Hon'ble Saurabh Lavania,J.
(Delivered by Hon'ble Saurabh Lavania,J.) Since the common question of law and facts are involved in these Special Appeals, therefore, with the consent of the counsel for parties these appeals are being decided by a common judgment.
Heard Sri Vivek Raj Singh, learned counsel for appellants as well as Sri Manjee Shukla, learned Addl Chief Standing Counsel for the State and Sri A.M. Tripathi for respondent No. 4.
By these appeals the order passed by the Hon'ble Single Judge dated 06.07.2018 has been challenged. The appellants have stated that there are some factual and legal errors in the order of the Hon'ble Single Judge.
With regard to the judgment under challenge dated 06.07.2018, the submission of the learned counsel for the appellants Sri Vivek Raj Singh is that the Single Judge while deciding the writ petitions has failed to appreciate the true import of Rule 3(1) of U.P. Absorption of Surplus Employees of UPTRON India Limited in Government Service Rules, 2011 ("in short Rules of 2011"), judgment of the Division Bench of this Court passed in Writ-A No. 61522 of 2012 (Smt. Meena Manral and others vs. State of U.P. And others) dated 13.05.2014 and interim order passed in Writ Petition No. 4178 S/S of 2014 dated 12.08.2014 as well as the prayers sought in the writ petitions.
Further submission of the counsel for the appellants is that in Paras 30 and 31 of the judgment the question which has been decided by the Court was not before it and it was only the argument of the Standing Counsel. The simple dispute was to the effect that whether after the absorption of the appellants in Basic Shiksha Department whether their services could have been dispensed with treating them to be deputationists? He has further argued that Hon'ble Single Judge has held that the petitioners are on deputation and they cannot be absorbed on a promotional post.
Sri Vivek Raj Singh further says that 2011 Rules provides that the petitioners' services should be absorbed and further if there is any relaxation required, the same may also be given. In view of this fact the petitioners have a right to be absorbed and complete their term till the age of superannuation and get the consequential benefits of pension etc. He says that the order of Hon'ble Single Judge is not based on the correct appreciation of facts.
As per the submissions of the learned counsel for the appellants, the case of the appellants, in nutshell, is that:-
(i) Keeping in view the Rules of 2011 they are entitled to be absorbed on the posts equivalent to the posts on which they were working in the Sarva Shiksha Abhiyan, being deputationist,
(ii) For the purposes of absorption, the relevant Service Rules are liable to be relaxed by the opposite parities (State Authorities) and this aspect of the case has not been considered by the Hon'ble Single Judge,
(iii) Hon'ble Single Judge has wrongly relied upon the judgments on the issue of absorption of deputationist and
(iv) Hon'ble Single Judge has not considered the judgments placed on the issue that the person working on the higher post cannot be reverted to lower post.
On the strength of Rule 3 (1) and Rule 3 (2) of the Rules of 2011, the further submission of the counsel for the appellants is that the issue involved before the Hon'ble Single Judge as well as before this Hon'ble Court is to the effect that whether under the Rules of 2011 the appellants are entitled for absorption though working on deputation as deputationist in the Sarva Shiksha Abhiyan and if yes then on what post and in what pay-scale and the Hon'ble Single Judge while deciding the writ petitions, only considered the right of deputationist with regard to their absorption and held that deputationist's right of absorption is subject to the Rules and not otherwise.
The facts of the case, in brief, are to the effect that petitioners were initially appointed in the UPTRON India Limited and they were discharging their duties in Accounts Department of UPTRON on different posts and on the basis of decision dated 11.12.1998, the appellants were taken on deputation on the posts in the Accounts Department of Sarva Shiksha Abhiyan between 2000-2008. This process was adopted in view of the decision of closure of UPTRON India Limited and for adjustment/absorption of employees of the UPTRON India Limited. The appellants/petitioners were working on their respective posts in the Sarva Shiksha Abhiyan. On 20.12.2011, the State of U.P. promulgated the Rules of 2011 for absorption of employees of UPTRON India Limited on the posts under the Government Department. Considering the Rules of 2011, the State Government passed the order for absorption on 28.05.2013. According to the order dated 28.05.2013, the appellants/petitioners are entitled for absorption in the Department of Basic Shiksha.
After the Government Order dated 28.05.2013, the order dated 31.07.2013 was passed for absorption of employees of UPTRON India Limited, working in Sarva Shiksha Abhiyan, in the Department of Basic Shiksha.
After issuing the Order dated 31.07.2013, the order dated 16.07.2014 was passed whereby the addressee of the order (State Project Director and Director Basic) were directed to ensure the compliance of the order for absorption dated 28.05.2013 and 31.07.2013.
The aforesaid orders dated 31.07.2013 and 16.07.2014 were challenged in the Writ Petition No 4178 S/S of 2014 and 5631 S/S of 2014 on the main ground to the effect that the absorption on the lower post is not permissible.
Considering the facts of the case, the interim order was passed on 12.08.2014. The same is quoted below:-
"The petitioners, who are ex-employees of the Uptron (India) Limited were working on the post of Assistant Finance and Accounts Officer which is stated to be of accounts cadre.
Upon the closure of Uptron India Limited the State Government framed rules for absorption known as "The Uttar Pradesh Absorption of Surplus Employees of Uptron India Limited in Government Service Rules".
According to the petitioner the Government thereafter issued a Government Order dated 10.10.2011 wherein posts were mentioned against which such persons were to be absorbed.
The post in the same pay grade as the petitioner is that of Assistant Accounts Officer in the pay band of Rs. 9,300/- to 34,800/- with the grade pay of Rs. 4,200/-.
According to the petitioner by the impugned order, the petitioners are now being sought to be absorbed on the post of Junior Clerk in the pay band of Rs. 5,200/- to 20,200/- with the grade pay of Rs.1,900/-.
The impugned order (Annexure No. 2 to the writ petition) further provides that such absorption shall take place latest by 30.07.2014 and so far the petitioners have not been absorbed, although the absorption order has been passed on 28.05.2013 but placement orders have not been passed so far.
Learned Chief Standing Counsel is granted 10 days' time for obtaining instructions in the matter.
The matter requires consideration.
Put up on 26.08.2014. Till then it is provided that no placement orders shall be issued, so far as the petitioners are concerned."
The opposite party No. 4, after considering the Rules of 2011 and orders mentioned hereinabove as well as the Status of the Sarva Shiksha Abhiyan, relieved the appellants/petitioners vide order dated 31.01.2018 and the said order was challenged in the Writ Petition No. 3811 S/S of 2018 and 5104 S/S of 2018. As per the appellants the Order dated 31.01.2018 was passed in the teeth of interim Order dated 12.08.2014.
All the above mentioned writ petitions were heard and decided by common judgment and order dated 16.17.2018 against which the Special Appeals, under consideration, were filed.
It is true that a deputationist's right of absorption is subject to the Rules on the issue and in absence of any Rule for absorption, a deputationist cannot be absorbed nor he can claim absorption as a matter of right. The view of the Hon'ble Single Judge on this aspect is correct.
In the instant case, considering the plight of the employees of the UPTRON India Limited including their families and being Social Welfare State, the State Government promulgated a beneficial legislation known as "U.P. Absorption of Surplus Employees of UPTRON India Limited in Government Service Rules, 2011."
Relevant Rules 3 (1) and 3 (2) are quoted below:-
3(1). Notwithstanding anything to the contrary contained in any other service rules for the time being in force, the Government may, by notified order, require the absorption of surplus employees of UPTRON India Limited in any post or service under the Government except a post or service which is within the purview of the Uttar Pradesh Service Commission and may prescribe the procedure for such absorption including relaxation in various terms and conditions of recruitment in respect of such surplus employees.
3(2). The provisions contained in relevant service rules shall be deemed to have been notified to the extent of their inconsistency with the provisions made in the notified order referred to in sub-rule (1).
It appears that for the purposes of protecting the bread and butter of the employees of UPTRON India Limited, the Rules of 2011 were framed and under the said Rules, the surplus employees of UPTRON India Limited are entitled for absorption on the post or service under the Government except a post or service which is within the purview of U.P. Public Service Commission and for absorption, as per Rules of 2011, the terms and conditions of recruitment can be relaxed.
The beneficial legislation is to be interpreted and read liberally and in pragmatic approach as well as in the interest of the persons for whom the said legislation has been promulgated.
In the facts of the case and keeping in view the provisions of Rules of 2011, the appellants/petitioners have a right of absorption on the post or service under the Government.
The State Government has already issued the order dated 28.05.2013 directing the concerned officers to absorb the 75 employees/persons of UPTRON working in the Sarva Shiksha Abhiyan in the Department of Basic Shiksha. The moot question in the present appeal are that:-
(i) On which post, the appellants/petitioners are entitled for absorption and
(ii) Whether the appellant entitled to protection of basic pay.
On query being made to Sri Manjeev Shukla, the State counsel, with respect to the contents of Para 30 and 31 of the judgment under appeal, the learned standing counsel replied that the post of Superintendent is promotional post and on the said post, the appellants/petitioners cannot be absorbed as their absorption will affect others right. The right of the appellants/petitioners on the issue of absorption under the Government flows from Rule 3 (1) of Rules of 2011 and they have right to claim only in accordance with Rule 3 (1) of the Rules of 2011.
From the Rules quoted above and submission of counsel for State it can be inferred that the absorption can be made on the posts which are out of purview of U.P. Public Service Commission and on which recruitment is not by way of promotion.
At this stage on query being put to counsel for appellants he replied that all the appellants were working on class III posts and they can be adjusted/absorbed on Class-III posts and if required the Service Rules can be reduced for the purposes of absorption. The working on Class-III post(s) is not disputed by the counsel appearing for respondents.
Thus, keeping in view the aforesaid including Rule 3(1) of Rules of 2011, past service rendered by appellants on posts under Class-III and power to relax the terms and conditions of recruitment provided under the Rules of 2011, this Court is of the view that appellants are entitled for absorption on Class-III posts, those are out of purview of U.P. Public Service Commission and on which recruitment is not by way of promotion. The first question is answered accordingly.
For coming to any conclusion on the question of protection of pay of appellants, the first aspect which is to be considered is that the Rules of 2011 were framed with basic object and purpose to provide a means to reduce/alleviate the financial hardship and distress of the employees of UPTRON, due to closure of UPTRON, and to protect their source of livelihood. The State being a welfare State framed the Rules of 2011 and the same is Subordinate Beneficial Legislation and accordingly is liable to read in favour of employees.
The second aspect is that the Rules of 2011 are silent on the issue of pay fixation/pay protection. As the Rules of 2011 are silent on the issue of pay fixation/protection of pay and the object/purpose of promulgation of beneficial Rules of 2011 is basically to protect the source of livelihood of surplus employees of UPTRON, this Court is of the view that this Court can protect the interest of the appellants, related with their emoluments. This approach of this Court is for the reason that by reducing the pay on absorption the employee would be in great hardship as they would to meet out the financial burden carrying on account of higher pay they were getting in Sarva Shiksha Abhiyan and reduction of pay, if not protected, would also be against the spirit of Article 21 of the Constitution of India, according to which right to life means right to live with dignity and right to livelihood.
In the case of Chittaranjan Sharma v. State of Himachal Pradesh reported in (1996) 10 SCC 529 the Hon'ble Apex Court has observed as under:-
"It is seen that since the appellant had not fulfilled the requisite qualifications either when they were initially appointed by the committee before take-over nor when statutory rules were made by the governor so as to enable for absorption. Instead of retrenching them from service due to non-fulfilment of the requisite qualifications, the government came to absorb them in the Ayurvedic Chikitsa Adhikaris posts etc. to which they are eligible. The Tribunal has given the direction to maintain the pay scales and to make adjustment and absorption. In our view directions are correct and based on equity and do not call for any interference. They may also be considered for further promotion from the absorbed posts in accordance with the rules."
In addition, this Court in the judgment reported in 2002 (20) LCD 774 (Uma Shanker Singh v. State of U.P.) considered the judgment of the Hon'ble Apex Court, mentioned above, and also considered the G.O. No. 88(1)/66 O&M Lucknow, dated March 2, 1967, laying down the terms and conditions of surplus employees and this Court also observed that "once it was decided by the Government to absorb the retrenched project officers, it was obligatory for the Government to follow such norms and conditions as may have been laid down from time to time for absorption of surplus or retrenched employee". The observation of the Court appears to be based on Article 14 of the Constitution of India. The relevant part of the judgment which refers to G.O. dated 02.03.1967 is quoted below:-
8. Since the petitioners did not have any lien on any of the posts and rather they were appointed directly on the posts of Project Officers and not on transfer from any other department, they cannot be said to be deputationists. The earlier report of the Directory Basic Education (Non Formal Education) submitted in this regard on 19.01.2000 was correct and the subsequent report justifying the use of the word 'duputation' in the appointment orders of the petitioners is unsustainable. However, since the posts of Project Officers were abolished and incumbents could not claim absorption or regularization as of right on equivalent posts, in the absence of the statutory rules, what is now to be examined is whether Government having decided to absorb the petitioners could legally protect their status and pay. In this correction Sri Vinod Swarup has submitted that if the status and pay of the petitioners are protected that would be violative of fundamental rights of other Project Officers who have been repatriated to their substantive posts of Sub Deputy Inspector, Inspector of Schools, Assistant Teacher, L.T. Grade, Lecturer and Extension Teacher after abolition of the project. The Government have not adverted to this aspect of the matter while deciding the petitioners' representation and since for the reasons disclosed hereinafter, we are persuaded to remit the matter to the State Government for reconsideration. We do not consider it necessary to express any opinion on the submission of the Additional Advocate General that if status and pay of the petitioners are protected that would result in violation of fundamental rights guaranteed by Articles 14 and 16 of the Constitution of other Project Officers who have been repatriated to their parent department. It is for the Government to see whether protection of status and pay to the petitioners would lead to violation of Articles 14 and 16 of the Constitution.
9. There is no denying fact that creation and abolition of posts are the attributes of the ''exercise of sovereign power of the State, (State of U.P. & another v. Dr. P.B.L. Saxena, AIR 1969 Alld. 449 (FB), for ''every sovereign Government has within its own jurisdiction the right and power to create whatever public offices it may regard as necessary to its proper functioning and its own internal administration and to abolish such offices as it may deem superfluous" [42 Am Jur 902 para 31 quoted in para 36 of the judgment by R.S. Pathak, J. (as he then was) in State of U.P. & another v. Dr. P.B.L. Saxena (supra)]. The Supreme Court in N. Ramanantha v. State of Kerala, AIR 1973 SC 2641, too has very clearly laid down that the power to create, continue and abolish any civil post is inherent in every sovereign Government and the decision in this regard is taken as a matter of Government policy depending on exigencies of circumstances and administrative necessities. In fact the petitioners have not questioned the abolition of posts of project officers and other posts created under the Non Formal Education Project. What is essentially under challenge in these petitions is the denial of status and pay protection while absorbing the petitioners after abolition of posts of Project Officers. We are of the considered view that although the petitioners could not claim, on abolition of posts of Project Officer created under Non Formal Education in which they were appointed as of right, their absorption but once it was decided by the Government to absorb the retrenched project officers, it was obligatory for the Government to follow such norms and conditions as may have been laid down from time to time for absorption of surplus or retrenched employees.
10. Attention of the Court was invited to G.O.No. 88(1)/66O&M dated Lucknow March 2, 1967 laying down there terms and conditions of absorption of surplus employees. Surplus employees according to the said Government order could broadly be placed in the following categories:
"(a) those rendered surplus as a result or raising of norms of work or other economy measures approved by Government.
(b) those rendered surplus as a result of reorganization of a department/organization/office with a view to improve efficiency or to effect economy.
(c) All over viz. who have been recruited for specified jobs expected to last for a specified period or whose services are terminated in the normal course in accordance with the terms and conditions of their service such as additional copyists, seasonal peons attached to collection amins, etc."
11. So far employees under category (c) above are concerned, the Government Order aforesaid visualized that since they were recruited for a particular work and they clearly knew that their term of employment would expire after a specified period, therefore, their services should stand terminated on completion of the work or on the expiry of the fixed period for which they were employed in accordance with the terms and conditions of their appointment. As regards the employees under categories (a) and (b) above, they may be either permanent or temporary. These persons are to be absorbed on posts which may fall vacant on account of retirements, discharge, death etc. or on new posts which may be created in future to meet the requirements of public work, and for that purpose the terms and conditions of their absorption as laid down in the Government Order are as under:
"A-permanent employees will be absorbed in posts in identical or higher scale of pay, their pay being fixed in accordance with the existing Rules except that in case of absorption on a higher posts, their pay will not be fixed at a stage next above the existing pay because such a case cannot be treated as a case of promotion and of assumption of duties and responsibilities of higher order in the normal course. They will also be allowed to draw their next increment on the same date on which they would have drawn it on their old post. On absorption in other departments, they will retain their lien on their permanent posts until they are confirmed of their new posts. They will also be eligible for promotion in their old department in clear and regular vacancies till they are confirmed on their new posts; but their cases will not be considered for promotion in vacancies of shorter duration as that will mean unnecessary dislocation. The procedure of absorption will be the same as adopted in normal course in releasing permanent government servants for taking up new appointments in other and they will be entitled to all such facilities as are admissible under normal rules except as provided above.
B-(1) Temporary employees, as far as possible, will be absorbed in identical scale of pay. If such posts are not available they may be absorbed in posts in lower or higher scales of pay. Pay in such cases will be fixed in accordance with the following orders and they will be allowed to draw their increment on the same date on which they would have drawn old post:
(a) In case of absorption in lower posts, pay will be fixed at the same stage at which he was drawing pay in his old post by taking recourse to the provisions of Fundamental Rule 27, Financial Hand Book, Vol II, Part II subject to the condition that the pay so fixed does not exceed the maximum of the pay scale of the new post. If there is no corresponding stage, the pay will be fixed at the next lower stage, difference being allowed under Fundamental Rule 19 read with Fundamental Rule 9 (23).
(b) Financial Hand Book, Vol II, Part II as personal pay to be absorbed in future increments. If an employee is drawing more than the maximum of the scale of pay of his new post, the difference will be allowed as personal pay to be absorbed in future increases of pay on account of promotion, if any, or for any other reason.
The judgment dated 05.04.2002 passed by the Division Bench of this Court in Uma Shanker's Case (Supra) was challenged by the State in SLP No. 12422 of 2002 (State of U.P. v. Smt. Vandhana Sing & others). The judgment dated 05.04.2002 was stayed.
Finally the Civil Appeal No.8658 of 2002 and other connected appeals were dismissed on 1.12.2011 with following observations:-
"Having heard learned counsel for the parties and perused the impugned judgment, we are of the opinion that the direction by the High Court to the Government to consider the question of protection of pay and status of the writ petitioners in the light of the observations made in the impugned judgment, does not warrant our interference with the impugned judgment. Accordingly, the appeal is dismissed.
However, having regard to the fact that the issue is hanging fire for over 10 years, we would request the authorities concerned to take a final decision in the matter, as expeditiously as practicable and in any case, not later than 6 months from the date of receipt of a copy of this order.
In view of the order passed in the appeal, all applications for impleadment and intervention are rendered infructuous and are disposed of accordingly.
CIVIL APPEAL NO. 631 of 2007 In light of the order passed in Civil Appeal No. 8658 of 2002 arising out of SLP(C) No. 12422 of 2002 [@ C.M.W.P. No. 18619 of 2001], this appeal also merits dismissal. We order accordingly. However, insofar as the enforcement of order dated 5th September, 2002 passed by the High Court of Uttarakhand at Nainital in terms of the subsequent order dated 8th June, 2004 passed in Civil Contempt Petition No. 96 of 2003 is concerned, it will be open to the parties to pursue appropriate remedy as may be available to them in this behalf."
After the aforesaid matter attained finality, the opposite parties considered the matter and passed an order on 27.09.2012, whereby the employees covered under the judgment dated 05.04.2002 were granted the revised pay scale corresponding to the pay scale of post of Project Officer/ Assistant Project Officer after seeking approval of the finance department.
The G.O. dated 27.09.2012 was scrutinized by the Court in Writ Petition No. 61522 of 2012 (Smt. Meena Manral v. State of U.P.) and on being found not in accordance with observation made in the judgment dated 05.04.2002 passed in Uma Shanker's case (supra) this Court interfered and directed the State Govt. to reconsider the matter pertaining to issue of grant of equivalent status vide judgment and order dated 13.05.2014.
In pursuance of the order passed by Division Bench of this Court dated 13.05.2014 in Writ Petition No. 61522 of 2012 the State Government on 15.06.2015 had proceeded to dispose of the claim. The order dated 15.06.2015 is reproduced hereinbelow:-
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inksa ij osrueku :0 5000&8000 esa fd;k x;k Fkk] ds lEca/k esa 'kklukns'k [email protected] 15&86&izkS0& 2001&200 ¼93½@ 2000 fnukad 24 ekpZ] 2001 }kjk ;g fu.kZ; fy;k x;k Fkk fd bu lHkh ifj;kstuk vf/kdkfj;[email protected] lgk;d ifj;kstuk vf/kdkfj;ksa dh foHkkx esa yEch lsok vof/k dks ns[krs gq, budh lsok;s lekIr u dh tk, vFkkZr ekuoh; n`f"Vdks.k viukrs gq, foHkkx esa miyC/k ,y0Vh0xzsM ds osrueku :0 4500&7000 esa lgk;d v/;kid ds laoxhZ; fjDr inksa ij fu;qfDr iznku dj nh tk,] fdUrq bUgs osru laj{k.k vuqeU; u gksxkA 3- mDr 'kklukns'k la[;k% [email protected] 15&86&izkS0& 2001&200 ¼93½@ 2000 fnukad 24 ekpZ] 2001 ds vuqikyu esa rRle; 281 ifj;kstuk vf/kdkfj;[email protected] lgk;d ifj;kstuk vf/kdkfj;ksa }kjk dk;ZHkkj xzg.k fd;k x;k FkkA dsoy 36 ifj;kstuk vf/kdkfj;[email protected] lgk;d ifj;kstuk vf/kdkfj;ksa us ,y0Vh0xzsM ds lgk;d v/;kid ds laoxhZ; inksa ij dk;ZHkkj ugh xzg.k fd;k FkkA vr% 'kklukns'k la[;k% [email protected]&14&2012&200 ¼93½@ 2000 Vhlh fnukad 27-9-2012 }kjk mudh iwoZ dh lsokvksa dks n`f"Vxr j[krs gq, ek0 mPpre U;k;ky; ds vkns'kksa ds vuqikyu esa mijksDr 'kklukns'k fnukad 27 ekpZ] 2001 dk ykHk mUgsa iznku djrs gq, ,y0Vh0 xzsM ds laoxhZ; fjDr inksa ij lek;[email protected] rSukrh fd;s tkus gsrq funsZ'k fn;s x;sA 4- ifj;kstuk vf/kdkfj;ksa @ lgk;d ifj;kstuk vf/kdkfj;ksa ds osru ,oa Lrj dks lajf{kr fd;s tkus ds lEca/k esa 'kklukns'k fnukad 27-9-2012 }kjk ;g fu.kZ; fy;k x;k fd ifj;kstuk vf/kdkjh ,oa lgk;d ifj;kstuk vf/kdkjh ds inksa ij in/kkjd dze'k% osrueku :0 6500& 10500 ,oa 5000&8000 esa rSukr FksA NBsa osru vk;ksx ds lanHkZ esa bu osruekuksa dk lkekU; iqujh{k.k dze'k% osru cS.M&2 :0 9300&34800 ,oa xzsM osru :0 4600 ,oa osru cS.M&2 :0 9300&34800 ,oa xzsM osru :0 4200 gksrk gSA bu in/kkjdksa dks dze'k% osru cS.M&2 9300&34800 ,oa xszM osru :0 4600 ,oa osru cs.M&2 :0 9300&34800 xszM osru :0 4200 ds inksa ij rSukrh fn;s tkus ls muds osru ,oa Lrj dk laj{k.k (Protection of Pay and Status) gks tkrk gSA 5- 'kklu ds mDr vkns'k fnukad 27-9-2012 ds fo:) iqu% dfri; ifj;kstuk vf/kdkfj;ksa }kjk ek0 mPp U;k;ky; esa fjV ;kfpdk la[;k [email protected] 2012 ehuk eujky o vU; cuke m0iz0 jkT; o vU; ;ksftr dh x;h] ftl ij ekuuh; mPp U;k;ky; }kjk fnukad 13-5-2014 ds vuqikyu esa 'kklu }kjk dk;kZy; Kki laa[;k [email protected]&14&2015&200 ¼93½@ 2000 Vhlh fnukad 30-4-2015 fuxZr fd;k x;k] ftldh izfrfyfi vkidks Hkh i`"Bkafdr gSA bl dk;kZy; Kki dh Nk;kizfr lqyHk lanHkZ gsrq iqu% layXu gS] ftlesa fuEufyf[kr fu.kZ; fy;s x;s gS%& ¼1½ f'k{kk vuqHkkx&14 ds iwoZ fuxZr 'kklukns'k fnukad 29 flrEcj] 2012 dks la'kksf/kr djrs gq, vukSipkfjd f'k{kk ;kstuk ds ifj;kstuk Lrj ij rnFkZ vkSj fu%laoxhZ; inksa ij dk;Zjr ifj;kstuk vf/kdkfj;ksa ,oa lgk;d ifj;kstuk vf/kdkfj;ksa dh la[;k ds lerqY; la[;k esa leku inuke o osrueku ds fu%laoxhZ; inksa ¼osrueku :0 6500&10500 ,oa :0 5000&8000½ dk l`tu ifj;kstuk lekfIr dh frfFk ls djrs gq, iwoZ ifj;kstuk ds bu in/kkjdksa dk lek;kstu leku inuke ds bu fu%laoxhZ; inksa ds lkis{k bl izfrcU/k ds v/khu fd;k tkrk gS fd bu ink/kkjdksa dh lsok fuo`fRr vFkok vU; dkj.ksa ls fjDr gksus okys mDr fu%laoxhZ; in Lor% lekIr gks tk;sxsaA ¼2½ iwoZ fuxZr 'kklukns'k fnukad 24 ekpZ] 2001 ds dze esa ftu in/kkjdksa }kjk ,y0Vh xzsM v/;kid ds in ij iwoZ esa dk;ZHkkj xzg.k dj fy;k gS mUgs ;g fodYi gksxk fd og ,y0Vh xzsM v/;kid ds :i esa dk;Zjr cus jgsa vFkok og bu fu%laoxhZ; inksa ds lkis{k dk;ZHkkj xzg.k djsaA ;g fodYi mDr dk;kZy; Kki fuxZr gksus ls 30 fnu dh vof/k esa fn;k tk ldsxkA 6- 'kklu ds laKku esa ;g yk;k x;k gS fd mDr dk;kZy; Kki laa[;k [email protected]&14&2015&200 ¼93½@ 2000 Vhlh fnukad 30-4-2015 ds vuqikyu dh fn'kk esa vHkh rd dksbZ ykijokgh lEikfnr ugh dh x;h gS rFkk fdlh Hkh ifj;kstuk vf/[email protected] lgk;d ifj;kstuk vf/kdkjh dks mDr dk;kZy; Kki fnukad 30-4-2015 esa nh x;h O;oLFkk ds vuqlkj dksbZ [email protected] osru laj{k.k vkfn ugh izkIr gqvk gSA 7- vr% eq>s vkils dgus dks funsZ'k gqvk gS fd d`i;k 'kklu ds dk;kZy; Kki laa[;k [email protected]&14&2015&200 ¼93½@ 2000 Vhlh fnukad 30-4-2015 dk vuqikyu vofyEc lqfuf'pr djrs gq, vius Lrj ls fuEufyf[kr dk;Zokgh rRdky lEikfnr djkus dk d"V djsa%& 1- ifj;kstuk vf/[email protected] lgk;d ifj;kstuk vf/kdkjh] tks 'kklukns'k fnukad 24-3-2001 ds vuqikyu esa ,y0Vh0 xzsM osrueku esa lek;ksftr gq, gS] mu lHkh dfeZ;ksa dks vukSipkfjd f'k{kk esa le;≤ ij fuxZr lqlaxr 'kklukns'kksa ds v/khu izkIr dj jgs osru dks ¼ mUgs vfUre osru izek.ki= ds vk/kkj ij½ foRrh; gLrqifLrdk esa osru fu/kkZj.k gsrq fu/kkZfjr fu;eksa ds vUrxZr rRle; ,y0Vh0 xzsM esa izkIr osrueku esa osru fu/kkZfjr djus dh dk;Zokgh lqfuf'pr djk;saA 2- ftu ifj;kstuk vf/kdkfj;ksa }kjk fodYi i= Hkjdj ifj;kstuk vf/kdkjh ds in ij tkus dk fodYi izLrqr fd;k x;k gS] mu lHkh fodYi i=ksa dks e.Myh; la;qDr f'k{kk funs'kd ls izkIr dj ladfyr fodYi i=ksa dks funs'kd] lk{kjrk ,oa oSdfYid f'k{kk dks rRdky miyC/k djk;k tk;A layXud% ;FkksDr% Hkonh;~ ¼ ,p0,y0 xqIrk½ lfpoA In the matter of absorption of employee of Auto Tractor Limited, the pay was protected by Government vide G.O. dated 12.10.1993, which is referred in judgment reported in 1998 (2) AWC 979 (Keshav Ram Pandey v. State of U.P. From the judgment dated 08.07.2016 passed in Writ Petition No. 397 (S/B) of 2015 (Ankur Prasad v. State of U.P.) by D.B., and the judgment dated 27.11.2015 passed in Special Appeal Defective No. 553 of 2015 (State of U.P. v. Ram Shanker Gupta) it reveals that vide G.O. dated 11.11.1993 the pay of retrenched employees was protected on absorption. It also appears from Rule 3(2)(i) of the U.P. Absorption of Retrenched Employees of Government or Public Corporation in Government Service (Recession) Rules 2003 read with Section 3(2)(b) of the U.P. Act No. 29 of 2009 namely U.P. Absorption of Retrenched Employees of Government or Public Corporation in Government Service (Recession of Rules) Act 2009 that on earlier occasion(s) the pay was protected on absorption and the same was saved.
From the aforesaid, it is evident that on earlier occasion the pay was protected on absorption and in the instant case there is no provision with regard to pay protection on absorption.
The Hon'ble Apex Court in the case reported in 1993 Supreme Court Cases (L&S) 46 (K. Gopinathan v. Union of India) has held that on absorption, "Basic Pay" cannot be reduced and the said case was the case of deputationist who was serving as Assistant Sub-Inspector of Police in the State of Tamil Nadu and was taken on deputation in Central Bureau of Investigation ("CBI") and subsequently absorbed in CBI. In Gopinathan's case, the appellant as deputationist in CBI was getting Rs. 510/- as Basic Pay and on absorption in CBI as absorbee he was provided Rs. 390/- as Basic Pay and in appeal the Hon'ble Apex Court interfered in the conclusion drawn by the Central Adminsitrative Tribunal, Madras Bench by holding that Basic Pay cannot be reduced.
Considering the entirety of the case, this Court feels that some protection with regard to pay of the appellants/petitioners is required else it would be violative to Article 14 and 21 of the Constitution of India.
In absence of any provision on the issue of pay fixation/pay protection under the Rules of 2011 and considering the ture import of Article 21 of the Constitution of India under which right to life means right to live with human dignity and right to livelihood, facts and reasons aforesaid, and the "doctrine of equity" which could be applied in absence of any specific provision under the Rules of 2011 on the issue of pay protection as well as the spirit of the judgment of the Hon'ble Apex Court and this Court, referred hereinabove, this Court is of the view that the appellants/petitioners are entitled to protection of pay drawn by the appellants/petitioners in Sarva Shiksha Abhiyan and the same be protected in case they are permitted to join on lower post having lower pay or post having lower pay in comparison to the pay they were getting in Sarva Shiksha Abiyan. The second question is answered accordingly.
For the aforesaid reasons we feel that in the interest of justice it will be appropriate to issue following direction(s):-
(i) With respect of post of absorption we provide/direct that the respondents shall offer the appellants/petitioners Class III posts and the appellants/petitioners will be allowed to join the Basic Shiksha Department and they will be treated as absorbed and posted on the Class III posts.
(ii) With respect to pay protection we provide/direct that without reducing the "Basic Pay" of appellants/petitioner (which they were getting in Sarva Shiksha Abhiyan) the State Government shall consider the case of appellants/petitioners on the issue of protection of pay by taking recourse to the provision of Fundamental Rules/Financial Hand Book, by applying and interpreting the provisions in the context of present case of Absorption and by considering the observations made in the judgment.
We order accordingly.
Entire exercise be completed and direction given by this Court be complied with within a period of three months from the date of production of certified copy of this judgment.
As regards to the payment of salary for the period in which appellants were not allowed to work by the opposite parties, the appellants shall be at liberty to move the State Government through a representation for its consideration. The period in which the appellants were not allowed to work by the opposite parties shall be counted towards continuity in service for the purpose of retiral benefits.
With the aforesaid observations these appeals are disposed of.
Order Date:- 22.01.2019 Arun/-