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2019 Supreme(All) 679
IN THE HIGH COURT OF ALLAHABAD
SHABIHUL HASNAIN, SAURABH LAVANIA, JJ.
Rajeev Varshney and Others – Appellants
Versus
State of U.P. Department of Basic Education and Others – Respondents
Special Appeal Nos. 391, 394 of 2018, Special Appeal Defective Nos. 501, 503 of 2018
Decided On : 22-01-2019
For the Appellants : Vivek Raj Singh, Sarvesh Kumar Dubey.
For the Respondent: A.M. Tripathi.
Headnote:
U.P. Absorption of Surplus Employees – Rule 3(1), 3 (2) – Petitioners initially appointed in India Limited and they discharging their duties in Accounts Department of UPTRON on different posts and on basis of decision appellants taken on deputation on posts in Accounts Department of Sarva Shiksha Abhiyan, process adopted in view of decision of closure of UPTRON India Limited and for adjustment/absorption of employees of UPTRON India Limited, appellants/petitioners working on their respective posts in Sarva Shiksha Abhiyan State of U.P. promulgated for absorption of employees of UPTRON India Limited on posts under Government Department, Considering Rules State Government passed order for absorption According to order appellants/petitioners entitled for absorption in Department of Basic Shiksha – Held, Respect to pay protection we provide/direct that without reducing "Basic Pay" of appellants/petitioner State Government shall consider case of appellants/petitioners on issue of protection of pay by taking recourse to provision of Fundamental Rules/Financial Hand Book, by applying and interpreting provisions in context of present case of Absorption and by considering observations made in judgment, payment of salary for period in which appellants not allowed to work by opposite parties, appellants shall at liberty to move State Government through representation for its consideration – Appeals are disposed of. (Para 49, 51, 53)
Facts of the case:
Petitioners initially appointed in India Limited and they discharging their duties in Accounts Department of UPTRON on different posts and on basis of decision appellants taken on deputation on posts in Accounts Department of Sarva Shiksha Abhiyan, process adopted in view of decision of closure of UPTRON India Limited and for adjustment/absorption of employees of UPTRON India Limited, appellants/petitioners working on their respective posts in Sarva Shiksha Abhiyan State of U.P. promulgated for absorption of employees of UPTRON India Limited on posts under Government Department, Considering Rules State Government passed order for absorption According to order appellants/petitioners entitled for absorption in Department of Basic Shiksha.
Findings of the court:
Respect to pay protection we provide/direct that without reducing "Basic Pay" of appellants/petitioner State Government shall consider case of appellants/petitioners on issue of protection of pay by taking recourse to provision of Fundamental Rules/Financial Hand Book, by applying and interpreting provisions in context of present case of Absorption and by considering observations made in judgment, payment of salary for period in which appellants not allowed to work by opposite parties, appellants shall at liberty to move State Government through representation for its consideration.
Result: Appeals are disposed of.
SAURABH LAVANIA, J.
1. Since the common question of law and facts are involved in these Special Appeals, therefore, with the consent of the counsel for parties these appeals are being decided by a common judgment.
2. Heard Sri Vivek Raj Singh, learned counsel for appellants as well as Sri Manjee Shukla, learned Addl Chief Standing Counsel for the State and Sri A.M. Tripathi for respondent No. 4.
3. By these appeals the order passed by the Hon'ble Single Judge dated 06.07.2018 has been challenged. The appellants have stated that there are some factual and legal errors in the order of the Hon'ble Single Judge.
4. With regard to the judgment under challenge dated 06.07.2018, the submission of the learned counsel for the appellants Sri Vivek Raj Singh is that the Single Judge while deciding the writ petitions has failed to appreciate the true import of Rule 3(1) of U.P. Absorption of Surplus Employees of UPTRON India Limited in Government Service Rules, 2011 (in short Rules of 2011), judgment of the Division Bench of this Court passed in Writ Appeal No. 61522 of 2012, Smt. Meena Manral and Others vs. State of U.P. and Others, dated 13.05.2014 and interim order passed in Writ Petition No. 4178 S/S of 2014 dated 12.08.2014 as well as the prayers sought in the writ petitions.
5. Further submission of the counsel for the appellants is that in Paras 30 and 31 of the judgment the question which has been decided by the Court was not before it and it was only the argument of the Standing Counsel. The simple dispute was to the effect that whether after the absorption of the appellants in Basic Shiksha Department whether their services could have been dispensed with treating them to be deputationists? He has further argued that Hon'ble Single Judge has held that the petitioners are on deputation and they cannot be absorbed on a promotional post.
6. Sri Vivek Raj Singh further says that 2011 Rules provides that the petitioners' services should be absorbed and further if there is any relaxation required, the same may also be given. In view of this fact the petitioners have a right to be absorbed and complete their term till the age of superannuation and get the consequential benefits of pension etc. He says that the order of Hon'ble Single Judge is not based on the correct appreciation of facts.
7. As per the submissions of the learned counsel for the appellants, the case of the appellants, in nutshell, is that:-
(i) Keeping in view the Rules of 2011 they are entitled to be absorbed on the posts equivalent to the posts on which they were working in the Sarva Shiksha Abhiyan, being deputationist.
(ii) For the purposes of absorption, the relevant Service Rules are liable to be relaxed by the opposite parities (State Authorities) and this aspect of the case has not been considered by the Hon'ble Single Judge.
(iii) Hon'ble Single Judge has wrongly relied upon the judgments on the issue of absorption of deputationist.
(iv) Hon'ble Single Judge has not considered the judgments placed on the issue that the person working on the higher post cannot be reverted to lower post.
8. On the strength of Rule 3 (1) and Rule 3 (2) of the Rules of 2011, the further submission of the counsel for the appellants is that the issue involved before the Hon'ble Single Judge as well as before this Hon'ble Court is to the effect that whether under the Rules of 2011 the appellants are entitled for absorption though working on deputation as deputationist in the Sarva Shiksha Abhiyan and if yes then on what post and in what pay-scale and the Hon'ble Single Judge while deciding the writ petitions, only considered the right of deputationist with regard to their absorption and held that deputationist's right of absorption is subject to the Rules and not otherwise.
9. The facts of the case, in brief, are to the effect that petitioners were initially appointed in the UPTRON India Limited and they were discharging their duties in Accounts Department of UPTRON on different posts an
