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2022 DIGILAW 2324 (RAJ)

State Of Rajasthan v. Amitabh Bohra

2022-08-30

MADAN GOPAL VYAS, MANINDRA MOHAN SHRIVASTAVA

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JUDGMENT 1. This appeal is directed against order dated 08.09.2016 passed by the Learned Single Judge in the writ petition filed by the respondent-writ petitioner, by which the petition has been allowed and the appellants have been directed to pass a reasoned order on the prayer of the respondent-writ petitioner for being absorbed on a suitable post in the State Government services. It has further been clarified that if the respondents decide to absorb the petitioner in the State Government services, he shall be entitled to all consequential benefits. 2. The factual matrix relevant for decision in the present appeal, as contained in the pleadings of the parties is that the respondent-writ petitioner was appointed as Supervisor (Leather) in Rajasthan State Tanneries Limited (for brevity, hereinafter referred to as 'RSTL'), a Government of Rajasthan undertaking in the year 1982. Later on, an order was passed on 18.06.1987 by which respondent-writ petitioner was sent on deputation under the Department of Industries, Government of Rajasthan against the post of Project Manager (Leather) in the cadre of Assistant Director Industries and posted at District Industries Center, Jaisalmer. While the respondent-writ petitioner was working on deputation, his parent organization RSTL itself was closed and shut down. However, no orders were passed with regard to the fate of the respondent-writ petitioner as to whether he is absorbed in the Government Department or terminated or absorbed in any other State Corporations or any other body. Vide order dated 25.06.1991, the deputation of the respondent-writ petitioner was brought to an end and he was directed to join RSTL i.e. his parent organization which was closed. A writ petition bearing S.B. Civil Writ Petition No. 3154/1991 was filed by the respondent-writ petitioner challenging the order of cancellation of deputation. The effect and operation of the order dated 25.06.1991 was stayed by the Court. During the pendency of that writ petition, a letter was issued on 07.07.1999 to the respondent-writ petitioner that if he withdraws the petition, his case would be considered for further orders for adjustment (for consideration of his case for absorption under the relevant Rules). As letter indicates it was pursuant to a letter dated 21.06.1999 of the respondent-writ petitioner. During the pendency of that writ petition, a letter was issued on 07.07.1999 to the respondent-writ petitioner that if he withdraws the petition, his case would be considered for further orders for adjustment (for consideration of his case for absorption under the relevant Rules). As letter indicates it was pursuant to a letter dated 21.06.1999 of the respondent-writ petitioner. The respondent-writ petitioner in order to explore possibility of settlement and in the hope of getting favorable order from the Government, withdrew his petition vide order dated 02.08.1999 the writ petition was dismissed as withdrawn with liberty to file if need arises. An order was thereafter passed on 17.05.2002 by which he was ordered to continue on deputation in the Industries Department till attaining the age of superannuation. It was further ordered that contribution to Contributory Provident Fund (CPF) which is not being made at that time be deposited by the State Government as per Rule from time to time along with arrears. The pleadings of the parties also reveal that process for amendment of the Rules was also initiated to facilitate absorption of the respondent-writ petitioner in the Industries Department because as per the then existing Rules, an employee of a corporation could not be absorbed in the services of the Industries Department of the State Government. Though, the Rules are said to have been amended in the year 1997, as far as the post of Assistant Director (Leather) is concerned, no benefit was granted because the Rule permitted appointment by promotion and direct recruitment. Therefore, no order of absorption in favour of respondent-writ petitioner was passed. This led the respondent-writ petitioner to file a writ petition for direction to State to absorb him in the State services in the Department of Industries. 3. The stand taken by the appellants-respondents in the reply was that the respondent-writ petitioner being an employee of State undertaking and not an employee in any of the Department of the State, could not be absorbed in the State services after closure of his organization as such absorption was not permissible under The Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 (hereinafter referred to as "the Rules of 1969"). According to appellants-respondents, there was no provision of absorption of a person working in the State undertaking in the Government services. According to appellants-respondents, there was no provision of absorption of a person working in the State undertaking in the Government services. Further, case of the respondent was as the Rule did not permit the absorption of respondent-writ petitioner in the Government service, he was asked to give his consent for his absorption in public sector undertaking. It was further averred in the reply by the respondent that even though the Department was under no obligation to continue the respondent-writ petitioner on deputation till his superannuation and even though law did not require it to contribute towards Contributory Provident Fund scheme yet out of benevolence and compassion, considering that the respondent-writ petitioner had continued on deputation for long, such benefit was extended to him. According to State, even under the Rajasthan Industries Service Rules, 1960, the case of the respondent-writ petitioner could not be considered for absorption as he was not a member of Rajasthan Subordinate Services Rules, therefore, even the benefit of appointment could not be extended to him. 4. However, Learned Single Judge found that the respondent-writ petitioner had been working in the Industries Department for a very long period and as some other employees of RSTL were absorbed in Government Services and that the stand taken by the respondents-appellants in the reply was not supported by any statutory provision that respondent-writ petitioner services could not be absorbed in the State Government, inaction on the part of the appellants-respondents in not absorbing the respondent-writ petitioner was held to be totally unjustified, arbitrary and illegal. Consequently, the reliefs were granted in the writ petition giving rise to this appeal. 5. Learned Additional Advocate General appearing for the State made pointed submission to assail the correctness and validity of the order passed by the Learned Single Judge that directions issued by the Learned Single Judge for absorption of respondent-writ petitioner is contrary to the provisions contained in the Rules of 1969. Referring to the various provisions of Rules, particularly Rule 2 it has been contended that absorption that under the scheme of the Rules, employee of State undertaking cannot be absorbed in the State Government services but he could be considered for absorption in any other State undertaking. Referring to the various provisions of Rules, particularly Rule 2 it has been contended that absorption that under the scheme of the Rules, employee of State undertaking cannot be absorbed in the State Government services but he could be considered for absorption in any other State undertaking. He would submit that even though specific stand was taken before the Learned Single Judge, it has been incorrectly recorded that the stand taken by the respondent is not supported by any statutory provision. 6. The second limb of submission of learned counsel for the State is that no material was placed on record before Learned Single Judge that other employees, similarly situated as the respondent-writ petitioner, were absorbed in Government services and for the first time before this Court in the appeal, additional documents have been filed to show that two employees in lower cadre were absorbed which otherwise is illegal and contrary to Rules. He would further submit that no negative equality against the provisions of law could be claimed in the writ petition to seek a relief which is contrary to law. Learned State counsel would further submit that after the order was passed by the Learned Single Judge, an attempt was made to reconcile the dispute through pre-litigation counselling and the appellants passed an order on 24.04.2017 for absorption of respondent in Rajasthan Rajya Vidhyut Vitran Nigam Limited (hereinafter referred to as "RVVPNL") and even though the said corporation was prepared to absorb the respondent-writ petitioner and an order to that effect was passed on 11.07.2017 on the post of LDC protecting his pay, the writ petitioner-respondent did not accept the same and separately challenged in connected S.B. Civil Writ Petition No. 8339/2017. He would further submit that again in compliance of the orders and various observations of this Court in the pending appeal, the order dated 24.04.2017 was also modified and vide order dated 22.04.2019 respondent has finally been absorbed with Rajasthan Rajya Vidhyut Prasaran Nigam Limited on the same pay scale which the respondent-writ petitioner was drawing at the time of deputation. A copy of which has been placed on record and which has also been produced before the Court. By this order, the respondent-writ petitioner has been absorbed on the post of Additional Administrative Officer, keeping in view his substantive post in the post of Supervisor in his parent undertaking i.e. RSTL. A copy of which has been placed on record and which has also been produced before the Court. By this order, the respondent-writ petitioner has been absorbed on the post of Additional Administrative Officer, keeping in view his substantive post in the post of Supervisor in his parent undertaking i.e. RSTL. In support of submission, learned State counsel would rely on the decision of the Supreme Court in the case of Avas Vikas Sansthan and Another v. Avas Vikas Sansthan Engineers Assn. And Others reported in 2006 (4) SCC 132 to submit that no right exist in favour of the respondent once his undertaking has been closed. 7. We have heard learned counsel for the parties and gone through the records of the case as also the order passed by the Learned Single Judge. 8. The order of Learned Single Judge proceeds mainly on the basis that the respondent had been working on deputation in the Industries Department of the State for a very long time and that other employees of RSTL were absorbed in Government Department after closure of RSTL. Learned Single Judge has also held that stand of the appellants-respondents that Rules do not permit absorption of the respondent-writ petitioner in the State Government services is not supported by any statutory provision. On these three main consideration, the writ petition was allowed. 9. Learned State counsel has brought to the notice of this Court provision contained under Rule 2 of the Rules of 1969 which reads thus:- "2. Scope and Applicability.-Notwithstanding anything contained in any service rules or orders for the time being in force regulating the recruitment and conditions of service of persons appointed to the various services or posts in connection with the affairs of the State, surplus personnel shall be eligible for recruitment and appointment by absorption to such service or posts in accordance with these rules subject to the availability of vacant posts: [Provided that- (I) Nothing contained in these rules shall apply to posts encadred in the All India Services, the Rajasthan Higher Judicial Services, the Rajasthan Judicial Service, the Rajasthan Secretariat Service, the Rajasthan Administrative Service, the Rajasthan Police Service, the Rajasthan Accounts Service and the Rajasthan Tehsildar Service. (II) Nothing contained in these rules shall apply to the persons holding posts of Statisticians in the Directorate of Economics and Industry Survey prior to the abolition of that department and subsequently absorbed as Statistical Assistants in the Directorate of Economics and Statistics on their having been rendered surplus and thereafter being adjudged suitable for appointment to the service under Rule 24 of the Rajasthan Statistical Subordinate Service Rules, 1971." 10. A plain reading of the aforesaid Rule reveals no manner of doubt that Rule does not permit absorption of an employee of the State undertaking in the Government service in any department. The language of the Rule impliedly prohibits an employee of State undertaking to be absorbed in the State services. 11. It appears that when earlier, writ petition was filed and withdrawn, the appellants had passed an order on 17.05.2002 allowing the respondent-writ petitioner to continue on deputation till superannuation along with other contributory benefits in CPF scheme by the State. Though proceedings were drawn for amendment in the Rules applicable to Industries Department, none of the amendments in the Rule, any specific provision contained in any other Rule much Rules of 1969 has been brought to the notice of this Court which permits absorption of an employee of the State undertaking into Government service in the event of such State undertaking closed and shut down. Even during the course of hearing, no such provisions brought to the notice of this Court by learned counsel for the respondent-writ petitioner to claim that in the light of subsequent amendments in Rules governing recruitment to the posts in the Department of Industries, a mode of appointment by way of absorption of an employee of State undertaking into the Department of Industries, Government of Rajasthan was introduced so as to open gate for absorption of respondent-writ petitioner in the Industries Department of the Government of Rajasthan. 12. Therefore, the position under the law in view of statutory Rules applicable either at the time when the RSTL was shut down or even during the pendency of the writ petition or even during the pendency of this appeal, there is no provision of permitting absorption of the respondent-writ petitioner in the service of the Industries Department of the Government of Rajasthan. 13. 13. The Rules which have been placed before this Court during the course of the argument and which has also been referred to as and the relevant provision contained in Rule 2 of the Rules of 1969 quoted hereinabove leaves no manner of doubt that a claim of absorption by an employee of closed State undertaking for absorption in the Industries Department of Government of Rajasthan is not legally permissible. However, such a person could be absorbed in any other undertaking on the basis of administrative decisions, as has been taken in the case of respondent. 14. We find that when the order was passed by the Learned Single Judge, no material was placed till the order was passed by the Learned Single Judge in the writ petition, except an averment made that any employee of RSTL, upon its closure, was absorbed in the Industries Department but during the pendency of this appeal, respondent-writ petitioner has placed on record two orders of absorption along with an application for taking additional documents on record, as Annexures A-9 & A-10 in respect of two employees namely Chotu Lal, who was working on the post of Diver in RSTL at the time of its closure and the other one being Munshi Singh Rajput who was working on the post of Project Economist in another undertaking. Chotu Lal was initially temporarily absorbed on the post of Driver in Jawahar Kala Kendra, Jaipur and thereafter, when he was declared surplus, there also he was absorbed on the post of Driver in the State Motor Garage on 01.10.2021. 15. Another employee Munshi Singh Rajput who was working on the post of Project Economist in Bhumi Vikas Nigam, Jaipur and was declared surplus after that undertaking was shut down, was absorbed on the post of Deputy Director (Statistics) in Rajasthan Economic and Statistics Services vide order dated 09.12.2009. 16. The only answer to these documents which have been placed on record by the respondent during the pendency of appeal is that those orders were in violation of the Rules of 1969. A legal submission of learned counsel for the State is that as those appointments were in contravention of relevant law relating to absorption, could not be made a basis to seek issuance of writ of mandamus to perpetuate illegality in violation of law as negative equality could not be enforced in law. 17. A legal submission of learned counsel for the State is that as those appointments were in contravention of relevant law relating to absorption, could not be made a basis to seek issuance of writ of mandamus to perpetuate illegality in violation of law as negative equality could not be enforced in law. 17. We have to hold that though the State Authorities absorbed employees of RSTL and other State undertaking in Government services which was not permissible under the Rules of 1969, but in view of well settled legal position, we cannot allow that illegality to be perpetuated. It is too well settled legal position that negative equality cannot be enforced in the Court of law. As there is nothing in the Rule as the Rule did not permit such kind of absorption, even though illegal orders have been passed in some of the cases, it could not be enforced through orders of the Court. 18. We find that respondent had worked on deputation in the Industries Department since 1987 and after closure of his parent organization i.e. RSTL he has only been in litigation. The respondent offered the respondent-writ petitioner to claim absorption in any other State undertaking which he did not do but kept on raising claim of absorption in the Industries Department of Government of Rajasthan where he was working on deputation, which for reason stated hereinabove, was not tenable in law. Had the respondent, right from the beginning, claimed absorption in accordance with offer, perhaps he would not have suffered so much of agony and hardship. All that the respondent-writ petitioner was required to do was to submit his application for seeking absorption in any other State undertaking, after closure of his parent organization RSTL, which unfortunately respondent-writ petitioner never did, though to his utter prejudice. From the averment made in the memo of appeal, from the records of the appeal and records of the connected writ petition and contempt petition, we find that after the order was passed by the Learned Single Judge contempt petition, was also filed by respondent-writ petitioner. From the averment made in the memo of appeal, from the records of the appeal and records of the connected writ petition and contempt petition, we find that after the order was passed by the Learned Single Judge contempt petition, was also filed by respondent-writ petitioner. As the pre-litigation proceedings did not result in any settlement of dispute, the appellant finally took to recourse to remedy of filing appeal challenging the order of Learned Single Judge, but at the same time, an order of absorption of the respondent in RVVNL was passed on 24.04.2017 absorbing the respondent-writ petitioner in the services, though on the post of LDC. Later on, an order was passed by the appellants-respondents on 22.04.2019, a copy of which has also been placed on record of this appeal which shows that the respondent-writ petitioner was absorbed on the post of Additional Administrative Officer in RRVPNL. 19. In view of our conclusion hereinabove that Rules of 1969 did not permit absorption of an employee of the State undertaking in Government services but he could be absorbed in any other State undertaking, direction to absorb the respondent-writ petitioner in Industries Department would not be sustainable in law. Even if it is found that one employee of RSTL has been absorbed in the Government and another employee of another State undertaking has been absorbed in Government Service, which is apparently illegal and in contravention of law. 20. Before parting with the case, we would direct the respondents to ensure that all the benefits to which respondent-writ petitioner is entitled in view of his absorption on the post of Additional Administrative Officer in RRVPNL if not extended to him, should be extended to him forthwith. Furthermore as the clear stand has been taken by the State that some of the employees of RSTL and other State undertaking were illegally absorbed in State services, the authors of those orders are required to be proceeded against at the departmental level by initiating departmental inquiry, if they are still in service. 21. Accordingly, this appeal is allowed. The order passed by the Learned Single Judge is set aside and the writ petition of the respondent-writ petitioner is dismissed, subject to the observations made hereinabove. 22. No order as to costs.