Supreme Court

Raja Singh and Ors. Vs. State of U.P. and Ors.

MANU/SC/0676/2019

06.05.2019

Service

Appellants cannot be deprived of absorption rights in Minority Welfare Department when their appointment is made prior to coming into force of Service Rules, 2001

Present appeals arise out of the judgment passed by the High Court by which the High Court held that, the appointment to the post of District Minority Welfare Officer is to be governed by UP Minority Welfare Department Gazetted Officers Service Rules, 2001 and that the Appellants have no legal right to claim their absorption in the Minority Welfare Department and the same has been rightly rejected by the State Government.

The point falling for consideration is that, the Appellants having been selected and appointed as District Minority Welfare Officer prior to coming into force of Rules, 2001, can it be said that, the Appellants were only on deputation and that they have no legal right to claim absorption as District Minority Welfare Officer.

After the separation of the Social Welfare Department, a new department i.e. Minority Welfare Department was carved out in the year 1995. The Government Order dated 22nd November, 1996 was issued to the various departments of Uttar Pradesh inviting applications from the eligible candidates of various departments for the post of District Minority Welfare Officer on service transfer/deputation basis.

All the Appellants applied for the post of District Minority Welfare Officer through proper channel and after facing interview before the Selection Committee and undergoing the selection process, they were duly selected for the post of the District Minority Welfare Officer. The appointment letters were issued. As per the office order dated 30th December, 1997, the Appellants were appointed "to the temporary post of newly created Minority Welfare Officers under the Minority Welfare and Waqf Department on deputation/service transfer for the period of two years or till further orders whichever is earlier".

In the letter of Secretary, Minority Welfare Department communicated to other departments, the employees of their departments viz. Makrand Prasad, Raja Singh, Dharam Deo Tripathi and Hem Raj Singh were selected for appointment 'on the post of the District Minority Welfare Officer' by service transfer.

Even though said letter states that the Appellants were appointed by deputation/service transfer, considering the surrounding circumstances that, the Appellants have undergone the selection process by appearing for interview before the Committee and that they were selected for appointment shows that, it was 'selection and appointment' in the Department of Minority Welfare and not 'deputation'. 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.

At the time of appointment of the Appellants, there were no Service Rules. The Appellants having been appointed prior to coming into force of 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.

Though 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.

It is stated that Raja Singh and Hem Raj Singh retired on 30th June, 2018. 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.

Tags : Appointment Legal right Absorption

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