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2017 DIGILAW 2173 (ALL)

UMESH DUTT GAUTAM v. STATE OF U. P.

2017-09-14

A.P.SAHI, RAJIV LOCHAN MEHROTRA

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JUDGMENT : Hon'ble Amreshwar Pratap Sahi, J. Hon'ble Rajiv Lochan Mehrotra, J. 1. This writ petition has been filed praying for a mandamus directing the State Government namely the Backward Class Welfare Department through the District Backward Class Welfare Officer to extend all such post retiral benefits to which the petitioner is entitled treating him to be absorbed in the said department by virtue of his earlier posting on deputation and continuance in the said department. 2. The post held by the petitioner substantively as a Cataloguer was in the Bundelkhand University, Jhansi. The University is not a respondent in this writ petition. The petitioner on an arrangement made by way of deputation came to be posted as a District Backward Class Welfare Officer in 1997 vide order dated 31.07.1997. By virtue of such continuance, he remained in service with breaks and attained the age of superannuation on 31.01.2009. The petitioner contends that he became a servant of the respondent-department and accordingly is entitled all such retiral benefits that has been denied, inasmuch as, the parent department namely the Bundelkhand University had vide letter dated 8th December, 2005 informed the Secretary of the Backward Class Welfare Department, Government of Uttar Pradesh that the lien of the petitioner in the Bundelkhand University on the post of cataloguer stood terminated w.e.f. 8th May, 2003 and therefore, he should be not treated to be an employee of the University and action should be taken by the department itself in accordance with law. 3. The petitioner having failed to get the relief of his post retiral benefits filed this writ petition on 29th January, 2009 and prayed for a mandamus as indicated above. 4. A counter affidavit was filed on behalf of the State to which a rejoinder affidavit has also been filed. The State has taken a stand that the petitioner has not produced any order of the competent authority cancelling the lien from the Bundelkhand University and therefore, there is no cause to accept the communication which has been placed on record from the Bundelkhand University and even otherwise, once the petitioner's tenure on deputation had come to an end, he ought to have joined in the parent department and then obtained a no objection certificate and could have rejoined in order to maintain his continuity as such. 5. 5. Instead, it appears that since the petitioner had not been allowed to join as a District Backward Class Welfare Officer, he took the plea that other Officers who were all 16 in number had been permitted to continue on the said post and accordingly, the petitioner also filed Civil Misc. Writ Petition No. 1053 (S/B) of 2003 Umesh Dutt Gautam vs. State of U.P. and Others before the High Court at Lucknow and an interim order was passed on 07.08.2003 in his favour allowing him to join as a District Backward Class Welfare Officer. Having failed to get a compliance made, the petitioner filed a contempt petition being Contempt No. 1319 of 2003 before the High Court where orders were passed on 8th September, 2003 calling upon the Secretary of Department to appear in person and in this background, the State Government in relation to the petitioner and one Sri Layak Singh passed an order on 14th October, 2003 allowing the petitioner to join on the post until further orders of the State Government for a period of one year or any orders being passed by the State Government whichever is earlier absolutely on a new tenure on transfer/deputation basis. This was further conditioned by a recital that the petitioner shall not claim any salary from the Government for the period he had not been able to function, and that the claim would be available only if the parent department accepts the same. This period was from 04.03.2002 to 17.10.2004. Further any continuity in service for the said period shall not be verified by the State Government and it will be the parent employer of the petitioner who will have to pass orders. 6. The writ petition in which the interim order was passed remained pending but was ultimately dismissed for want of prosecution in 2014 as is admitted in paragraph no. 2 of the supplementary affidavit filed by the petitioner today. It is thus evident that the petitioner did not get any final relief and the interim order that was passed stood merged with the final order upon the dismissal of the writ petition. 7. 2 of the supplementary affidavit filed by the petitioner today. It is thus evident that the petitioner did not get any final relief and the interim order that was passed stood merged with the final order upon the dismissal of the writ petition. 7. The petitioner, therefore, cannot claim any benefit out of the said interim order but the fact remains that on the strength of the interim order the petitioner continued to work as District Backward Class Welfare Officer till the date of his retirement in 2009. 8. It is in this background when the matter was heard by us on a previous occasion that we passed the following order on 29.08.2017. 9. Heard learned counsel for the petitioner. 10. The affidavit of Sri Mahesh Kumar Gupta, Principal Secretary Backward Class Welfare Department, Government of Uttar Pradesh has been filed today which is taken on record. 11. The averments contained therein are categorical to the effect that since the petitioner's services were never absorbed in the Backward Class Social Welfare Department (hereinafter referred to as the Department), therefore, he being not a cadre employee of the said Department, he has no lien and also no right to claim any such benefits after retirement as prayed for. 12. To the contrary, the averment is that the petitioner continues to be the employee of the Bundelkhand University and the entire exercise is to be conducted by the University for extending any such benefit. 13. The case of the petitioner in the writ petition is that the University has already declared the lien of the petitioner to have come to an end in the University vide letter dated 8th December, 2005. 14. The learned Standing Counsel submits that the said order was never challenged and even otherwise the petitioner filed Writ Petition No. 1053 (S/B) of 2003 before the Lucknow Bench of this Court praying for a mandamus that he should be allowed to join in the Department which was being prevented on one pretext or the other. 15. An interim order was passed by the High Court in the abovementioned petition on 7th August, 2003 which is to the following effect:- "Notice on behalf of opposite parties has been accepted by learned Chief Standing Counsel, who prays for and is granted three weeks' time to file counter affidavit. List thereafter. 15. An interim order was passed by the High Court in the abovementioned petition on 7th August, 2003 which is to the following effect:- "Notice on behalf of opposite parties has been accepted by learned Chief Standing Counsel, who prays for and is granted three weeks' time to file counter affidavit. List thereafter. In the meantime in case the petitioner is not being allowed to join in pursuance to the appointment order dated 10.3.2003 merely because of the non availability of the no objection certificate from the parent department, and there is no other legal impediment, the petitioner shall be allowed to join forthwith. The parent department, in the meantime, shall also issue the no objection certificate/ relieving certificate within a maximum period of three weeks from the date of receipt of copy of this order. However, joining of the petitioner shall be subject to further orders of the Court." 16. The communication giving rise to this writ petition dated 5th January, 2009 clearly indicates the impact of the aforesaid interim direction having been complied with by the State Government subject to any further orders being passed in this regard. The communication, however, still maintains that the petitioner is not a member of the Department and in such circumstances his claim for benefits cannot be accepted. 17. A conspectus of the aforesaid facts, therefore, leaves no room for doubt that the stand taken by the State Government is that the petitioner still continues to be an employee of his parent Institution, namely, the Bundelkhand University and as such, he is entitled to his benefits from the said University and not from the State Government. 18. In our considered opinion, the decision will depend upon as to any final orders having been passed in the Writ petition No. 1053 (S/B) of 2003 referred to hereinabove. 19. Learned counsel for the petitioner may inform the Court about the status of the said writ petition and the orders passed therein, if any. Sri Giri prays for two weeks time for the same. 20. List this case after two weeks. 21. 19. Learned counsel for the petitioner may inform the Court about the status of the said writ petition and the orders passed therein, if any. Sri Giri prays for two weeks time for the same. 20. List this case after two weeks. 21. The State Government has responded and the Principal Secretary Backward Class Welfare Department has filed an affidavit alongwith the opinion of the State Government dated 25th August, 2007 narrating these facts indicated above and observing that in view of the provisions of the financial handbook as quoted in the said opinion, if they are applicable to the Bundelkhand University which is the parent department of the petitioner, the petitioner can have his claim considered by the University as the lien in the said university cannot be said to have come to an end. At the same time, it has been observed since the petitioner for the intervening period had not worked at any place, the petitioner would not be entitled to claim salary from the Government. The outcome of the said opinion is that the petitioner on the strength of the interim order of the High Court had been continuing and he retired in 2009 but the writ petition as observed above came to be dismissed. 22. The petitioner ought to have pursued the said petition as his very continuance and future benefits were clearly dependant on any final order passed therein. The dismissal of the petition for whatever reason, without any relief dissolved the effect of the interim order as well. 23. In the said background, the opinion expressed by the Principal Secretary in the communication dated 25th August, 2017 filed as Annexure No. 1 to the affidavit of the State Government cannot be said to be suffering from any legal infirmity. 24. We, therefore, approve of the stand taken by the State Government without prejudice to the rights of either the petitioner or the Bundelkhand University to contest the position that may arise on account of the applicability of the relevant rules pertaining to the question of lien of the petitioner as also his claim of post retiral benefits. 25. 24. We, therefore, approve of the stand taken by the State Government without prejudice to the rights of either the petitioner or the Bundelkhand University to contest the position that may arise on account of the applicability of the relevant rules pertaining to the question of lien of the petitioner as also his claim of post retiral benefits. 25. So far as the State Government is concerned, we do not find any such material so as to construe that the petitioner's services stood absorbed nor is their any rule to that effect to lead to the conclusion that the continuance of the petitioner has crystallized into any lawful absorption. The reason for the same is that the petitioner was admittedly continuing on the strength of the interim order which stood dissolved with the dismissal of the writ petition as indicated above. Even otherwise, the continuance of the petitioner was permitted by the department under the orders of contempt that arose out of the said writ petition for a limited tenure. Thus, in the background aforesaid, the stand taken by the State Government cannot be said to be suffering from any such infirmity so as to issue a mandamus as prayed for by the petitioner. 26. We, therefore, consign this petition to records with liberty to the petitioner to avail any remedy that the petitioner may so choose by moving before the Bundelkhand University or before any appropriate forum with regard to the question of his lien being treated in the parent department and any consequential post retiral benefits or such other benefits to which he may be entitled in accordance with law.