RAJA SINGH & ANR. versus STATE OF U.P. & ANR. on 6 May 2019

[2019] 7 S.C.R. 171

RAJA SINGH & ANR.

v.

STATE OF U.P. & ANR.

(Civil Appeal No. 4642 of 2019)

MAY 06, 2019

[R. BANUMATHI AND R. SUBHASH REDDY, JJ.]

Service law:

UP Minority Welfare Department Gazetted Officers ServiceRules 2001: Appointment – Post of District Minority Welfare Officeron deputation/transfer of service basis – Appellant selected forappointment to the said post prior to coming into force of UP ServiceRules 2001 and continued as such – UP Service Rules 2001providing for filling up the posts in cadre of District Minority WelfareOfficers by way of direct recruitment or by way of promotion –Representation by the appellant seeking absorption in the cadre ofDistrict Minority Welfare Officer – Thereafter, writ petition by theappellant seeking quashing the UP Service Rules 2001 and forissuance of mandamus directing respondents to regularize theirservices on the post of District Minority Welfare Officer – Dismissedby High Court – On appeal, held: Appellants having been appointedprior to coming into force of UP Service Rules 2001, theirappointment cannot be said to be on deputation – In the absence ofany material to show that the appellants were appointed only againsttemporary posts created only for a period of two years, it cannot beheld that they were appointed only against temporary posts for aperiod of only two years – Though UP Service Rules 2001 is silentabout the appointment of the appellants made prior to coming intoforce of the Rules, the appellants having been appointed on thepost of District Minority Welfare Officer prior to coming into forceof UP Service Rules 2001, cannot be deprived of their rights ofabsorption in the Minority Welfare Department – Pension to be paidto the appellants as admissible to the District Minority WelfareOfficer – Order of the High Court set aside.

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172SUPREME COURT REPORTS

AAllowing the appeal, the Court

HELD: 1.1 In the letter of Secretary, Minority WelfareDepartment dated 15.11.1997 communicated to otherdepartments, the employees of their departments-appellants wereselected for appointment ‘on the post of the District MinorityBWelfare Officer’ by service transfer. Even though the said letterstates that the appellants were appointed by deputation/servicetransfer, considering the surrounding circumstances that theappellants have undergone the selection process by appearingfor interview before the Committee and that they were selectedfor appointment shows that it was ‘selection and appointment’ inCthe Department of Minority Welfare and not ‘deputation’. Eventhough, the appellants were appointed for the period of two years,after two years, no order was passed repatriating them to theirParent department. Of course, in the meanwhile, writ petitionscame to be filed by the appellants. However, there was noDcommunication from the Department of Minority Welfare and Waqfto the other departments proposing for repatriation of theappellants to their Parent department. [Para 12] [177-C-F]

1.2 At the time of appointment of the appellants, there wereno Service Rules. The appellants having been appointed priorEto coming into force of UP Minority Welfare Department GazettedOfficers Rules 2001, their appointment cannot be said to be ondeputation. Though it is stated that their appointment was onlytemporary, there is nothing on record to show that the posts wereonly temporary posts for a fixed time. In the absence of anymaterial to show that the appellants were appointed only againstFtemporary posts created only for a period of two years, it cannotbe held that they were appointed only against temporary postsfor a period of only two years. [Para 14] [178-D-E]

1.3 Rule 5 of the UP Minority Welfare Department GazettedOfficers Service Rules 2001 contemplated that 75% post ofGDistrict Minority Welfare Officer will be filled up through PublicService Commission by direct recruitment and 25% by promotionthrough Public Service Commission from amongst substantivelyappointed Chief Waqf Inspectors and Senior Waqf Inspectors whohave completed ten years’ service as Chief Waqf Inspector orSenior Waqf Inspector or both. Though UP Minority WelfareH

Department Gazetted Officers Service Rules 2001 is silent aboutthe appointment of the appellants prior to coming into force of2001 Rules, the appellants having been appointed on the post ofDistrict Minority Welfare Officer prior to coming into force ofService Rules 2001, cannot be deprived of their rights ofabsorption in the Minority Welfare Department. [Para 15]

[178-F-H]

1.4 It is stated that since appellant R has retired, the Parentdepartment of R has paid all the retiral dues and pension is beingpaid at the admissible rate in the Department of Training andEmployment. Since appellant R and three other appellants areheld to be the employees of Department of Minority Welfare andWaqf in the cadre of District Minority Welfare Officer, they areentitled to the retiral benefits and pension as to the DistrictMinority Welfare Officer, after adjusting the pension paid to appellants R and H. [Para 17] [179-F-G; 180-A]

1.5 The impugned order of the High Court is set aside.The appellants would be absorbed in post of District MinorityWelfare Officer in the Department of Minority Welfare and Waqffrom the date of their appointment. Insofar as the retiredemployees R and H, the Minority Welfare Department wouldcomply with the aforesaid directions. [Para 18] [180-B-C]

Managing Director, UP Rajkiya Nirman Nigam v. P.K.Bhatnagar and others (2007) 14 SCC 498 – referredto.

Case Law Reference

(2007) 14 SCC 498referred to

Para 13

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4642

of 2019.

From the Judgment and Order dated 07.03.2014 of the HighCourt of Judicature at Allahabad in Civil Misc. Writ Petition No. 13148of 2002.

With

Civil Appeal Nos. 4643, 4644 of 2019.

Ratnakar Das, A.T.M. Rangaramanujam, Sr. Advs., Kamal KantTripathy, Ms. Anu Gupta, Sanjay Mani Tripathi, Advs. or the Appellants.

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APradeep Misra, Upendra Mishra, Suraj Singh, Vinay Garg, Advs.for the Respondents.

The Judgment of the Court was delivered by

R. BANUMATHI, J. 1. Leave granted.

B2. These appeals arise out of the judgment and order dated07.03.2014 passed by the High Court of Judicature at Allahabad inCMWP No. 13148 of 2002 and batch in and by which the High Courtheld that the appointment to the post of District Minority Welfare Officeris to be governed by UP Minority Welfare Department Gazetted OfficersService Rules 2001 and that the appellants have no legal right to claimCtheir absorption in the Minority Welfare Department and the same hasbeen rightly rejected by the State Government.

3. In all these appeals, the point falling for consideration is oneand the same and all the appeals shall stand disposed of by this commonjudgment. For easy reference, the facts in appeal arising out of SLP(C)DNo.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 NotificationNo. 4056/XX-E-95-539(2)/95 dated 12.08.1995 created four Departmentsknown as:- (a) Minority Welfare Department; (b) Backward ClassEWelfare Department; (c) Handicapped Welfare Department; and (d)Ambedkar Village Development Department. The Secretary, MinorityWelfare and Muslim Waqf Department, Government of U.P. vide itsletter No. 2160/52/1-96-1(85)/95 dated 22.11.1996 addressed to allPrincipal Secretaries/Secretaries of Government of U.P. stated that theFposts of District Minority Welfare Officer is to be filled through U.P.Public Service Commission and due to non-availability of adequateofficers, it had been decided to fill such posts by way of deputation/transfer of service of the officers having at least twelve years ofexperience and working in the pay scale of immediately below Rs.2000-3500. The Secretary requested heads of various departments that theGnames of interested applicants be forwarded for appointment for thepost of District Minority Welfare Officer on deputation/transfer ofservices basis.

5. The appellants applied for the newly created post of DistrictMinority Welfare Officer through proper channel and they were directedH

to appear for interview and selection process. After facing the interview,the appellants were selected for appointment for the post of the DistrictMinority Welfare Officer vide Government Order dated 30.12.1997. Inthe said appointment orders, it was stated that their deputation/servicetransfer was for a period of two years or till further orders whichever isearlier. The appellants continued in the post even after two years. TheGovernment framed UP Minority Welfare Department Gazetted OfficersService Rules 2001. The said Rules provided that 75% post of DistrictMinority Welfare Officer will be filled up through Public ServiceCommission by direct recruitment and 25% by promotion through PublicService Commission from amongst substantively appointed Chief WaqfInspectors and Senior Waqf Inspectors who have completed ten years’service as Chief Waqf Inspector or Senior Waqf Inspector or both, onthe first date of the year of recruitment.

6. The appellants made representations before respondent No.1on 14.02.2002 and 16.02.2002 seeking absorption in the cadre of DistrictMinority Welfare Officer in the Department of Minority Welfare andWaqf. When their representation was pending for consideration, theappellants filed writ petition being WP(C) No.13148/2002 seekingissuance of writ of certiorari for quashing the UP Minority WelfareDepartment Gazetted Officers Service Rules 2001 insofar as it excludesthe clause of merger/absorption on the post of District Minority WelfareOfficer and for issuance of Mandamus directing respondents to regularizethe services of the appellants on the post of District Minority WelfareOfficer. By an interim order, the High Court protected the service ofthe appellants till the disposal of the writ petition. The Government videits order No.2188A/52-1-2002-Writ/2002 dated 02.08.2002 rejected theappellant’s representation seeking absorption in the cadre of DistrictMinority Welfare Officer in the Department of Minority Welfare andWaqf. While rejecting the representation, the Government observed thatthere is no provision in the Service Rules 2001 to fill the posts in thecadre of District Minority Welfare Officers from any other source excepteither by way of direct recruitment or by way of promotion.

7. In WP(C) No.13148/2002 then pending, the appellants movedan amendment application with a prayer for quashing the aforesaid orderdated 02.08.2002. The respondents filed their counter opposing the writpetition as well as amendment. The respondents averred that theappellants do not belong to the Minority Welfare Department and that A

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Athey were borrowed on deputation basis and their lien in the Parentdepartment still exists. It was averred that the appellants were retainedin the Minority Welfare Department only on account of interim orderpassed by the High Court and that the appellants have no right to continuein the Department of Minority Welfare and Waqf and claim absorption.

B8. The High Court dismissed the writ petition by the impugnedorder dated 07.03.2014 by stating that the issue involved in the writpetition is similar to the issue involved in WP No. 44112 of 2011 and thatthe 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. ThroughSecretary Ministry of Welfare Department and Others, the High CourtCheld that the appellants who were on deputation/transfer of service inthe Department of Minority Welfare have no legal right to claim absorptionof their services in the Minority Welfare Department.

9. We have heard the learned senior counsel appearing for theparties and carefully considered the submissions and perused theDimpugned judgment and also the relied upon judgment in WP(C) No.44112of 2011 and WP(C) No.44100 of 2013 and the other materials placed onrecord.

10. The point falling for consideration is that the appellants havingbeen selected and appointed as District Minority Welfare Officer priorEto coming into force of UP Minority Welfare Department GazettedOfficers Rules 2001, can it be said that the appellants were only ondeputation and that they have no legal right to claim absorption as DistrictMinority Welfare Officer.

11. After the separation of the Social Welfare Department, a newFdepartment i.e. Minority Welfare Department was carved out in theyear 1995. The Government Order dated 22.11.1996 was issued to thevarious departments of Uttar Pradesh inviting applications from the eligiblecandidates of various departments for the post of District Minority WelfareOfficer on service transfer/deputation basis. In the said GovernmentGorder, it was specifically pointed out that the candidates may apply forthe aforesaid post or in the pay scale of Rs.2000-3500 or just below thepay scale of Rs.2000-3500 and he is eligible for promotion in pay scaleof Rs.2000-3500 or above.

12. Appellant Raja Singh was District Employment Officer.Appellant Makrand Prasad was Assistant Employment Officer inH

Employment Department. Appellant Dharam Deo Tripathi was the SeniorAuditor in the Office of District Audit Officer (Finance Department) atDeoria. Appellant Hem Raj Singh was working as Superintendent inSocial Welfare Department. All the appellants applied for the post ofDistrict Minority Welfare Officer through proper channel and after facinginterview before the Selection Committee and undergoing the selectionprocess, they were duly selected for the post of the District MinorityWelfare Officer. The 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 Officersunder the Minority Welfare and Waqf Department on deputation/service transfer for the period of two years or till further orderswhichever is earlier”. In the letter of Secretary, Minority WelfareDepartment dated 15.11.1997 communicated to other departments, theemployees of their departments viz. Makrand Prasad, Raja Singh, DharamDeo Tripathi and Hem Raj Singh were selected for appointment ‘on thepost of the District Minority Welfare Officer’ by service transfer. Eventhough the said letter states that the appellants were appointed bydeputation/service transfer, considering the surrounding circumstancesthat the appellants have undergone the selection process by appearingfor interview before the Committee and that they were selected forappointment shows that it was ‘selection and appointment’ in theDepartment of Minority Welfare and not ‘deputation’. As pointed outearlier, even though, the appellants were appointed for the period of twoyears, after two years, no order was passed repatriating them to theirParent department. Of course, in the meanwhile, writ petitions came tobe filed by the appellants. However, there was no communication fromthe Department of Minority Welfare and Waqf to the other departmentsproposing 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 merefact the employee has spent several years in service in the Departmentwhere he has been sent on deputation, will not alter the position fromthat of a deputationist to a regular employee. Of course, it is well-settled that the employee who has been sent on deputation, has no rightto claim absorption. But in the case in hand, as we have discussedearlier, appointment was not on deputation; but by transfer of servicemuch prior to coming into force of the Service Rules 2001.

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A14. UP Minority Welfare Department Gazetted Officers ServiceRules 2001 came into force w.e.f 02.07.2001. Rule 3(h) of the saidRules defines ‘Member of the Service’ as under:- 3(h) ‘Member of the service’ means a person substantivelyappointed under these rules or the rules or orders in force prior toBthe commencement of these rules to a post in the cadre of theservice.

Rule 3(k) defines ‘Substantive appointment’ as under:- 3(k) ‘Substantive appointment’ means an appointment not beingan ad hoc appointment, on a post in the cadre of the service,Cmade after selection in accordance with the rules and, if therewere no rules, in accordance with the procedure prescribed forthe time being by executive instructions issued by the Government.

Be it noted that at the time of appointment of the appellants, therewere no Service Rules. The appellants having been appointed prior toDcoming into force of UP Minority Welfare Department Gazetted OfficersRules 2001, their appointment cannot be said to be on deputation. Thoughit is stated that their appointment was only temporary, there is nothing onrecord to show that the posts were only temporary posts for a fixedtime. In the absence of any material to show that the appellants wereEappointed only against temporary posts created only for a period of twoyears, it cannot be held that they were appointed only against temporaryposts for a period of only two years.

15. Rule 5 of the UP Minority Welfare Department GazettedOfficers Service Rules 2001 contemplated that 75% post of DistrictMinority Welfare Officer will be filled up through Public ServiceFCommission by direct recruitment and 25% by promotion through PublicService Commission from amongst substantively appointed Chief WaqfInspectors and Senior Waqf Inspectors who have completed ten years’service as Chief Waqf Inspector or Senior Waqf Inspector or both.Though UP Minority Welfare Department Gazetted Officers ServiceGRules 2001 is silent about the appointment of the appellants prior tocoming into force of 2001 Rules, the appellants having been appointedon the post of District Minority Welfare Officer prior to coming intoforce of Service Rules 2001, cannot be deprived of their rights ofabsorption in the Minority Welfare Department.

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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 titledChandrabhan Srivastava and Another vs. State of U.P. and Others.In WP No. 44100 of 2013, the petitioners thereon were selected andjoined in the cadre of District Minority Welfare Officer on 27.09.2009,long after the service Rules 2001 came into force. In that context, theHigh Court held that the persons who were appointed to the MinorityWelfare Department, are governed by the Uttar Pradesh MinorityWelfare Department Gazetted Officers Service Rules 2001. Thepetitioners thereon having been appointed by the Office Memorandumdated 27.07.2009, cannot claim to be a ‘Member of the Service’ as theydo not fulfill the requirement under Rule 3(h) of the Rules. The saidcase in WP No. 44100 of 2013 is clearly distinguishable on facts. In thepresent case, the appellants having been appointed in 1997 much priorcoming into force of UP Minority Welfare Department Gazetted OfficersService Rules 2001 clearly covered under Rule 3(h) of the Rules andstand on different footing. The High Court, in our view, was not right inplacing reliance on Saeed Ahmad Khand and ChandrabhanSrivastava to dismiss the writ petition filed by the appellants.

17. It is stated that Raja Singh and Hem Raj Singh retired on30.06.2018. Claiming their ACP (Assured Career Progression) and otherbenefits, WP No.23563(S/B) of 2018 was filed by Raja Singh whichwas disposed of by the High Court vide order dated 31.08.2018 directingthe Parent department namely Department of Training and Employmentto process the pension papers relating to payment of post-retirementdues. It is stated that pursuant to the said direction of the High Court,Director of Training and Employment vide its order dated 30.10.2018sanctioned payment of all retiral benefits and other dues payable toappellant Raja Singh. It is stated that the Parent department of RajaSingh has paid all the retiral dues and pension is being paid at theadmissible rate in the Department of Training and Employment. Sinceappellant Raja Singh and three other appellants namely Hem Raj Singh,Dharam Deo Tripathi and Makrand Prasad are held to be the employeesof Department of Minority Welfare and Waqf in the cadre of DistrictMinority Welfare Officer, they are entitled to the retiral benefits andpension as admissible to the District Minority Welfare Officer.Department of Minority Welfare and Waqf shall process the pension AB

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Apapers and pay all the retiral benefits after adjusting retiral benefits paidto the appellants Raja Singh and Hem Raj Singh by their respectivedepartments. The pension shall be paid to the appellants as admissibleto the District Minority Welfare Officer after adjusting the pension paidto appellants Raja Singh and Hem Raj Singh.

B18. In the result, the impugned order of the High Court is set asideand these appeals are allowed. The appellants shall be absorbed in postof District Minority Welfare Officer in the Department of MinorityWelfare and Waqf from the date of their appointment. Insofar as theretired employees Raja Singh and Hem Raj Singh, the Minority WelfareDepartment shall comply with the directions in para(17) aboveCexpeditiously. We make it clear that this judgment shall not be quoted asa precedent as it is passed in the peculiar facts and circumstances of thecase that these officers were appointed in the post prior to coming intoforce of Service Rules 2001 and continued as such.

DNidhi Jain

Appeals allowed.

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