Disposed

Ram Kishan S/O Jagesjwar Prasad and Ors. v. State of U.P. Thru Principal Secy. Appoint and Personal and Ors.

Allahabad HC3 Aug 2023WRIA/962/2010

Case brief

AI extract

What is this about?

Writ petition by surplus UPTRON employees seeking absorption as Class-IV employees in U.P. Civil Secretariat. The court quashed the rejection order dated 11.5.2010, following a co-ordinate bench decision, and directed the respondents to treat the petitioners as absorbed employees and pay salary from respective dates.

What did the court decide?

The impugned order dated 11.5.2010 is quashed. The State-respondents are directed to treat the petitioners as absorbed employees of the U.P. Civil Secretariat and pay them salary of their respective p

Ram Kishan S/O Jagesjwar Prasad and Ors… — Pension and Retirement Benefits | Allahabad HC (2023)

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A.F.R. Neutral Citation No. - 2023:AHC-LKO:51037

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Court No. - 5 [Reserved]

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Case :- WRIT - A No. - 962 of 2010

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Petitioner :- Ram Kishan S/O Jagesjwar Prasad And Ors. Respondent :- State Of U.P. Thru Principal Secy. Appoint And Personal And Ors.

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Counsel for Petitioner :- Dr. L.P. Mishra,V.K. Bajpai Counsel for Respondent :- C.S.C.,Sanjay Bhasin

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Hon'ble Irshad Ali,J.

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Heard Dr. L.P. Misra, learned counsel for the petitioners and Sri Pankaj Khare, learned Standing Counsel for the Staterespondent.

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By means of the present writ petition, the petitioners have prayed as under :-

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"[a] To issue a writ, order or direction in the nature of mandamus commanding the Opp-parties to frame a scheme for absorption of the petitioners as Class-IV employees in U.P. Civil Secretariat against the sanctioned and vacant posts on which they are working from the date of their initial appointment as Class-IV employees.

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[b] To issue a writ, order or direction in the nature of mandamus commanding the Opp-parties to make payment of salary to the petitioners in the minimum of the basic pay as per revised pay scale w.e.f. 01.01.2006 along with other admissible benefits including arrears thereof.

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[c] To award the cost of this petition in favour of the petitioners.

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[d] To issue any other writ, order or direction which this Hon'ble Court deems just and proper in the circumstances of the case.

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[e] issue a writ, order or direction in the nature of certiorari thereby quashing the impugned order dated 11.5.2010. contained as (annexure no. 40)

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[f] issue a writ, order or direction in the nature of mandamus commanding the opposite parties to pay salary to the petitioners as per revised pay-scale from 1.1.2006 i.e. from the date it is being paid to the regularly appointed group-D employees of U.P. Secretariat. The opposite party no. 3 may further be directed to make its contribution into the provident fund account of the petitioners.

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[g] prayer deleted

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[h] Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to extend all the service benefits arising out from the absorption of the petitioners as Group-D employees from the date of their initial appointment including the services rendered by the petitioners ass the employees of Uptron notwithstanding the absorption order dated 04.04.2012 issued pursuant to Notification dated 20.11.2011."

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Facts in nutshell are that Uptron India Limited was established as a subsidiary company of U.P. Electronics Corporation which is directly controlled by the department of I.T. and Electronics, Government of U.P. It was engaged in the designing and manufacturing of electronics goods and up to the year 1991, the company was running into profit but all of a sudden, it received financial loss and on 20.6.1994, it was declared as a sick unit and referred to BIFR.

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The petitioners of the present writ petition were appointed in the said company against the sanctioned and vacant posts after following the due procedure of law in the years 1982, 1983, 1984, 1985, 1986 and 1987 after qualifying the written examination followed by interview.

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The Cabinet took a decision to close all the units of the company except the consultancy division and on account of its closure, the petitioners as well as other employees became unemployed due to closure of work. A government order dated 11.11.1998 was issued, providing therein that the employees of the sick units may be appointed on contract basis against the available posts in the government departments/ establishments/ institutions.

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On 1.12.1988, a decision was taken in the Cabinet meeting in regard to closure of Uptron as well as adjustment of its employees.

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Government order dated 22.12.1998 was issued, directing all the government departments/ establishments/ institutions for adjustment/ appointment of the Uptron employees as per the availability of vacancies. Pursuant to the aforesaid policy decision of the State Government, a memorandum of agreement was signed between the respondent Nos.3 and 4 and it was decided that the petitioners will be appointed as Group-D employees in the U.P. Civil Secretariat on contract basis.

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A letter was issued on 23.7.2009, directing the petitioners to submit their joining report as Class-IV employees. Thereafter, the petitioners, since the dates of their respective appointments in U.P. Civil Secretariat as Class-IV employees i.e. from August, 1999 onwards, are being paid minimum of the basic pay admissible to a Class-IV employee till date although they are doing same work as is performed by the regularly appointed Class-IV employees of the U.P. Civil Secretariat.

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Submission of learned counsel for the petitioners is that the petitioners are being paid minimum of the basic pay, which is only Rs.2,550/- per month, is also against the principle of equal pay for equal work and as such the respondents are legally bound to pay same pay scale which is being paid to the regularly appointed Class-IV employees of the U.P. Civil Secretariat.

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The government has extended the benefit of revised pay scale pursuant to recommendations of pay committee constituted for implementing recommendation of 6th pay commission, to the employees working on contract basis in various government departments/ corporations as the employees working on contract basis in U.P. State Law Commission have been given benefit of the revised pay scale.

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The employees of the Uptron who were also appointed on contract basis in U.P. State Human Rights Commission have been given benefit of pay revision pursuant to the recommendations of the 6th pay commission vide order dated 21.5.2009.

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Submission of learned counsel for the petitioners is that the employees of the Uptron were appointed on contract basis in the U.P. State Human Rights Commission on the same terms and conditions on which the petitioners were appointed but the employees of Uptron appointed in the Human Rights Commission have been extended the benefit of revised pay scale vide order dated 21.5.2009, whereas the petitioners have yet not been extended the said benefit and, as such, the petitioners are also entitled to be treated at par to their counterparts working in various government departments who have been given benefit of revised pay scale which is Rs.6050/-.

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The petitioners who are being paid Rs.2550/- per month as minimum of the basic pay of Class-IV employee since the year 1999-2000 i.e. from the date of their respective joining of U.P. Civil Secretariat and at present as per the recommendations of the 6th pay commission, the minimum of the basic pay of Class-IV employee has been fixed as Rs.6050/- per month and this pay has been given to the Class-IV employee w.e.f. 1.1.2006 and as such, in this view of the matter also, the petitioner are entitled to get Rs.6050/- per month as minimum of the basic pay scale admissible to Class-IV employees in the U.P. Civil Secretariat.

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Since the year 2005, the petitioners are continuously moving representation before the respondent No.3 mentioning therein the entire facts and have been requesting for their absorption against the vacant posts of Group-D employees i.e. on the post on which they are working since last 10 years, but to no avail.

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Learned counsel for the petitioners submits that the petitioners are legally entitled to be absorbed as Class-IV employees in the U.P. Civil Secretariat in view of the decisions taken in the high level meetings dated 11.12.1998, 22.12.1998, 4.1.1999, 16.12.2004 and 8.11.2005 as well as in view of the information given by the Department of Law, Finance, Karmik, Sachivalaya Prashasan Vibhag, but the inaction on the part of the respondents in this regard is illegal, arbitrary and discriminatory.

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It is submitted that after the closure of Uptron India Ltd., all the employees who did not opt V.R.S. and were appointed either on

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contract basis or on deputation in various departments/ corporations establishments like the petitioners, are forming the same class and more than 250 Uptron employees have been permanently absorbed in various departments like Department of Home, U.P. Power Corporation, State Consumer Forum, State Election Commission in availability of vacancies, but the petitioners who are similarly situated persons to those who have been permanently absorbed but they are not being by the respondents, which action of the respondents is discriminatory and is in violation of Articles 14, 16 and 21 of the Constitution of India.

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It is submitted that number of similarly situated persons have been absorbed against Group-D posts of U.P. Secretariat, vide order dated 23.2.2010, one Siya Ram, who was retrenched employee of U.P. Tyres and Tubes Ltd., a government undertaking like Uptron India Limited, has been absorbed/ appointed against Group-D posts of U.P. Secretariat and as such in this view of the matter, the reasoning assigned by the respondent No.3, while rejecting the case of the petitioners for their absorption is arbitrary and discriminatory, which is not sustainable in the eyes of law.

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The reasoning assigned in the order dated 11.5.2010 to the effect that since the petitioners are retrenched employees of Uptron, who are working on contract basis against Group-D post of U.P. Secretariat, cannot be absorbed against the said posts in view of the prescription made in the 1983 Rules whereby service conditions of Group-D employees of U.P. Secretariat are governed is not sustainable in the eyes of law for the reason that the State Government is competent to make necessary absorption.

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He submits that all the petitioners of the present writ petition are aggrieved by their non absorption in the U.P. Civil Secretariat in terms of the provisions contained in Uttar Pradesh Absorption of Surplus Employees of UPTRON India Limited in Government Service Rules, 2011 (hereinafter referred to as 'Absorption Rules, 2011') notified on 20.12.2011 and the Government Order dated 20.12.2011.

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After successfully functioning as a commercial venture for a considerable long period in the business of production of television

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sets and other electronic items, UPTRON India Limited became sick and ultimately the said successful venture of the State of U.P. was closed down.

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In a meeting held under the Chairmanship of the Chief Secretary of U.P. on 11.12.1998, which was attended by higher officers of the State Government and other officers of various other State Government instrumentalities/undertakings, a decision was taken to appoint the surplus employees of UPTRON India Limited on contract basis to various Government departments/offices and establishments.

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In a similar case, this Court passed an order on 05.03.2013 in Writ Petition No. 4556 (S/S) of 2012 which runs as under:-

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"Pursuant to order dated 22.02.2013, Sri Sunil Kumar, Principal Secretary, department of Basic Education, Government of U.P. and Ms. Amrita Soni, Project Director, Sarva Shiksha Abhiyan, Uttar Pradesh are present in Court.

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On a query being put to him, Sri Sunil Kumar, Principal Secretary stated that Uttar Pradesh Absorption of Surplus Employees of UPTRON India Limited in Government Service Rules, 2011 were notified on 20.12.2011 as a piece of beneficial subordinate legislation to benefit those employees who before closer of UPTRON India Limited were working in the said organization. He further stated that proposal for absorption of employees of UPTRON India Limited including the petitioners has been received from the State Project Director, Sarva Shiksha Abhiyan in the State Government on 24.12.2012 and the same is under examination and consideration. He assures the Court that final decision in the matter shall be taken by the State Government within a period of eight weeks from today.

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period of about 15 months, so far as the case of employees of UPTRON India Limited who are working in deputation in Sarva Shiksha Abhiyan are concerned, no concrete final decision has yet been taken. True, the Rules do not provide for any time limit to take decision in respect of absorption of employees of UPTRON India Limited, however, it has to be presumed that since Rules have been framed for the purpose of giving certain benefits to the employees of UPTRON India Limited, the decision ought to have been taken within some reasonable time. Reasonable time, though cannot be defined, however, considering the facts and circumstances of the case and the situation which has all along been faced by the employees of UPTRON India Limited after its closer, it was expected of the State Government as well as Sarva Shiksha Abhiyan to have acted promptly so as to ensure that benefit of the rights created under the Rules is actually extended to the employees for whom the Rules have been framed.

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A very disturbing feature in this case, which needs to be taken notice of, is that the petitioners in both writ petitions, namely, Brahma Nand Lavaniya and Sharad Mehrotra have retired on 31.08.2012 and 31.10.2012, receptively after attaining the age of superannuation of 58 years.

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It is noticeable further that the age of superannuation as per Rules prevalent in UPTRON India Limited is 58 years whereas as per provision governing the age of superannuation in respect of State Government's employees it is 60 years. Since December, 2011 till October 2012, there elapsed a long time when cases of both petitioners could have been and ought to have been considered for absorption. Had their cases been considered, they would have been able to realize the right which stood crystallized to them on promulgation of the Rules on 20.12.2011.

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Sri Sunil Kumar, Principal Secretary, department of Basic Education, Government of U.P has, however, assured the Court that aforesaid aspect of the matter shall also be looked into and

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will be given sympathetic consideration at the time of consideration of cases of petitioners for absorption under the aforesaid Rules and Government Order. The Court expresses its complete trust and faith that the matter at hand shall be considered by the authorities of State Government in its correct perspective.

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Let this matter be listed on 13.05.2013.

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Sri Sunil Kumar, Principal Secretary, department of Basic Education, Government of U.P. and Ms. Amrita Soni, Project Director, Sarva Shiksha Abhiyan, Uttar Pradesh need not appear again unless called for."

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The Court while passing the order dated 05.03.2013 recorded the assurance given by the Principal Secretary, department of Basic Education that the matter relating to absorption of both the petitioners shall be given sympathetic consideration. The Court on the assurance given by such a higher officer of the State Government expressed its trust and faith that matter of absorption of the petitioners shall be considered by the authorities in its correct perspective.

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The question for consideration for this Court in this matter is as to whether the petitioners have wrongly been denied the benefits of absorption in terms of the provisions contained in Absorption Rules, 2011 and the Government Order dated 20.12.2011. Another question which falls for consideration of the Court is as to whether the authorities of the State Government have unduly delayed the matter relating to consideration of the case of the petitioners for absorption in terms of the aforesaid Absorption Rules, 2011 and the Government Order dated 20.12.2011 which has resulted in denial of benefit of absorption of the petitioners in government service.

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A policy decision was taken by the State Government to absorb the surplus employees of UPTRON India Limited working on deputation to other departments/organisations of the State Government, pursuant to which, Absorption Rules, 2011 were framed and the Government Order dated 20.12.2011 was issued. The Absorption Rules, 2011 notified on 20.12.2011 came into force on its notification itself as per the provisions contained in Rule 1 (2)

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of the said Rules. Rule 2 (e) defines 'surplus employee' to mean an employee of the Uptron India Limited (other than an employee employed on ad-hoc, casual, work-charge or contract basis) who was rendered surplus from Uptron India Limited as a result of winding up either in whole or in part of the Uptron India Limited and is working on contract basis or body shopping basis or on deputation in a Government Department.

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It is also to be noticed that the petitioners are surplus employees of UPTRON India Limited and they, being regular employees of UPTRON India Limited, are covered by the term 'surplus employee' within the meaning of the said word occurring in Rule 2 (e) of Absorption Rules, 2011 and further that both the petitioners were working on deputation on the date of promulgation/notification of the Absorption Rules, 2011 i.e. on 20.12.2011.

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Rule 3 of the Absorption Rules, 2011 opens with a nonabstante clause and provides that the Government may, by a notified order, require the absorption of surplus employees of Uptron India Limited in any post or service under the Government except a post or service which falls within the purview of Uttar Pradesh Public Service Commission. It further provides that the Government may prescribe the procedure for such absorption including relaxation in the conditions of recruitment. Sub-rule (2) of Rule 3 provides that provisions contained in relevant Service rules shall be deemed to have been modified to the extent the same are inconsistent with the provisions made in the notified order as referred to in sub-rule (1).

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Thus, Rule 3 of the Absorption Rules, 2011 enabled the State Government to provide for absorption of the surplus employees of UPTRON India Limited by issuing a notified order. The Rules, thus, are enabling in nature.

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Limited working on deputation shall be absorbed in the government service. The notified order dated 20.12.2011 contains a decision that the surplus employees of UPTRON India Limited working on contract/body shopping basis in the Government Departments shall be absorbed in the same Government Departments. Another decision embodied in the said notified order dated 20.12.2011 is that the provisions of Rule 2 (e) (ii) shall also be applicable to those surplus employees of the UPTRON India who are working in a society or an authority or any other organization/body functioning under any department of the State Government.

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Thus, the Government issued the aforesaid notified order on 20.12.2011 making a provision for absorption of surplus employees of the UPTRON India Limited working on deputation/contract/body shopping basis not only in the government departments but also for those who were working on deputation in a society or an authority or an organization functioning under a Government Department.

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As stated above, both the petitioners are undisputedly surplus employees of UPTRON India Limited in terms of the meaning of said word occurring in Rule 2 (e) of the Absorption Rules, 2011. It can also not be disputed that in terms of the provisions of notified order dated 20.12.2011, since the Sarva Shiksha Abhiyan in the State of U.P. is being conducted through a Government owned and administered society, namely, "mRRkj izns'k lHkh ds fy, ifj;kstuk ifj"kn" (U.P. Education for All Project Council), as such the petitioners are also eligible to be considered for absorption in terms of notified order dated 20.12.2011. The relevant provision in the notified order which is applicable in the case of the petitioners is as follows:-

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la[;k&1477@78&1&2011&51bys0@92Vhlh&5] fnukad 20 fnlEcj] 2011 dk izLrj&2bZ¼ ii ½ mu deZpkfj;ksa ij Hkh ykxw gksxk tks 'kklu ds fdlh Hkh foHkkx ds v/khu fdlh lkslk;Vh] izkf/kdj.k vFkok fdlh vU; laLFkk esa dk;Z dj jgs gSA ,sls deZpkfj;ksa dks Hkh mlh foHkkx esa dk;Zjr ekurs gq, lek;ksftr djus ds fy, lacaf/kr foHkkx fu;ekoyh dks vius ;gka vaxhd`r (Adopt) dj ysaA "

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Thus, provisions of Rule 2 (e) (ii) of the Absorption Rules have also been made applicable to the employees working in a society functioning under the State Government and such surplus employees of UPTRON India Limited working in such a society were to be treated to be employees of the Government Department and accordingly their cases were to be considered for absorption. The relevant words occurring in the afore-quoted provision of the notified order dated 20.12.2011 are "-------,sls deZpkfj;ksa dks Hkh mlh foHkkx esa dk;Zjr ekurs gq,]". The aforesaid phrase occurring in the notified order dated 20.12.2011 clearly means that the employees working in the societies or other organizations functioning under the State Government shall be treated to be employees of the Government Department for the purposes of absorption.

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The ground in the impugned order dated 11.5.2010 is that since the petitioners are retrenched employees of Uptron, who are working on contract basis against Group-D post of U.P. Secretariat, cannot be absorbed against the said posts in view of the prescription made in the 1983 Rules whereby service conditions of Group-D employees of U.P. Secretariat are governed.

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Learned counsel for the petitioners submits that in similar circumstances, co-ordinate Bench of this Court in the case of Brahma Nand Lavaniya & Another Vs. State of U.P. & Others (Writ Petition No.3316 (S/S) of 2013, vide order dated 29.5.2014, has passed the following order, which is quoted below :-

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"Since the facts of these three petitions are interwoven, with the consent of learned counsel for the parties, all the three petitions are being decided by a common judgement and order.

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Heard Sri Vivek Raj Singh, learned counsel for the petitioners, Sri Zafaryab Jilani, learned Additional Advocate General assisted by

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Sri Badrul Hasan, the Standing Counsel for the State-respondents, Sri A.M.Tripathi, learned counsel for U.P. Education for All Project Council and Sri Sanjay Bhasin, learned counsel for UPTRON India Limited/U.P. Electronics Corporation Limited.

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The facts of the case as deduced from the pleadings of respective parties available on record are as under:

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Both the petitioners, namely, Brahma Nand Lavaniya and Sharad Mehrotra are surplus employees of M/s UPTRON India Limited and are aggrieved by their non-absorption in the Basic Education Department in terms of the provisions contained in Uttar Pradesh Absorption of Surplus Employees of UPTRON India Limited in Government Service Rules, 2011 (hereinafter referred to as 'Absorption Rules, 2011') notified on 20.12.2011 and the Government Order dated 20.12.2011.

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Sri Brahma Nand Lavaniya was initially appointed under the services of UPTRON India Limited on the post of Dispatch Assistant by means of an order dated 13.07.1982. Similarly, Sri Sharad Mehrotra was appointed as Assistant under the services of UPTRON India Limited/U.P. Electronic Corporation Limited by means of order dated 07.07.1979.

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After successfully functioning as a commercial venture for a considerable long period in the business of production of television sets and other electronic items, UPTRON India Limited became sick and ultimately the said successful venture of the State of U.P. was closed down.

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Pursuant to the said decision, Brahma Nand Lavaniya was appointed on the post of Computer Operator on deputation in the office of specialist/Basic Education Officer, District Agra under the Education for All Project of the State of U.P (hereinafter referred to

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as 'Sarva Shiksha Abhiyan') by means of an order dated 22.04.2000. Similarly, the petitioner-Sharad Mehrotra was also appointed on deputation on the post of Assistant Finance and Accounts Officer in the office of specialist/Basic Education Officer/District Basic Education Officer, Balia under the Sarva Shikha Abhiyan by means of an order dated 24.05.2002 passed by the Project Director, Sarva Shikha Abhiyan, U.P., Lucknow.

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The age of superannuation in terms of the provisions contained in fundamental Rules in respect of State Government employees is 60 years whereas in terms of the provision of the Services Rules applicable to the employees of UPTRON India Limited, the age of superannuation is 58 years. In the case of Brahma Nand Lavaniya, an order was passed by the Managing Director, UPTRON India Limited on 31.07.2012 observing therein that he shall be retired from the services of the company with effect from the close of office hours on 31.08.2012. Similarly, in the case of Sharad Mehrotra, an order was passed on 27.09.2012 by UPTRON India Limited stating therein that he shall be retired from the services of the company with effect from the close of office hours on 31.10.2012. The aforesaid orders dated 31.07.2012 and 27.09.2012 appear to have been passed taking into account the fact that the age of superannuation in UPTRON India Limited is 58 years and the date of birth of Brahma Nand Lavaniya is 31.08.1954 whereas that of Sharad Mehrotra is 23.10.1954.

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The aforesaid orders dated 31.07.2012 and 27.09.2012 are the subject matter of challenge in Writ Petition No.4556 (S/S) of 2012 and Writ Petition No. 5600 (S/S) of 2012 filed by Brahma Nand Lavaniya and Sharad Mehrotra, respectively.

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During pendency of the aforesaid two petitions, certain directions were issued by this Court on 01.02.2013 in Writ Petition No.4556 (S/S) of 2012 wherein this Court had expressed its expectation that authorities of Sarva Shikha Abhiyan and State Government shall work together and come forth with a definite time-bound proposal of absorption of the surplus employees of UPTRON India Limited including the petitioners. The said order dated 01.02.2013 was passed by this Court keeping in view the fact that the proposal for absorption of erstwhile employees of UPTRON India Limited who

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were appointed in Sarva Shiksha Abhiyan on deputation was pending consideration before the State Government. The Court thereafter passed an order on 05.03.2013 in Writ Petition No. 4556 (S/S) of 2012 which runs as under:-

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It may, however, be noticed that the aforesaid Absorption Rules were promulgated on 20.12.2011 and for the purposes of its faithful implementation, the Government Order was also issued on the same day i.e. on 20.12.2011. However, it is strange to notice that even after lapse of a period of about 15 months, so far as the case of employees of UPTRON India Limited who are working in deputation in Sarva Shiksha Abhiyan are concerned, no concrete final decision has yet been taken. True, the Rules do not provide for any time limit to take decision in respect of absorption of employees of UPTRON India Limited, however, it has to be presumed that since Rules have been framed for the purpose of giving certain benefits to the employees of UPTRON India Limited, the decision ought to have been taken within some reasonable time. Reasonable time, though cannot be defined, however, considering the facts and circumstances of the case and the situation which has all along been faced by the employees of UPTRON India Limited after its closer, it was expected of the State Government as well as Sarva Shiksha Abhiyan to have acted promptly so as to ensure that benefit of the rights created under the

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Rules is actually extended to the employees for whom the Rules have been framed.

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Sri Sunil Kumar, Principal Secretary, department of Basic Education, Government of U.P has, however, assured the Court that aforesaid aspect of the matter shall also be looked into and will be given sympathetic consideration at the time of consideration of cases of petitioners for absorption under the aforesaid Rules and Government Order. The Court expresses its complete trust and faith that the matter at hand shall be considered by the authorities of State Government in its correct perspective.

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Let this matter be listed on 13.05.2013.

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The Court while passing the order dated 05.03.2013 recorded the assurance given by the Principal Secretary, department of Basic Education that the matter relating to absorption of both the petitioners shall be given sympathetic consideration. The Court on the assurance given by such a higher officer of the State Government expressed its trust and faith that matter of absorption of the petitioners shall be considered by the authorities in its correct perspective.

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In compliance of the aforesaid order dated 05.03.2013 passed by this Court, an order dated 28.05.2013 has been passed whereby the petitioners have not been absorbed in the Education Department, rather it has only been provided that since they have retired on 31.08.2012 and

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31.10.2012 on their attaining the age of superannuation after completion of 58 years of age, they shall be entitled to be given the benefits of post-retiral dues treating them to have served till the age of superannuation on their attaining 60 years of age. Another order on the same date i.e. 28.05.2013 was also passed by the State Government whereby as many as 75 surplus employees of UPTRON India Limited who were working on deputation with Sarva Shiksha Abhiyan were directed to be absorbed in the services of Basic Education Department of the State Government. It is the aforesaid order dated 28.05.2013 by which the petitioners were not absorbed; rather they have been given the postretiral dues treating them as retired on their completion of the age of 60 years which is under challenge in the Writ Petition No. 3316 (S/S) of 2013.

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The question for consideration for this Court in this matter is as to whether the petitioners have wrongly been denied the benefits of absorption in terms of the provisions contained in Absorption Rules, 2011 and the Government Order dated 20.12.2011. Another question which falls for consideration of the Court is as to whether the authorities of the State Government and Sarva Shiksha Abhiyan have unduly delayed the matter relating to consideration of the case of the petitioners for absorption in terms of the aforesaid Absorption Rules, 2011 and the Government Order dated 20.12.2011 which has resulted in denial of benefit of absorption of the petitioners in government service.

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It is not in dispute that both the petitioners are the surplus employees of UPTRON India and that a policy decision was taken by the State Government to absorb the surplus employees of UPTRON India Limited working on deputation to other departments/organisations of the State Government, pursuant to which, Absorption Rules, 2011 were framed and the Government Order dated 20.12.2011 was issued. The Absorption Rules, 2011 notified on 20.12.2011 came into force on its notification itself as per the provisions contained in Rule 1 (2) of the said Rules. Rule 2 (e) defines 'surplus employee' to mean an employee of the Uptron India Limited (other than an employee employed on ad-hoc, casual, work-charge or contract basis) who was rendered surplus from Uptron India Limited as a result of winding up either in whole or in part of the Uptron India Limited and is working on contract basis or body

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shopping basis or on deputation in a Government Department.

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It is also to be noticed that both the petitioners are surplus employees of UPTRON India Limited and they, being regular employees of UPTRON India Limited, are covered by the term 'surplus employee' within the meaning of the said word occurring in Rule 2 (e) of Absorption Rules, 2011 and further that both the petitioners were working on deputation on the date of promulgation/notification of the Absorption Rules, 2011 i.e. on 20.12.2011. Rule 3 of the Absorption Rules, 2011 opens with a non-abstante clause and provides that the Government may, by a notified order, require the absorption of surplus employees of Uptron India Limited in any post or service under the Government except a post or service which falls within the purview of Uttar Pradesh Public Service Commission. It further provides that the Government may prescribe the procedure for such absorption including relaxation in the conditions of recruitment. Sub-rule (2) of Rule 3 provides that provisions contained in relevant Service rules shall be deemed to have been modified to the extent the same are inconsistent with the provisions made in the notified order as referred to in sub-rule (1). Thus, Rule 3 of the Absorption Rules, 2011 enabled the State Government to provide for absorption of the surplus employees of UPTRON India Limited by issuing a notified order. The Rules, thus, are enabling in nature.

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Exercising the powers vested in the State Government under Rule 3 (1) of the Absorption Rules, 2011, the State Government issued a notified order on 20.12.2011 itself which provides that taking into account the concept of welfare state it has been decided by the Government that the surplus employees of UPTRON India Limited working on deputation shall be absorbed in the government service. The notified order dated 20.12.2011 contains a decision that the surplus employees of UPTRON India Limited working on contract/body shopping basis in the Government Departments shall be absorbed in the same Government Departments. Another decision embodied in the said notified order dated 20.12.2011 is that the provisions of Rule 2 (e) (ii) shall also be applicable to those surplus employees of the UPTRON India who are working in a society or an authority or any other organization/body functioning under any department of the State Government.

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The direction in the said notified order is that the concerned department shall adopt the Absorption Rules, 2011 for the purpose of absorbing such employees working in the government controlled society, authority or any other organization treating them to be working in the Government Department. Thus, the Government issued the aforesaid notified order on 20.12.2011 making a provision for absorption of surplus employees of the UPTRON India Limited working on deputation/contract/body shopping basis not only in the government departments but also for those who were working on deputation in a society or an authority or an organization functioning under a Government Department.

¶115

As stated above, both the petitioners are undisputedly surplus employees of UPTRON India Limited in terms of the meaning of said word occurring in Rule 2 (e) of the Absorption Rules, 2011. It can also not be disputed that in terms of the provisions of notified order dated 20.12.2011, since the Sarva Shiksha Abhiyan in the State of U.P. is being conducted through a Government owned and administered society, namely, " mRRkj izns'k lHkh ds fy, ifj;kstuk ifj"kn " (U.P. Education for All Project Council), as such the petitioners are also eligible to be considered for absorption in terms of notified order dated 20.12.2011. The relevant provision in the notified order which is applicable in the case of the petitioners is as follows:-

¶116

" ¼[k½ mi;ZqDr lanfHkZr vkesyu fu;ekoyh] 2011 fo"k;d vf/klwpuk la[;k&1477@78&1&2011&51bys0@92Vhlh&5] fnukad 20 fnlEcj] 2011 dk izLrj&2bZ¼ ii ½ mu deZpkfj;ksa ij Hkh ykxw gksxk tks 'kklu ds fdlh Hkh foHkkx ds v/khu fdlh lkslk;Vh] izkf/kdj.k vFkok fdlh vU; laLFkk esa dk;Z dj jgs gSA ,sls deZpkfj;ksa dks Hkh mlh foHkkx esa dk;Zjr ekurs gq, lek;ksftr djus ds fy, lacaf/kr foHkkx fu;ekoyh dks vius ;gka vaxhd`r (Adopt) dj ysaA "

¶117

Thus, provisions of Rule 2 (e) (ii) of the Absorption Rules have also been made applicable to the employees working in a society functioning under the State Government and such surplus employees of UPTRON India Limited working in such a society were to be treated to be employees of the Government Department and accordingly their cases were to be considered for absorption. The relevant words occurring in the afore quoted provision of the notified order dated 20.12.2011 are " -------,sls deZpkfj;ksa dks Hkh mlh foHkkx esa dk;Zjr ekurs gq,] ". The aforesaid phrase occurring in the notified order dated 20.12.2011 clearly means that the employees working in the societies or other organizations functioning under the State Government shall be

¶118

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¶119

treated to be employees of the Government Department for the purposes of absorption. The stand taken by the State-respondents is that both the petitioners were retired by their parent department i.e. UPTRON India Limited by means of the order dated 31.07.2012 and 27.09.2012 and Sarva Shiksha Abhiyan not being the permanent department of the Government, they could not have been absorbed in Sarva Shiksha Abhiyan. It has further been stated in the counter affidavit filed by the State-respondents that accordingly a proposal by the Project Director of the Sarva Shiksha Abhiyan was submitted to the State Government containing a list of employees to be absorbed in the Education Department which included the names of the petitioners with the remark that the petitioners have already superannuated and have been relieved from their parent department i.e. UPTRON India Limited.

¶120

The sole ground taken by the State-respondents for not absorbing the petitioners in service of the Basic Education Department (which is the administrative department of the State Government controlling and supervising Sarva Shiksha Abhiyan) is that since the petitioners have already been relieved after attaining the age of superannuation by the UPTRON India Limited at the age of 58 years hence, they could not be absorbed in the regular services of the State Government.

¶121

Certain dates are necessary to be mentioned here. The Absorption Rules, 2011 were notified on 20.12.2011 and on the same date i.e. 20.12.2011, the notified order was also issued by the State Government in exercise of its powers vested in it under Rule 3(1) of the Absorption Rules. On the date of promulgation of Absorption Rules, 2011 and issuance of the notified order issued pursuant thereto, both the petitioners were working on deputation under the services of Sarva Shiksha Abhiyan Parishad, a Society working under the Basic Education Department of the State. Consideration of the cases of the petitioners for absorption was, however, made only on 28.05.2013 i.e. after a lapse of period of about one year and five months. Had the case of the petitioners for absorption in terms of the aforesaid notified order dated 20.12.2011 been done before 21.08.2012 in the case of Brahma Nand Lavaniya and before 31.10.2012 in the case of Sharad Mehrotra, both the petitioners would have been absorbed in the services of the Education Department for the reason that both of them are covered by the

¶122

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Absorption Rules, 2011 and the notified order dated 20.12.2012.

¶124

Though, certain explanation has been sought to be given by the State-respondents for the delay which occurred in consideration of the case of the petitioners and other surplus employees of UPTRON India Limited working on deputation in Sarva Shiksha Abhiyan, however, explanation so given does not appeal to the Court. The Absorption Rules, 2011 have been framed under Article 309 of the Constitution of India for the purposes of providing certain benefits to the surplus employees of UPTRON India Limited. The said Rules were framed with a view to give effect to the policy decision taken by the State Government for providing certain benefits to the surplus employees taking into account the concept of welfare state. Accordingly, the notified order dated 20.12.2011 was issued by the State Government which itself mentions that the policy decision to absorb surplus employees of UPTRON India Limited was taken looking into the concept of welfare State. The said notified order dated 20.12.2011 is, thus, a piece of beneficial subordinate legislation.

¶125

It is difficult to appreciate that once the decision by the State Government was taken to extend certain benefits to the surplus employees of a Government Company which was wound up and to give effect to the decision, the Absorption Rules were framed and notified order was also issued on 20.12.2011 itself, under what circumstances, such a long period of time of about 17 months was taken by the respondent-authorities even for consideration of the case of the petitioners for their absorption in the services of the State Government department. It is true that neither the Absorption Rules, 2011 nor the notified order dated 20.12.2011 prescribe any time period or limit to consider the cases of eligible surplus employees for absorption, however, such non-prescription of a time period will not mean that consideration in a particular case for absorption of surplus employees could be permitted to be made after such a long time which would defeat the very purpose for which the Absorption Rules, 2011 were framed and the notified order under the said Rules was also issued. The Absorption Rules, 2011 and notified order dated 20.12.2011 are only instruments to give effect to a policy decision of the State Government. If decision making process for extending the benefits flowing from the Absorption Rules, 2011 and notified order dated 20.12.2011 is prolonged so as to defeat the very purpose for which the Rules and the notified order were issued,

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¶127

it should be a matter of grave concern for the Government itself. The prolonged time taken in decision making process in such a matter clearly runs in opposition to the very intent of the Government for providing the benefits to a certain set of people. The very purpose of implementing the measures evolved to achieve the welfare state not only gets defeated but it whithers.

¶128

In the instant case, as observed above, the time taken by the respondents in considering the case of the petitioners for their absorption in service is considerably long which has ultimately resulted in arbitrarily depriving the petitioners of the benefit of absorption in service and serving for more years. In the considered opinion of the Court, the instant case is a glaring example of how the beneficial measures extended by the State Government by its policy decision embodied in the Absorption Rules, 2011 and Government Order dated 20.12.2011, have been denied to the petitioners merely on account of unduly prolonged time taken in decision making process relating to considering the case of the petitioners for their absorption in service. The Court now proceeds to examine as to whether the reason given in the order dated 28.05.2013 denying the benefits of absorption in service to the petitioners is legally tenable. The only reason given in the impugned order dated 28.05.2013 whereby the benefit of absorption in service to the petitioners has been denied is that on the date of consideration for absorption,both the petitioners had already retired on attaining the age of superannuation at 58 years of age in their parent department.

¶129

The petitioners were working on deputation in Sarva Shiksha Abhiyan on the date of notification of the Absorption Rules and issuance of notified order dated 20.12.2011. Brahma Nand Lavaniya was made to retire on his attaining the age of 58 years on 31.08.2012 and Sharad Mehrotra was retired on 31.10.2012. Between the date Brahma Nand Lavaniya retired on 31.08.2012 and the date of issuance of notified order on 20.12.2011, in my considered opinion, there was sufficient time available to the respondents to have taken decision in the matter of his absorption in service. Similarly, since Sharad Mehrotra retired on 31.10.2012, there was sufficient period for considering of his case as well.

¶130

Another aspect which needs consideration in this case is the provisions contained in the notified order dated 20.12.2011 in respect of those surplus employees of the UPTRON India Limited who were

¶131

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working on deputation in a Society or an Authority or any other Organization/body functioning under a government department of the State Government. The notified order, in case of such surplus employees working on deputation, clearly provides that the provision of Rule 2(e) (ii) of the Absorption Rules shall be applicable. The notified order further provides that such employees shall be treated to be working in the Government Department. The age of superannuation in Government Departments of the State Government is 60 years. Thus, if the petitioners were to be treated to be working in the Government Department, their respective date of superannuation would be 31.08.2014 in case of Brahma Nand Lavaniya and 31.10.2014 in case of Sharad Mehrotra.

¶133

A natural corollary of the aforesaid is this: Had the petitioners been treated to be working in the Government Department in terms of the notified order dated 20.12.2011, they could not have treated to have been retired for the simple reason that the age of superannuation in case of Government employees is 60 years. It is, thus, clear that on the date of consideration of their cases for absorption in service i.e. on 28.05.2013, both the petitioners, could not have been treated to have retired on the basis of the provision contained in the notified order dated 20.12.2011, which in clear terms, provides that such surplus employees of UPTRON India Limited are to be treated to be working under the government Department.

¶134

The impugned order denying the benefit of the absorption in service to the petitioners has been passed treating the petitioners to have retired at the age of 58 years, that is to say, petitioners have been treated as retired employees of UPTRON India Limited and not the employees of the State Government Department. Such a presumption by the State Government while passing the order dated 28.05.2013 unambiguously runs contrary to the prescriptions made in the notified order dated 20.12.2011 which provides that surplus employees working even in a Society or any other Organization functioning under a department of the State Government are to be treated to be working in the Government Department itself. Since the age of superannuation in the case of the employees of Government Departments in the State Governments is 60 years, at the time of consideration for absorption in service the petitioners could not have been treated to have retired.

¶135

Thus, in view of the above, the very basic premise, on which the State Government has proceeded to

¶136

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¶137

take decision in the case of the petitioners while considering their cases for absorption in service, is not sustainable for the reason that the same runs contrary to the prescription available in the notified order dated 20.12.2011. The impugned order dated 28.05.2013 annexed as Annexure No.1 to the writ petition No. 3316 (S/S) of 2013, hence, is liable to be quashed.

¶138

Accordingly, for the cumulative reasons given above, the impugned office order dated 28.05.2013 which has been annexed as Annexure No.1 to the writ petition No.3316 (S/S) of 2013 whereby petitioners have been refused to be given the benefit of absorption in service is hereby quashed.

¶139

Since no other reason has been given by the State Government while denying the benefit of absorption in service to the petitioners, except the one discussed above, it will be futile to issue direction to the State Government to reconsider the case of the petitioners for their absorption in service. In this view, while quashing the impugned office order dated 28.05.2013 (Annexure No.1 to the Writ Petition No. 3316 (S/S) of 2013), all the three writ petitions are disposed of with the direction to the State-respondents to treat the petitioners to be absorbed employees of the Basic Education Department on a suitable post in terms of the notified order dated 20.12.2011 and to pay them their salary of their respective posts from 31.08.2012 in case of Brahma Nand Lavaniya and from 31.10.2012 in case of Sharad Mehrotra. Both the petitioners shall be allowed to join on suitable posts forthwith in the Basic Education Department and they shall be allowed to continue in service till they attain the age of superannuation at the age of 60 years and be also paid salary.

¶140

The compliance of this order shall be ensured by the concerned State-respondents within a period of one month from the date of production of certified copy of this judgement and order.

¶141

Since, as noticed in the preceding paragraphs of this judgement, there has been undue considerable delay on the part of the State Government in considering the case of the petitioners for absorption in service in terms of the Absorption Rules, 2011 and the notified order dated 20.12.2011, resulting in deprivation of their right of considering for absorption in service, the Court, though is of the view that some cost should be imposed on the State Government, however, taking into account the direction given in the earlier part of the judgement for payment of salary to the petitioners, I refrain from imposing the cost.

¶142

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With the aforesaid observations and directions, all the three writ petitions stand disposed of."

¶144

Learned counsel for the petitioners submits that the aforesaid judgment and order dated 29.5.2014 has been challenged in Special Appeal Defective No.430 of 2014, which was dismissed and the order passed by the learned Single Judge was confirmed.

¶145

In the aforesaid writ petition, this Court issued direction to the State-respondents to treat the petitioners to be absorbed employees of the Basic Education Department on a suitable post in terms of the notified order dated 20.12.2011 and to pay them their salary of their respective posts w.e.f. the respective dates. It was further ordered that both the petitioners shall be allowed to join on suitable posts forthwith in the Department and they shall be allowed to continue in service till they attain the age of superannuation i.e. at the age of 60 years and be also paid salary.

¶146

The facts and circumstances of the aforesaid case are attracted towards that of the present case, therefore, looking to the facts and circumstances of the case and the aforesaid judgment of this Court as also for the cumulative reasons given above, the impugned order dated 11.5.2010 (Annexure-40 to the writ petition), whereby the petitioners have been refused to be given the benefit of absorption in service is hereby quashed.

¶147

Since no other reason has been given by the State Government while denying the benefit of absorption in service to the petitioners, except the one discussed above, it will be futile to issue direction to the State Government to reconsider the case of the petitioners for their absorption in service. In this view the writ petition is disposed of with the direction to the State-respondents to treat the petitioners to be absorbed employees of the U.P. Civil Secretariat on a suitable post in terms of the notified order dated 20.12.2011 and to pay them their salary of their respective posts. All the petitioners shall be allowed to join on suitable posts forthwith in the Department and they shall be allowed to continue in service till they attain the age of superannuation at the age of 60 years and be also paid salary.

¶148

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¶149

The compliance of this order shall be ensured by the concerned State-respondents within a period of one month from the date of production of certified copy of this judgment and order. Order Date :- 3.8.2023

¶150

Gautam

¶151

Digitally signed by :- GAUTAM TECKCHANDANI High Court of Judicature at Allahabad, Lucknow Bench

Ram Kishan S/O Jagesjwar Prasad and Ors. v. State of U.P. Thru Principal Secy. Appoint and Personal and Ors.

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Ram Kishan S/O Jagesjwar Prasad and Ors. v. State of U.P. Thru Principal Secy. Appoint and Personal and Ors.

Case brief

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