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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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
  10. 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.
  11. 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.
  12. 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.
  13. 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.
  14. 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.
  15. 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.
  16. 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.
  17. 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