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2024 DIGILAW 1278 (ALL)

Dhananjay Mishra v. State of U. P.

2024-05-13

J.J.MUNIR

body2024
JUDGMENT : J.J. MUNIR, J. 1. This writ petition is directed against an order dated 28.02.2020 passed by the Commissioner, Rural Development, Uttar Pradesh, Lucknow, rejecting the petitioners' claim for the provision of pension contribution and leave encashment contribution in order to enable the said petitioners to claim retirement pension and leave encashment. 2. Heard Mr. K.D. Singh, learned Counsel for the petitioners and Ms. Monika Arya, learned Additional Chief Standing Counsel appearing on behalf of the State. 3. The first petitioner, Dhananjay Mishra and the second petitioner, Ramesh Chandra Rai, are the two petitioners, who have instituted this writ petition. The facts of their cases are different and this Court would, therefore, venture to set them out separately, at least so far as these are different. Facts relating the first petitioner Dhananjay Mishra's case 4. Dhananjay Mishra, petitioner No. 1, was initially appointed a Junior Clerk on 12.02.1980 with a Soil Conservation Project in District Gorakhpur, called the Gandak Project. He was transferred and posted to District Deoria under the same project. By an order dated 31.10.1988 passed by the Deputy Director, Gandak Project, Padrauna, District Deoria, the first petitioner was confirmed as a Senior Clerk w.e.f. 01.12.1982. It is the first petitioner's case that while confirming him in service, there was a mention in the letter of confirmation to the effect that from the date of confirmation, the employee will be entitled to pension in accordance with Civil Service Regulations, and service rendered prior to confirmation, would be included for the purpose of reckoning the qualifying service. 5. The Gandak Project in the State was abolished and employees thereof, who were surplus, were required to be absorbed in Government Departments, putting certain conditions to it. These conditions inter alia were that the benefit of absorption would be available to employees appointed prior to 01.10.1986, and further, about the applicability of rules relating to government servants with regard to general provident fund, leave encashment, pension etc., with effect from the date of appointment of an employee absorbed, in a particular Government Department. This arrangement was made vide Government dated 26.04.1991. The Government Order dated 26.04.1991 made provision for the absorption of surplus employees of the abolished Gandak Project, in various Departments of the Government. This arrangement was made vide Government dated 26.04.1991. The Government Order dated 26.04.1991 made provision for the absorption of surplus employees of the abolished Gandak Project, in various Departments of the Government. However, according to the first petitioner, for reasons best known to the respondents, he was absorbed not in any Government Department, but in the District Rural Development Agency (for short, 'DRDA') by the Chief Development Officer/ Executive Director, DRDA, Mau vide order dated 05.05.1990. About the DRDA, it is said by Mishra that they were a registered society, registered under the Societies Registration Act, 1860. It was an Establishment of the Government. The Chief Development Officer of the District was its Executive Director at the District Headquarters. This Establishment was set up to implement the Rural Development Programme of the Government. The DRDA was a society, as already said, but completely under the control of the State Government. There were no rules framed governing service conditions of employees of the DRDA. Therefore, a circular dated 17.03.1994 was issued by the Government, mentioning therein that the service conditions of employees, not provided in the circular, would be governed by such rules, regulations and orders, as apply ordinarily to serving government servants. 6. It is the first petitioner's case that though a surplus employee of the Gandak Project, he was not absorbed in a Government Department, but in the DRDA. Deduction towards GPF and Group Insurance was not being made from his salary and that of other employees as well. Therefore, the first petitioner and similarly circumstanced employees, raised their grievance before the Joint Development Commissioner, Gorakhpur, who forwarded their claim with regard to deposit of contribution/ deduction from their salary towards G.P.F. and Group Insurance vide his memo dated 11.01.1991 to the Additional District Magistrate (Projects), Siddharth Nagar. The first petitioner admittedly retired from service on 28.02.2017 upon attaining the age of superannuation. His notice of retirement dated 25.01.2017 shows that he retired as an employee of the DRDA. He was never absorbed in service of any Department of the Government. 7. The first petitioner earlier moved this Court vide Writ-A No. 20234 of 2019, seeking grant of pension and leave encashment, referring to orders in this behalf passed by the respondents. His notice of retirement dated 25.01.2017 shows that he retired as an employee of the DRDA. He was never absorbed in service of any Department of the Government. 7. The first petitioner earlier moved this Court vide Writ-A No. 20234 of 2019, seeking grant of pension and leave encashment, referring to orders in this behalf passed by the respondents. In the counter affidavit filed to the aforesaid writ petition, the Commissioner, Rural Development, Lucknow filed a copy of the order dated 28.02.2020, by which the first petitioner's claim for pension and leave encashment was rejected by the Commissioner, Rural Development. He then moved an application in the aforesaid writ petition for withdrawal with liberty to file a fresh petition. The first petitioner, after withdrawing the said writ petition vide order dated 31.07.2023 with liberty, instituted the present writ petition along with the second petitioner. Facts relating to the second petitioner, Ramesh Chandra Rai 8. The second petitioner, Ramesh Chandra Rai, was initially appointed as a Junior Clerk under the Gandak Project in the office of the Assistant Soil Conservation Officer, Gorakhpur in the pay scale of Rs.200-5-250. Upon completion of satisfactory service, Rai was confirmed/ regularized on the said post by the Assistant Soil Conservation Officer, Gandak Project, Gorakhpur on 30.09.1982. With ten years' satisfactory service complete, Rai was extended the benefit of selection grade by the Soil Conservation Officer, Gandak Project, Sishwa Bazar, Maharajganj on 20.03.1990. When the Gandak Project was abolished and the employees declared surplus, a list was drawn up for absorption in other Departments of the Government in terms of the Government Order dated 06.02.1990. The Joint Development Commissioner, Gorakhpur issued subsequent orders in compliance with the order dated 06.02.1990 on 02.04.1990, asking the District Magistrate of the district concerned to absorb surplus employees of Gandak Project on equivalent posts in the Districts of Mau, Maharajganj and Siddharth Nagar. Some of the surplus employees of the Gandak Project were absorbed in the office of the District Development Officer, Maharajganj, the DRDA, Maharajganj, the District Development Officer, Mau, the DRDA, Mau and the District Development Officer, Siddharth Nagar, where as per orders issued by the Government, the absorption had to be made in a Government Department. 9. Some of the surplus employees of the Gandak Project were absorbed in the office of the District Development Officer, Maharajganj, the DRDA, Maharajganj, the District Development Officer, Mau, the DRDA, Mau and the District Development Officer, Siddharth Nagar, where as per orders issued by the Government, the absorption had to be made in a Government Department. 9. It is pointed out that some of the surplus employees of the abolished project, like Gomtilal Srivastava, Ram Adhar and Ram Awadh Verma, who were absorbed in the DRDA, Maharajganj, were again absorbed in a Government Department, to wit, the District Development Office, Maharajganj, whereas the second petitioner, who was absorbed in the DRDA, Mau and posted as a Junior Accounts Clerk on a vacant post in the National Rural Employment Programme, sanctioned by the Government, is still continuing with the DRDA, Mau, instead of being absorbed in a Government Department, for which he is entitled under the law after merger of the DRDA with the Department of the Rural Development, Government of Uttar Pradesh. 10. It is the second petitioner's case that under the Government Order dated 26.04.1991, employees of the Gandak Project, after absorption, would be entitled to benefits of GPF, leave encashment, pension etc., as admissible to government servants from the date of absorption. The Commissioner, Rural Development, Lucknow, however, issued an order dated 01.02.2002 with regard to the payment of leave encashment to employees of the DRDA, though it was said that they were not entitled to pension and gratuity, like other government servants. 11. The second petitioner after joining the DRDA, Mau on 01.06.1990 was posted as the Junior Accounts Clerk in the National Rural Employment Programme of the Government, where he held the post of an Accounts Clerk. It is asserted that there he was a government servant as clarified on 08.11.1993, by whom the second petitioner himself has not clarified. Subsequently, he was sent back to the DRDA, Mau. After merger of the DRDA with the Department of Rural Development, on a representation made by the second petitioner, as also the first petitioner, to treat them as government servant with effect from the date of absorption from 05.05.1990, it was forwarded by the Project Director to the Commissioner, Rural Development, Lucknow on 24.09.2016. After merger of the DRDA with the Department of Rural Development, on a representation made by the second petitioner, as also the first petitioner, to treat them as government servant with effect from the date of absorption from 05.05.1990, it was forwarded by the Project Director to the Commissioner, Rural Development, Lucknow on 24.09.2016. Acting on the said recommendation, the Commissioner, Rural Development called for a detailed report with regard to the services of both the petitioners on 11.11.2016. Accordingly, the Chief Development Officer submitted a detailed report to the Commissioner, Rural Development on 18.11.2016, giving the details about the relevant Government Orders with regard to continuity of service as a government servant. After the report submitted to the Commissioner, Rural Development, a clarification was sought about the deduction of GPF and Group Insurance from the Joint Development Commissioner, Gorakhpur. The Joint Development Commissioner, Gorakhpur submitted a detailed report dated 31.05.2017 along with relevant Government Orders on the second petitioner's claim with regard to consideration of his services as that of a government servant from the date of joining. After necessary instructions, the Commissioner, Rural Development forwarded the claim of the second petitioner to the Government on 10.08.2017 to the effect that in view of the relevant Government Orders, surplus employees of the Gandak Project were required to be absorbed in a Government Department with all benefits available to government servants. The Government, in response to the recommendations made by the Commissioner, Rural Development, issued a direction to the Commissioner, Rural Development to the effect that the claim relates to a Class-III employee, for which the Commissioner, Rural Development is competent to decide. He ought to decide the second petitioner's claim and in case of necessity, advice from the Government may be sought. The said communication from the Government is one dated 26.09.2017, addressed to the Commissioner, Rural Development, to determine the second petitioner's claim with regard to continuity and benefit of government service from the date of absorption i.e. 05.05.1990. 12. The second petitioner's case is that after merger, the Commissioner, Rural Development, again sent a letter to the Joint Secretary, Rural Development, giving details about absorption of employees and relevant Government Orders along with letters for absorption issued with regard to other employees, who were absorbed by a common order, along with petitioner No. 2 in the DRDA, Maharajganj. He sought directions from the Government in the matter. He sought directions from the Government in the matter. 13. It is the second petitioner's further case that ignoring recommendations made to the Commissioner, Rural Development by the Chief Development Officer, DRDA, Mau, as also the report of the Joint Development Commissioner, Gorakhpur dated 31.05.2017, the Secretary, Rural Development illegally declined the second petitioner's claim by an order dated 16.06.2020. The second petitioner challenged the order dated 16.06.2020 by means of Writ-A No. 733 of 2021 before this Court. Pending the aforesaid writ petition, the second petitioner too retired on 31.01.2022. He says that the pensionary benefits claimed by the petitioners have been declined by the order impugned dated 28.02.2020 on irrelevant considerations, ignoring the orders issued by the Government with regard to absorption in a Government Department for employees of the petitioners' class and the recommendations made in this regard. Facts common to the petitioners 14. The State Government took a decision to merge the DRDA with the Department of Rural Development, and, accordingly, issued a Government Order dated 18.07.2016. After merger, the new pension scheme was made applicable to employees of the Department, including those, who were absorbed in service of the DRDA, ignoring their past services. It is the petitioners' case that the order of merger provides that the new pension scheme would be applicable to employees directly appointed to the DRDA. Therefore, the Government Order dated 18.07.2016 would not cover the petitioners' case in terms of the conditions mentioned there. The petitioners say that the Government Order dated 26.04.1991 has not been superseded or modified, and, therefore, in terms of the Government Order dated 26.04.1991 read with the Government Order for merger dated 18.07.2016, the benefit of GPF, leave encashment, pension etc., available to a government servant would have to be extended to every surplus employee of the Gandak Project. According to the petitioners, the order to merge the DRDA into the Department of Rural Development would entitle them to the benefit admissible to a government servant, once merged in the Department. The petitioners have to be treated to be employees of the Government in view of the law laid down by the Supreme Court in Pepsu Road Transport Corporation, Patiala and another v. S.K. Sharma and others, (2016) 9 SCC 206 . 15. The petitioners have to be treated to be employees of the Government in view of the law laid down by the Supreme Court in Pepsu Road Transport Corporation, Patiala and another v. S.K. Sharma and others, (2016) 9 SCC 206 . 15. It is the petitioners' case that, according to the Government Order dated 06.02.1990, surplus employees of the Gandak Project were required to be absorbed in Government Departments by the order dated 02.04.1990, including the petitioners, Ram Awadh Verma and Gomtilal Srivastava, besides Udai Prakash Srivastava and others, all of whom were also entitled to be absorbed in a Government Department. Ram Awadh Verma and Gomtilal Srivastava who were absorbed in the DRDA, were subsequently posted in the District Development Office, Maharajganj, a Government Department, and are being paid all benefits due to a government servant. At the same time, the petitioners' claim is not being considered, though they hold parity with these men, without any distinguishing features. It is also the petitioners' case that the fact being brought to the notice of the Commissioner, Rural Development, he sought information in regard to the other similarly circumstanced persons from the Chief Development Officer, Maharajganj on 02.11.2017. His inquiry was about the status of Ram Awadh Verma and Gomtilal Srivastava, who were subsequently posted in a Government Department. The Chief Development Officer, Maharajganj submitted a report on 09.11.2017 providing a copy of the order dated 22.01.1994, by which the two men last mentioned were absorbed in government service, that is to say, the Department of Rural Development. Therefore, it is the petitioners' case that in the face of this report, being available to the Commissioner, Rural Development with regard to absorption of similarly situate employees as the petitioners in the DRDA and their resettlement by a fresh order and absorption in a Government Department, he chose to ignore the same and rejected the petitioner's case by the impugned order. 16. The petitioners' case is that apart from all others like them, who were entitled to absorption in a Government Department vide order dated 22.01.1994, but absorbed with the DRDA, were soon absorbed in a Government Department, rectifying the mistake committed by the respondents. The petitioners have, therefore, been discriminated against. 16. The petitioners' case is that apart from all others like them, who were entitled to absorption in a Government Department vide order dated 22.01.1994, but absorbed with the DRDA, were soon absorbed in a Government Department, rectifying the mistake committed by the respondents. The petitioners have, therefore, been discriminated against. It is also the petitioners' case that they have been paid GPF and Group Insurance, which is not admissible to employees of the DRDA, as employees of the said Agency are paid CPF etc. The benefit of GPF and Group Insurance is admissible to government servants alone, as the petitioners say. The petitioners blame it on the respondents about first absorbing them in the DRDA and then taking them to have become part of the Department of Rural Development, upon merger of the DRDA, not entitled to post retiral benefits, owing to length of their service, whereas similarly circumstanced employees, upon being retrenched from the Gandak Project, were quickly rectified about the mistake of posting them with the DRDA and were instead absorbed in a Government Department. The petitioners claim hostile discrimination on this ground. 17. This petition was heard on the basis of a personal affidavit filed by the Secretary to the Rural Development, to which a rejoinder has been filed. 18. Upon hearing learned Counsel for the parties, where both the petitioners have retired from service, the first petitioner much before this petition was filed, what we find is that the petitioners have been absorbed in service of the Government in the Department of Rural Development, pursuant to the Government Order dated 18.07.2016. The Government Order dated 18.07.2016 reads: 19. A perusal of the said Government Order shows, no doubt, that it applies to direct recruits to the DRDA, allowed absorption in government service in the Department of Rural Development, subject to the conditions mentioned in the said Government Order. It does appear to be a case where the petitioners would not be governed by the terms of the said order, because they are not direct recruits to the DRDA. They are employees, who were absorbed in the DRDA upon abolition of the Gandak Project, as retrenched employees. Strictly speaking, therefore, it is not just that the Government Order dated 18.07.2016 would not govern the petitioners, but they would not be eligible under it to be absorbed in government service. They are employees, who were absorbed in the DRDA upon abolition of the Gandak Project, as retrenched employees. Strictly speaking, therefore, it is not just that the Government Order dated 18.07.2016 would not govern the petitioners, but they would not be eligible under it to be absorbed in government service. Nevertheless, for whatever reason they were absorbed under the said order in the Department of Rural Development, the Government Order dated 18.07.2016 does not introduce an arrangement of compulsion. It gives employees of the DRDA the election to accept absorption into government service in the Department of Rural Development, subject to conditions mentioned in the Government Order. One of the conditions is that the employees absorbed into the DRDA, who elect to join the Department of Rural Development, would be treated upon absorption as a dying cadre and governed by the New Pension Scheme, 2005. They would not be entitled to any benefit from retrospective date before their absorption, which implies the benefit of terms of service earlier rendered by them under the DRDA, including the benefit of GPF, Pension etc. 20. It is clearly stipulated in the Government Order under reference that if it is not acceptable to any employee of the DRDA to join on the terms mentioned in the Government Order of 18.07.2016, it is open to him to continue with the society, that is to say, the DRDA. It is true that in terms of the Government Order, the petitioners were not eligible to be absorbed in the Department of Rural Development, as already said, but when offered, they elected to accept it. They joined government service and whatever was the remainder of their tenure, they served and retired. The first petitioner retired very shortly into service in the Department of the Rural Development and the second petitioner continued up to the year 2022. Once the petitioners accepted absorption subject to terms carried in the Government Order dated 18.07.2016 with open eyes and rendered service in the Department of Rural Development, drawing salary and then retired, it is now not open to them to say that the terms of the Government Order dated 18.07.2016, particularly the condition about being governed by the New Pension Scheme would not apply to them. 21. 21. It is true that the petitioners had rights quite independent of the of the Government Order dated 18.07.2016 and they have raised a plea of discrimination in the petition, where similarly situate employees of the Gandak Project were mistakenly placed with the DRDA and then quickly absorbed into government service. If the petitioners had to enforce their right to be absorbed in government service, upon dissolution of the Gandak Project, directly and not being placed with the DRDA, a Government run Society, they had to raise that claim early in the year 1990 in terms of the Government Order dated 02.04.1990, or for that matter, the order dated 26.04.1991. 22. The petitioners acquiesced to their absorption in the DRDA despite the fact that similarly situate persons were quickly moved away and absorbed in Government Departments. Now, being treated, whether rightly or mistakenly, as directly appointed employees of the DRDA, when absorbed in government service much later in the day in terms of the Government Order dated 18.07.2016, which again the petitioners, as already said, accepted with open eyes, they cannot be allowed to turn around and fall back upon their original rights as retrenched employees of the Gandak Project, entitled to absorption in a Government Department directly; not as directly appointed employees of the DRDA. By doing that, the petitioners cannot be permitted to approbate and reprobate. 23. The Court is in respectful agreement with the views expressed in Zila Gram Vikas Abhikaran Seva Nivrat Karamchari Kalyan Samiti through its Secretary and another v. State of U.P. and others, 2023 AHC-LKO 35044. 24. In the circumstances, this Court is not inclined to interfere with the impugned order. 25. This petition fails and is dismissed. 26. There shall be no order as to costs.