Supreme Court settles absorption of District Minority Welfare Officers appointed before 2001 Rules in service law (06 May 2019)

Date of the Judgment: 06 May 2019

Citation: (2019) INSC 448

Judges: R. Banumathi, J. and R. Subhash Reddy, J.

Can employees initially appointed on a temporary basis, but continuing for years, claim absorption into a department? The Supreme Court of India recently addressed this question in a case concerning District Minority Welfare Officers in Uttar Pradesh. The core issue was whether officers appointed before the implementation of the 2001 service rules could be absorbed into the Minority Welfare Department. This judgment was delivered by a two-judge bench comprising Justice R. Banumathi and Justice R. Subhash Reddy, with Justice R. Banumathi authoring the opinion.

Case Background

In 1995, the State Government of Uttar Pradesh created the Minority Welfare Department. In 1996, the department sought to fill the posts of District Minority Welfare Officers by inviting applications from officers of other departments on a deputation/transfer basis. The appellants, who were working in various other departments, applied for these positions. After undergoing an interview and selection process, they were appointed as District Minority Welfare Officers in 1997. The appointment orders stated that their deputation/service transfer was for two years or until further orders. The appellants continued in their posts even after the two-year period.

In 2001, the Uttar Pradesh Minority Welfare Department Gazetted Officers Service Rules were framed, which stipulated that 75% of the posts of District Minority Welfare Officer would be filled through direct recruitment by the Public Service Commission and 25% by promotion. The appellants then sought absorption into the Minority Welfare Department, which was rejected by the State Government. They filed a writ petition in the High Court of Judicature at Allahabad, seeking regularization of their services, which was also dismissed.

Timeline

Course of Proceedings

The appellants initially filed a writ petition before the High Court of Judicature at Allahabad, seeking to quash the 2001 Service Rules and to direct the respondents to regularize their services. The High Court initially protected their services through an interim order. However, the government rejected their representation for absorption. The High Court dismissed the writ petition, relying on a similar case (Saeed Ahmad Khan & Ors. v. State of U.P.), which held that officers on deputation/transfer have no right to claim absorption. The appellants then appealed to the Supreme Court.

Legal Framework

The key legal provisions and rules considered by the Supreme Court are as follows:

• UP Minority Welfare Department Gazetted Officers Service Rules 2001: These rules govern the appointment and service conditions of officers in the Minority Welfare Department. Rule 3(h) defines ‘Member of the service’ as “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 “an appointment not being an ad hoc appointment, on a post in the cadre of the service, made after 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.”

Arguments

Appellants’ Arguments:

• The appellants argued that their appointment was not merely a deputation, but a selection and appointment to the post of District Minority Welfare Officer. They contended that they had undergone a selection process, including an interview, and were selected for the post.
• They argued that since their appointment was prior to the implementation of the 2001 Service Rules, they should be considered members of the service under Rule 3(h) of the Rules.
• They emphasized that they continued to work in the department even after the initial two-year period, without any order repatriating them to their parent departments.

Respondents’ Arguments:

• The respondents argued that the appellants were appointed on deputation/transfer basis and that their lien in the parent department still exists.
• They contended that the appellants were retained in the Minority Welfare Department only due to the interim order passed by the High Court.
• They stated that the 2001 Service Rules do not provide for absorption of officers appointed on deputation/transfer basis.

Issues Framed by the Supreme Court

The Supreme Court framed the following issue for consideration:

1. Whether the appellants, having been selected and appointed as District Minority Welfare Officers prior to the enforcement of the UP Minority Welfare Department Gazetted Officers Rules 2001, can be considered as being on deputation, and whether they have a legal right to claim absorption as District Minority Welfare Officers.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Supreme Court distinguished Managing Director, UP Rajkiya Nirman Nigam v. P.K. Bhatnagar and others [CITATION], stating that while it is true that a deputationist has no right to claim absorption, the appellants’ case was different as their appointment was by transfer of service and not deputation.
• The Court interpreted Rule 3(h) of the UP Minority Welfare Department Gazetted Officers Service Rules 2001, holding that the appellants, having been appointed prior to the rules, were covered under the definition of ‘Member of the service’.
• The Court interpreted Rule 3(k) of the UP Minority Welfare Department Gazetted Officers Service Rules 2001, holding that the appellants’ appointment was a substantive appointment.
• The Court distinguished the High Court’s reliance on Saeed Ahmad Khan & Ors. v. State of U.P. Through Secretary Ministry of Welfare Department and Others [CITATION] and Chandrabhan Srivastava and Another vs. State of U.P. and Others [CITATION], stating that those cases dealt with persons appointed after the 2001 Rules came into force.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the fact that the appellants were selected and appointed to their positions before the 2001 Service Rules came into effect. The court emphasized that the selection process they underwent indicated that their appointments were not mere deputations but rather a transfer of service. The absence of any repatriation orders further solidified their claim for absorption. The court also noted that the 2001 Rules did not explicitly address the status of officers appointed before their implementation, thus necessitating an interpretation that favored the appellants’ absorption.

The Court stated, “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’.”

The Court also observed, “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.”

The Court further stated, “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.”

Key Takeaways

• Employees appointed through a selection process before the implementation of new service rules may be entitled to absorption, even if their initial appointment was termed as temporary or on deputation.
• The absence of repatriation orders can strengthen an employee’s claim for absorption, especially if they have continued in service for an extended period.
• Service rules are not necessarily applicable retrospectively and may not affect the rights of those appointed prior to their enforcement.

Directions

The Supreme Court directed that:

• The appellants shall be absorbed in the post of District Minority Welfare Officer in the Department of Minority Welfare and Waqf from the date of their appointment.
• The Minority Welfare Department shall process the pension papers and pay all retiral benefits to the retired employees (Raja Singh and Hem Raj Singh), after adjusting the retiral benefits paid by their respective departments.
• The pension shall be paid as admissible to the District Minority Welfare Officer after adjusting the pension paid to Raja Singh and Hem Raj Singh.

Development of Law

The ratio decidendi of this case is that employees who were selected and appointed to a post before the implementation of new service rules, and who continued in that post without repatriation, are entitled to absorption in the department, even if their initial appointment was termed as temporary or on deputation. This case clarifies that the nature of the appointment process and the timing of the appointment are critical factors in determining an employee’s right to absorption. This judgment does not change the settled position that employees on deputation have no right to absorption, but it carves out an exception for cases where the initial appointment was not a mere deputation, but a selection and appointment.

Conclusion

The Supreme Court allowed the appeals, setting aside the High Court’s order. The Court held that the appellants were entitled to absorption in the Minority Welfare Department as they were appointed through a selection process before the 2001 Service Rules came into effect. This judgment emphasizes the importance of the nature of appointment and the timing of the appointment in determining an employee’s right to absorption.