REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4642 OF 2019 (Arising out of SLP (C) NO. 8725 OF 2014)

RAJA SINGH & ANR.    ...Appellants

VERSUS

STATE OF U.P. & ANR.             ...Respondents

WITH

CIVIL APPEAL NO.4643 OF 2019 (Arising out of SLP(C) NO. 8885 OF 2014)

CIVIL APPEAL NO.4644 OF 2019 (Arising out of SLP(C) NO. 9817 OF 2014)

J U D G M E N T

R. BANUMATHI, J.

Leave granted.

2. These appeals arise out of the judgment and order dated

07.03.2014 passed by the High Court of Judicature at Allahabad

in CMWP No. 13148 of 2002 and batch in and by which the High

Court  held that  the appointment to the post  of  District  Minority

Welfare  Officer  is  to  be  governed  by  UP  Minority  Welfare

1

Department Gazetted Officers Service Rules 2001 and that the

appellants  have  no  legal  right  to  claim their  absorption  in  the

Minority  Welfare  Department  and  the  same  has  been  rightly

rejected by the State Government.

3. In all these appeals, the point falling for consideration is one

and the same and all the appeals shall stand disposed of by this

common  judgment.   For  easy  reference,  the  facts  in  appeal

arising out of SLP(C) No.8725 of 2014 are referred to.

4. Brief facts which led to filing of these appeals are:

That  the  State  Government  of  Uttar  Pradesh  vide  its

Notification  No.  4056/XX-E-95-539(2)/95  dated  12.08.1995

created  four  Departments  known  as:-  (a)  Minority  Welfare

Department;  (b)  Backward  Class  Welfare  Department;  (c)

Handicapped  Welfare  Department;  and  (d)  Ambedkar  Village

Development  Department.  The Secretary,  Minority  Welfare and

Muslim Waqf Department, Government of U.P. vide its letter No.

2160/52/1-96-1(85)/95  dated  22.11.1996  addressed  to  all

Principal  Secretaries/Secretaries  of  Government  of  U.P.  stated

that  the posts of District  Minority  Welfare Officer is to be filled

through  U.P.  Public  Service  Commission  and  due  to  non-

2

availability of adequate officers, it had been decided to fill  such

posts  by  way  of  deputation/transfer  of  service  of  the  officers

having at least twelve years of experience and working in the pay

scale  of  immediately  below  Rs.2000-3500.  The  Secretary

requested  heads  of  various  departments  that  the  names  of

interested applicants be forwarded for appointment for the post of

District Minority Welfare Officer on deputation/transfer of services

basis.

5. The appellants applied for the newly created post of District

Minority Welfare Officer through proper channel  and they were

directed  to  appear  for  interview  and  selection  process.  After

facing the interview, the appellants were selected for appointment

for  the  post  of  the  District  Minority  Welfare  Officer  vide

Government  Order  dated  30.12.1997.  In  the  said  appointment

orders, it was stated that their deputation/service transfer was for

a period of two years or till further orders whichever is earlier. The

appellants  continued  in  the  post  even  after  two  years.   The

Government  framed UP Minority  Welfare Department  Gazetted

Officers Service Rules 2001. The said Rules provided that 75%

post of District Minority Welfare Officer will be filled up through

Public  Service  Commission  by  direct  recruitment  and  25% by

3

promotion  through  Public  Service  Commission  from  amongst

substantively appointed Chief Waqf Inspectors and Senior Waqf

Inspectors who have completed ten years’ service as Chief  Waqf

Inspector or Senior Waqf Inspector or both, on the first date of the

year of recruitment.

6. The  appellants  made  representations  before  respondent

No.1 on 14.02.2002 and 16.02.2002 seeking absorption in  the

cadre  of  District  Minority  Welfare  Officer  in  the  Department  of

Minority  Welfare  and  Waqf.  When  their  representation  was

pending for consideration, the appellants filed writ petition being

WP(C) No.13148/2002 seeking issuance of writ  of certiorari for

quashing the UP Minority Welfare Department Gazetted Officers

Service  Rules  2001  insofar  as  it  excludes  the  clause  of

merger/absorption on the post of District Minority Welfare Officer

and  for  issuance  of  Mandamus  directing  respondents  to

regularize the services of the appellants on the post of District

Minority  Welfare  Officer.   By  an  interim  order,  the  High  Court

protected the service of the appellants till the disposal of the writ

petition.   The  Government  vide  its  order  No.2188A/52-1-2002-

Writ/2002  dated  02.08.2002  rejected  the  appellant’s

representation seeking absorption in the cadre of District Minority

4

Welfare Officer in the Department of Minority Welfare and Waqf.

While rejecting the representation, the Government observed that

there is no provision in the Service Rules 2001 to fill the posts in

the  cadre  of  District  Minority  Welfare  Officers  from  any  other

source except either by way of direct recruitment or by way of

promotion.

7. In  WP(C)  No.13148/2002  then  pending,  the  appellants

moved an amendment application with a prayer for quashing the

aforesaid order  dated 02.08.2002.   The respondents  filed their

counter  opposing the writ  petition as well  as  amendment.  The

respondents  averred  that  the  appellants  do  not  belong  to  the

Minority  Welfare  Department  and  that  they  were  borrowed  on

deputation  basis  and  their  lien  in  the  Parent  department  still

exists.  It  was averred that the appellants were retained in the

Minority  Welfare  Department  only  on  account  of  interim  order

passed by the High Court and that the appellants have no right to

continue in  the  Department  of  Minority  Welfare  and Waqf  and

claim absorption.   

8. The High Court dismissed the writ petition by the impugned

order dated 07.03.2014 by stating that the issue involved in the

5

writ petition is similar to the issue involved in WP No. 44112 of

2011 and that the writ petition has no merits. In the relied upon

judgment in WP No. 44112 of 2011 titled Saeed Ahmad Khan &

Ors. v. State of U.P. Through Secretary Ministry of Welfare

Department and Others, the High Court held that the appellants

who were on deputation/transfer of service in the Department of

Minority Welfare have no legal right to claim absorption of their

services in the Minority Welfare Department.

9. We have heard the learned senior counsel appearing for the

parties and carefully considered the submissions and perused the

impugned judgment and also the relied upon judgment in WP(C)

No.44112 of 2011 and WP(C) No.44100 of 2013 and the other

materials placed on record.   

10. The  point  falling  for  consideration  is  that  the  appellants

having been selected and appointed as District Minority Welfare

Officer  prior  to  coming  into  force  of  UP  Minority  Welfare

Department Gazetted Officers Rules 2001, can it be said that the

appellants were only on deputation and that they have no legal

right to claim absorption as District Minority Welfare Officer.

6

11. After  the  separation  of  the  Social  Welfare  Department,  a

new department i.e. Minority Welfare Department was carved out

in the year 1995.  The Government Order dated 22.11.1996 was

issued  to  the  various  departments  of  Uttar  Pradesh  inviting

applications from the eligible candidates of various departments

for  the  post  of  District  Minority  Welfare  Officer  on  service

transfer/deputation basis.  In the said Government order,  it  was

specifically  pointed  out  that  the  candidates  may  apply  for  the

aforesaid post or in the pay scale of Rs.2000-3500 or just below

the pay scale of Rs.2000-3500 and he is eligible for promotion in

pay scale of Rs.2000-3500 or above.  

12. Appellant  Raja  Singh  was  District  Employment  Officer.

Appellant Makrand Prasad was Assistant Employment Officer in

Employment  Department.   Appellant  Dharam Deo Tripathi  was

the Senior Auditor in the Office of District Audit Officer (Finance

Department) at Deoria.  Appellant Hem Raj Singh was working as

Superintendent in Social Welfare Department.  All the appellants

applied for  the post  of  District  Minority  Welfare Officer  through

proper  channel  and  after  facing  interview before  the  Selection

Committee and undergoing the selection process, they were duly

selected for the post of the District Minority Welfare Officer. The

7

appointment letters were issued on 03.10.1997. As per the office

order dated 30.12.1997, the appellants were appointed “to  the

temporary post of newly created Minority Welfare Officers under

the Minority Welfare and Waqf Department on deputation/service

transfer for the period of two years or till further orders whichever

is earlier”.  In the letter of Secretary, Minority Welfare Department

dated  15.11.1997  communicated  to  other  departments,  the

employees of their departments viz. Makrand Prasad, Raja Singh,

Dharam  Deo  Tripathi  and  Hem  Raj  Singh  were  selected  for

appointment ‘on the post of the District Minority Welfare Officer’

by service transfer.  Even though the said letter states that  the

appellants  were  appointed  by  deputation/service  transfer,

considering  the  surrounding  circumstances  that  the  appellants

have undergone the selection process by appearing for interview

before  the  Committee  and  that  they  were  selected  for

appointment shows that it was ‘selection and appointment’ in the

Department of Minority Welfare and not ‘deputation’. As pointed

out earlier,  even though, the appellants were appointed for the

period  of  two  years,  after  two  years,  no  order  was  passed

repatriating them to their Parent department.  Of course, in the

meanwhile,  writ  petitions  came  to  be  filed  by  the  appellants.

8

However, there was no communication from the Department of

Minority Welfare and Waqf to the other departments proposing for

repatriation of the appellants to their Parent department.

13. In  Managing Director, UP Rajkiya Nirman Nigam v. P.K.

Bhatnagar and others (2007) 14 SCC 498, it was held that the

mere fact the employee has spent several years in service in the

Department where he has been sent on deputation, will not alter

the position from that of a deputationist to a regular employee.  Of

course, it is well-settled that the employee who has been sent on

deputation, has no right to claim absorption.  But in the case in

hand,  as  we  have  discussed  earlier,  appointment  was  not  on

deputation; but by transfer of service much prior to coming into

force of the Service Rules 2001.   

14. UP Minority Welfare Department Gazetted Officers Service

Rules 2001 came into force w.e.f  02.07.2001. Rule 3(h) of the

said Rules defines ‘Member of the Service’ as under:-

3(h) ‘Member  of  the  service’  means  a  person  substantively

appointed under these rules or the rules or orders in force prior to the

commencement of these rules to a post in the cadre of the service.

Rule 3(k) defines ‘Substantive appointment’ as under:-

3(k) ‘Substantive appointment’ means an appointment not being an

ad hoc appointment, on a post in the cadre of the service, made after

9

selection in accordance with the rules and, if there were no rules, in

accordance  with  the  procedure  prescribed  for  the  time  being  by

executive instructions issued by the Government.

Be it noted that at the time of appointment of the appellants, there

were no Service Rules.  The appellants having been appointed

prior  to  coming  into  force  of  UP Minority  Welfare  Department

Gazetted Officers Rules 2001, their appointment cannot be said

to be on deputation.  Though it is stated that their appointment

was only temporary, there is nothing on record to show that the

posts were only temporary posts for a fixed time.  In the absence

of any material to show that the appellants were appointed only

against temporary posts created only for a period of two years, it

cannot be held that they were appointed only against temporary

posts for a period of only two years.   

15. Rule  5  of  the  UP Minority  Welfare  Department  Gazetted

Officers  Service  Rules  2001  contemplated  that  75%  post  of

District  Minority  Welfare Officer  will  be filled up through Public

Service Commission by direct recruitment and 25% by promotion

through Public Service Commission from amongst substantively

appointed Chief Waqf Inspectors and Senior Waqf Inspectors who

have completed ten years’ service as Chief  Waqf  Inspector  or

10

Senior  Waqf  Inspector  or  both.   Though  UP Minority  Welfare

Department Gazetted Officers Service Rules 2001 is silent about

the appointment of  the appellants prior  to coming into force of

2001 Rules, the appellants having been appointed on the post of

District  Minority  Welfare  Officer  prior  to  coming  into  force  of

Service  Rules  2001,  cannot  be  deprived  of  their  rights  of

absorption in the Minority Welfare Department.

16. In the impugned order, the High Court relied upon WA No.

44112 of 2001 which is a subject matter of challenge in SLP(C)

No.8885/2014  which  in  turn  relied  upon  CMWP No.  44100  of

2013 titled Chandrabhan Srivastava and Another vs. State of

U.P.  and  Others.  In  WP No.  44100  of  2013,  the  petitioners

thereon were selected and joined in the cadre of District Minority

Welfare Officer on 27.09.2009, long after the service Rules 2001

came into  force.  In  that  context,  the  High  Court  held  that  the

persons who were appointed to the Minority Welfare Department,

are governed by the Uttar Pradesh Minority Welfare Department

Gazetted  Officers  Service  Rules  2001.  The petitioners  thereon

having  been  appointed  by  the  Office  Memorandum  dated

27.07.2009, cannot claim to be a ‘Member of the Service’ as they

do not fulfill the requirement under    Rule 3(h) of the Rules. The

11

said case in WP No. 44100 of 2013 is clearly distinguishable on

facts. In the present case, the appellants having been appointed

in  1997  much  prior  coming  into  force  of  UP Minority  Welfare

Department  Gazetted  Officers  Service  Rules  2001  clearly

covered  under  Rule  3(h)  of  the  Rules  and  stand  on  different

footing.   The High Court,  in  our  view,  was not  right  in  placing

reliance  on  Saeed  Ahmad  Khand and  Chandrabhan

Srivastava to dismiss the writ petition filed by the appellants.

17. It is stated that Raja Singh and Hem Raj Singh retired on

30.06.2018.  Claiming their  ACP (Assured Career Progression)

and other benefits, WP No.23563(S/B) of 2018 was filed by Raja

Singh which was disposed of by the High Court vide order dated

31.08.2018 directing the Parent department namely Department

of  Training  and  Employment  to  process  the  pension  papers

relating  to  payment  of  post-retirement  dues.   It  is  stated  that

pursuant  to  the  said  direction  of  the  High  Court,  Director  of

Training  and  Employment  vide  its  order  dated  30.10.2018

sanctioned payment of all retiral benefits and other dues payable

to appellant Raja Singh.  It is stated that the Parent department of

Raja Singh has paid all the retiral dues and pension is being paid

at  the  admissible  rate  in  the  Department  of  Training  and

12

Employment.   Since  appellant  Raja  Singh  and  three  other

appellants  namely  Hem  Raj  Singh,  Dharam  Deo  Tripathi  and

Makrand Prasad are held to be the employees of Department of

Minority Welfare and Waqf in the cadre of District Minority Welfare

Officer,  they are entitled to  the retiral  benefits  and pension as

admissible to the District Minority Welfare Officer.  Department of

Minority Welfare and Waqf shall process the pension papers and

pay all the retiral benefits after adjusting retiral benefits paid to the

appellants  Raja  Singh and Hem Raj  Singh by  their  respective

departments.   The  pension  shall  be  paid  to  the  appellants  as

admissible to the District Minority Welfare Officer after adjusting

the pension paid to appellants Raja Singh and Hem Raj Singh.

18. In the result,  the impugned order of the High Court is set

aside and these appeals are allowed.  The appellants shall  be

absorbed  in  post  of  District  Minority  Welfare  Officer  in  the

Department of Minority Welfare and Waqf from the date of their

appointment.  Insofar  as the retired employees Raja Singh and

Hem Raj Singh, the Minority  Welfare Department  shall  comply

with the directions in para(17) above expeditiously.   We make it

clear that this judgment shall not be quoted as a precedent as it is

passed in the peculiar facts and circumstances of the case that

13

these  officers  were  appointed  in  the  post  prior  to  coming  into

force of Service Rules 2001 and continued as such.

……………………….J. [R. BANUMATHI]

………………………….J. [R. SUBHASH REDDY]

New Delhi; May 06, 2019

14