Allahabad High Court
Rajiv Varshney And 10 Ors. vs State Of U.P. Thru ... on 6 July, 2018
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
RESERVED ON 25.05.2018
DELIVERED ON JULY 6th, 2018
1. Case :- SERVICE SINGLE No. - 3811 of 2018
Petitioner :- Rajiv Varshney And 10 Ors.
Respondent :- State Of U.P. Thru Prin.Secy.Deptt.Of Basic Edu.Lucknow &Ors
Counsel for Petitioner :- Vivek Raj Singh,Sarvesh Kumar Dubey
Counsel for Respondent :- C.S.C.,A.M. Tripathi
With
2. Case :- SERVICE SINGLE No. - 5104 of 2018
Petitioner :- Jitendra Singh And 2 Ors.
Respondent :- State Of U.P Thru Prin.Secy.Basic Edu.Civil Sectt.Lko.&Ors.
Counsel for Petitioner :- Sarvesh Kumar Dubey
Counsel for Respondent :- C.S.C,A.M. Tripathi
With
3. Case :- SERVICE SINGLE No. - 4178 of 2014
Petitioner :- Rajiv Varshney & 14 Ors.
Respondent :- State Of U.P. Through Prin. Secy. Deptt. Of Basic Edu. Lko.
Counsel for Petitioner :- Vivek Raj Singh,Sarvesh Kumar Dubey
Counsel for Respondent :- C.S.C.,Ajey Shanker Tewari,Anand Mani Tripathi,Smt. Nalini Jain
With
4. Case :- SERVICE SINGLE No. - 5405 of 2014
Petitioner :- Jitendra Singh & 3 Ors.
Respondent :- State Of U.P. Through Prin. Secy. Deptt. Of Basic Edu. Lko.
Counsel for Petitioner :- Sarvesh Kumar Dubey,Raghvendra P.Singh
Counsel for Respondent :- C.S.C.,Anand Mani Tripathi,Smt. Nalini Jain
With
5. Case :- SERVICE SINGLE No. - 5631 of 2014
Petitioner :- Mohd. Ekram Khan & Another
Respondent :- State Of U.P. Through Prin. Secy. Basic Edu. Lko. & Ors.
Counsel for Petitioner :- Sarvesh Kumar Dubey,Raghvendra P.Singh
Counsel for Respondent :- C.S.C.,Anand Mani Tripathi,Smt. Nalini Jain
******
Hon'ble Rajesh Singh Chauhan,J.
1. Heard Sri Vivek Raj Singh, learned counsel for the petitioners, Sri Pankaj Khare, learned Additional Chief Standing Counsel for the State-respondents and Sri Anand Mani Tripathi, learned counsel appearing for the respondent No.4-State Project Director, U.P. Education for all Project Council, State Project Office (Sarva Shiksha Abhiyan), Lucknow.
2. In the aforesaid batch of writ petitions, the main question for consideration by this Court is as to whether the petitioners who are erstwhile employees of U.P. UPTRON India Limited can claim the equivalent post on which they were performing their duties in the erstwhile department, in the department of Basic Shiksha, State of U.P. where they have been absorbed on account of closure of UPTRON India Ltd.
3. Since the common question of law and facts are involved in these writ petitions, therefore, with the consent of the counsel for the parties of the writ petitions, these petitions are decided by a common judgment. The prayers of all the writ petitions are being reproduced here-in-below:-
1. Case :- SERVICE SINGLE No. - 3811 of 2018
(a) Issue a writ, order or direction in the nature of certiorari to quash the order dated 30.01.2018 (Annexure No.1 collectively), passed by the opposite party No.4.
(b) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to allow to the petitioners to retain their posts of Assistant Account & Finance Officer along with protection of pay scale of Rs.9200-34800 with grade pay of Rs.4200/-.
2. Case :- SERVICE SINGLE No. - 5104 of 2018
(a) Issue a writ, order or direction in the nature of certiorari to quash the order dated 30.01.2018 (Annexure No.1 collectively), passed by the opposite party No.4.
(b) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to allow to the petitioners to retain their posts of District Co-ordinator along with protection of pay scale of Rs.9200-34800 with grade pay of Rs.4800/-.
3. Case :- SERVICE SINGLE No. - 4178 of 2014
(a) Issue a writ, order or direction i the nature of certiorari to quash the orders dated 31.07.2013 & 16.07.2014 (Annexure Nos.1 & 2), passed by the opposite party No.1.
(b) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to pass an appropriate order to absorb the petitioners on Accounts Cadre with pay band-2 Rs.9300- 34800 with grade pay of Rs.4800/- preferably on the post of Assistant Finance & Accounts Officer.
(c) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to pass the absorption order with the protection of the designation and last pay drawn by the petitioners.
(d) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to conclude the service period of the petitioners for the assured carrier progression i.e. ACP and retirement benefits.
4. Case :- SERVICE SINGLE No. - 5405 of 2014
(a) Issue a writ, order or direction i the nature of certiorari to quash the orders dated 31.07.2013 & 16.07.2014 (Annexure Nos.1 & 2), passed by the opposite party No.1.
(b) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to pass an appropriate order to absorb the petitioners in the Administrative Cadre with pay band-2 i.e. Rs.9300-34800 with grade pay of Rs.4600/- preferably on the post of District Co-ordinator.
(c) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to pass the absorption order with the protection of the designation and last pay drawn by the petitioners.
(d) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to conclude the service period of the petitioners for the assured carrier progression i.e. ACP and retirement benefits.
5. Case :- SERVICE SINGLE No. - 5631 of 2014
(a) Issue a writ, order or direction i the nature of certiorari to quash the orders dated 31.07.2013 & 16.07.2014 (Annexure Nos.1 & 2), passed by the opposite party No.1.
(b) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to pass an appropriate order to absorb the petitioners in the Computer Operator Cadre with pay band-2 i.e. Rs.9300-34800 with grade pay of Rs.4200/- preferably on the post of Computer Operator.
(c) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to pass the absorption order with the protection of the designation and last pay drawn by the petitioners.
(d) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to conclude the service period of the petitioners for the assured carrier progression i.e. ACP and retirement benefits.
4. The petitioners of the leading writ petition i.e. Writ Petition No.3811 (S/S) of 2018 are said to be aggrieved out of order dated 30.01.2018 issued by the opposite party No.4 i.e. the State Project Director, U.P. Education for all Project Council, State Project Office (Sarva Shiksha Abhiyan), Lucknow, by means of which the petitioners have been relieved to the Basis Education Department, which is the parent department of the petitioners, as they have been absorbed from UPTRON India Ltd. to the Basie Education Department U.P. on the ground that the opposite party No.4 is a project having no permanent establishment features and the petitioners have got no lien in this project where they have been discharging their duties on deputation basis.
5. As noted above, the petitioners were initially appointed in UPTRON India Ltd. At the time of closure of UPTRON India Ltd., the petitioners were discharging their duties in Accounts Department of UPTRON on various posts, which are being indicated here-in-below:-
S.No.
Name of the Petitioners
Last Designation at UPTRON
01.
Rajeev Varshney
Jr. Accounts Officer
02.
Manoj Kumar Jaitley
Assistant Accounts Officer
03.
Sameer Sharma
Jr. Officer (Accounts)
04.
Umesh Kumar Srivastava
Executive Officer (Accounts)
05.
Pramod Kumar Gupta
Executive Officer (Accounts)
06.
Jitendra Kumar Agarwal
Junior Officer (Accounts)
07.
Ramesh Kant Singh
Assistant Officer (Accounts)
08.
Arun Prakash Saxena
Accountant/ Senior Auditor of Accounts
09.
Anurag Shyam
Accountant
10.
J.H. Jaidi
Junior Officer (Accounts)
11.
Daljeet Singh
Junior Commercial Officer
6. On account of closure of UPTRON India Ltd. a policy decision has been taken by the State Government to absorb the employees of UPTRON India Ltd. in various department and other instrumentalities of the State Government. Consequently, the petitioners hereto have been absorbed in the Basic Education Department vide order dated 28.05.2013 issued by the Principal Secretary, Department of Education, Anubhag-5 and thereafter posted on various posts on deputation basis in the scheme of Sarva Shiksha Abhiyan of Basic Education Department of U.P. At the Sarva Shiksha Abhiyan, the petitioners have been given the designation as under:-
S.No.
Name of the petitioners
Designation
01.
Rajeev Varshney
Assistant Finance & Accounts Officer i.e. AAO
02.
Manoj Kumar Jaitley
AAO
03.
Sameer Sharma
AAO
04.
Umesh Kumar Srivastava
AAO
05.
Pramod Kumar Gupta
AAO
06.
Jitendra Kumar Agarwal
AAO
07.
Ramesh Kant Singh
AAO
08.
Arun Prakash Saxena
AAO
09.
Anurag Shyam
AAO
10.
J.H. Jaidi
AAO
11.
Daljeet Singh
AAO
7. It is to be noted here that though the Sarva Shiksha Abhiyan is one of the projects of the Basic Education Department but it is a time bound scheme/ project, financed by the Central Government and the State Government at the ratio of 60:40.
8. As per the counter affidavit being filed by Sri Anand Mani Tripathi, learned counsel for the opposite party No.4 i.e. State Project Director, Sarva Shiksha Abhiyan, the project being temporarily run by Sarva Shiksha Abhiyan which is registered under the Societies Registration Act in the name of U.P. Sabhi Ke Liye Shiksha Pariyojana Parishad and all the posts in the said scheme are to be filled under contract/ deputation basis in view of manual on financial management and procurement.
9. As per learned counsel for the opposite party No.4 i.e. the State Project Director, Sarva Shiksha Abhiyan, there is no permanent post available in this scheme and for running the scheme the funds are being provided by the Central Government and the State Government. He has further submitted that so far as the retiral dues and other things are concerned, there is no provision for payment of the same and no budget is provided for the same. Since the Sarva Shiksha Abhiyan is not a permanent government department, therefore retiral dues etc. may not be paid to the employees of the said scheme. This is the reason to the employees working on contractual/ deputation basis only for time being. This is the main reason for repatriating the petitioners vide order dated 30.01.2018 to their parent department i.e. the Basic Education Department. On the strength of the aforesaid submission, learned counsel for the opposite party No.4, Sri Anand Mani Tripathi, has vehemently submitted that order dated 30.01.2018 is perfectly legal and justifiable and the bunch of writ petitions are misconceived and the same may be dismissed. In support of his submission Sri Anand Mani Tripathi has cited the judgment of Hon'ble Apex Court reported in (2000) 5 SCC 362; Kunal Nanda vs. Union of India and another referring para-6 of the aforesaid judgment is being reproduced here-in-below:-
"6. On the legal submissions made also there are no merits whatsoever. It is well settled that unless the claim of the deputationist for permanent absorption in the department where he works on deputation is based upon any statutory Rule, Regulation or Order having the force of law, a deputationist cannot assert and succeed in any such claim for absorption. The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation. The reference to the decision reported in Rameshwar Prasad vs. M.D., U.P_. Rajkuya Nirman Nigam Ltd. and others [1999 (8) SCC 381] is inappropriate since, the consideration therein was in the light of statutory rules for absorption and the scope of those rules. The claim that he need not be a graduate for absorption and being a service candidate, on completing service of 10 years he is exempt from the requirement of possessing a degree need mention, only to be rejected. The stand of the respondent department that the absorption of a deputationist being one against the direct quota, the possession of basic educational qualification prescribed for direct recruitment i.e., a degree is a must and essential and that there could no comparison of the claim of such a person with one to be dealt with on promotion of a candidate who is already in service in that department is well merited and deserves to be sustained and we see no infirmity whatsoever in the said claim."
10. The crux of the aforesaid para is that a deputationist cannot assert and succeed in his claim for permanent absorption in the department where he works on deputation, unless his claim is based upon any statutory rule, regulation or order having the force of law. A deputationist can always and at any time be repatriated to his parent department, at the instance of either borrowing department or parent department. There is no vested right in such situation a person to continue for long on deputation and get absorbed in the borrowing department. Therefore, on the strength of the aforesaid submission Sri Tripathi has submitted that this writ petition may be dismissed inasmuch as order of repatriation has been passed strictly in accordance with law.
11. It is also to be noted here that the petitioners hereto have filed one writ petition before this Court bearing Writ Petition No.4178 (S/S) of 2014 challenging the orders dated 31.07.2013 and 16.07.2014, by means of which the Principal Secretary, Department of Basic Education has passed an order for absorption of the petitioners on the post of Ashulipik (Stena), Junior Clerk, Driver and other Class-IV posts in the pay scale of Rs.5200-20200 on the ground that the petitioners were working on the post of Assistant Finance & Account Officers in the Pay Band -II of Rs.9300-34800 with Grade Pay of Rs.4800 and by means of the aforesaid impugned orders, they are being demoted for no cogent reasons.
12. This Court in Writ Petition No.4178 (S/S) of 2014 was pleased to pass an interim order dated 12.08.2014 as under:-
"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."
13. As per learned counsel for the petitioners, the Writ Petition No.4178 (S/S) of 2014 is still pending and the aforesaid interim order is still existing but the opposite party No.4 has passed an order dated 30.01.2018, which is impugned in this writ petition, in the teeth of interim order dated 12.08.2014. Learned counsel for the petitioners has submitted that for non-compliance of order dated 12.08.2014 the contempt petition has already been filed and the same is still pending.
14. Learned counsel for the petitioners has also drawn attention of this Court towards order dated 03.05.2017 passed by the Division Bench of this Court in Writ Petition No.16783 (S/B) of 2016 submitting that the Division Bench of this Court was pleased to direct the authorities of the State Government to protect the pay scale and status of the petitioner. As per learned counsel for the petitioners, the petitioner of that writ petition was employee of UPTRON India Ltd. and his absorption was denied for the reason that no post of District Project Coordinator is created in the Uttar Pradesh Diversified Agriculture Support Project Coordination. In the said case, the Division Bench of this Court was pleased to quash the order whereby the absorption of the petitioner of that writ petition has been denied directing the authority concerned to absorb the petitioner in the Department of Coordination on the post of District Project Coordinator or in the event of non-availability of the post, on any post bearing equal pay scale and status.
15. Learned counsel for the petitioners has also drawn attention of this Court towards order dated 13.05.2014 passed by the Division Bench of this Court in Writ -A No.61522 of 2012 submitting that same situation was arisen in the Basic Education Department and the Division Bench of this court was pleased to direct the State Government to reconsider the matter pertaining to the issue of grant of equivalent status.
16. Learned counsel for the petitioners in support of his submission has cited the judgments of Hon'ble Apex Court reported in (1988) 4 SCC 168; Hussain Sasan Saheb Kaladgi vs. State of Maharashtra and (1988) 4 SCC 170 ; Nyadar Singh vs. Union of India & others thereby submitting that the Hon'ble Apex Court has held that the incumbent may not be reverted from upper post to the lower post. In the case of Nyadar Singh (supra), the expression 'reduction in rank' has been dealt and interpreted by the Hon'ble Apex Court. In para-13 of the aforesaid judgment, the Hon'ble Apex Court has observed as under:-
"13... a person working in a higher post, not substantively, but purely on an officiating basis may, for valid reasons, be reverted to his substantive post. That would not, by itself, be reduction in rank unless circumstances of reversion disclose a punitive element."
17. Learned counsel for the petitioners has also cited the judgment of Hon'ble Apex Court reported in (1993) 1 SCC 419; P.V. Srinivasa Sastry & others vs. Comptroller and Auditor General & others thereby submitting that the Hon'ble Apex Court has categorically observed in para-8 of the aforesaid judgment that the expression 'reduction in rank' in Article 311 (2) has an obvious reference to different grades in service. Whenever there is a reduction in a higher post to a lower post may be under exigencies of situation or by way of punishment. Para-8 of the aforesaid judgment is being reproduced here-in-below:-
"8. The expression "reduction in rank" in Article 311(2) has an obvious reference to different grades in service. Whenever there is a reduction in rank it implies reversion from a higher post to a lower post. Reversion from a higher post to a lower post may be under exigencies of situation or by way of punishment. The expression "reduction in rank" occurring in Article 311(2) covers only such reversions which are by way of punishment. The expression "reduction in rank", within the meaning of Article 311(2) as the expression itself suggests, means reduction from a higher to a lower rank or post. But whether in this process an officer can be reduced from a higher rank or a post to a rank to which he never belonged and to a post which he never held? It the power to reduce an officer by way of punishment to a rank which was never held by such officer is conceded, then a person directly appointed as Upper Division Clerk cannot only be reverted to the post of Lower Division Clerk, but even to the post of a Peon; an Engineer to the post of a Fitter, a Head-Master of a School to the post of an Accountant or Clerk in the said School. As such even while imposing the punishment of reduction in rank, the order must have nexus with the post held by the delinquent officer concerned, from which he had been promoted to the post from which he is being reverted. It such an officer had not held that post or was not member of that cadre then he cannot be reverted to a lower cadre to which he did not belong or to a lower rank which he did not hold at any stage."
18. Learned counsel for the petitioners has also cited the judgment of Hon'ble Apex Court reported in (2010) 11 SCC 71; South Bengal State Transport Corporation vs. Ashok Kumar Ghosh and others thereby submitting that the Hon'ble Apex Court has held that an employee can be reverted to a lower post or service, he cannot be reverted to a post lower than the post in which he entered in service. He referred para-20 of the aforesaid judgment, which is being reproduced here-in-below:-
"20. We may next consider whether the punishment is permissible in service jurisprudence. It is well settled that while an employee can be reverted to a lower post or service, he cannot be reverted to a post lower than the post in which he entered service (See: Nyadar Singh vs. Union of India - AIR 1988 SC 1979). Further it is also well settled that reversion to a lower post or service does not permit reversion to a post outside the cadre that is from regular post to a daily wage post. We are therefore of the view that the punishment inflicted on the delinquent employee not being one of the punishments enumerated in Regulation 36, is not permissible in law."
19. On the strength of the aforesaid submissions and the case laws, learned counsel for the petitioners has submitted that the petitioners may not be posted on lower post than the post which was held by them in UPTRON India Ltd. and, therefore, absorbing the petitioner on the lower post is patently illegal, arbitrary, discriminatory and uncalled for.
20. Sri Pankaj Khare, learned Additional Chief Standing Counsel has vehemently submitted that on account of the scheme of the State Government, the petitioners have been absorbed in the Basic Shiksha Department, however, they have not completed the necessary formalities of absorption. He has also submitted that the absorption of the employees would be completed only after taking their consent and completing certain formalities but the petitioners had not completed these formalities for absorption, as such, their absorption could not be completed. He has further submitted that as per the Absorption Rules, the petitioners were offered the posts commensurate to their educational qualification and the posts which were outside the purview of the Public Service Commission. He has also submitted that the petitioners would be offered the posts which can be filled up through direct recruitment and those posts are outside the purview of the Public Service Commission.
21. Sri Khare has also submitted with vehemence that during the course of arguments, learned counsel for the petitioners has pleaded the case of repatriation, whereas he has not pleaded the case of reversion in the entire writ petition.
22. Sri Khare has also submitted that the case laws so cited by learned counsel for the petitioners are related to 'reduction in rank' whereas in the instant case after closure of the UPTRON India Ltd., the employees of erstwhile UPTRON were taken in the State Government strictly as per the provisions of U.P. Absorption of Surplus Employees of Uptron India Ltd. in Government Service Rules, 2011. The incumbents have been offered the post commensurate to their education qualifications. It has also been submitted by Sri Khare that the petitioners cannot be claimed any particular post as a matter of right inasmuch as after absorption in the Basic Education Department the post can be officered as per the scheme of absorption.
23. In support of his submission, Sri Khare has cited the judgment of this Court reported in (2011) 3 All. L.J. 235; Vijay Shanker Shukla and others vs. State of U.P. & others wherein the repatriation order has been assailed by the writ petitioners of that writ petition. He has submitted that the facts and circumstances of this writ petition more or less are similar to the facts and circumstance of the case of Vijay Shanker Shukla (supra), wherein this Court has been pleased to dismiss the writ petition. He has submitted that paras-1 to 5 of the judgment explain the facts of the said case, para-32 is an observation of this Court and para-49 is a conclusion of the judgment, which are being reproduced here-in-below:-
"1. This is a bunch of seventy seven writ petitions. The binding thread running through all these writ petitions, is the subject matter of repatriation of the petitioners from the borrowing department/ Agency. All the petitioners are at present working in the State Urban Development Agency (hereinafter called as 'SUDA'). Orders have been passed by SUDA directing the petitioners to return to their parent department. In one form or the other, all the petitioners have challenged the orders of their repatriation from SUDA. Before venturing into the merits of the case and the claim of the petitioners, it will be necessary to know what SUDA actually stands for.
2. It has been informed that SUDA is an agency/ autonomous body, registered under the Societies Registration Act, 1960. It has temporary establishment in the State till the scheme lasts. SUDA is being run with the temporary grant, sanction of which are given on year to year basis from the Government of U.P. The administrative expenditure is meted out from the grant by the Government of India/ State Government for the schemes related to the upliftment of the weaker section of urban areas. SUDA has no permanent establishment, it is an autonomous body and the powers vest in the governing body of the Society, and dependent upon the financial sanction by the State, Government. Temporary staff on deputation basis or on contract basis, are being deputed in SUDA. As has been indicated above, all the petitioners have challenged their repatriation from SUDA to their parent department. Since common question of law and facts are involved, it will be proper that all the writ petitions may be decided by a common order.
3. The petitioners have come to SUDA from various Departments/ Corporation/ Govt. Companies and other instrumentalities of the State. The petitioners, who are working in SUDA can be classified in various categories but for purposes of these petitions, they can be classified mainly in two groups. The first category consists of such employees, whose parent department are still existing and functioning; the second category consists of those employees, whose parent department have either become sick or are not existing today.
4. Some of the petitioners are on deputation, while some of them are on contract basis. The main question for consideration before this Court is whether the petitioners have any right under the law to continue in service of SUDA? On the other hand, can SUDA, order for en masse repatriation of all its employees ? Further question is, whether SUDA is repatriating those employees also whose parent department do not exist any more. Can SUDA be allowed to pass and execute such repatriation orders, wherein repatriation order may take form of termination order. Can termination/ retrenchment of the employees be allowed to stand in the garb of repatriation. These are some of the questions, which have been argued forcefully, strongly, passionately and compassionately before this Court. Legal arguments have been advanced, at the same time, human considerations have also been directed to visit the conscience of this Court.
5. In almost all the writ petitions, stay order has been granted and the petitioners are working with the opposite party on the strength of such stay orders."
"32. The petitioners have also touched the human factors involved in these writ petitions. It has been passionately argued by the petitioner that they are a bunch of unfortunate employees, who were earlier abandoned by their parent department, when they became sick or were closed down. After undergoing the vagaries of retrenchment/ termination and the security of the job, the petitioners were given protection and shelter in SUDA. The State Government had tried to rehabilitate the petitioners in this agency and they were given to understand that their services will be absorbed or regularized here. The Court should consider their cases with human angle. In this regard, they have also referred to the case of H.C. Puttaswamy and others vs. The Hon'ble Chief Justice of Karnataka High Court, Bangalore and others (1991 (Supp) 2 SCC- 1421), referring to para- 12 and part of para- 13 is being quoted below :-
"12. Having reached the conclusion about the invalidity of the impugned appointments made by the Chief Justice, we cannot, however, refuse to recognise the consequence that involves on uprooting the appellants. Mr. Gopala Subramanayam, counsel for the appellants while highlighting the human problems involved in the case pleaded for sympathetic approach and made an impassioned appeal for allowing the appellants to continue in their respective posts. He has also referred to us several decisions of this Court where equitable directions were issued in the interests of justice even though the selection and appointments of candidates were held to be illegal and unsupportable.
"13...............One could only imagine their untold miseries and of their family if they are left at the midstream. Indeed, it would be an act of cruelty at this stage to ask them to appear for written test and viva voce to be conducted by the Public Service Commission for fresh selection (See: Lila Dhar v. State of Rajasthan)"
"49. On the basis of aforesaid discussions, this Court comes to the conclusion that SUDA is well within its right to repatriate the petitioners, whose period of deputation have expired. Petitioners cannot insist to remain on deputation in SUDA beyond a period of five years. SUDA being a Society, whose existence run on year to year basis, cannot be forced to absorb any deputationist."
24. Sri Khare has also submitted that there is no provision of pay protection in the Absorption Rules. Therefore, the petitioners may not claim the prayer of pay protection.
25. In the rejoinder arguments, Sri Vivek Raj Singh, learned counsel for the petitioners has reiterated his submissions made in the writ petitions and also submitted that on account of order being passed by this Court, the Sarva Shiksha Abhiyan has made payment of retiral dues to some of the employees of UPTRON. In para-8 of the rejoinder affidavit, Sri Vivek Raj Singh has referred the issue of Sharad Mehrotra and Brahma Nand Lavania, who have been retired from the post of Assistant Finance & Account Officer and Computer Officer respectively from the office of Sarva Shiksha Abhiyan as an absorbed employee of Basic Education Department through order dated 28.05.2013 and they were retired at the age of 60 years and were getting the salary of the same pay and status on the post of Assistant Finance & Account Officer from the Basic Education Department.
26. Sri Vivek Raj Singh has also submitted that by filing counter affidavit, the State Government has not filed proper reply of the writ petition, meaning thereby they have nothing to controvert.
27. Learned counsel for the petitioners has drawn attention of this Court towards Annexure No.13 of the writ petition which is the order of absorption of the petitioners dated 26.08.2013 in the Department of Basic Education thereby submitting that along with the aforesaid order one chart has been enclosed by the department showing the total number of sanctioned posts, the number of employees who are working on those posts and the number of vacant posts.
28. Learned counsel for the petitioners has submitted that total five category of the posts have been indicated in the aforesaid chart, those are Superintendent, Senior Assistant, Senior Clerk, Junior Clerk and Stenographer. As per the aforesaid chart, 61 posts of Superintendent, 102 posts of Senior Assistant, 86 posts of Senior Clerk, 323 posts of Junior Clerk and 120 posts of Stenographer are lying vacant. Therefore, learned counsel for the petitioners has submitted that instead of clerical posts, the petitioners may be absorbed on the post of Superintendent if their qualifications suit the department. However, there is no specific averment to that effect in the writ petition but learned counsel for the petitioners has argued this point during the course of final arguments referring the aforesaid chart, which is annexed with the order dated 26.08.2013 as Annexure No.13 to the writ petition.
29. Learned Additional Chief Standing Counsel, Sri Pankaj Khare, has not categorically controverted the aforesaid submission of learned counsel for the petitioners but he has referred para-12 of the counter affidavit of the State-respondents wherein it has been indicated that the petitioners can be offered the appointment on the posts which can be filled up through direct recruitment and are not on the promotional posts. On being asked as to whether the post of Superintendent is a promotional post, no specific reply has been given by the learned counsel for the State-respondents. However, vide para-9 of the rejoinder affidavit, the learned counsel for the petitioners has submitted that in the Basic Education Department the posts of Senior Superintendent are lying vacant on which the petitioners could be placed. In the said paragraph, learned counsel for the petitioners has submitted that the plea of the department that the petitioners could not be absorbed on the promotional posts and the petitioners could be placed on the vacant posts of Senior Superintendent/ Administrative Officer (same pay and status).
30. Since the department has not categorically indicated in his counter affidavit and also has not apprised the Court as to whether the posts of Superintendent are the promotional posts or those posts can be filled up through direct recruitment. It has also not been apprised to the Court as to whether the posts of Senior Superintendent come within the purview of the Public Service Commission, however, learned counsel for the petitioners has submitted that to the best of the information so received by him through reliable sources, the posts of Superintendent are outside the purview of Public Service Commission and can be filled up through direct recruitment.
31. Be that as it may, it is a domain and jurisdiction of the State Government to absorb the petitioners in the department of Basic Education on any suitable post which consumerates with their educational qualification and experience etc. But if 61 posts of the Superintendent are outside the purview of the Public Service Commission and also those posts are not the promotional posts, the department may consider the absorption of the petitioners on the said posts so that the petitioners could get equivalent status and protection of equal pay scale.
32. So far as the grievance of the petitioners that they be retained on the post of Assistant Account & Finance Officer on the pay scale of Rs.9200-34800 with grade pay of Rs.4200/- is concerned, the petitioners could not establish this claim as the matter of right. Looking into the facts and circumstances of the issue, the employees of the Institution/ Agency/ Company, which has been closed down finally and their employees have been absorbed in any of the State department or of its instrumentalities pursuant to the benevolent and welfare scheme of the State Government, cannot claim any particular post or pay scale which cannot otherwise be payable/ granted to them, as a matter of right. At the best, they can be accommodated / placed/ posted strictly in accordance with law and as per scheme and also as per their qualifications and experience.
33. The case laws so cited by the learned counsel for the petitioners are not applicable to the facts and circumstances of the issue in question inasmuch as no order of reduction in rank against the petitioners has been passed. Not only the above, as per the settled proposition of law of Hon'ble Apex Court in re: Kunal Nanda (supra) a deputationist cannot assert and succeed in his/ her claim for permanent absorption in the department where he/ she works on deputation.
34. Therefore in view of the above, I find no infirmity or illegality in the order dated 30.01.2018, passed by the opposite party No.4. Likewise, the petitioners could not establish their claim for retention of their post of Assistant Account & Finance Officer in the office of opposite party No.4 with protection of pay scale of Rs.9200-34800 with grade pay of Rs.4200/-, therefore, no mandamus can be issued directing the opposite parties to provide the aforesaid relief to the petitioners.
35. However, so far as the submission of the petitioners for their absorption on 61 vacant posts of Superintendent in the department of Basic Education on the same pay scale and grade pay is concerned, the State Government shall examine the aforesaid aspect sympathetically and if the State Government finds that the posts of Superintendent can be filled up through direct recruitment, not by way of promotion, and are the posts outside the purview of the Public Service Commission, and those petitioners who are fulfilling the requisite qualifications for being appointed on the post of Superintendent, can be considered for absorption on the said posts and the State Government shall consider the aforesaid issue with promptness and pass appropriate orders, strictly in accordance with law say within a period of two months from the date of presentation of a certified copy of this order. However, it is made clear that interim order, if any, shall continue till the final order is passed by the State Government as directed here-in-above.
36. It is made clear that vide Writ Petition No.4178 (S/S) of 2014 the petitioners have challenged the orders dated 31.07.2013 and 16.07.2014, by means of which the Principal Secretary, Department of Basic Education has passed the order for absorption of the petitioners on various posts of Class-III and Class-IV in the pay scale of Rs.5200-20300, therefore the said writ petition is also being disposed of finally in terms of the observations made here-in-above as the said writ petition has been rendered infructuous. The petitioners of the said writ petition are directed to complete the necessary formalities regarding absorption for the same if it has not been completed by them. It is needless to say that the aforesaid formalities regarding the absorption would be subject to the order being passed by the State Government as directed here-in-above.
37. In view of the observations made here-in-above, all the writ petitions are disposed of finally.
38. No order as to cost.
Order Date :- July 6th, 2018 [Rajesh Singh Chauhan, J.]
Suresh/
