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2008 DIGILAW 1824 (ALL)

SATISH KUMAR SINGH v. STATE OF UTTAR PRADESH

2008-08-29

NARAYAN SHUKLA

body2008
JUDGMENT Hon’ble Shri Narayan Shukla, J.—Through the instant writ petition, the petitioners are seeking their absorption in U.P. Rajya Krishi Utpadan Mandi Parishad (hereinafter referred to as ‘Mandi Parishad’). 2. Briefly stated the facts of the case are that initially petitioners No. 1 and 2 were appointed as Junior Engineer (Electrical/Mechanical) and Junior Engineer (Civil) respectively in U.P. State Bridge Corporation Ltd. and petitioner No. 3 was appointed as Junior Engineer (Civil) in U.P. Samaj Kalyan Nirman Nigam Limited, Lucknow. Their initial dates of appointment are as 28.7.1981, 13.3.1981 and 1.4.1988 respectively. They have been taken on deputation in Mandi Parishad on different dates i.e. 16.11.1995, 21.1.1996 and 13.6.1995 respectively. Since then they have been working in the department as such. The service conditions of the employees of U.P. Rajya Krishi Utpadan Mandi Parishad are governed by the U.P. Agricultural Produce Markets Board (Officer and Staff Establishment) Regulation Act, 1984 (hereinafter referred to as ‘Service Regulation Act’), which permits the absorption of deputationist against the post, which is to be filled up through direct recruitment from amongst the qualified and competent persons, who are working on deputation. The Mandi Parishad also took a policy decision to the aforesaid effect, which is not disputed. While working on deputation, in 1996 they applied for permanent absorption in Mandi Parishad by exercising their options in accordance with Rule 5(1) of U.P. Absorption of Government Servants in Public Undertakings Rules, 1984 (hereinafter referred to as ‘the Absorption Rules’). The opposite party No. 2 i.e. Mandi Parishad sought no objections from their parent departments. The parent department of petitioners 1 and 2, namely, U.P. State Bridge Corporation Limited vide its letter dated 18.11.1996 as well as the parent deparment of opposite party No. 3, namely, U.P. Samaj Kalyan Nirman Nigam Ltd. vide order dated 7.3.1997 submitted their no objection. Thereafter, Mandi Parishad also sought permission of the State Government for their absorption in Mandi Parishad. The State Government through letter dated 26.6.1997 asked the opposite party No. 2 to submit all the proposals regarding absorption, which had matured in view of absorption Rules. 3. Pursuant to that, the opposite party No. 2 submitted the complete proposal for absorption of the petitioners for its consent. When the State Government did not take decision upon that, the petitioners preferred the present writ petition for issuing direction to the State Government to take a decision in the matter. 3. Pursuant to that, the opposite party No. 2 submitted the complete proposal for absorption of the petitioners for its consent. When the State Government did not take decision upon that, the petitioners preferred the present writ petition for issuing direction to the State Government to take a decision in the matter. The petitioners have raised question on the discriminatory action of the opposite parties as on the matter of absorption, they have adopted pick and choose policy as they claim that the persons, who have been employee of other State Governments, have been absorbed in Mandi Parishad. It has further been submitted that one, Mr. Nirbhay Narain Singh, who is placed in the proposal list at serial No. 16, whereas petitioner Nos. 1 and 2 have been placed at serial No. 2 and 3, has been permanently absorbed even without no objection certificate from parent department. Moreover, he was not the employee of the Government of U.P. Similarly, one Mr. Vijay Kumar, who belonged to Rural Works Department, Arunachal Pradesh, has been absorbed in Mandi Parishad by means of order dated 6.5.1997 with the consent letter dated 28.4.1997. The matter of Mr. Nirbhay Narain Singh was placed before the Mandi Parishad on 18.1.2001 but the same was deferred for decision in view of interim order passed by this Court on 17.1.2001 in Writ Petition No. 236 of 2001 (S/S) whereby the Mandi Parishad was restrained from absorbing any deputationist till the employees working in the Mandi Parishad on daily wage basis, are regularised, which was modified by this Court by means of subsequent order dated 17.5.2001 to the extent that it shall be open for the Mandi Parishad to consider the question of absorption of the deputationists with the observation that the decision in the matter of absorption shall neither be communicated nor published. 4. It has also been urged that even without consent of the State Government, one Mr. J.K. Singh has also been absorbed in the Mandi Parishad by means of an order dated 19.7.1995. When the petitioners No. 1 and 2 made a fresh representation on 29.8.2001 enumerating all the facts therein before the opposite party No. 2, that resulted an order of repatriation issued by the opposite party No. 2 on 3.9.2001. J.K. Singh has also been absorbed in the Mandi Parishad by means of an order dated 19.7.1995. When the petitioners No. 1 and 2 made a fresh representation on 29.8.2001 enumerating all the facts therein before the opposite party No. 2, that resulted an order of repatriation issued by the opposite party No. 2 on 3.9.2001. The petitioners challenged the said order by amending the writ petition and this Court by means of an order dated 18.10.2001 stayed the operation of the order of repatriation. However, the State Government on 6.9.2001 took a decision to cancel the order of repatriation till 30.11.2001. Pursuant to which, the petitioners have been working and they have not yet been relieved from the office of opposite party No. 2. In the meantime, they further submitted several representations for absorption but none has been considered. 5. It has also been submitted by the petitioner that the petitioners’ case of absorption has been rejected on the basis of minutes of its meeting dated 25.6.1999, which is not applicable in the petitioner’s case, without considering Statutory Rules, 1984 and the judgment of Hon’ble Supreme Court. The Hon’ble Supreme Court in the case of Rameshwar Prasad v. Managing Director, U.P. Rajkiya Nirman Nigam Ltd. and others, 1999 (8) SCC 381 has held that although an employee on deputation has no right to be absorbed in the service where he is working on deputation, in some cases depending upon the Statutory Rules, the position may be to the contrary, in view of Rule 5 of the U.P. Absorption of Government Servants in Public Undertakings Rules, 1984. If the petitioner was not to be absorbed, he ought to have been repatriated when he had completed five years of service on deputation. By not doing, the appellant is seriously prejudiced. The petitioner has right to be considered for absorption in the light of Rule 16(3) of the Recruitment Rules. To absorb or not to absorb is a policy matter but once the policy is accepted and Rules are framed for such absorption, before rejecting the application, there must be justifiable reasons. 6. It has further been submitted that through the order impugned itself it has been admitted that Sri Ram Thirath, Assistant Engineer and Fakre Alam, Assistant Engineer have been absorbed. 7. 6. It has further been submitted that through the order impugned itself it has been admitted that Sri Ram Thirath, Assistant Engineer and Fakre Alam, Assistant Engineer have been absorbed. 7. Through the counter affidavit filed by the Mandi Parishad, it has been submitted that no posts are available in the department and large number of diploma holders working in Mandi Parishad are surplus. Since they are surplus, their services were retrenched by Government Order dated 12.2.1999, being aggrieved with which, they preferred Writ Petition No. 1346 (SS) of 1999 before this Court. This Court allowed the writ petition against which, special leave petition was filed by the department, is pending. Since large number of special leave petitions are pending before the Hon’ble Supreme Court, the Board in its meeting dated 11.10.2001 had deferred the matter of regularisation and earlier to this, through its meeting dated 25.6.1999, a resolution had already been passed not to absorb the deputationist in Mandi Parishad. The State Government by means of Government Order dated 27.8.2001 had already took a decision to send back those employees to their parent department, who have completed more than five years in Mandi Parishad. So far as petitioners’ claim of parity of other persons, who have already been absorbed is concerned for their absorption, the Mandi Parishad had already taken a decision prior to the policy decision dated 25.6.1999 and thereafter nobody has been absorbed rather a large number of persons were sent back to their parent department. Being aggrieved with which, they preferred a writ petition No. 37 (S/B) of 2001. In the aforesaid writ petition, this Court has already expressed its view that in view of decision taken by the Mandi Parishad, the persons on deputation cannot be absorbed in Mandi Parishad. It has further been submitted that during the pendency of the writ petition, the petitioner’s matter was considered and the same has been rejected by means of order dated 18.12.2001. So far as the case of Shri Nirbhay Narayan Singh is concerned, under the direction of this Court, his matter for absorption is pending before the Board. Thus, it cannot be said that pick and choose policy has been adopted by the Mandi Parishad. 8. So far as the case of Shri Nirbhay Narayan Singh is concerned, under the direction of this Court, his matter for absorption is pending before the Board. Thus, it cannot be said that pick and choose policy has been adopted by the Mandi Parishad. 8. It has further been submitted that Absorption Rules, as stated by the petitioner, are not applicable on Mandi Parishad and the services of the employee of Mandi Parishad are governed with the provisions of U.P. Agricultural Produce Markets Board (Officer and Staff Establishment) Regulation Act, 1984 as in the said Service Regulations, there is no provision for absorption of the employees taken on deputation. Sub-para (2) of Regulation 3 of the Service Regulations clearly provides that an employee taken on deputation shall be governed with the terms and conditions of Deputation or Contract. Through the resolution dated 25.6.1999, Mandi Parishad had already taken a decision not to absorb the deputationists. The opposite party has also tried to distinguish the cases of Mr. Pramod Kumar Singh, Mr. Samarnath and Mr. Avadhesh Kumar Mishra. It has further been urged that some persons working on deputation have been sent back after completion of five years. However, since the petitioners have preferred writ petition, they could not be repatriated due to stay orders passed therein but the fact remains that the list was produced before the Court that none has been merged in the services of Mandi Parishad. Accordingly, the answering respondents have denied from adopting any pick and choose policy on their behalf. For the five persons, namely, Fakre Alam, Ram Tirth, Pawan Kumar and others, it has been submitted that they were taken on deputation and had worked as Deputy Director, Construction but it has been submitted that no parity of those persons can be claimed as the decision of Parishad had created many problems and hurdles. He has also cited a judgment decided by Hon’ble Supreme Court in the case of Rati Lal B. Soni and others v. State of Gujarat and others, AIR 1990 SC 1132 in which it has been held that appellants being on deputation could be reverted to their parent cadre at any time and they do not get any right to be absorbed on the deputation post. He has further relied upon a judgment in the case of Jamuna Prasad v. Rajya Krishi Utpadan Mandi Parishad U.P. and others, decided on 9.7.96 in Writ Petition No. 595 of 1996 (SL) in which the Division Bench of this Court has held that the petitioner has no lien on the post on which he was working on deputation. 9. Accordingly, it has been submitted that it was perfectly justified for the authorities of Rajya Krishi Utpadan Mandi Parishad, to repatriate the petitioner to his parent department. 10. Through the written submission, the petitioner has submitted the details of their appointments in parent departments and dates of appointment on deputation, date of application for absorption in Mandi Parishad as well as the consent of Mandi Parishad and ‘No Objection Certificate’ issued by the parent departments, which are reproduced hereinunder : S. Name of Date of Parent Date of Date of Date of Date of No. petitioners appoin- depart- appoin- appoin- consent issue and tment in ment tment on tment on express of NOC designation parent deputa- deputa- by mandi issued depart- tion in tion in Parishad by ment mandi mandi for NOC parent Parishad Parishad depart- ment 1 Satish Kumar 28-7-1981 U.P. State 16.11.95 15.10.96 01.11.96 18.11.96 Singh, J.E. Bridge (Elec/Mech) Corp. Ltd. 2 Mahendra Nath 18.03.81 U.P. State 21.01.96 16.10.96 11.11.96 18.11.96 Mishra Bridge (J.E. Civil) Corp. Ltd. 3 Ramadhish 01.04.88 U.P. 13.06.95 15.06.96 30.01.97 7.3.97 Pande Samaj (J.E. Civil) Kalyan Nirman Nigam Ltd. 11. The petitioners have submitted that a large number of persons were engaged on daily wage basis including some diploma holders in Mandi Parishad and the Mandi Parishad also framed a policy for regularising those persons but the Hon’ble Supreme Court did not approve the same rather issued direction contrary to the policy in the case of State of U.P. and others v. Neeraj Awasthi and others, decided on 16.12.2005 in civil appeal No. 4092 of 2001. It has further been submitted that in the light of the decision of Hon’ble Supreme Court in the case of State of U.P. and others v. Neeraj Awasthi’s case (supra), the regularisation of daily wagers, is not permissible. It has also been indicated that one Mr. Avadesh Kumar Mishra, who was working on deputation has been absorbed on the post of Junior Engineer. It has also been indicated that one Mr. Avadesh Kumar Mishra, who was working on deputation has been absorbed on the post of Junior Engineer. The decision taken by the Director of Mandi Parishad for his absorption has been brought on record. Moreover, the Mandi Parishad also took a decision in its meeting dated 25.6.1999 to take number of persons on deputation. It has further been submitted that Shri Samarnath has also been absorbed and the decision taken to this effect has also been brought on record. Thus, the petitioners contended that petitioners’ case for absorption has wrongly been rejected. 12. The petitioner urged that the dictum of Hon’ble Supreme Court given in Rameshwar Prasad’s case (supra) has also not been followed. Accordingly petitioners’ case has been rejected without application of mind, which is not sustainable in the eye of law. This fact has also been brought notice to the Court that after completion of five years, the opposite parties have stopped the payment of deputation allowance. 13. Heard learned Counsel for the parties and perused the record. 14. It is not in dispute that petitioners are working on deputation in Mandi Parishad since 1995-1996. They submitted applications for absorption. The Mandi Parishad sought ‘No Objection Certificate’ from their respective parent department and after obtaining the same, with its consent, it recommended the petitioners’ case for final order before the State Government. In the meantime, the petitioners completed their five years service in Mandi Parishad and the Parishad has stopped the payment of deputation allowance. It is also not in dispute that the period of deputation was extended for one year. In the meantime, when some persons were absorbed, the petitioners submitted fresh representations and also filed the present writ petition. Their representation resulted into the order of their repatriation. They challenged the same by amending the present writ petition and this Court by means of an order dated 1.8.2003 stayed the order of repatriation. 15. The State Government also took a decision to cancel the order of repatriation and accordingly, the petitioners are working in Mandi Parishad. Their representation resulted into the order of their repatriation. They challenged the same by amending the present writ petition and this Court by means of an order dated 1.8.2003 stayed the order of repatriation. 15. The State Government also took a decision to cancel the order of repatriation and accordingly, the petitioners are working in Mandi Parishad. In the writ petition bearing No. 236 (SS) of 2001, which was filed by the employees of Mandi Parishad, this Court by means of an order dated 17.1.2001 passed interim order restraining the Mandi Parishad to absorb any deputationist till the employees working in the Mandi Parishad on daily wage basis are regularised. However, subsequently, this Court modified the stay order on 17.5.2001 to the extent that it shall be open for the Mandi Parishad to consider question of absorption of the deputationists. Now in the light of the decision of Hon’ble Supreme Court rendered in the case of State of U.P. and others v. Neeraj Awasthi (supra), which is related to the department of Mandi Parishad itself as well as the recent decision of State of Karnataka v. Uma Devi (3) and others, 2006 (4) SCC 1 , regularisation of daily wagers are not permissible in the eye of law. Further, in the case of State of U.P. and others v. Neeraj Awasthi (supra), this Court issued direction to fill up the post in accordance with law. 16. The contentions of the opposite party that the U.P. Absorption of Government Servants in Public Undertakings Rules, 1984, is not applicable or absolutely unsustainable as the same has been discussed by the Hon’ble Supreme Court in the case of Rameshwar Prasad (supra) and the Hon’ble Supreme Court has held that the said rule is very much applicable in the case of Rajkiya Nirman Nigam Limited, which is State owned Corporation. The Mandi Parishad is also State owned corporate body. 17. In the case of Rameshwar Prasad (supra), the appellant had completed five years period of service on deputation. He exercised his option for absorption. After completion of five years, his allowance was also stopped. Considering the facts and circumstances of the case, the Hon’ble Supreme Court held that an employee, who is on deputation has no right to be absorbed in the service where he is working on deputation. In some cases, it may depend upon the statutory rules, to the contrary. After completion of five years, his allowance was also stopped. Considering the facts and circumstances of the case, the Hon’ble Supreme Court held that an employee, who is on deputation has no right to be absorbed in the service where he is working on deputation. In some cases, it may depend upon the statutory rules, to the contrary. If the rules provide for absorption for employees on deputation then such employee has a right to be considered for absorption in accordance with the said rules and further observed that it is true that whether deputationist should be absorbed in service or not is a policy matter, but at the same time, once the policy is accepted and rules are framed for such absorption, before rejecting the application, there must be justifiable reasons. It has further been held by the Hon’ble Supreme Court that respondent cannot act arbitrarily by picking and choosing the deputationists for absorption. The power of absorption, no doubt, is discretionary but is coupled with the duty not to act arbitrarily, or at the whim or caprice of any individual. The Hon’ble Supreme Court found that after completion of five years, the deputation allowance was also discontinued and if he was to be continued on deputation, there was no reason for non-payment of the deputation allowance. In the light of these facts, the Hon’ble Supreme Court held that on the basis of statutory rules as well as the policy, the appellant stands absorbed in the service of the Nigam. 18. In the present case, no doubt the facts are almost similar. The exercise of absorption of the petitioners commenced with the consent of Mandi Parishad and ‘No Objection Certificate’ have been obtained from the parent department. Their deputation allowances have been discontinued after completion of five year. Till date no reason has been shown for not absorbing the petitioners except the difficulty on account of which the Mandi Parishad has taken a policy decision not to absorb the junior engineers, which is unfounded. It is not denied that five persons namely, Fakre Alam, Avadhesh Kumar Mishra and Pawan Kumar and two others have been absorbed in the Mandi Parishad, which establishes the pick and choose action adopted by the opposite party in the matter of deputation and also shows their discriminatory action, which is not permissible in the eye of law. It is not denied that five persons namely, Fakre Alam, Avadhesh Kumar Mishra and Pawan Kumar and two others have been absorbed in the Mandi Parishad, which establishes the pick and choose action adopted by the opposite party in the matter of deputation and also shows their discriminatory action, which is not permissible in the eye of law. The Board has been defined under Section 2(a-1) of U.P. Krishi Utpadan Mandi Adhiniyam, 1964, which is reproduced as under : “Board” means the State Agricultural Produce Markets Board constituted under Section 26-A.” Section 26-A of U.P. Krishi Utpadan Mandi Adhiniyam, 1964 is reproduced as under : “26-A. Establishment of the Board.—(1) The State Government shall, by notification in the Gazette, and with effect from a date to be specified therein, constitute a Board by the name of the State Agricultural Produce Markets Board with its head office at Lucknow. (2) The Board shall be a body corporate by the said name having perpetual succession and a common seal and may sue or be sued by the said name and acquire hold and dispose of property and enter into contracts. (3) The Board shall for all purposes be deemed to be a local authority.” 19. From perusal of the aforesaid provisions of the Act, 1964, read with U.P. Absorption of Government Servants in Public Undertakings Rules, 1984 it is clear that the Mandi Parishad is an undertaking and accordingly, the absorption Rules, 1984 is applicable therein. 20. It is relevant to mention here that Section 23-A of U.P. Krishi Utpadan Mandi Adhiniyam, 1964 permits the appointments of the officers on deputation. On the policy matter, under Section 26-M, it is provided that in the discharge of its functions, the Board shall be guided by such directions on question of policy as may be given to it by the State Government and under Section 33-B of the Act, the State Government has also supervisory power over the Board. 21. The petitioners have also brought on record the order dated 21.3.2002 issued by the Director, Mandi Parishad whereby six junior engineers, namely, S/s Shrawan Kumar, Khedu Prasad, Rajesh Kumar, Rakesh Kumar Saxena, Shri Radhey Lal Gupta and Krishna Chandra working in the Awas Vikas Parishad, have been taken on deputation in the Mandi Parishad. 21. The petitioners have also brought on record the order dated 21.3.2002 issued by the Director, Mandi Parishad whereby six junior engineers, namely, S/s Shrawan Kumar, Khedu Prasad, Rajesh Kumar, Rakesh Kumar Saxena, Shri Radhey Lal Gupta and Krishna Chandra working in the Awas Vikas Parishad, have been taken on deputation in the Mandi Parishad. Further, by means of another order dated 23.1.2002, seven more junior engineers, namely, S/s Bhupendra Pratap Singh, Raj Bahadur, Uday Pratap Dubey, Sitaram, Jagdamba Prasad Gupta, R.N. Singh and Paras Nath working in the U.P. State Bridge Corporation Limited have been taken on deputation. The parishad has also passed an order in the matter of Mr. Avadhesh Kumar Mishra, Junior Engineer on 9.5.2003. The same has also been brought on record whereby he has been absorbed in Mandi Parishad on the ground that his matter is not covered under the decision of Mandi Parishad called as policy decision taken on 25.6.1999 as his matter is pending consideration since before the policy decision. 22. From perusal of the chart, which provides the details relating to petitioners, it establishes that prior to the decision dated 25.5.1999, their application for absorption in Mandi Parishad had been considered with the consent of the Mandi Parishad and ‘No Objection Certificate’ by the respective parent departments had also been issued. Under the circumstances, I find that petitioners’ cases are similar to the case of Mr. Avadhesh Kumar Mishra. Their cases are also pending for final decision since before policy decision and they are entitled for the same benefit as has been extended to Mr. Avadhesh Kumar Mishra in the matter of absorption. 23. The decision of the Mandi Parishad for taking on deputation of Junior Engineers working in U.P. Avas Vikas Parishad as well as U.P. Bridge Corporation Ltd. also establishes that there is need of junior engineers in Mandi Parishad. 24. No doubt, the employee working on deputation has no right for absorption but as has been held by the Hon’ble Supreme Court in the case of Rameshwar Prasad (supra), the discretionary power of the department in which the employee is working on deputation, is not permissible and the fact that the opposite party No. 4 has absorbed some of the employees working on deputation, is not disputed. 25. 25. Since the State Government has a supervisory jurisdiction over the functions of the Mandi Parishad, I feel it appropriate to issue direction to the State Government to consider petitioner’s case for absorption afresh in the light of the discussions and observations made hereinabove, within one month from the date of production of a certified copy of this order before the Secretary of the Department concerned. Accordingly, the direction is issued. The order dated 3.9.2001 whereby the petitioners have been repatriated as well as the order dated 18.12.2001 (Annexure 20) passed by the Mandi Parishad whereby petitioners’ representation for absorption in Mandi Parishad has been rejected, are quashed. 26. In the aforesaid terms, the writ petition is allowed. 27. From perusal of contents of application as well as considering the objection filed on behalf of petitioner, it is obvious that the applicants are not permanent employee of Mandi Parishad. Under the circumstances, I am of the view that they have no right to produce the petitioners’ request for absorption in Mandi Parishad as the petitioners are deputationists, the permanent employee of another departments. So far as the applicants’ regularisation is concerned, in the light of the judgment of Hon’ble Supreme Court rendered in the case of State of Karnataka v. Uma Devi (3) and others, 2006 (4) SCC 1 , regularisation in such cases, is not permissible. Under the circumstances, the application is rejected. ————