Allahabad High Court
Narendra Kumar Yadav vs State Of U.P. Thru. Prin. Secy. Deptt. Of ... on 9 July, 2024
Author: Rajan Roy
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2024:AHC-LKO:46432-DB Court No. - 2 Case :- SPECIAL APPEAL No. - 142 of 2024 Appellant :- Narendra Kumar Yadav Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Coordination Govt. Of U.P. Civil Secrt. Lko. And Others Counsel for Appellant :- Sarvesh Kumar Dubey Counsel for Respondent :- C.S.C.,C.S.C.,Mahfooz Alam Hon'ble Rajan Roy,J.
Hon'ble Om Prakash Shukla,J.
1. Heard Shri Sarvesh Kumar Dubey, learned counsel for the appellant, learned Additional Chief Standing Counsel for the State and Shri Mahfooz Alam, learned counsel for the opposite party no. 4.
2. This is a special appeal by the appellant challenging the judgment and order dated 20.03.2023 passed in Writ - A No. 23926 of 2019 by which the appellant's writ petition has been dismissed.
3. In the said writ petition the appellant had sought the following reliefs:-
"i] to issue writ, order or direction in the nature of certiorari quashing the impugned order dated 17.05.2019 and 03.01.2019 (Annexure NO. 1 and 2) to this Writ Petition.
ii] to issue writ, order or direction in the nature of Mandamus commanding the Opposite Parties to absorb the petitioner in the Department of Co-ordination, Government Of Uttar Pradesh in pursuance of the "The Uttar Pradesh Absorption of Surplus Employees of UPTRON India Limited in Government Service Rules 2011" framed on 20.12.2011 w.e.f., 20.12.2011, the date on which the rules named as "The Uttar Pradesh Absorption of Surplus Employees of UPTRON India Limited in Government Service Rules 2011" has been promulgated and not thereafter i.e., not from the subsequent dates.
iii] to issue writ, order or direction in the nature of Mandamus commanding the Opposite Parties to give all the service benefits to the petitioner which are available for the post of District Project Co-coordinator or any equivalent posts till the date of retirement i.e., 31.01.2018.
iv] issue a writ order or direction in the nature of mandamus commanding the Opposite Parties to fix the salary of the petitioner in accordance to the rotation/fixation of the pay scale such as 5th pay commission and thereafter the 6th pay commission and 7th pay commission alongwith the arrears, which have been given to the other absorbed employees of Uptron India Ltd., in various departments.
v] issue a writ order or direction in the nature of mandamus commanding the Opposite Parties to fix the salary of the petitioner in accordance to the 50% of the dearness allowances should be merged with the basic pay scale from the date of govt., order dated: 22.09.2005 only in the 5th pay commission."
4. The case at hand has a chequered history. The appellant herein was working as Deputy Manager in UPTRON India Limited and while working as such he was sent on deputation in January, 1998 to Uttar Pradesh Diversified Agriculture Support Project Coordination (hereinafter referred to as 'U.P. DASPC'). While he was working under the aforesaid project, which was of the Government, UPTRON India Limited was closed down i.e. in the year 1998. In view of the aforesaid, the State Government took a decision to absorb surplus employees of UPTRON India Limited. It promulgated the Rules knows as the Uttar Pradesh Absorption of Surplus Employees of UPTRON India Limited in Government Service Rules, 2011 (hereinafter referred to as 'the Rules, 2011') and also issued a Government Order dated 20.12.2011 in this regard.
5. The claim of the appellant-petitioner along with others was considered for such absorption. The State Government while its communication dated 02.01.2015 addressed to the Principal Secretary, Coordination Department, Govt. of U.P. informed that the appellant-petitioner can not be absorbed in U.P. DASPC, referring to the Government Order dated 20.12.2011, therefore, the U.P. DASPC took a decision on 04.07.2016.
6. Thereafter, Principal Secretary, Coordination Department, State of U.P. took a decision dated 04.07.2016 to the effect that employees of UPTRON India Ltd. can not be absorbed in U.P. DASPC. Thereafter, on 28.01.2016 the U.P. DASPC issued an order for repatriation of the appellant to his parent department i.e. UPTRON India Limited, although, it had also been closed down. Consequently, the Divisional In-charge, UPTRON India Limited passed an order on 30.01.2016 retiring him from service on 30.01.2016.
7. Being aggrieved by all these actions a writ petition was preferred by the appellant-petitioner bearing Writ Petition No. 16783 (S/B) of 2016. In the said writ petition the appellant-petitioner had also sought absorption in the Coordination Department of the State Government in terms of the Rules of 2011 apart from challenging the orders dated 04.07.2016 and 28.01.2016 before the Division Bench of this Court. The said writ petition was disposed of on 03.05.2017 in the following terms:-
"Smt. Rupa Agarwal, learned Advocate has appeared for respondent No.4 and has filed second supplementary counter affidavit which is taken on record.
Heard Mr. Sarvesh Kumar Dubey, learned counsel for the petitioner, learned Standing Counsel as well as Smt. Rupa Agarwal, learned counsel for the respondent no.4.
Being aggrieved with the orders dated 04.07.2016, 28.01.2016 and 30.01.2016 issued by the opposite parties No. 4 & 5, whereby the petitioner has been repatriated to his parent department, the petitioner has filed the present writ petition.
Learned counsel for the petitioner has submitted that the petitioner had been appointed on the post of Deputy Manager in Uptron India Limited. He was sent on deputation to the Uttar Pradesh Diversified Agriculture Support Project Coordination under Department of Coordination Lucknow by means of order dated 31.01.1998 since then he has been working as such. In the meanwhile the Uptron India Limited had been closed, consequently, the employees of Uptron India Limited started facing hardship, therefore, considering their problem, the State Government took a decision to absorb the surplus employees of the Uptron India Limited in Government Department. Since the petitioner had been working on deputation in Technical University in terms of Uttar Pradesh Uptron India Limited Surplus Employees Merger Service Rules, 2011 as well as Government Order dated 20.12.2011, the State Government considered it and found that since no post of District Project Coordinator has been created in the Department of Coordination, there was no occasion to absorb the petitioner in the Department of Coordination.
The petitioner's original post in his parent department was assigned as Deputy Manager, is not available in the Department of Coordination. Moreover, the petitioner's absorption in the Uttar Pradesh Diversified Agriculture Support Project Coordination has been denied only for the reason that no post of District Project Coordinator is created in the Uttar Pradesh Diversified Agriculture Support Project Coordination which is absolutely incorrect.
Learned Standing Counsel has submitted that since the petitioner's absorption shall financially overburden the State Government, the State Government took a decision not to accord an approval of his absorption, however, the petitioner's working in the Uttar Pradesh Diversified Agriculture Support Project Coordination on the post of District Project Coordinator has not been denied.
A bare perusal of the letter dated 02.01.2015 written by the Special Secretary, State of U.P. to the Principal Secretary, Department of Coordination of the State Government shows that the petitioner is required to be absorbed in Department of Coordination. Therefore, we do not find any hurdle in the petitioner's absorption on the said post. At the same very time it is also necessary to observe that the petitioner shall have no right to claim any particular post except the post of equal rank and equal pay scale.
With the aforesaid observations, the order impugned dated 04.07.2016, 28.01.2016 and 30.01.2016 (Annexure No.1, 2 & 21) issued by the opposite parties No.4 & 5 is hereby quashed and a writ of mandamus is issued to the respondents including the State Government to absorb the petitioner in Department of Coordination (opposite party No.1) on the post of District Project Coordinator or in the event of non availability of post, on any post bearing equal pay scale and status.
With the aforesaid observations, the writ petition is disposed of."
8. The aforesaid judgment has not been challenged by the opposite parties before the Supreme Court, therefore, it has attained finality between the parties.
9. On a bare perusal of the aforesaid judgment it is evident that the Court found the appellant-petitioner to be entitled to be absorbed in the Department of Coordination of the State Government with the caveat that he shall have no right to claim any particular post except the post of equal rank and equal pay scale. The appellant-petitioner was working as Deputy Manager in the UPTRON India Limited at the time of coming on deputation to U.P. DASPC.
10. After passing of this order instead of absorbing the appellant-petitioner in the Depart of Coordination of the State Government he was absorbed in U.P. DASPC itself by creating of post of Project Coordinator vide order dated 03.01.2019. The absorption was made on a supernumerary post in the pay-scale of Rs.10,000-15,200/-.
11. In the interregnum Contempt Petition No. 2948 of 2017 was filed by the appellant-petitioner on account of non compliance of the judgment of the Division Bench dated 03.05.2017. In the said contempt proceedings an affidavit was filed inter alia stating that vide G.O. dated 03.01.2019 a supernumerary post had been created to absorb the petitioner-appellant as aforesaid. The Writ Court found that substantial compliance had been made and accordingly dropped the proceedings.
12. We have already observed in our earlier order dated 01.07.2024 that U.P. DASPC was merely a project and the policy of the Government was to absorb the erstwhile employees of UPTRON India Ltd. in a Government department. We have already referred to a letter dated 02.01.2015 in this regard which was also on the same lines. Most important the Division Bench judgment dated 03.05.2017 was already there in favour of the appellant-petitioner and therefore, no action or decision could have been taken by the State Government contrary to it. The fact of the matter is that the petitioner-appellant was not absorbed on an equivalent post with equivalent pay-scale in any department of the State Government inspite of the direction of the Division Bench dated 03.05.2017.
13. The appellant- petitioner challenged the abovementioned order dated 03.01.2019 along with order dated 17.05.2019 by means of Writ- A No. 23926 of 2019. By the latter order, though, the appellant-petitioner had been absorbed in U.P. DASPC, he was being treated as employee of UPTRON Pvt. Ltd. and it was observed that he shall work in U.P. DASPC till attaining the age of superannuation and on such superannuation he would be entitled to retiral benefits in terms of the Rules of UPTRON India Ltd. which was incongruous and not in terms of the Rules, 2011 as also the judgment of the Division Bench, according to which, he was entitled to be absorbed in the Department of Coordination of the State Government. The said G.O. dated 17.05.2019 further stated at point no. 2 that the appellant-petitioner's pay would be in the pay-scale which was drawing in UPTRON India Ltd. which again was incongruous. It is this writ petition which has been dismissed by the judgment impugned before us.
14. On 07.01.2024 we had passed the following order:-
"[C.M. Application No.1 of 2023 : Application for Condonation of Delay]
1. Heard Sri Sarvesh Kumar Dubey, learned counsel for the appellant, Sri Mahfooz Alam, learnd counsel for the respondent No.4 and Sri V.P. Nag, learned Standing Counsel for State-respondent Nos.1 to 3.
2. Cause shown in the affidavit filed in support of application for condonation of delay is sufficient.
3. Accordingly, the instant application for condonation of delay is allowed and the delay in filing the appeal is condoned.
4. Office is directed to allot regular number.
[order on appeal]
5. This intra-Court appeal has been filed under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 challenging the judgment dated 20.03.2023 passed by the writ Court in Writ-A No.23926 of 2019.
6. Prima facie in view of the judgment dated 03.05.2017 passed by Division Bench of this Court in Writ Petition No.16783 (S/B) of 2016 filed by the petitioner-appellant and the directions contained therein the petitioner-appellant was entitled to be absorbed in the State of U.P., Department of Coordination on the post of District Project Coordinator in view of the letter dated 02.01.2015 of the Special Secretary. The said judgment, it appears has attained finality between the parties. Contempt proceedings were initiated bearing Contempt Petition No.2948 of 2017. An affidavit was filed in the said proceedings, inter alia, stating that vide G.O. dated 03.01.2019 a supernumerary post has been created to absorb the petitioner-appellant on the post of District Project Coordinator, Uttar Pradesh Diversified Agriculture Support Project Coordination (UPDASP) which is a project for whom Sri Mahfooz Alam, Advocate appears.
7. The contempt proceedings were dropped on the ground that substantial compliance has been made. With respect we do not find substantial compliance of the judgment dated 03.05.2017 as absorption of the petitioner-appellant is not in the Department of Coordination of the State Government but in a project. The very issue in the writ petition was that the absorption in the project was not permissible under the Uttar Pradesh Absorption of Surplus Employees of UPTRON India Limited in Government Service Rules, 2011 but it had to be made in the department as was also the stand of the Co-ordination Department itself vide its letter dated 02.01.2015, therefore, the writ petition was allowed.
8. Be that as it may, the appellant challenged his absorption vide order dated 13.01.2019 in the aforesaid project by filing Writ-A No.23926 of 2019 which has been dismissed vide impugned judgment dated 20.03.2023.
9. We have gone through the impugned judgment. Prima facie, the reasoning does not appeal to us. The judgment dated 03.05.2017 is final between the parties. The learned writ Court appears to have misread the judgment and recorded the finding that it has been complied with and the controversy having been settled by the said judgment dated 03.05.2017, the writ petition was not maintainable, which is apparently erroneous.
10. However, we give one opportunity to the respondents to satisfy the Court as to how the judgment of the writ Court is sustainable and for that matter how the absorption order dated 03.01.2019 absorbing the petitioner-appellant in a temporary project know as 'UPDASP' is sustainable.
11. List/put up 09.07.2024 amongst first ten cases."
15. On the face of it, the action, which was impugned before the writ Court, was in the teeth of the Division Bench judgment dated 03.05.2017 which had attained finality between the parties, but, for some inexplicable reason this point escaped the notice not only of the Contempt Court which earlier dropped the contempt proceedings but also the writ Court which dismissed the writ petition of the appellant-petitioner on 20.03.2023.
16. We have also been informed that other similarly situated employees of UPTRON India Ltd. including those who were on deputation in U.P. DASPC have been subsequently absorbed with effect from promulgation of Rules, 2011 albeit in pursuance to certain orders passed by this Court which have been upheld in Special Appeal and have not been put to challenge thereafter either by the State or the U.P. DASPC. In this regard our attention has been drawn to one such judgment dated 12.03.2019 passed in Writ Petition No. 15200 (S/S) of 2017;Smt. Kiran Bajpai and Ors. State of U.P. and Ors. The petitioners of the said writ petition were erstwhile employees of UPTRON India Ltd. who were on deputation in various departments/projects of the Government just as the appellant- petitioner herein, a fact which has not been disputed by the learned counsel for the opposite parties before us. The operative portion of the aforesaid judgment dated 12.03.2019 reads as under:-
"In view of the above, the impugned order dated 03.11.2016 so far as it grants service benefits to the petitioners with 'immediate effect' is quashed and a writ in the nature of Mandamus is issued directing the opposite parties numbered 1 and 2, i.e. Principal Secretary, Department of Child Development & Nutrient, Government of U.P., Lucknow and Director Child Development and Nutrient, U.P., Lucknow respectively, to grant service benefits to the petitioners with effect from 20.12.2011 except the actual payment of salary to which the petitioners shall be entitled from 03.11.2016. The aforesaid exercise should be done within a period of six months from today, after re-fixing of pay scale in respect of petitioner no.1 who is said to have superannuated, and within a period of four weeks with regard to petitioners 2 and 3, namely, Sushma Saxena and Smt. Manju Rai respectively, who are still in service. The aforesaid time limit shall run from the date a copy of this order is produced before opposite party no.2, Director Child Development and Nutrient, U.P., Lucknow .
In view of the above, the writ petition stands allowed."
17. The aforesaid judgment dated 12.03.2019 has attained finality up to the Special Appeal Level before a Division Bench of the High Court.
18. It is also pertinent to mention that treating him as an employee of UPTRON India Ltd. the appellant-petitioner was retired from services on attaining the age of superannuation on 30.01.2016, which was 58 years in the UPTRON India Ltd., but, on a challenge being made before this Court by means of Writ Petition No. 16783 (S/B) of 2016 already referred earlier, an interim order was passed staying the said retirement order, based on which, he continued till the age of 60 years. Ultimately the said writ petition was disposed of on 03.05.2017 as already mentioned, holding that he was entitled to absorption in Coordination Department of the Government.
19. Learned Additional Chief Standing Counsel could not refute the factual legal position as discussed that services of other similarly situated employees have been absorbed in Government Departments with effect from promulgation of Rules of 2011 i.e. 20.12.2011, although, actual payment of salary to them has been permitted only from the date of actual absorption which is the case of the appellant-petitioner herein. The appellant-petitioner herein has already retired.
20. In view of the judgment of the Division Bench dated 03.05.2017 and the judgment dated 12.03.2019 referred hereinabove as also the Government Order dated 02.04.2015 and the decisions referred above as also the reasons given hereinabove, the writ Court has clearly erred in dismissing the writ petition on a supposed impression of substantial compliance of the judgment passed by the Division Bench, as already observed. The impugned judgment is apparently erroneous, both on facts and in law. We accordingly, set-aside the judgment dated 20.03.2023. We also set-aside the orders impugned before the Writ Court which were dated 03.01.2019 and 17.05.2019.
21. Consequently, we allow the Writ Petition bearing Writ - A No. 23926 of 2019 as also this special appeal in the following terms:-
(i) The appellant-petitioner shall be treated as absorbed on a post equivalent to the post held by him while on deputation in U.P. DASPC with equivalent pay w.e.f. 20.12.2011 which is the date of absorption of other similarly situated.
(ii) As the appellant-petitioner has already retired on 30.01.2016 after attaining the age of 60 years in pursuance to the orders passed in Writ Petition No. 1678 (S/B) of 2016 whatever difference of salary and arrears thereof the appellant-petitioner may be entitled consequent to his absorption on a post under the State Government w.e.f. 20.12.2011, the same shall be determined/fixed within a period of three months and paid to him within next one month.
(iii) On the analogy of the judgment dated 12.03.2019 passed in Writ Petition No. 15200 (S/S) of 2017 the payment of actual difference of salary would be admissible with effect from the date from which the benefit has been given to similarly situated persons in the said writ petition.
(iv) If consequent to such fixation of salary, the appellant-petitioner, apart from arrears of salary, is entitled to any consequential benefits, such as, promotional pay-scale/time-scale/ financial upgradation etc., then, the same would also be fixed and paid to the appellant-petitioner during the aforesaid period.
(v) Consequent to the aforesaid his post retiral emoluments/benefits, if any, as per Rules applicable to government servants shall be determined/fixed and he shall be paid all the emoluments to which he is entitled, within the aforesaid period.
(Om Prakash Shukla,J.) (Rajan Roy,J.)
Order Date :- 9.7.2024
R.K.P.