Hon'ble Mahesh Chandra Tripathi,J.
(Per Hon'ble M.C. Tripathi, J.)
1. Smt. Geeta Dixit and 5 others are before this Court for quashing Para 5 (1) of the impugned order dated 15.6.2015 passed by the Secretary, Basic Education, Government of UP, Lucknow-respondent no.1 and have further prayed for direction commanding the respondents to extend all consequential benefits alongwith 12% interest thereon treating cadre holder post as per terms of earlier judgment dated 5.4.2002.
2. Brief background of the case, as is reflected from the record, is that a Non-Formal Education Scheme was initially introduced by the Central Government in the year 1979-80 for imparting education to children in the age group of 6 to 14 years, who either did not attend any school or who after the joining left the school before completing primary education. Initially the expenses incurred towards the said scheme were shared by the State Government and Central Government in the ratio of 50 : 50 but later on, it was revised to 40% : 60%. The said scheme was implemented in the State of Uttar Pradesh under the Directorate of Education (Basic) U.P. For the smooth running of the scheme, certain posts, including the posts of Supervisors were created by the State Government vide Government Order dated 11.8.1981 to supervise the work at various centres. Consequently appointments were made to the post of Supervisors by the Government on 11.2.1982. The said scheme was purely temporary in nature. Appointments were made purely on temporary and adhoc basis and were liable to be terminated at any time without notice. It appears that subsequently the said scheme was modified and was known as 'Non-Formal Education Project'. Various posts were created by the Government on 30.3.1988. The said posts so created included the post of Project Officer at project level. It is also reflected that the project itself was temporary in nature. The Government Order clearly visualised that all the posts would be temporary liable to be abolished at any time without any prior information.
3. It is also reflected that the posts other than the posts of Project Officer (Pariyojana Adhikari) had their equivalent posts in the education department under the Director of Education, U.P. and accordingly all the posts other than posts of Pariyojana Adhikari were filled on deputation by transfer of officers/officials holding equivalent posts in the regular education. The State Government vide order dated 15.7.1988 had proceeded to appoint a Selection Committee empowered to select Project Officers. As per terms and conditions the persons appointed as Project Officers would be bound to work for at least three years and further that on cessation of the project, their services would automatically come to an end. The Non-formal Education Project as indicated above continued till 31.3.2001. Thereafter, the Central Government stopped funding and abrogated the project. Consequently, the State Government proceeded to come out with a revised project under the name of 'Education Guarantee Scheme and Alternative and Innovative Education' w.e.f. 1.4.2001. The petitioners did not hold any lien on any posts as they were initially appointed as supervisors under 'Non-Formal Education Scheme', the posts were abolished but they were selected and re-engaged on the post of Project Officers under the 'Non-Formal Education Project' itself. Most of the petitioners were issued appointment letters on 13.8.1989 and on 27.2.1991. A Writ Petition being Civil Misc. Writ Petition No. 42806 of 2000 came to be filed by Pradeshiya Pariyojana Adhikari Anopcharik Shiksha Sangh, U. P., through its General Secretary and ors. v. State of U. P. and Ors., inter-alia for the following reliefs :
"(a) A writ, order or direction of a suitable nature commanding the respondents to treat the posts of Project Officer, Non-Formal Education as cadre post in the subordinate education (Gazetted) service with all consequential benefits thereof to the petitioners and the members of the petitioner No. 1 Association;
(b) A writ, order or direction of a suitable nature commanding the respondents to treat the petitioners as regularly and substantively appointed on the post of Project Officer, Non-Formal Education and as members of Subordinate Education (Gazetted) Service with all consequential benefits thereof;
(c) A writ, order or direction of a suitable nature commanding the respondent No. 1 to take a Director, Non-Formal Education, U. P., Lucknow, as contained in his communication dated 4.2.1999 and 19.1.2000 (Annexures-20 and 17 to the writ petition) ; within a period to be specified by this Hon'ble Court and to maintain the existing status of the petitions till such decisions ;"
4. The aforesaid writ petition was finally disposed of by order dated 9.10.2000 with a direction to the State Government to take final decision on the representations filed by the petitioners therein after taking into reckoning the recommendation made by the Director, Non-Formal Education, U. P., Lucknow vide letters dated 4.2.1999 and 19.1.2000. The decision was required to be taken by means of a reasoned order, if possible, within two months from the date of production of certified copy of that order. Consequent upon the said direction, the State Government took up the matter but ultimately rejected the representations vide order dated 23.3.2001. However, on 24.3.2001 the Government issued another order visualising thereby that after the cessation/revision of 'Non-Formal Education Project' w.e.f. 31.3.2001 due to non-sanction of funds by the Central Government, services of the Project Officers/ Assistant Project Officers working at project level on ex-cadre posts although came to an end but it was decided by the Government on humanitarian grounds that such Project Officers/Assistant Project Officers, who were working on ex-cadre posts would be absorbed in the available posts of Assistant Teacher L.T. Grade in the pay scale of Rs. 4,500-7,000 with a clear stipulation that they would not get any pay protection on account of such absorption. The orders dated 23.3.2001 and 24.3.2001 were challenged in Writ Petition No.13653 of 2001. After exchange of the pleadings between the parties, the aforesaid Writ Petition alongwith 32 writ petitions were partly allowed by a common judgment dated 5.4.2002, being leading Writ Petition No.12879 of 2001 (Uma Shanker Singh and ors vs. State of UP and ors) with following observations:-
"6. On behalf of the petitioners main argument was advanced by Sri Ashok Khare, Senior Advocate while on behalf of the State, Sri Vinod Swarup, Additional Advocate General appeared in these petitions. The nub of the submissions of Sri Ashok Khare is two fold : first, that the petitioners have been illegally denied the status and pay they were enjoying as Project Officers on erroneous view that the posts of Project Officers were ex-cadre posts ; and second, that the petitioners have been illegally discriminated from the incumbents of other posts in the project whose status and pay have not been disturbed after the cessation of the project, Sri Vinod Swarup on the other hand submitted that the petitioners could not legally claim any parity with those incumbents of the posts of Project Officers, who had permanent lien in the education department and who have been repatriated to their substantive posts after abolition of the posts of Project Officers. As regards pay protection it has been submitted by the learned Additional Advocate General that any protection of status and pay if given to the petitioners would result in denial of equality of treatment to those, who have been repatriated to their parent department.
7. As regards the plea that the petitioners were not appointed on deputation, we are of the view that the use of the word 'deputation' in the appointment orders in relation to the petitioners was a misnomer. In State of Punjab and ors vs. Inder Singh and ors, (1997) 8 SCC 372, the Supreme Court explained the concept of 'deputation' in the following words :
The concept of "deputation" is well understood in service law and has a recognised meaning. "Deputation" has a different connotation in service law and the dictionary meaning of the word "deputation" is of no help. In simple words "deputation" means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry of period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per the Recruitment Rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. The law on deputation and repatriation is quite settled as we have also seen in various judgments which we have referred to above. There is no escape for the respondents now to go back to their parent departments and working there as Constables or Head Constables as the case may be."
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 Director Basic Education (Non-Formal Education) submitted in this regard on 19.1.2000, was correct and the subsequent report justifying the use of the word "deputation" 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 regularisation 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 connection, Sri Vinod Swarup has submitted that is 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. and Anr., v. Dr. P. B. L. Saxena, AIR 1969 All 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 V.P. And another vs. Dr. P. B. L. Saxena (supra)." The Supreme Court in N. Ramanatha 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 (l)/66 O&M dated Lucknow March 2, 1967, laying down the 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 of raising of norms of work or other economy measures approved by Government.
(b) those rendered surplus as a result of reorganisation of a department/ organisation/ office with a view to improve efficiency or to effect economy.
(c) all other 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 visualised 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 appointments. 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 on 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 to 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 departments and they will be entitled to all such facilities as are admissible under normal rules except as provided above.
B. (i) 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 next increment on the same date on which they would have drawn it on their 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 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 reasons
(b) In case of absorption in a highest post, the benefit of fixation of pay at the stage next above the present pay will not be allowed and the pay will be fixed at the same stage, or if there is no such stage then at the" next below 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.
(ii) To facilitate fixation of pay of these employees, the Governor has been pleased to delegate to Heads of Departments, the power of fixation of pay of such employees under Fundamental Rule 27, Financial Hand Book Vols. II to IV in accordance with the above principles. The cases -not covered by these orders should be referred to Government in the administrative department concerned.
(iii) The procedure for absorption will be that as soon as an alternative appointment is available, the surplus employee shall be served with the formal orders, to be passed by the competent authority, for termination of the services of the employee concerned. in accordance with his terms and conditions of appointment and simultaneously informed about the alternative appointment. If he agrees to join the new post within the period allowed, he will be appointed on the new post by the appropriate authority for the new post, but if he fails to do so, his services shall stand terminated in accordance with the formal orders already served on him. If he Joins the new post, he will be allowed a compensatory allowance which will be equal in amount to what would have been admissible to him under Rule 42, Financial Hand Book, Vol. III in the event of his transfer in the Interest of Government work from his old to the new post. The amount so paid will be debited to the primary unit "Allowances and Honoraria" of the departmental budget from which the pay of the new post is to be met. On absorption, the temporary employee will be deemed to have severed all connections with his previous post, but he will carry forward his leave account and his post service will count for pension if he is later confirmed in his new post without interruption in service. Any break occurring between the relinquishment of the charge on the old post and the assumption of the charge on the new post which does not exceed the rules on the subject as standing on the date of such relinquishment in a case of transfer from the old to the new post will not be deemed to be an interruption within the meaning of Article 420, C.S.R., but the period of such break itself will not count as qualifying service. Inter se seniority of such an employee in the new department or in respect of new post will be fixed in accordance with principles which will be communicated separately by the Appointment Department."
12. In Dr. Chittaranjan Sharma and ors vs. State of Himachal Pradesh and another, 1996 (3) ESC 622 (SC), the appellants therein were not regularly appointed in H. I.M. Ayurvedic Degree College, Paprola, Kangra, which was taken over by the Government and handed over to Himachal Pradesh Health and Family Welfare Department and under relevant clause of the agreement, existing staff, Principal, Teaching and another employees were eligible to be absorbed in the college on a recommendation made by the screening committee after taking into consideration as to whether they fulfilled requisite conditions. The appellants therein were absorbed in suitable administrative posts to which they were eligible. They challenged their absorption before the Administrative Tribunal. The Tribunal directed to maintain the scale of pay which they were drawing on the date of the takeover and directed their absorption in the posts of Ayurvedic Chikitsa Adhikaries, etc. The Supreme Court held :
"It is seen that since the appellant had not fulfilled the requisite qualifications either when they were initially appointed by the committee before takeover 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, Adhikaries post, 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."
13. Since the Government have not addressed itself to factors relevant to the question as to protection of pay and status, we are of the view that the matter should be remitted to the State Government for reconsideration.
14. Accordingly, the petitions succeed and are allowed in part. The impugned order dated 23.3.2001 is quashed. The matter is remitted to the State Government to reconsider the feasibility of protection of pay and status of the petitioners after taking into reckoning all the relevant factors stated in this judgment and if necessary to modify its order dated 24.3.2001, accordingly."
5. It is also reflected from the record that the State Government has proceeded to challenge the aforesaid judgement passed by Division Bench of this Court by means of Special Leave Petition No.12422 of 2002 (State of UP and ors vs. Smt. Vandana Singh and ors). Hon'ble Supreme Court vide an order dated 22.7.2002 had stayed operation of the judgement dated 5.4.2002 passed by the Division Bench. 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."
6. After the aforesaid matter attained finality, the opposite parties considered the matter and passed an order on 27.09.2012, whereby the petitioners 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 relevant extract of the order dated 27.09.2012 is being quoted hereinbelow:
"2- bl laca/k esssa 'kklu }kjk ekuuh; mPpre U;k;ky; esa ;ksftr dh x;h fo'ks"k vuqKk ;kfpdk la[;k& [email protected]] fnukad 01 fnlEcj] 2011 esa fn;s x;s vkns'kksa ds dze esa iquZfopkj djrs gq;s foRr foHkkx }kjk dh x;h fVIi.kh ds izdk'k esa fuEuor fu.kZ; fy;k x;k gS%& "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 NBs 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 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 3- bl laca/k esa eq>s dgus dks funsZ'k gqvk gS fd ,sls ifj;kstuk vf/[email protected] lgk;d ifj;kstuk vf/kdkjh dks 'kklu ds i= la0 [email protected]&68&izkS0& 2001&200&[email protected] fnukad 24 ekpZ] 2001 }kjk ,y0Vh0xzsM ds lgk;d v/;kid ds laoxhZ; inksa ij lek;ksftr fd;k x;k FkkA rRle; 281 ifj;kstuk vf/[email protected] lgk;d ifj;kstuk vf/kdkjh }kjk dk;ZHkkj xzg.k fd;k x;k Fkk dsoy 36 ifj;kstuk vf/[email protected] lgk;d ifj;kstuk vf/kdkjh us ,y0Vh0xzsM ds lgk;d v/;kid ds laoxhZ; inksa ij dk;ZHkkj ugha xzg.k fd;k FkkA mudh iwoZ dh lsokvksa dks n`f"Vxr j[krs gq;s ek0 mPpre U;k;y; ds vkns'k ds vuqikyu esa mijksDr 'klukns'k dk ykHk iznku djrs gq;s ,y0Vh0xzsM ds lgk;d v/;kid ds laoxhZ; fjDr inksa ij lek;ksftr @ rSukrh fd;s tkus dh dk;Zokgh lEiUu djk;k tk; A 4- mDr vkns'k rRdky izHkko ls ykxw ekuk tk;sxk A"
7. After the decision was taken by the State Government on 27.9.2012, the petitioners again approached to this Court by means of Writ Petition No.61522 of 2012 (Smt. Meena Manral and ors vs. State of UP and ors) and while entertaining the writ petition an interim order was passed on 27.11.2012 by which the impugned order dated 27.9.2012 was stayed leaving it open to the State Government to pass appropriate order dealing with the issue. However, no such decision was taken by the State Government during the pendency of the writ petition. On 09.3.2014, after hearing the matter at length, this court had passed the following order:
"By means of this writ petition the petitioners have challenged the order dated 27.9.2012 passed by the State Government in-purported compliance of the earlier judgment of the Apex Court dated 1.12.2011 passed in Civil Appeal No.8658 of 2002 and connected matters.
By means of the impugned order as per the State Government the claim of pay and status of the post of Project Officer/Assistant Project Officer have been granted to the petitioners who have been absorbed as L.T. Grade Assistant Teachers. However, the grievance of the petitioners is that under the judgment dated 1.12.2011 their case for grant of status equivalent to the post of Project Officer was required to be considered which has not been done by the State Government.
The contention is that in view of the said judgment they are entitled to be considered for being absorbed on the post equivalent to the post of Project Officer, namely, D.I./A.D.I/.D.I.G.S. and to be given salary in the pay scale corresponding to the said post which has not been done in the instant case.
Sri Sashi Nandan, learned senior counsel appearing for the petitioners in one of the matters has invited the attention of the Court to certain recommendations made by Under Secretary, Education Department, Government of U.P. to the State Government by which he has proposed that the post of Deputy Basic Education Officers in the pay-scale of Rs.6000-10500/- which are vacant should be kept vacant and the absorption of the petitioners should be considered against the said post which are equivalent to the earlier post of Project Officer.
The contention is that this recommendation has not been considered and the impugned order has been passed in a mechanical manner.
Put up this matter on Tuesday next, i.e. 13.5.2014.
Learned counsel for the respective parties shall address the Court on the issue that what would be the modality for absorbing the petitioners on a post equivalent to the post of Project Officer as also the feasibility by such an exercise keeping in view the relevant service rules applicable to the said post and the promotional opportunities etc. of the Feeder Cadres as also the nature of duties to be performed."
8. The Court had considered the matter in detail on the issue of according status equivalent to the post of Project Officer/ Assistant Project Officer and partly allowed the writ petition on 13.5.2014 with following observations:-
"After hearing learned counsel for the petitioners as also the learned standing counsel for State and after perusing the material on record including the affidavits filed, we are of the view that the State has not considered the matter strictly in accordance with the observations of this court made in the earlier judgment dated 05.04.2002. Under some misconception, it has arrived at the conclusion that by absorbing the petitioners in L.T. Grade as Assistant Teachers and granting the revised pay-scale in respect of the pay-scale of the erstwhile post of Project Officer, status of Project Officer/ Assistant Project Officer also stood conferred. Learned counsel for the petitioners have contended that under the non-formal education scheme, they were not performing a teaching job but were exercising supervisory functions, whereas their absorption has been made on the post of Assistant Teachers in L.T. Grade, which is a teaching post. Learned counsel for the petitioners have also invited the attention of the court to a recommendation dated 23.06.2010 made by the Under Secretary, Department of Education to the State Government, a copy of which is annexed as Annexure-6 to the writ petition. The relevant extracts of the said recommendation are as under:
"bl laca/k esa iwoZ i`"B&7 ,oa 8 ij fLFkfr Li"V dh tk pqdh gSa A izdj.k esa ;g mYys[kuh; gS fd dkfeZd vuqHkkx&2 ds 'kklukns'k l[a;k&[email protected]@[email protected]&2&2008 fnukad 9 twu 2009 esa ;g uhfrxr fu.kZ; fy;k tk pqdk gS fd foHkkxksa esa miyC/k ljIyl dkfeZdksa dk lek;kstu dj fn;k tk;s vkSj buds lek;kstu gksus rd fjDr inksa dks u Hkjk tk;s A blfy, ljdkj @ foHkkx dk ;g nkf;Ro curk gS fd budk vfr'kh?kz lek;kstu dj fn;k tk;sA buds iSr`d foHkkx csfld f'k{kk vUrxZr gh fujh{k.k vuqHko ds vuq:i osrueku :0 6500&10500 esa mi csfld f'k{kk vf/kdkjh ds 27 vkLFkfxr in fjDr gSA blfy, mDr fjDr inksa ds lkis{k lek;kstu fd;s tkus esa dksbZ fof/kd vFkok vU; dfBukbZ ugha gSA vr% fouez vuqjks/k gS fd iz'uxr ljIyl ifj;kstuk vf/kdkfj;ksa dk bUgha ds iSr`d foHkkx csfld f'k{kk vUrxZr mi csfld f'k{kk vf/kdkjh ds fjDr 27 vkLFkfxr inksa ds lkis{k lek;kstu vkns'k fuxZr fd;s tkus ds laca/k esa d`i;k mPpkns'k izkIr djuk pkgsa A"
On an overall consideration of the facts and circumstances of the case, we find that the impugned order does not show any consideration of the observations made in the report of the Under Secretary as quoted hereinabove. The relevant aspects noted by us in the order dated 09.05.2014 have also not been adverted to by the State Government while taking the impugned decision.
The reasons given in the impugned order for granting of status of Assistant Teacher in L.T. Grade does not appear to be sound. The State has not considered the relevant aspects of the matter, as directed by this court on 05.04.2002 and as has been noticed by us in the order dated 09.05.2014.
In the aforesaid circumstances, the impugned order, in so far as it relates to the grant of status of Assistant Teacher in L.T. Grade to the petitioners is concerned, is not sustainable and the same is quashed, and so far as the grant of status equivalent to the post of Project Officer/ Assistant Project Officer was concerned, the same requires no interference at this stage.
Consequently, we direct the State Government to reconsider the matter pertaining to the issue of grant of equivalent status to the petitioners as ordered by this court in its judgment dated 05.04.2002 by considering all the relevant aspects of the matter including the recommendation dated 23.06.2010 against existing post or any other equivalent post. It shall be open for the petitioners also to file appropriate representation stating therein their version before the State Government. The State Government shall take a decision in this regard within a period of three months from the date of production of a certified copy of this order before it and in the event, the claim of the petitioners is accepted then all consequential benefits flowing therefrom shall also be granted to them. The pay protection granted under the order dated 27.09.2012 shall be subject to the fresh decision to be taken as aforesaid.
The existing status of the petitioner shall continue till the aforesaid decision is taken by the State Government.
The writ petition is partly allowed."
9. In pursuance of the order passed by Division Bench of this Court dated 13.5.2014 in Writ Petition No.61522 of 2012 the State Government on 15.6.2015 had proceeded to dispose of the claim. The said order dated 15.6.2015 has been challenged in the present writ petition. The order dated 15.6.2015 is reproduced hereinbelow:-
" mi;ZqDr fo"k;d 'kklu ds i= la[;k% [email protected] 15&86&izkS0& 2001&200 ¼93½@ 2000 fnukad 24 ekpZ] 2001 ,oa i= la[;k% [email protected]&14&2012&200 ¼93½@ 2000 Vhlh fnukad 27-9-2012 ¼Nk;kizfr layXu½ dk d`i;k lanHkZ xzg.k djusa] ftlds }kjk vukSipkfjd f'k{kk dh lekfIr ds i'pkr~ ifj;kstuk vf/kdkfj;ksa ds lek;kstu] LVsVl ,oa vU; ykHk iznku fd;s tkus ds lEca/k esa 'kklu }kjk iwoZ esa fuEuor~ fu.kZ; fy;k x;k Fkk%& 2- Hkkjr ljdkj dh vkfFkZd lgk;rk ls lapkfyr vukSipkfjd f'k{kk ;kstuk dks fnukad 31-3-2001 ls [email protected] iqujhf{kr dj ;kstukUrxZr dksbZ Hkh /kujkf'k mDr frfFk ds mijkUr Hkkjr ljdkj }kjk Lohd`r u fd;s tkus ds fu.kZ; ds QyLo:i ifj;kstuk Lrj ij rnFkZ ,oa fu%laoxhZ; inksa ij rSukr ifj;kstuk vf/kdkfj;[email protected] lgk;d ifj;kstuk vf/kdjf;ksa dh vko';drk ugh jg x;h FkhA vr% ,Sls ifj;kstuk vf/kdkfj;ksa] ftudh fu;qfDr;kW Ik;Zos{[email protected];Zosf{[email protected] f'k{kdksa esa ls rnFkZ ,oa fu% laoxhZ; inksa ij bl 'krZ ds v/khu dh x;h Fkh fd ifj;kstuk dh lekfIr ij budh lsok,a fcuk fdlh iwoZ lwpuk ds Lor% lekIr gks tk;sxh ,oa ,Sls lgk;d ifj;kstuk vf/kdkjh ¼fu%laoxhZ;½ ftudk lek;kstu ifj;kstuk vf/kdkfj;ksa ds inksa dks MkmuxzsM djds lgk;d ifj;kstuk vf/kdkjh ds fu%laoxhZ; 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 ¼ osrueku :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
10. Learned counsel for the petitioner submits that the petitioners being cadre holder became fully entitled for the benefit of promotion, time scale, super time scale, gratuity, pension etc. post likewise Deputy Inspector of Schools (now Block Education Officer) and Deputy Inspector of Girls Schools. He further makes submission that the judgement of this Court dated 5.4.2002, by which the post of Basic Education has been held cadre post, has become final and the petitioners became entitled for benefit of promotion, time scale, super time scale, gratuity, pension etc. Inspite of specific direction of this Court as well as Hon'ble Supreme Court the respondents have not taken any positive steps towards joining of the petitioners as it is clear from perusal of Para-5 (1) the impugned order dated 15.6.2015. The respondents could not justify their conduct by permitting to work on the post of LT Grade Teacher. The same is in violation to the dictum of the judgement of this Court dated 5.4.2002 passed in Uma Shanker Singh and ors's case (supra), which was affirmed by Hon'ble Supreme Court on 1.12.2011. The petitioners attained the age of superannuation in between 31.3.2012 to 30.6.2015 and despite of protection of this Court the respondents neither allowed the petitioners to work nor paid the salary since April, 2001 and keeping in view of the final decision, the petitioners are entitled to get the post retiral benefits in corresponding pay scale of Rs.6500-10500.
11. On the other hand, learned Standing Counsel has opposed the writ petition by submitting that the petitioners could not legally claim any parity with those incumbents on the post of Project Officer, who had permanent lien in the education department and who have been repatriated to their substantive post after abolition of the post of Project Officer and moreover under the Scheme the appointments were made purely on temporary and adhoc basis, liable to be terminated at any time without notice and subsequently the scheme in question had also been abrogated. In the appointment letters the terms and conditions were given in most categorical manner without any ambiguity that their engagement were purely on temporary basis. Once the project itself has come to an end, then the petitioners had no right to dictate the authority concerned for giving any corresponding post. The appointments of the petitioners were not made against the substantive post. No rules have been framed and no recruitment process had been adhered to and since the posts of Project Officer were abolished and as such, incumbents could not claim absorption or regularization as of right on equivalent post in the absence of statutory rule.
12. Heard rival submissions and perused the record.
13. It is not disputed that the petitioners were initially engaged as Project Officer created under Non-Formal Education Scheme. The post was created including the post of Project Officer at Project level and since the project itself was temporary in nature, all the persons who had applied and were selected, gave an undertaking to the effect that on being selected to the post of Project Officers, they would continue on the post at least for a period of three years and in the event of project coming to an end, their services would automatically stand terminated. It is not disputed that there was mention in the Government Order, by which the posts of Project Officer were created, that the posts of Project Officers were ex-cadre post. The State Government has taken steps only on humanitarian ground for accommodating incumbents those, who were working as Project Officers and tried to absorb them as LT Grade Teachers. Therefore, as per the appointment letter and their discontinuation, it is not disputed that the petitioners were not retrenched employees. Their engagement was under project and admittedly the said project had come to an end. While deciding the Writ Petition filed by Bal Krishna Mishra and ors (supra) this Court has proceeded to quash the initial order dated 23.3.2001 and the matter was remitted back to the State Government for reconsidering the feasibility of protection of pay and status of the petitioners.
14. At this stage we proceed to make a mention that there is Rule known as 'Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporations in Government Service Rule, 1991' ( hereinafter referred as Rule 1991), which had been framed in exercise of powers vested under the provisions of Article 309 of Constitution of India. The State Government was empowered to notify order whereby it may provide for absorption of Retrenched Employees in any post or service under the Government and also prescribe the procedure for such absorption including relaxation in various terms and conditions of recruitment in respect of such retrenched employees. Such notified order by virtue of sub- rule (1) of Rule 3 of 1991 Rules was to have over riding effect. Said rule nowhere provide for any automatic absorption of any retrenched employee covered under the definition of "Retrenched Employee" of 1991 Rules, unless and until a notified order has been issued by the State Government and the matter of such Retrenched Employee is covered by such order and the manner and the procedure for absorption was followed in accordance with such notified order read with relevant service rules.
15. It is relevant to refer the judgment dated 28.4.2006 passed by the Hon'ble Apex Court in Civil Appeal No. 5203 of 2004 Awas Vikas Sansthan and another. Vs. Awas Vikas Sansthan Engineers Association and others, wherein it has been held that "department which was abolished or abandoned wholly or partially for want of funds, the court cannot, by a writ of mandamus, direct the employer to continue employing such employees as have been dislodged".
16. We would like to proceed to examine the claim of petitioners in the light of Rules 1991 whereas the State Government has provided for absorption of the retrenched employees and the Rule itself had provided exhaustive procedure for deciding the claim of the retrenched employees if they claimed their absorption under Rules 1991. Under Rule 3 (1) of this Rules, the retrenched employees were given the rights to be absorbed on any post or service under the Government and the procedure prescribed for such absorption including relaxation in various terms and conditions of recruitment in respect of such retrenched employee.
17. It is relevant to indicate that the Rules of 1991 had been tested by this Court in Writ Petition No.17195 of 1998 (Bageshwari Prasad Srivastava and others and State of U.P. and others decided on 29.4.1999 in which the Court held as follows:-
"The purpose of retrenchment certificate is to enable the employee who will absorb him to know the reason for retrenchment. It obviates the necessity to find out whether the employee was terminated for any disciplinary action etc. An employee satisfying all the requirement of retrenchment cannot be denied absorption only because he was not possessed of the certificate. In absence of a form or manner in which a certificate should be issued, the provisions should be construed or as to advance the main objective of the rule namely Absorption of an Employee whose services have come to an end as a result of winding up of the Company. The petitioner had applied for retrenchment certificate to the Managing Director. He did not refuse to issue it nor did he hold that petitioners were not retrenched employee. Since there were 323 employees of the Managing Director instead of issuing of individual certificate wrote a letter to the Government to absorb them in Government Department. There is no reason as to why this letter of the Managing Director should not be construed as a retrenchment certificate. It is settled law that no one should fact that the petitioner applied for retrenchment certificate. Therefore, they did whatever was possible for them to avail the benefit of absorption. It the Managing Director instead of issuing certificate individually issued a letter generally for absorption then I am of the opinion that the Rule 1991 were complied and the employee could not be denied absorption as they were not possessed of retrenchment certificate. Therefore, all the impugned order could not be upheld.
The respondent while rejecting the claim of the petitioner held that even if a retrenched employee was found entitled to absorption he could be given certain marks in accordance with the order issued by the Government under Rule (3) but the order does not refer to any specific order of the Government. The petitioners have filed copy of two Government Orders issued on 4.5.1994 and 2.6.1994. The first order no. 1974 directed that any vacancy arising in future should be filed by retrenched employee and such employee should be given preferences and priority. The order further made it clear that the ban on appointment did not apply to regular appointment, promotions under Service Rule. The second order No. 2356 directed to give priority to retrenched employee in all future appointment in accordance with their qualification. These orders were issued under Rule 3 of the 1991 Rules, which, provides that the orders could be issued by the Government irrespective of any thing contained in any other service rule. The sub rule 2 of Rule 3 further provides that the relevant service rule shall stand modified to the extent an order is issued by the Government. It is, therefore, clear that a retrenched employee is not only entitled to absorption in accordance with the Government orders but he is entitled to preference and priority in Government service for which he is qualified. The order of the respondent cannot be maintained even for this reason.
In the result this petition succeeds and is allowed and the orders dated 28.4.1998 (Annexure-18 to the writ petition) are quashed. The respondents are directed to absorb the petitioners/employees of the Bhadohi Woolens Limited in Government service in accordance with their qualification in Class 3 and 4 posts forthwith."
18. The aforesaid judgment was upheld in Special Appeal No. 540 of 1999 decided on 19.11.2001 with the observations that the petitioners will have no right to claim appointment on Class III posts which are required to be filled up on the basis of recommendation of the U.P. Public Service Commission. The Special Leave to Appeal (Civil) No. 5379 of 2002 against the order in Bageshwari Prasad Srivastava' case was also dismissed by Supreme Court on 18.3.2002.
19. It is relevant to indicate that subsequently the State Government had promulgated the Rules known as 'Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporations in Government Service (Rescission) Rules, 2003', which rescinded the Rule 1991 with immediate effect i.e. 8.4.2003, and clearly held that the right of the retrenched employees to be considered for absorption accrued under 1991 Rules but the person, who has not been absorbed till the commencement of 2003 Rules, shall stand terminated from the date of enforcement of 2003 Rules. Recession Rules 1, 2 and 3 of the Rule of 2003, are as under:-
"1.(i) These rules may be called the Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporations in Government Service (Rescission) Rules, 2003.
(ii) They shall come into force at once.
2.In these rules, unless there is anything repugnant in the subject or context.
(a)" Constitution" means the Constitution of India;
(b)"Governor" means the Governor of Uttar Pradesh.
3 (1) Uttar Pradesh Absorption of Retrenched Employees of Government Rescission and Public Corporation in Government Service Rules, 1991 are hereby rescinded and as a consequence of such rescission.
(i) the right of a retrenched employee to be considered for absorption accrued under the Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporation in Government Service Rules, 1991 but who has not been absorbed till the date of the commencement of the Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporations in Government Service (Rescission) Rules, 2003 shall stand terminated from such date,
(ii) the orders of the Government issued from time to time prescribing the norms of absorption for retrenched employees of a particular Government department or Public Corporation in Government Service and granting of consequential benefits including pay protection, shall stand abrogated from the date of the commencement of the Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporations in Government Service (Rescission) Rules, 2003, (2) Notwithstanding such rescission:-
(i) the benefit of pay protection granted to an absorbed retrenched employee prior to the date of the commencement of the Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporations in Government Service (Rescission) Rules, 2003 shall not be withdrawn,
(ii) a retrenched employee covered by the Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporation in Government Service Rules, 1991 prior to the date of the commencement of the Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporations in Government Service (Rescission) Rules, 2003, but who has not been absorbed till such date shall be entitled to get relaxation in upper age limit for direct recruitment to such Group "C" and Group 'D' posts which are out aside the purview of the Uttar Pradesh Public Service Commission to the extent he has rendered his continuous services in substantive capacity in the concerned Government Department or Public Corporation in completed years."
20. Perusal of the aforesaid Rules would go to show that the Governor in exercise of his legislative power conferred by the proviso to Article 309 of the Constitution, has been pleased to make the said rules with a view to rescind the Rules 1991. Sub-rule (1) of Rule 3 of Recession Rules 2003 clearly deals with consequence of such rescission by mentioning that right of the retrenched employee to be considered for absorption accrued under the Rules, 1991 but who has not been absorbed till the date of the commencement of the Rules, 2003, shall stand terminated from such date. It further provided that the orders of the Government issued from time to time prescribing the norms of absorption for retrenched employees of a particular Government department or Public Corporation in Government Service and granting of consequential benefits including pay protection, shall stand abrogated from the date of the commencement of the Rules, 2003. Sub-rule (2) of Rule 3 of Rule, 2003, notwithstanding such rescission has saved and extended certain benefit. Benefit of pay protection already accorded prior to commencement of Rules 2003 has been saved, and further who have not been absorbed, qua them provision has been made for age relaxation in upper age limit for direct recruitment to such Group 'C' and 'D' post which are outside the purview of U.P. Public Service Commission to the extent he has rendered his continuous service in substantive capacity in the concerned Government Department or Public Corporation in completed years Except for these protection, no other benefit has been saved or extended.
21. It is reflected from the record that initially the petitioners approached to this Court by means of Writ Petition No.42806 of 2000. The said writ petition was disposed of on 9.10.2000 with a direction to the State Government to consider the representations of the petitioners. The State Government vide an order dated 23.3.2001 had proceeded to reject their claim but taken a very lenient view by which the petitioners i.e. Project Officers, who were not having any lien anywhere, their services were decided to be absorbed as Assistant Teachers in L.T. Grade. Instead of terminating their services and in pursuance of the said decision, most of the petitioners were adjusted against the said post in Government Inter Colleges in the pay scale of Rs.4500-7000 but the petitioners in their own wisdom have chosen to challenge the orders dated 23.3.2001 and 24.3.2001 and approached to this Court by filing various writ petitions, which were clubbed together and decided by this Court on 5.4.2002 and the order dated 23.3.2001 was quashed. The main grievance of the petitioners at that point of time was to the effect that the State Government had not addressed itself to factors relevant to the question as to protection of pay and status and as such the Court remitted the matter to the State Government for re-consideration. The Court had taken a prima facie view that while absorbing the petitioners as Assistant Teachers in L.T. Grade, the State Government had not considered the pay and status commensurate with the post of Project Officer, which was being held by them earlier and accordingly the said direction was issued. It is relevant to indicate that the said order passed by this Court was stayed by Hon'ble Supreme Court in Civil Appeal No.8658 of 2002 but eventually the said Civil Appeal filed by the State was dismissed vide an order dated 1.12.2011.
22. Now at this stage we proceed to make a mention that the State Government had taken a most lenient view while passing the order dated 23.3.2001 by which the services of the petitioners i.e. Project Officers, who were not having any lien anywhere, were decided to be absorbed as Assistant Teachers in L.T. Grade, instead of terminating their services and pursuance of the said order most of the Project Officers have proceeded to join but the petitioners, who are six in numbers before this Court, at no point of time had proceeded to join in pursuance of the order of the State Government dated 23.3.2001 and admittedly they have not rendered any work since then and now at this stage they claimed that they have every right to get the pay and status commensurate with the post of Project Officer.
23. We are constrained to make a mention that inspite of categorical provision of Rule 1991 no other provisions were available to the State Government for any absorption of incumbent, once the project was abrogated but at no point of time neither Rule, 1991 nor Rule, 2003 has been looked into. As indicated above, detail procedure was prescribed for absorption of retrenched employee, but no such procedure had ever been adopted in the matter. This is undisputed factual position that in the State of U.P for retrenched employees the State Government has framed the Rules of 1991 and thereafter the State Government had proceeded to promulgate Recession Rules of 2003. Once the Rules of 1991 was rescinded by means of Rules of 2003 and as such thereafter there is no provision of absorption of the retrenched employees. Whereas in the present case undisputed factual position, which is emerging is that petitioners' claims are not better than the retrenched employees. They were engaged purely under the project known as 'Non-Formal Education Project' and the said project had come to an end itself in the year 2001. Thereafter the State Government under its wisdom has proceeded to absorb the Project Officers against L.G. Grade teachers and once the petitioners have not chosen to be absorbed under the L.T. Grade Teachers, even though they were not the retrenched employees.
24. The petitioners have contended that their right had accrued in the past in their favour and as such, they were entitled for absorption according to their status but as indicated above at no point of time the petitioners were given any certificate to indicate that they were the retrenched employees contrary their engagement was purely temporary in nature and was liable to be terminated at any time without any prior information. The petitioners are claiming that they may be absorbed according to their status whereas the writ jurisdiction is meant to enforce the rule of law and not to violate the law. Once the State Government had framed the Rules of 1991, which was eventually rescinded by means of Rules of 2003 and admittedly the case of petitioners did not fall under the category of retrenched employees, no directive can be issued in violation to the Rules merely because some incumbents have been offered appointment, under the cover of the orders passed by this Court will not improve the case of the petitioners as two wrongs will not make a thing right, and equality in illegality, is totally against the rule of fair play and demand of petitioners, if accepted would be clearly violative of Articles 14 and 21 of Constitution of India.
25. Consequently we cannot grant any relief and reprieve to the petitioners.
26. For the aforesaid reasons, the writ petition is dismissed.
Order Date :- 29.1.2016 RKP