1. Heard Sri Amrendra Nath Tripathi, learned counsel for the petitioner and Sri Alok Sharma, learned ACSC for respondent - State.
2. By means of present writ petition, the petitioner is challenging the order dated 19.06.2020, whereby he was appointed on deputation / transfer basis in the Backward Classes Welfare Department.
3. Brief facts of the case giving rise to the writ petition are that the petitioner was appointed on the post of Lecturer (Civics) in District Manila on 01.09.1989. In the year 1995, the Mahila Kalyan Vibhag was bifurcated and three new departments namely Backward Welfare, Minority Welfare and Handicapped Welfare were created, from where different posts including the post of District Backward Welfare Officer arose. Vide order dated 29.05.1997, the State Government laid down the procedure of appointment on the said post by way of deputation / transfer. In pursuance thereof, the petitioner applied for the post of District Backward Welfare Officer and was selected following the due procedure prescribed by the departmental selection committee. In pursuance thereof, the an appointment letter dated 09.03.2018 was issued to the petitioner and he was posted as District Backward Welfare Officer, District Pilibheet.
4. The State Government in exercise of power under Article 309 Constitution of India framed a rule known as "U.P. Backward Classes Welfare Department (Gazetted Officers) Rules, 1998 (for short "Rules of 1998"), which was promulgated on 07.09.1998. Before promulgation of aforesaid rules, the provisions of service of the petitioner was governed under Rule3(i) of Government Order dated 29.05.1997.
5. It is case of the petitioner that after promulgation of Rules of 1998, the service of the petitioner was not absorbed while services of similar posts i.e. District Minority Welfare Officer and District Handicapped Welfare Officer were absorbed against which, the petitioner preferred representation to the State Government on 23.06.1999 was rejected vide order dated 31.08.1999, against which the petitioner and other similarly situated persons filed Writ Petition No.49798 of 1999 before this Court, which was dismissed vide judgment and order dated 02.12.2001, against which Civil Misc. Review Petition No.12467 of 2002 was filed, which was disposed of vide judgment and order dated 19.04.2002 with a direction to consider to pass appropriate order on the representation of the petitioner. In the meantime, the State Government passed an order on 08.04.2002 repatriating the petitioner to his parent department and in pursuancalle thereof, the petitioner has been relieved vide order dated 18.04.2002.
6. When the order dated 19.04.2002 was not complied with, the petitioner filed Contempt Petition No.2125 of 2002 in which a show cause notice was issued on 05.02.2003. Thereafter, the petitioner was allowed to join on the post of District Backward Welfare Officer, however, his representation has been rejected vide order dated 10.03.2003.
7. Subsequently, the petitioner was again repatriated to his parent department vide order dated 22.11.2004, which has been challenged by filing Writ Petition No.1771 (S/B) of 2004, wherein an interim order was granted vide order dated 02.12.2004, whereby repatriation of the petitioner has been stayed till next date of listing or till decision is not taken for absorption of the petitioner by the State Government.
8. Vide impugned order dated 19.06.2020, the respondent No.2 has rejected the claim of the petitioner and other similarly situated persons on the ground that Rules of 1998 has been promulgated, wherein there is no provision for absorption of the petitioner and he has been repatriated as Lecturer (Civics) to his parent department i.e. Lilawati Pant Inter College, Bheemtal, Nainital, Uttarakhand.
9. Assailing the impugned order, submission of learned counsel for the petitioner is that the petitioner was appointed on the post of Lecturer through a proper selection proceeding in District Almora on the post of Lecturer in subject Civics. He was granted appointment on the post of District Backward Welfare Officer vide order dated 19.06.2020 and was posted at District Pratapgarh, U.P.
10. The Uttar Pradesh Reorganization Act came into force on 09.11.2000, whereby State of Uttarakhand came into existence. The State of U.P. invited applications from the employees willing to be appointed in State U.P. on the post of District Backward Welfare Officers on 29.05.1997 and in pursuance thereof, he has been selected on the said post by facing the selection process.
11. It is case of the petitioner is that without complying the provisions contained under U.P. Reorganization Act, 2000 the impugned order was passed repatriating the petitioner on 19.06.2000 from the State of U.P. to State of Uttarakhand. He further submitted that the principles laid down under the U.P. Reorganization Act, 2000 were not followed while passing the impugned order, therefore, the order impugned is per se illegal and cannot be sustained.
12. On the grounds referred herein above, learned counsel for the petitioner placed reliance upon a judgment in the case of Raja Singh and another Vs. State of U.P. and another; (2019) 6 SCC 528, paragraph Nos. 9, 10, 11, 12, 15 as well as upon the judgment in the case of Jagdish Narayan Doharey Vs. State of U.P. and others; Writ-A No.3636 of 2005 decided vide judgment and order dated 22.05.2015, paragraphs 14, 18 & 21.
13. On the basis of said judgments, submission of learned counsel for the petitioner is that the petitioner was selected by adopting proper process of selection, therefore, the appointment at District Pratapgarh on the post of District Backward Welfare Officer cannot be treated to be appointment on deputation as has been held by Hon'ble Supreme Court in the case of Raja Singh (Supra).
14. On the other hand, learned ACSC invited attention of this Court on paragraph Nos.11, 12, 13 & 18 of the counter affidavit and submitted that there is no illegality in the impugned order and the same is just and valid and does not suffer from any infirmity or illegality.
15. I have considered submissions advanced by learned counsel for the parties and perused the material on record.
16. In the case of Raja Singh (Supra), Hon'ble Supreme Court has held as under:
"9. 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.
10. 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.
11. 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 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. 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.
12. 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.
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 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."
17. On its perusal, it is evident that while considering the similar issue, Hon'ble Apex Court has held that if appointment has been made by following the procedure prescribed of selection before coming into force the Service Rules of 2001, the same cannot be treated tobe an appointment on deputation, therefore, the ratio of the judgment of Hon'ble Supreme Court is fully applicable to the facts and circumstances of present case.
18. In the case of Jagdish Narayan Doharey (Supra), the Court has held as under:
"14. During the pendency of the writ petitions, a decision was taken at the level of both the Chief Ministers and thereafter the State Government has issued a Government Order on 13.1.2010 stating that those employees, who are not willing to go to the State of Uttrakhand, cannot be sent to the State of Uttrakhand. In this regard the Director General of Police, Headquarters, U.P. issued a Circular dated 25.1.2010 that a policy decision has been taken by the Chief Minister of State of Uttrakhand and Uttar Pradesh for not relieving the police personnel, who could not report for joining instead equivalent number of vacant posts may be made available to the State of Uttrakhand. Following the Circular dated 25.1.2009, a bunch of writ petitions led by Writ Petitin No.152 (SS) of 2010 was disposed of on 5.2.2010 by Lucknow Bench of this Court. Following the Circular dated 25.1.2009 this Court also disposed of a bunch of writ petitions led by Writ A No.13984 of 2008 (Km. Maya vs. State of UP & ors) on 6.10.2010 with directions that so long as Government's decision not to relieve the police personnel, who are finally allocated to the State of Uttrakhand, continues, the petitioners shall also be entitled to continue in the State of UP even through they have been finally allocated to the State of Uttranchal.
18. Shri Vijay Bahadur Singh, Advocate General has also made a statement to the effect that the Government of UP has taken a decision that the employees, who are working in the State of UP for last so many years, will continue to work in the State of UP.
21. Once both the State Governments have agreed that those Class-III and IV employees, who were allocated to Uttrakhand against their options and have not complied with the allocation orders, are still continuing on the basis of interim orders of this Court, their allocation to Uttrakhand should be cancelled and they be allocated to the State where they are presently working, and once concurrence has taken place between the parties, then at this stage it would not be appropriate to displace the persons from one State and send to another State. It is also apparent from the record that in most of the cases the interim orders are operating and the petitioners are working in the departments with utmost their satisfaction. Therefore, this Court is of the view that at this stage, they may not be shifted to the State of Uttrakhand."
19. On its perusal, it is evident that while considering the provisions of U.P. Reorganization Act, 2000 the Court has recorded statement of learned Advocate General and thereafter, proceeded to pass the judgment holding that once both the State Governments have agreed that those Class III and IV employees, who were allocated State of Uttarakhand against their opinion and have not complied with the allocation orders and are still continuing on the basis of interim order granted by this Court, their allocation to State of Uttarakhand should be cancelled and they be allocated to the State of Uttar Pradesh, where they are presently working.
20. In the case of the petitioner, on the basis of interim order granted by this Court vide order dated 02.12.2004, the petitioner is working on the post of District Backward Welfare Officer at District Pratapgarh, therefore, the ratio of the judgment passed by this Court in the case of Jagdish Narayan Doharey (Supra) is fully applicable to the case of the petitioner.
21. In view of the reasons assigned above, this writ petition succeeds and is allowed.
22. The impugned order dated 19.06.2020, 24.06.2020 and 09.03.2011 are hereby quashed.
23. As the petitioner has retired from service on attaining the age of superannuation on 30.06.2020 from the post of District Backward Welfare Officer, the respondents are directed to ensure all consequential benefits to the petitioner within a period of three months from the date of production of a certified copy of this order.
Order Date :- 27.7.2021 Adarsh K Singh