service matter = 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.- 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.

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 non2
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