with the rules and, if there were no rules, in accordance with the procedure prescribed for the time being by executive instructions issued by the Government.

Be it noted that at the time of appointment of the appellants, there

were no Service Rules. The appellants having been appointed

prior to coming into force of UP Minority Welfare Department

Gazetted Officers Rules 2001, their appointment cannot be said

to be on deputation. Though it is stated that their appointment

was only temporary, there is nothing on record to show that the

posts were only temporary posts for a fixed time. In the absence

of any material to show that the appellants were appointed only

against temporary posts created only for a period of two years, it

cannot be held that they were appointed only against temporary

posts for a period of only two years.

15. Rule 5 of the UP Minority Welfare Department Gazetted

Officers Service Rules 2001 contemplated that 75% post of

District Minority Welfare Officer will be filled up through Public

Service Commission by direct recruitment and 25% by promotion

through Public Service Commission from amongst substantively

appointed Chief Waqf Inspectors and Senior Waqf Inspectors who

have completed ten years’ service as Chief Waqf Inspector or

10 Senior Waqf Inspector or both. Though UP Minority Welfare

Department Gazetted Officers Service Rules 2001 is silent about

the appointment of the appellants prior to coming into force of

2001 Rules, the appellants having been appointed on the post of

District Minority Welfare Officer prior to coming into force of

Service Rules 2001, cannot be deprived of their rights of

absorption in the Minority Welfare Department.

16. In the impugned order, the High Court relied upon WA No.

44112 of 2001 which is a subject matter of challenge in SLP(C)

No.8885/2014 which in turn relied upon CMWP No. 44100 of

2013 titled Chandrabhan Srivastava and Another vs. State of

U.P. and Others. In WP No. 44100 of 2013, the petitioners

thereon were selected and joined in the cadre of District Minority

Welfare Officer on 27.09.2009, long after the service Rules 2001

came into force. In that context, the High Court held that the

persons who were appointed to the Minority Welfare Department,

are governed by the Uttar Pradesh Minority Welfare Department

Gazetted Officers Service Rules 2001. The petitioners thereon

having been appointed by the Office Memorandum dated

27.07.2009, cannot claim to be a ‘Member of the Service’ as they

do not fulfill the requirement under Rule 3(h) of the Rules. The 11 said case in WP No. 44100 of 2013 is clearly distinguishable on

facts. In the present case, the appellants having been appointed

in 1997 much prior coming into force of UP Minority Welfare

Department Gazetted Officers Service Rules 2001 clearly

covered under Rule 3(h) of the Rules and stand on different

footing. The High Court, in our view, was not right in placing

reliance on Saeed Ahmad Khand and Chandrabhan

Srivastava to dismiss the writ petition filed by the appellants.

17. It is stated that Raja Singh and Hem Raj Singh retired on

30.06.2018. Claiming their ACP (Assured Career Progression)

and other benefits, WP No.23563(S/B) of 2018 was filed by Raja

Singh which was disposed of by the High Court vide order dated

31.08.2018 directing the Parent department namely Department

of Training and Employment to process the pension papers

relating to payment of post-retirement dues. It is stated that

pursuant to the said direction of the High Court, Director of

Training and Employment vide its order dated 30.10.2018

sanctioned payment of all retiral benefits and other dues payable

to appellant Raja Singh. It is stated that the Parent department of

Raja Singh has paid all the retiral dues and pension is being paid

at the admissible rate in the Department of Training and 12 Employment. Since appellant Raja Singh and three other

appellants namely Hem Raj Singh, Dharam Deo Tripathi and

Makrand Prasad are held to be the employees of Department of

Minority Welfare and Waqf in the cadre of District Minority Welfare

Officer, they are entitled to the retiral benefits and pension as

admissible to the District Minority Welfare Officer. Department of

Minority Welfare and Waqf shall process the pension papers and

pay all the retiral benefits after adjusting retiral benefits paid to the

appellants Raja Singh and Hem Raj Singh by their respective

departments. The pension shall be paid to the appellants as

admissible to the District Minority Welfare Officer after adjusting

the pension paid to appellants Raja Singh and Hem Raj Singh.

18. In the result, the impugned order of the High Court is set

aside and these appeals are allowed. The appellants shall be

absorbed in post of District Minority Welfare Officer in the

Department of Minority Welfare and Waqf from the date of their

appointment. Insofar as the retired employees Raja Singh and

Hem Raj Singh, the Minority Welfare Department shall comply

with the directions in para(17) above expeditiously. We make it

clear that this judgment shall not be quoted as a precedent as it is

passed in the peculiar facts and circumstances of the case that 13 these officers were appointed in the post prior to coming into

force of Service Rules 2001 and continued as such.

……………………….J. [R. BANUMATHI]

………………………….J. [R. SUBHASH REDDY] New Delhi;

May 06, 2019

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