Service law:
UP Minority Welfare Department Gazetted Officers Service Rules 2001: Appointment – Post of District Minority Welfare Officer on deputation/transfer of service basis – Appellant selected for appointment to the said post prior to coming into force of UP Service Rules 2001 and continued as such – UP Service Rules 2001 providing for filling up the posts in cadre of District Minority Welfare Officers by way of direct recruitment or by way of promotion – Representation by the appellant seeking absorption in the cadre of District Minority Welfare Officer – Thereafter, writ petition by the appellant seeking quashing the UP Service Rules 2001 and for issuance of mandamus directing respondents to regularize their services on the post of District Minority Welfare Officer – Dismissed by High Court – On appeal, held: Appellants having been appointed prior to coming into force of UP Service Rules 2001, their appointment cannot be said to be on deputation – 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 UP Service Rules 2001 is silent about the appointment of the appellants made prior to coming into force of the Rules, the appellants having been appointed on the post of District Minority Welfare Officer prior to coming into force of UP Service Rules 2001, cannot be deprived of their rights of absorption in the Minority Welfare Department – Pension to be paid to the appellants as admissible to the District Minority Welfare Officer – Order of the High Court set aside.
Allowing the appeal, the Court
HELD: 1.1 In the letter of Secretary, Minority Welfare Department dated 15.11.1997 communicated to other departments, the employees of their departments-appellants were selected for appointment ‘on the post of the District Minority Welfare Officer’ by service transfer. 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 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. 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. [Para 12] [177-C-F]
1.2 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. [Para 14] [178-D-E]
1.3 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. [Para 15] [178-F-H]
1.4 It is stated that since appellant R has retired, the Parent department of R has paid all the retiral dues and pension is being paid at the admissible rate in the Department of Training and Employment. Since appellant R and three other appellants 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 to the District Minority Welfare Officer, after adjusting the pension paid to appellants R and H. [Para 17] [179-F-G; 180-A]
1.5 The impugned order of the High Court is set aside. The appellants would be absorbed in post of District Minority Welfare Officer in the Department of Minority Welfare and Waqf from the date of their appointment. Insofar as the retired employees R and H, the Minority Welfare Department would comply with the aforesaid directions. [Para 18] [180-B-C] Managing Director, UP Rajkiya Nirman Nigam v. P.K. Bhatnagar and others (2007) 14 SCC 498 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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