Case: RAJA SINGH Vs. STATE OF UP

order was passed repatriating them to their Parent department. Of course, in the meanwhile, writ petitions came to be filed by the appellants. However, there was no communication from the Department of Minority Welfare and Waqf to the other departments proposing for repatriation of the appellants to their Parent department.13. In Managing Director, UP Rajkiya Nirman Nigam v. P.K. Bhatnagar and others (2007) 14 SCC 498, it was held that the mere fact the employee has spent several years in service in the Department where he has been sent on deputation, will not alter the position from that of a deputationist to a regular employee. Of course, it is well-settled that the employee who has been sent on deputation, has no right to claim absorption. But in the case in hand, as we have discussed earlier, appointment was not on deputation; but by transfer of service much prior to coming into force of the Service Rules 2001.14. UP Minority Welfare Department Gazetted Officers Service Rules 2001 came into force w.e.f 02.07.2001. Rule 3(h) of the said Rules defines ‘Member of the Service’ as under:- 3(h) ‘Member of the service’ means a person substantively appointed under these rules or the rules or orders in force prior to the commencement of these rules to a post in the cadre of the service.Rule 3(k) defines ‘Substantive appointment’ as under:- 3(k) ‘Substantive appointment’ means an appointment not being an ad hoc appointment, on a post in the cadre of the service, made after selection in accordance with the rules and, if there were no rules, in accordance with the procedure prescribed for the time being by executive instructions issued by the Government.Be it noted that at the time of appointment of the appellants, there were no Service Rules. The appellants having been appointed prior to coming into force of UP Minority Welfare Department Gazetted Officers Rules 2001, their appointment cannot be said to be on deputation. Though it is stated that their appointment was only temporary, there is nothing on record to show that the posts were only temporary posts for a fixed time. In the absence of any material to show that the appellants were appointed only against temporary posts created only for a period of two years, it cannot be held that they were appointed only against temporary posts for a period of only two years.15. Rule 5 of the UP Minority Welfare Department Gazetted Officers Service Rules 2001 contemplated that 75% post of District Minority Welfare Officer will be filled up through Public Service Commission by direct recruitment and 25% by promotion through Public Service Commission from amongst substantively appointed Chief Waqf Inspectors and Senior Waqf Inspectors who have completed ten years’ service as Chief Waqf Inspector or Senior Waqf Inspector or both. Though UP Minority Welfare Department Gazetted Officers Service Rules 2001 is silent about the appointment of the appellants prior to coming into force of 2001 Rules, the appellants having been appointed on the post of District Minority Welfare Officer prior to coming into force of Service Rules 2001, cannot be deprived of their rights of absorption in the Minority Welfare Department.16. In the impugned order, the High Court relied upon WA No. 44112 of 2001 which is a subject matter of challenge in SLP(C) No.8885/2014 which in turn relied upon CMWP No. 44100 of 2013 titled Chandrabhan Srivastava and Another vs. State of U.P. and Others. In WP No. 44100 of 2013, the petitioners thereon were selected and joined in the cadre of District Minority Welfare Officer on 27.09.2009, long after the service Rules 2001 came into force. In that context, the High Court held that the persons who were appointed to the Minority Welfare Department, are governed by the Uttar Pradesh Minority Welfare Department Gazetted Officers Service Rules 2001. The petitioners thereon having been appointed by the Office Memorandum dated 27.07.2009, cannot claim to be a ‘Member of the Service’ as they do not fulfill the requirement under Rule 3(h) of the Rules. The said case in WP No. 44100 of 2013 is clearly distinguishable on facts. In the present case, the appellants having been appointed in 1997 much prior coming into force of UP Minority Welfare Department Gazetted Officers Service Rules 2001 clearly covered under Rule 3(h) of the Rules and stand on different footing. The High Court, in our view, was not right in placing reliance on Saeed Ahmad Khand and Chandrabhan Srivastava to dismiss the writ petition filed by the appellants.17. It is stated that Raja Singh and Hem Raj Singh retired on 30.06.2018. Claiming their ACP (Assured Career Progression) and other benefits, WP No.23563(S/B) of 2018 was filed by Raja Singh which was disposed of by the High Court vide order dated 31.08.2018 directing the Parent department namely Department of Training and Employment to process the pension papers relating to payment of post-retirement dues. It is stated that pursuant to the said direction of the High Court, Director of Training and Employment vide its order dated 30.10.2018 sanctioned payment of all retiral benefits and other dues payable to appellant Raja Singh. It is stated that the Parent department of Raja Singh has paid all the retiral dues and pension is being paid at the admissible rate in the Department of Training and Employment. Since appellant Raja Singh and three other appellants namely Hem Raj Singh, Dharam Deo Tripathi and Makrand Prasad are held to be the employees of Department of Minority Welfare and Waqf in the cadre of District Minority Welfare Officer, they are entitled to the retiral benefits and pension as admissible to the District Minority Welfare Officer. Department of Minority Welfare and Waqf shall process the pension papers and pay all the retiral benefits after adjusting retiral benefits paid to the appellants Raja Singh and Hem Raj Singh by their respective departments. The pension shall be paid to the appellants as admissible to the District Minority Welfare Officer after adjusting the pension paid to appellants Raja Singh and Hem Raj Singh.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Even though the said letter states that the appellants were appointed by deputation/service transfer, considering the surrounding circumstances that the appellants have undergone the selection process by appearing for interview before the Committee and that they were selected for appointment shows that it was ‘selection andin the Department of Minority Welfare and notAs pointed out earlier, even though, the appellants were appointed for the period of two years, after two years, no order was passed repatriating them to their Parent department. Of course, in the meanwhile, writ petitions came to be filed by the appellants. However, there was no communication from the Department of Minority Welfare and Waqf to the other departments proposing for repatriation of the appellants to their Parentit noted that at the time of appointment of the appellants, there were no Service Rules. The appellants having been appointed prior to coming into force of UP Minority Welfare Department Gazetted Officers Rules 2001, their appointment cannot be said to be on deputation. Though it is stated that their appointment was only temporary, there is nothing on record to show that the posts were only temporary posts for a fixed time. In the absence of any material to show that the appellants were appointed only against temporary posts created only for a period of two years, it cannot be held that they were appointed only against temporary posts for a period of only two years.In Managing Director, UP Rajkiya Nirman Nigam v. P.K. Bhatnagar and others (2007) 14 SCC 498, it was held that the mere fact the employee has spent several years in service in the Department where he has been sent on deputation, will not alter the position from that of a deputationist to a regular employee. Of course, it is well-settled that the employee who has been sent on deputation, has no right to claim absorption. But in the case in hand, as we have discussed earlier, appointment was not on deputation; but by transfer of service much prior to coming into force of the Service Rules 2001.Rule 5 of the UP Minority Welfare Department Gazetted Officers Service Rules 2001 contemplated that 75% post of District Minority Welfare Officer will be filled up through Public Service Commission by direct recruitment and 25% by promotion through Public Service Commission from amongst substantively appointed Chief Waqf Inspectors and Senior Waqf Inspectors who have completed tenservice as Chief Waqf Inspector or Senior Waqf Inspector or both. Though UP Minority Welfare Department Gazetted Officers Service Rules 2001 is silent about the appointment of the appellants prior to coming into force of 2001 Rules, the appellants having been appointed on the post of District Minority Welfare Officer prior to coming into force of Service Rules 2001, cannot be deprived of their rights of absorption in the Minority Welfare Department.16. In the impugned order, the High Court relied upon WA No. 44112 of 2001 which is a subject matter of challenge in SLP(C) No.8885/2014 which in turn relied upon CMWP No. 44100 of 2013 titled Chandrabhan Srivastava and Another vs. State of U.P. and Others. In WP No. 44100 of 2013, the petitioners thereon were selected and joined in the cadre of District Minority Welfare Officer on 27.09.2009, long after the service Rules 2001 came into force. In that context, the High Court held that the persons who were appointed to the Minority Welfare Department, are governed by the Uttar Pradesh Minority Welfare Department Gazetted Officers Service Rules 2001. The petitioners thereon having been appointed by the Office Memorandum dated 27.07.2009, cannot claim to be a ‘Member of theas they do not fulfill the requirement under Rule 3(h) of the Rules. The said case in WP No. 44100 of 2013 is clearly distinguishable on facts. In the present case, the appellants having been appointed in 1997 much prior coming into force of UP Minority Welfare Department Gazetted Officers Service Rules 2001 clearly covered under Rule 3(h) of the Rules and stand on different footing. The High Court, in our view, was not right in placing reliance on Saeed Ahmad Khand and Chandrabhan Srivastava to dismiss the writ petition filed by the appellants.17. It is stated that Raja Singh and Hem Raj Singh retired on 30.06.2018. Claiming their ACP (Assured Career Progression) and other benefits, WP No.23563(S/B) of 2018 was filed by Raja Singh which was disposed of by the High Court vide order dated 31.08.2018 directing the Parent department namely Department of Training and Employment to process the pension papers relating to payment of post-retirement dues. It is stated that pursuant to the said direction of the High Court, Director of Training and Employment vide its order dated 30.10.2018 sanctioned payment of all retiral benefits and other dues payable to appellant Raja Singh. It is stated that the Parent department of Raja Singh has paid all the retiral dues and pension is being paid at the admissible rate in the Department of Training and Employment. Since appellant Raja Singh and three other appellants namely Hem Raj Singh, Dharam Deo Tripathi and Makrand Prasad are held to be the employees of Department of Minority Welfare and Waqf in the cadre of District Minority Welfare Officer, they are entitled to the retiral benefits and pension as admissible to the District Minority Welfare Officer. Department of Minority Welfare and Waqf shall process the pension papers and pay all the retiral benefits after adjusting retiral benefits paid to the appellants Raja Singh and Hem Raj Singh by their respective departments. The pension shall be paid to the appellants as admissible to the District Minority Welfare Officer after adjusting the pension paid to appellants Raja Singh and Hem Raj Singh.