# Court in State of Orissa v. Mamata

- **Citation:** (2012) 1 ILRA 175
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-02-28
- **Case number:** Though in Writ Petition No.5135 of 2001
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/court-in-state-of-orissa-v-mamata-42088
- **Pages:** 19

## Headnote

Constitution
of
India,
Article 226Appointment on deputation-petitioners
were
initially
working
with
U.P.S.M.D.C.-on
regular
basis
but
subsequently
declared
surplus
employees in the year 1986-petitioner
were offered appointment on post of
project
officer
appointment
on
deputation purely temporarily basis till
regular candidates available and the
incumbents be repatriated to their
permanent DEPARTMENT if lost utilityon contractual basis-engagement of
one year extended from time time
lastly without further extension-can
not claim continuance as matter of
right-being appointee on deputation
does not confer any right to claim
absorption-even
appointment
on
deputation
without
interruption
of
State Govt.-SUDA is not society but
within meaning of State under Article
12 of Constitution-concept of adverse
possession
or
lean
over
post
not
available
in
service
jurisprudencecontinuation
of
wrongly
appointed
petitioners-
not
create
any
rightPetition dismissed.

Held: Para 54

That be so, at the best it is a wholly stop
gap arrangement which could have been
ceased at any point of time since such kind
of arrangement does not confer any right
upon the incumbent to hold a post wherein
recruitment/appointment is subject to
Article 14 of Constitution and other
recruitment rules. It cannot be disputed
that SUDA is a society formed by State
Government but since entire funding and
control by State Government, it satisfy
requirement
of
Article
12
of
the
Constitution being an "other authority"
and
therefore
recruitment
and
appointment therein could have been
made only consistent with Article 16 of
Constitution and other relevant provisions.
There is no concept of holding over
applicable in service matters. The Apex
Court in State of Orissa Vs. Mamata
Mohanti, JT 2011(2) SC 164 has said that
right in law exists only and only when it
has a lawful origin. The concept of adverse
possession or lien on post or holding over
is not applicable in service jurisprudence.
Therefore,
continuation
of
a
person
wrongly
appointed
or
never
lawfully
appointed on a post shall not create any
right in his favour.
Case law discussed:
AIR 1986 SC 1571; AIR 1984 SC 636; Writ
Petition No.338 (S/B) of 1997 (Uttar Pradesh
Rajya Khanij Vikas Nigam Sangharsh Samiti &
Others Vs. State of U.P. & others); 2000 (5) SCC
362; 2005 (8) SCC 394; 1990 (Supp) SCC 243;
2007 (2) SCALE 486; Ashok Kumar Pandey Vs.
State of U.P. and Others, writ petition no 52527
of 2005 decided on 3rd August 2005; 2004,3
UPLBC 2318; 2005 (1) AWL 426; 2003 (1) AWL
520; 2007 (2) SCC 138; the decision in Central
Inland Water Transport Corporation Ltd. (supra)
and Anoop Jaiswal (supra); JT 2006 (4) SC 420;
2008 (10) ADJ 283; AIR 1958 SC 36; JT 2011 (2)
SC 164

## Text

_Characters 0–39,971 of 62,132. This is a partial read: ask again with offset=39971 for what follows._

1 All] Dileep Singh Chhabra V. State of U.P. Through Chief Secy.and 2 others

175
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.02.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Service Single No. - 5135 of 2001

Dileep Singh Chhabra

 ...Petitioner
Versus
State of U.P. Through Chief Secy.and 2
others

 ...Respondents

Counsel for the Petitioner:
Sri O.P.Srivastava

Counsel for the Respondents:
C.S.C.
Sri V.K. Singh

Constitution
of
India,
Article 226Appointment on deputation-petitioners
were
initially
working
with
U.P.S.M.D.C.-on
regular
basis
but
subsequently
declared
surplus
employees in the year 1986-petitioner
were offered appointment on post of
project
officer
appointment
on
deputation purely temporarily basis till
regular candidates available and the
incumbents be repatriated to their
permanent DEPARTMENT if lost utilityon contractual basis-engagement of
one year extended from time time
lastly without further extension-can
not claim continuance as matter of
right-being appointee on deputation
does not confer any right to claim
absorption-even
appointment
on
deputation
without
interruption
of
State Govt.-SUDA is not society but
within meaning of State under Article
12 of Constitution-concept of adverse
possession
or
lean
over
post
not
available
in
service
jurisprudencecontinuation
of
wrongly
appointed
petitioners-
not
create
any
rightPetition dismissed.

Held: Para 54

That be so, at the best it is a wholly stop
gap arrangement which could have been
ceased at any point of time since such kind
of arrangement does not confer any right
upon the incumbent to hold a post wherein
recruitment/appointment is subject to
Article 14 of Constitution and other
recruitment rules. It cannot be disputed
that SUDA is a society formed by State
Government but since entire funding and
control by State Government, it satisfy
requirement
of
Article
12
of
the
Constitution being an "other authority"
and
therefore
recruitment
and
appointment therein could have been
made only consistent with Article 16 of
Constitution and other relevant provisions.
There is no concept of holding over
applicable in service matters. The Apex
Court in State of Orissa Vs. Mamata
Mohanti, JT 2011(2) SC 164 has said that
right in law exists only and only when it
has a lawful origin. The concept of adverse
possession or lien on post or holding over
is not applicable in service jurisprudence.
Therefore,
continuation
of
a
person
wrongly
appointed
or
never
lawfully
appointed on a post shall not create any
right in his favour.
Case law discussed:
AIR 1986 SC 1571; AIR 1984 SC 636; Writ
Petition No.338 (S/B) of 1997 (Uttar Pradesh
Rajya Khanij Vikas Nigam Sangharsh Samiti &
Others Vs. State of U.P. & others); 2000 (5) SCC
362; 2005 (8) SCC 394; 1990 (Supp) SCC 243;
2007 (2) SCALE 486; Ashok Kumar Pandey Vs.
State of U.P. and Others, writ petition no 52527
of 2005 decided on 3rd August 2005; 2004,3
UPLBC 2318; 2005 (1) AWL 426; 2003 (1) AWL
520; 2007 (2) SCC 138; the decision in Central
Inland Water Transport Corporation Ltd. (supra)
and Anoop Jaiswal (supra); JT 2006 (4) SC 420;
2008 (10) ADJ 283; AIR 1958 SC 36; JT 2011 (2)
SC 164

(Delivered by Hon'ble Sudhir Agarwal,J. )

1. These two writ petitions are
connected having been filed by the same
person namely Dileep Singh Chhabra.
176 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

Though in Writ Petition No.5135 of 2001
there are nine petitioners including Dileep
Singh Chhabra, but since issues are
common and therefore both these matters
have been heard together and are being
decided by this common judgment.

2. Heard Sri O.P.Srivastava, Advocate
for the petitioner, learned Standing Counsel,
Sri Vivek Rai Singh and Sri Sarvesh
Kumar, Advocates, for the respondents and
perused the record.

3. The factual matrix in brief, relevant
for matter in dispute for proper adjudication
may be stated as under:

4. First I take up the facts as are
involved in Writ Petition No.5135(S/S) of
2001 (hereinafter referred to as "first
petition"). Here there are nine petitioners
before this Court seeking a writ of certiorari
quashing option proforma/contract bond of
an agreement (Annexure 1 to 8-A to the
writ petition). They have also sought a
mandamus commanding respondents to
continue petitioners in service with usual
pay and salary in like pay scale attached
with other existing posts with all attending
benefits treating them regularly appointed
employees of State Urban Development
Agency
(hereinafter
referred
to
as
"SUDA").

5. The petitioners were initially
employed and engaged in U.P. State
Mineral
Development
Corporation
(hereinafter referred to as "UPSMDC"). The
petitioners No.1 to 3 namely Sri Dileep
Singh Chhabra, Sudha Kant Mishra and
Vijai Kumar were appointed as Assistant
Manager (Marketing); petitioner No.4 Sri
Rajesh Kumar Pandey was appointed as
Superintendent (Marketing); petitioner No.5
Sri Shashi Dayal Rai was Assistant
Manager (Geology); petitioners No.6, 7, 8
and 9 were appointed as Deputy Manager
(Mining), Assistant Manager (Accounts),
Assistant
Manager
(Inventory)
and
Statistical Officer respectively. It is said that
these appointments in UPSMDC were on
regular basis and were made between 1979
to 1986. The business of UPSMDC
shrinked with passage of time resulting in
heavy losses compelling the management to
go for retrenchment of the employees due to
substantial reduction in work load. All these
petitioners were declared "surplus" and
efforts were made to provide them
alternative appointment.

6. In the year 1991, SUDA came into
existence as a Society registered under
Societies Registration Act, 1860 constituted
by State of U.P. Its funds are supplied by
State Government as well as Central
Government. The main objective and
purpose of its constitution was to provide
developmental
activities
to
ameliorate/improve poor in slum areas of
urban cities in the State.

7. By Government Order dated
15.11.1997, 677 posts were created in
SUDA which included 69 posts of Project
Officer. The petitioners were offered
employment on transfer and deputation on
temporary basis in SUDA as Project Officer
in the scale of 2000-3200. On expressing
willingness by the petitioners, and no
objection granted by UPSMDC, petitioners
were
issued
transfer/deputation
letters
posting them as Project Officer in SUDA.
These letters were issued on 25.5.1998.
Besides others, it was clearly mentioned in
the
aforesaid
letters
that
aforesaid
transfer/deputation is on purely temporarily
basis and may continue till the candidates
by direct recruitment are available or until
further orders. It also said that in case any
1 All] Dileep Singh Chhabra V. State of U.P. Through Chief Secy.and 2 others

177
adverse information is received in respect to
any person or their service is not found
useful for SUDA, the incumbents may be
repatriated to the parent departments. The
terms and conditions of deputation/service
transfer was to be informed later on. Copies
of the aforesaid letters are on record as
Annexure 10 to 14 to the first petition.

8. The petitioners, pursuant to the
aforesaid letters, joined service in SUDA.
While the petitioners were serving in
SUDA, UPSMDC came to be closed and
most
of
its
employees
were
adjusted/absorbed
in
other
departments/undertakings of State of U.P.

9. One Indra Pal Kanaujia, employee
of Nagar Nigam Kanpur is said to have
been absorbed as Project Officer in SUDA
by order dated 1.10.1997 (Annexure 17 to
the writ petition). Similarly three employees
of UPSMDC were absorbed in U.P. State
Industrial
Development
Corporation.
Another employee, Som Dutta Jalwan, a
retrenched employee of Auto Tractors Ltd.
was absorbed in SUDA by order dated
22.1.2001. Copy of the order is Annexure
19 to the first petition which shows that
pursuant to a judgment dated 18.1.2000 in
Writ Petition No.1600 (S/B) of 1998, order
for absorption of Sri Som Dutt Jalwan,
retrenched employee of Auto Tractors Ltd.
was passed by State Government on
22.1.2001.

10. However, ignoring the above
benefit/absorption
extended
to
other
employees, respondent SUDA required
petitioners to execute contract bond for
engagement of their service for a period of
one year on a consolidated salary, else, the
petitioner's service shall be deemed to be
terminated on 30.9.2001.The terms and
conditions
contained
in
the
contract
includes tenure of appointment i.e. one year,
liable for renewal on satisfactory work and
performance assessed by the employer, and
also, that after completion of tenure of
service,
they
shall
stand
terminated
automatically. It also provides that the
contract is liable to be terminated at any
point of time without any notice.

11. Learned counsel for the petitioners
submitted
that
the
petitioners
being
retrenched employee of UPSMDC, like
other employees, were liable to be
adjusted/absorbed in any other department
of Government and therefore SUDA was
not justified in requiring them to execute a
contract bond of employment containing
totally oppressive conditions of service
particularly when it has the effect of
changing the very nature of appointment of
petitioners i.e. from regular to contractual
and tenure appointment. He submitted that
approach of respondents was wholly illegal,
arbitrary, discriminatory and also amounts
to taking benefit of uneven bargaining
power of petitioners qua the respondents
and hence violative of Section 23 of Indian
Contract Act. He placed reliance on Apex
Court's decisions in Central Inland Water
Transport Corporation Ltd. Vs. Brojo
Nath Ganguly, AIR 1986 SC 1571 and
Anoop Jaiswal Vs. Government of India
AIR 1984 SC 636. He also placed reliance
on a decision of this Court in Writ Petition
No.338 (S/B) of 1997 (Uttar Pradesh
Rajya Khanij Vikas Nigam Sangharsh
Samiti & Others Vs. State of U.P. &
others) wherein this Court (Lucknow
Bench) held that since State Government
itself has given statement that retrenched
employees shall be absorbed elsewhere, it
may do so in phased manner within a
specified time. In order dated 13.7.2001,
this Court gave following directions:
178 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

"In view of the aforesaid reason, the
request
is
accepted
and
the
State
Government is directed to absorb such
employees in a phased manner within a
period of six months. The employees will be
absorbed in accordance with seniority in
the particular cadre; meaning thereby, that
the senior most in the cadre will be first
absorbed and thereafter, that process will
continue till the absorption process will
come to an end within six months.

With the aforesaid directions, the
review petition is disposed of."

12. Though at the first flush the
argument advanced appears to be quite
attractive but on a deeper scrutiny I do not
find any substance therein. The petitioners
filed this writ petition while serving in
SUDA. It is not their case in the entire writ
petition that SUDA at any point of time
made any representation that petitioners
shall be absorbed in SUDA. From the own
letter of posting in SUDA, placed on record
by the petitioners, it is evident that they
were transferred on deputation to SUDA
with a clear stipulation that said transfer is
temporary
and
incumbent
may
be
repatriated to parent department. It is well
settled that an appointment on deputation
does not confer any right to claim
absorption in the department in which the
incumbent has gone to join on deputation.
He is liable to be repatriated to his parent
department at any point of time.

13. The right of an employee to
continue on deputation has been considered
in a catena of cases earlier also. In Kunal
Nanda Vs. Union of India, 2000(5) SCC
362, the Court held:

"....The basic principle underlying
deputation itself is that the person
concerned can always and at any time be
repatriated to his parent department to
serve in his substantive position therein at
the instance of either of the departments
and there is no vested right in such a person
to continue for long on deputation or get
absorbed in the department to which he had
gone on deputation..." (para 6)

14. In the matter of Union of India
and another Vs. V. Ramakrishnan and
others : 2005(8) SCC 394, the same view
has been reiterated and in para 32 of the
judgment, the Court said:

"Ordinarily, a deputationist has no
legal right to continue in the post. A
deputationist indisputably has no right to be
absorbed in the post to which he is deputed.
However, there is no bar thereto as well. It
may be true that when deputation does not
result in absorption in the service to which
an officer is deputed, no recruitment in its
true import and significance takes place as
he is continued to be a member of the
parent service. When the tenure of
deputation
is
specified,
despite
a
deputationist not having an indefeasible
right to hold the said post, ordinarily the
term of deputation should not be curtailed
except on such just grounds as for example,
unsuitability or unsatisfactory performance.
But, even where the tenure is not specified,
an order of reversion can be question when
the same is malafide. An action taken in
post haste manner also indicates malice."

15. In Ratilal B. Soni and others Vs.
State of Gujrat and others 1990 (Supp)
SCC 243, the Court held:

"5. The appellants being on deputation
they could be reverted to their parent cadre
at any time and they do not get any right to
be absorbed on the deputation post ....."
1 All] Dileep Singh Chhabra V. State of U.P. Through Chief Secy.and 2 others

179

16. All the petitioners are working on
deputation
in
SUDA.
Their
parent
department faced closure. The petitioners
become surplus. They also lost option of
repatriation due to vanishing of parent
employer i.e. UPSMDC employee, it was
always open to the petitioners to approach
State Government, the respondent No.1,
with a request for their absorption elsewhere
as was done in respect to other employees.
There is nothing on record to show that
petitioners made any such attempt. It
appears that UPSMDC informed SUDA
that as a result of closure of UPSMDC all
the employees have rendered surplus and
they have been terminated w.e.f. 31.1.2000.
Taking a considerate and lenient view in the
matter, SUDA, who otherwise could have
simply terminated the petitioners as soon as
their service in parent department had
already
been
terminated,
gave
an
opportunity to them (the petitioners) to
continue in SUDA on contract basis for a
period of one year, liable to be renewed on
the assessment of performance as the case
may be. The petitioners at no point of time
had any right on any post in SUDA. Their
letter of transfer/posting in SUDA clearly
contemplate a condition as is evident from
Annexure 13 to the first petition that in case
of closure of their department, the
incumbent shall have no lien in SUDA. The
aforesaid arrangement by transfer or
deputation also was to continue only till a
direct recruitment in accordance with rules
is made or until further orders. By no stretch
of imagination the aforesaid arrangement
can be said to be a regular arrangement or
regular appointment of the petitioners in
SUDA and this assumption pleaded in the
writ petition and argued by Sri Srivastava is
wholly unfounded and baseless.

17. It is well settled that a transfer on
deputation can be brought to an end at any
stage by repatriating the deputationist at any
post of time and he has no right to continue
in borrowing department. He can be
repatriated without assigning any reason by
the borrowing department. The rights of
deputationist are very fortitious and he can
be directed to go back to parent department
at any point of time without assigning any
reason and where he ceased to be an
employee of parent department, it would
naturally result in cession in the parent
department
also
unless
borrowing
department on its own takes a different step
for retaining such an employee over which
the deputationist employee however has no
right to enforce so as to continue thereat.
Nature of deputationist's right has been
considered in catena of decisions, some of
which
have
already
been
referred
hereinabove and some are as under:

18. The Apex Court in Prasar Bharti
and others Vs. Amarjeet Singh and
others 2007 (2) SCALE 486 held that a
person sent in a cadre outside his
substantive cadre has no right to continue in
foreign cadre and can be repatriated to his
parent cadre at any point of time without
assigning any reason.

19. This court in Ashok Kumar
Pandey Vs. State of U.P. and Others, writ
petition no 52527 of 2005 decided on 3rd
August 2005, has held as under:

".........It
is
well
settled
that
a
deputationist has no right to remain on
deputation and he can be sent back to his
Parent Department at any time........"

20. In the case of Devi Kumar Vs.
Rajya Krishi Utpadan Mandi Parishad
2004, 3 UPLBC 2318, this court observed :
180 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

".........The
period
of
deputation
originally fixed can be cut short, if
considering necessary, a deputationist has
no right to continue in the deputation
post........."

21. A Division Bench of this court in
the Gauri Shanker Vs. State of U.P. and
Others 2005 (1) AWL 426 held as under:

"....A deputationist has no right to
remain on deputation and he can be sent
back to his Parent Department at any
time......."

22. The same view has been followed
by another Division Bench of this court in
the case of Dr. Seema Kundra Vs. State of
U.P. 2003 (1) AWL520.

23. In Uttar Pradesh Gram
Panchyat Adhikari Sangh and others Vs.
Days Ram Saroj and others, 2007(2) SCC
138 the Court has reiterated the same
principles as has been laid down in the case
of Kunal Nanda (supra) as quoted above.

24. In my view, the decision in
Central
Inland
Water
Transport
Corporation Ltd. (supra) and Anoop
Jaiswal (supra) have no application in the
present case at all since petitioners were
called on deputation with their consent and
without any representation by SUDA
respondents No.2 and 3 that they shall be
absorbed in SUDA at any point of time.
Hence question of offering any conditions
of service against public policy does not
arise on the part of SUDA since there was
no representation otherwise by them.
Moreover, engagement on contract basis
with a prescribed tenure by itself cannot be
said to be a condition of service which is
against public policy or arbitrary. A
Constitution bench of Apex Court has
considered such kind of appointment in
Secretary, State of Karnataka and others
Vs. Uma Devi and others JT 2006 (4) SC
420, and in para 34 of the judgment
observed as under:-

"If it is a contractual appointment, the
appointment comes to an end at the end of
the contract, if it were an engagement or
appointment on daily wages or casual
basis, the same would come to an end when
it is discontinued."

25. The Constitution Bench has also
overruled all other earlier judgments of the
Apex Court taking a view contrary to the
judgment of the Constitution Bench.

26. Now the question comes about the
right of the petitioners for absorption in any
other employment of State Government.

27. With respect to retrenched
employees of the State Government the
issue may be examined from two angles,
firstly in the context of provisions if any
made by the State Government in the rules
framed under proviso to Article 309 which
are applicable for recruitment on civil posts
under the State Government and secondly;
in the context of U.P. Absorption of
Retrenched
Employees
in
Public
Corporations Rules, 1991 which are
applicable to such corporations which are
notified under rule 3 thereof.

28. Learned counsel for the petitioners
has not shown to this Court any statutory
provision in respect to civil post which are
governed by the rules framed under proviso
to Article 309 wherein a blanket right of
absorption has been conferred upon the
employees of a company or corporation
owned by State Government. Admittedly
these employees cannot be said to be holder
1 All] Dileep Singh Chhabra V. State of U.P. Through Chief Secy.and 2 others

181
of civil posts and therefore their initial
appointment is not on civil posts governed
by provisions of Article 309, 310 and 311 of
Constitution. Such employees, therefore,
unless there is some statute to provide
otherwise, cannot, as a matter of right, claim
their appointment or absorption against a
civil post, recruitment and appointment
wherein is governed by statutory rules
framed under proviso to Article 309 of
constitution. However, in respect to the
"retrenched employees" from the service of
State
Government,
which
satisfy
requirement
of
civil
posts,
certain
provisions for giving some weightage in
selection have been made which may be
referred in brief hereinafter as under:

29. The U.P. Retrenched Employees
Rules, 1967 (for short the 1967 Rules) was
promulgated, which defined "Retrenched
Employee" under Rule-2(b) as under:

"(b) "retrenched employee" with the
grammatical
variation
and
cognate
expressions, means a person who was
employed in any service or on any post
under the rule-making control of the
Governor,
whether in
a substantive,
officiating or temporary capacity, and had
served continuously for a period of not less
than one year, and whose services are,
whether before or after the commencement
of these rules, terminated, or are certified as
liable to termination but does not include a
person who was appointed on an ad hoc
basis."

30. The definition of "retrenched
employee" contained in 1967 Rules clearly
refers to a person, who was employed in
any service on the post under the rulemaking control of the Governor and whose
services were terminated, or are certified, as
liable to termination after working for a
period of not less than one year in
substantive,
officiating
or
temporary
capacity except on ad hoc basis. The rule
making authority also explained ad hoc
appointment and explanation 1 to Rule 2(b)
of 1967 Rules provides that a person not
appointed in accordance with the procedure
prescribed in the recruitment rules or orders
applicable to the service or post concerned
shall be deemed to have been appointed on
ad hoc basis. Rule-3 of 1967 Rules,
however, provides that the said rules shall
remain in force for a period of three years
and thereafter for such period as notified by
the Governor in consultation with the
Commission. The said rules were applicable
to all services and posts under the rule
making control of the Governor, which
were to be filled in wholly, or partly by
direct recruitment.

31. The aforesaid rules continued to
remain in force upto October, 1971. In
1975, for recruitment in Ministerial Cadre
in the Subordinate Offices, statutory rules
under proviso to Article 309 of the
Constitution of India were framed, namely,
"The Subordinate Offices Ministerial Staff
(Direct
Recruitment)
Rules,
1975"
(hereinafter referred to as "1975 Rules")
published in the Gazette dated 29.7.1975.
The rule-making authority declares that the
said rules are being enacted in supersession
of all existing rules and orders on the
subject and for recruitment of ministerial
staff in the subordinate Government offices
in the State. The preface of 1975 Rules
reads as under:

"In exercise of powers conferred by the
proviso to Article 309 of the Constitution,
and in supersession of all existing rules and
orders on the subject, the Governor is
pleased to make the following rules for
recruitment of ministerial staff in the
182 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

subordinate Government offices in the
State."

32. Rule 3 of 1975 Rules, which give
it overriding effect, reads as under:

"3. Effect of inconsistency with other
rules.- In the event of any inconsistency
between these rules and any specific service
rules:

(1) the provisions contained in these
rules prevail to the extent of the
inconsistency in case the specific rules were
made prior to the commencement of these
rules; and

(2) the provisions contained in the
specific rules shall prevail in case they are
made after the commencement of these
rules."

33. Rule 4(gg) of 1975 Rules provides
the definition of "Retrenched Employee"
and reads as under:

"(gg) "Retrenched Employee" means a
person who was employed on a post under
this rule making power of the Governor-

(i)
in
permanent,
temporary
or
officiating capacity;

(ii) for a total minimum period of one
year, out which at least 3 months service
must have been continuous service.

(iii) whose services were or may be
dispensed with due to reduction in or
winding up of the establishment; and

(iv) in respect of whom a certificate of
being a retrenched employee has been
issued by the Appointing Authority but does
not include a person employed on ad hoc
basis only."

34. 1975 Rules initially, as enacted,
did not specifically contain any provision
giving any relaxation to "Retrenched
Employee" but Rule 13-A was inserted by
Notification dated 6.7.1977 for a period of
three
years
from
the
date
of
its
commencement and it reads as under:

"13 A. Relaxation for retrenched
employees.-(1) A retrenched employee shall
be given exemption from the upper age-limit
to the extent of the period of service
rendered by him to the State Government
together with the period spent without a
Government job as a result of the
retrenchment.

(2) A retrenched employee, who on the
date of his first appointment in the service
of the State Government possessed the
academic qualifications prescribed on such
date for the post now being applied for,
shall be deemed to satisfy the requirement
of academic qualifications for such post.

(3) For the purposes of this rule, the
expression "retrenched employee" means a
person who was employed in any service or
on any post under the rule-making control
of the Governor whether in a substantive,
officiating or temporary capacity, and had
served continuously for a period of not less
than one year, and whose services are,
whether before or after the commencement
of these rules, terminated or liable to
termination, on account of reduction of
establishment, and in respect of whom a
certificate of being a retrenched employee
has been issued by the appointing authority
concerned, but does not include a person
who was appointed on an ad hoc basis.
1 All] Dileep Singh Chhabra V. State of U.P. Through Chief Secy.and 2 others

183

Explanation- A person appointed in
accordance with the procedure prescribed
in
the
recruitment
rules
or
orders
applicable to the service or post concerned
shall be deemed to have been appointed on
an ad hoc basis."

35. Consistent with 1975 Rules a
Government Order No. 27/2/1974- Karmik2 dated 6.7.1977 was published containing
definition of "retrenched employee" and on
the same date, another Government Order
No. 41/2/1967- Karmik-2 dated 6.7.1977
was published for giving effect to the
provisions of 1975 Rules and for guidance
and clarification of the concerned officials.
The aforesaid Government Order relevant
for the present purpose is reproduced as
under:

^^'kkŒ laŒ&41@2@67&dkfeZd&2]

fnukad tqykbZ 6] 1977

fo"k;% jkT;k/khu lsokvksa esa oxZ&3 o 4 ds
NaVuh'kqnk deZpkfj;ksa dks [kikus dh O;oLFkkA

jkT;k/khu dk;kZy;ksa ds NaVuh'kqnk deZpkfj;ksa dks
Hkkoh fjfDr;ksa esa [kikus ds fy, o"kZ 1967 esa ,d
fu;ekoyh cukbZ xbZ Fkh] tks vDVqcj] 1971 rd izHkkoh
jghA mlds i'pkr ferO;f;rk ds vk/kkj ij vf/k"Bkuksa
esa deh fd;s tkus vFkok vU; iz'kklfud dkj.kksa ls
jkT; ds fofHkUu dk;kZy;ksa esa oxZ 3 rFkk 4 ds
deZpkfj;ksa dh NaVuh djuk vfuok;Z gks x;k rFkk
NaVuh'kqnk deZpkfj;ksa dks [kikus dk iz'u 'kklu ds
le{k iqu% mifLFkr gks x;kA

2- bl lEcU/k esa eq>s ;g dhus dk funsZ'k gqvk gS
fd bl leL;k ij lE;d~ fopkj djus ds mijkUr
NaVuh'kqnk deZpkfj;ksa dks jkT;k/khu dk;kZy;ksa
1⁄4vizkfof/kd rFkk yksd lsok vk;ksx dh ifjf/k ds ckgj
ds inksa1⁄2 esa gksus okyh fjfDr;ksa es [kikus ds fy, 'kklu
us vc fuEufyf[kr fu.kZ; fy;s gSa%

1⁄4d1⁄2 vk;q lhek ds NwV&

,sls deZpkfj;ksa us ftrus o"kZ dh lsok viuh
NaVuh ds iwoZ dh gks rFkk ftruh vof/k ds fy, og
Nvuh ds dkj.k lsok ls ckgj jgs gksa mrus o"kZ dh
vk;q lhek ls mUgsa NwV iznku dj nh tk;A

1⁄4[k1⁄2 'kSf{kd ;ksX;rk ds NwV&

;fn ,sls deZpkjh viuh iwoZ fu;qfDr ds le;]
ftl in ds fy, og vc vH;FkhZ gSa ml le; ml in
dh fu/kkZfjr 'kSf{kd vgZrk iwjh djrs gSaA

1⁄4x1⁄2 lqfo/kkvksa dh vof/k&

mi;qZDr lqfo/kk;sa bl 'kklukns'k ds tkjh gksus ds
fnukad ls 3 o"kZ ds fy, gh ekU; jgsaxhA

1⁄4?k1⁄2 NVuh'kqnk deZpkfj;ksa dh ifjHkk"kk&

NVuh'kqnk deZpkjh dh ifjHkk"kk ogh gksxh tks
dkfeZd vuqHkkx&2 dh vf/klwpuk la[;k 27@2@1974
&dkfeZd 1⁄421⁄2 fnukad 6 tqykbZ] 1977 esa nh gqbZ gS vkSj
tks lqyHk lnHkZ gsrq uhps m)`r dh tkrh gSA

^^NVuh fd;k x;k deZpkjh** dk rkRi;Z ml
O;fDr ls gS tks jkT;iky ds fu;e cukus ds fu;U=.k
esa fdlh lsok esa ;k fdlh in ij ekSfyd LFkkukiUu] ;k
vLFkk;h :Ik ls fu;ksftr Fkk vkSj ftlus de ls de
,d o"kZ dh vof/k rd yxkrkj lsok dh gks vkSj
ftldh lsok;sa bl fu;ekoyh ds izkjEHk gksus ds iwoZ ;k
i'pkr vf/k"Bku esa deh fd;s tkus ds dkj.k lekIr
dh tk lds vkSj ftuds lEcU/k esa lEc) fu;qfDr
izkf/kdkjh }kjk NVuh fd;k x;k deZpkjh gksus dk
izek.k&i= tkjh fd;k x;k gks] fdUrq blesa ,slk O;fDr
lfEefyr ugha gS ftls rnFkZ vk/kkj ij fu;qDr fd;k
x;k gksA

Li"Vhdj.k& lEc) lsok ;k ij ij iz;ksx HkrhZ
fu;ekoyh ;k vkns'kksa esa fofgr izfdz;k ds vuqlkj
fu;qDr O;fDr dks rnFkZ vk/kkj ij fu;qDr fd;k x;k
ugha le>k tk;sxkA

3- ,sls NVuh'kqnk deZpkjh tks oxZ 3 1⁄4lewg x1⁄2
ds fyfid oxhZ; inksa] ftudk U;wure osrueku
200&320 :i;s gSa rFkk prqFkZ oxZ 1⁄4vc lewg ?k1⁄2 ds os
in ftudk osrueku 165&215 :i;s gSa vkSj ftl ij
HkrhZ ftyk Lrjh; p;u lfefr;ksa ds ek/;e ls dh
tkrh gS] esa HkrhZ ds bPNqd gksa mudks mi;qZDr lqfo/kk
ds vUrxZr dsoy fu;fer p;uksa esa vgZrk nsus ds fy,
NwV nh tk;sxh ijUrq mUgsa p;u esa dksbZ izkFkfedrk
iznku ugha gksxhA 'kklukns'k la[;k 8@dkfeZd&1975
fnukad 22 uoEcj] 1975 esa tkjh fd;s x;s vkj{k.k
184 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

lEcU/kh vkns'kksa ij dksbZ izHkko ugha iM+sxk vkSj iwoZ dh
Hkkafr gh mudks dk;kZfUor fd;k tk;sxkA rn~uqlkj
^^v/khuLFk dk;kZy; fyfid oxZ 1⁄4lh/kh HkrhZ1⁄2 fu;ekoyh]
1975** rFkk ^^prqFkZ oxZ deZpkjh lsok fu;ekoyh] 1975**
esa vko';d la'kks/ku dj fn;s x;s gSaA^^

36. Rule 13-A expired after three
years and so the Government Order dated
6.7.1977. In order to continue with the
relaxation in age, educational qualification
another GO No. 41/2/67-Karmik-2 dated
23.5.1981 was issued for a period of three
years wherein the definition of "retrenched
employee" as notified on 6.7.1977 and
modified on 18.10.1979 was reiterated. For
ready reference, it is re-produced as under:

^^'kk-la- 41@2@67&dkfeZd&2]

fnukad 23 ebZ] 1981

fo"k;% jkT;k/khu lsokvksa esa oxZ 3 o 4 ds
NaVuh'kqnk deZpkfj;ksa dks [kikus dh O;oLFkkA

mi;qZDr fo"k;d lela[;d 'kklukns'k fnukad 6
tqykbZ] 1977 esa iznRr lqfo/kkvksa dh ekU; vof/k 5
tqykbZ] 1980 dks lekIr gks xbZ gSA 'kklu dh
tkudkjh esa ;g ckr vkbZ gS fd NVuh 'kqnk deZpkfj;ksa
dh leL;k dk funku iw.kZ :i ls ugha gks ldk gS vr%
bl fo"k; ij iqu% fopkj fd;k x;kA

- eq>s ;g dgus dk funsZ'k gqvk gS fd bl
leL;k ij leqfpr fopkjksijkUr NaVuh'kqnk deZpkfj;ksa
dks jkT;k/khu dk;kZy;ksa esa gksus okyh Hkkoh fjfDrksa
1⁄4vizkfof/kd rFkk yksd lsok vk;ksx dh ifjf/k ls ckgj
ds inksa1⁄2 esa [kikus ds fy;s 'kklu us fuEufyf[kr fu.kZ;
fy;s gS%

1⁄4d1⁄2 vf/kdre vk;q lhek ls NwV%

,sls deZpkfj;ksa us ftrus o"kZ viuh NaVuh ls iwoZ
dh gks rFkk ftruh vof/k ds fy;s og NaVuh ds dkj.k
lsok ls ckgj jgs gksa mrus o"kZ dh vf/kdre vk;q lhek
ls mUgsa NwV iznku dj nh tk; ijUrq izfrcU/k ;g gS
fd ;g vof/k fdlh Hkh n'kk esa 10 o"kZ ls vf/kd ugha
gksxhA

1⁄4[k1⁄2 'kSf{kd ;ksX;rk ls NwV%

;fn ,sls deZpkjh viuh iwoZ fu;qfDr ds le;]
ftl in ds fy;s og vc vH;FkhZ gSa] ml in dh
fu/kkZfjr 'kSf{kd vgZrk j[krs Fks] rks ;g le>k tk;sxk
fd os orZeku in ds fy;s fu/kkZfjr 'kSf{kd vgZrk iwjh
djrs gSaA

1⁄4x1⁄2 lqfo/kkvksa dh vof/k%

mi;qZDr lqfo/kk;s bl 'kklukns'k ds tkjh gksus
dh frfFk ls rhu o"kZ ds fy;s ekU; jgsxhA

1⁄4?k1⁄2 ifjHkk"kk%

NVuh'kqnk deZpkjh dh ogh ifjHkk"kk gksxh tks
'kklukns'k la[;k 41@2@67&dkfeZd&2 fnukad 6
tqykbZ] 1977 esa nh gqbZ gS vkSj lela[;d 'kklukns'k
fnukad 18 vDVwcj] 1979 }kjk ;Fkk la'kksf/kr gS vkSj
tks lqyHk lUnHkZ gsrq uhps m)`r dh tkrh gS%

^^NaVuh fd;k x;k deZpkjh** dk rkRi;Z ml
O;fDr ls gS tks jkT;iky ds fu;e cukus ds fu;a=.k esa
fdlh lsok esa ;k in ij ekSfyd] LfkkukiUu vFkok
vLFkk;h :Ik ls fu;ksftr Fkk vkSj ftlus de ls de 3
ekl dh fujUrj lsok dh gks ijUrq dqy feykdj ;g
QqVdj [kf.Mr lsok Hkh ,d o"kZ dh iwjh gks xbZ gks vkSj
ftldh lsok;sa v/khuLFk dk;kZy; fyfid oxZ 1⁄4lh/kh
HkrhZ1⁄2 1⁄4prqFkZ la'kksa/ku1⁄2 fu;ekoyh] 1979 rFkk prqFkZ oxZ
deZpkjh lsok 1⁄4r`rh; la'kks/ku1⁄2 fu;ekoyh 1979 ds
izHkkoh gksus ds iwoZ ;k i'pkr vf/k"Bku esa deh ds
dkj.k lekIr dj nh xbZ gks ;k lekIr dj nh tk;s
vkSj ftlds lEcU/k esa lEc) fu;qfDr izkf/kdkjh }kjk
NVuh fd;k x;k deZpkjh gksus dk izek.k&i= tkjh
fd;k x;k gks fdUrq mlesa ,slk O;fDr lfEefyr ugha
gksxk ftls rnFkZ vk/kkj ij fu;qDr fd;k x;k gksA

Li"Vhdj.k & lEc) lsok ;k in ij iz;ksT;
HkrhZ fu;ekoyh ;k vkns'kksa esa fofgr izfdz;k ds vuqlkj
fu;qDr O;fDr dks rnFkZ vk/kkj ij fu;qDr fd;k x;k
ugha le>k tk;sxkA

3- ,sls NVuh'kqnk deZpkfj;ksa dks mi;qZDr lqfo/kk
ds vUrxZr dsoy fu;fer p;uksa esa vgZrk nsus ds fy;s
NwV nh tk;sxh ijUrq mUgsa p;u esa dksbZ izkFkfedrk
iznku ugha gksxhA

Lkfpo^^

37. The aforesaid government order
was extended for a further period of three
1 All] Dileep Singh Chhabra V. State of U.P. Through Chief Secy.and 2 others

185
years
vide
Government
Order
No.
41/2/1967-Karmik-2
dated
12.4.1983,
which reads as under:

^^'kkΠla[;k42@2@1967&dkfeZd&2]

fnukad 12 vizSy] 1983

fo"k;%& tux.kuk foHkkx ds NVuh fd;s tkus
okys deZpkfj;ksa dks jkT;k/khu lsokvksa @inksa esa fu;qfDr
gsrq fj;k;rA

mi;qZDr fo"k;d lela[;d 'kklukns'k fnukad
12 Qjojh] 1982 ds dze esa eq>s ;g Li"V djus dk
funs'k gqvk gS fd mijksDr 'kklukns'k esa nh xbZ
lqfo/kk;s jkT; ljdkj ds v/khu dsoy mu
lsokvksa@inksa ij fu;qfDr gsrq vuqeU; gksaxh ftu ij
lh/kh HkrhZ yksd lsok ds ek/;e ls ugha gksrh gSA

mi lfpoA^^

38. Vide Notification dated 16.3.1985
the Governor promulgated a new set of
Rules, namely, The U.P. Subordinate
Offices
Ministerial
Staff
(Direct
Recruitment) Rules, 1985 (in short '1985
Rules'), in supersession of existing rules and
orders on the subject as is apparent from the
following:

"In pursuance of the provisions of
Clause
(3)
of
Article
348
of
the
Constitution, the U.P. Governor is pleased
to order the publication of the following
English translation of Notification No. 20/382-Personnel-2-85, dated March 16, 1985.

In exercise of the powers conferred by
the proviso to Article 309 of the
Constitution, and in supersession of all
existing rules and orders on the subject, the
Governor is pleased to make the following
rules regulating recruitment of ministerial
staff in the Subordinate Government Offices
in the State."

39. Rule-3 of 1985 Rules also gives it
overriding effect over any inconsistent
existing
rule
and
Rule-4(i)
defines
"retrenched employee" which reads as
under:

"Retrenched
employee"
means
a
person-

(i) who was employed on a post under
the rule making power of the Governor, in
permanent,
temporary
or
officiating
capacity for a total minimum period of one
year, out of which at least three months'
service must have been continuous service;

(ii)whose services were or may be
dispensed with due to reduction in or
winding up of the establishment; and

(iii) in respect of whom a certificate of
being retrenched employee has been issued
by the appointing authority;

but does not include a person
employed on ad hoc basis only."

40. In 1991, "The Uttar Pradesh
Absorption of Retrenched Employees of
Government or Public Corporation in
Government Service Rules, 1991" (for short
the '1991 Rules') were framed and published
in the Gazette dated 19th August, 1991. The
aforesaid rule provides for absorption of
'Retrenched Employee" of Government or
Public Corporation. Rule-2-(b) defines
Public Corporation, Rule 2-(c) defines
"Retrenched Employee" and Rule-3 is a
charging provision, which are reproduced as
under:

"2(b) "Public Corporation" means a
body corporate established or constituted
by or under any Uttar Pradesh Act except a
University of Local Authority constituted for
186 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

the purpose of Local Self Government and
includes a Government Company within the
meaning of Section 617 of the Companies
Act, 1956 in which the State Government
has prepondering interest;

(c) "retrenched employee" means a
person who was appointed on a post under
the Government or a public corporation on
or before October 1, 1986 in accordance
with
the
procedure
laid
down
for
recruitment
to
the
post
and
was
continuously working in any post under the
Government or such corporation upto the
date of his retrenchment due to reduction in,
or winding up of, any establishment of the
Government or the public corporation, as
the case may be and in respect of whom a
certificate of being a retrenched employee
has
been
issued
by
his
appointing
authority."

(3) Notwithstanding anything to the
contrary contained in any other service
rules for the time being in force, the State
Government may by notified order require
the absorption of the retrenched employee
in any post or service under the government
and may prescribed the procedure for such
absorption including relaxation in various
terms and conditions of recruitment in
respect of such retrenched employees."

41. Thereafter 1998 Rules were
promulgated on 9.6.1998. It would be
appropriate to refer the declaration made
under the aforesaid rules which was not in
the same terms as it was in 1975 Rules and
1985 Rules that the same are being enacted
in supersession of all the existing provisions
and on the contrary 1998 Rules only makes
a declaration of making of the rules by the
Hon'ble Governor and reads as under:

"In exercise of the powers conferred by
the proviso to Article 309 of the
Constitution, the Governor is pleased to
make the following rules:"

42. Rule-2 of 1998 Rules declares to
override inconsistent existing rules. Rule
5(3)(c) provides weightage which is
admissible to a "retrenched employee" for
recruitment in 1998 Rules. Admittedly,
1998 Rules did not contain any definition of
"retrenched
employee".
The
Hon'ble
Governor further promulgated another set of
rules in 2001, namely, The Uttar Pradesh
Procedure for Direct Recruitment for Group
"C" posts (Outside the Purview of the Uttar
Pradesh Public Service Commission) Rules,
2001 (in short the "2001 Rules"). The
aforesaid rules have been framed in
supersession of all the existing rules and
orders on the subject as is apparent from the
following declaration made under the
Rules:

"In exercise of the powers conferred by
the proviso to Article 309 of the
Constitution and in suppression existing
rules and other on the subject, the Governor
is pleased to make the following rules."

43. 2001 Rules, admittedly does not
contain any definition of 'retrenched
employee' but provides certain concessions
in recruitment to a 'retrenched employee'
vide Rule 6(6)(b) etc.

44. Coming to the second angle of the
matter, i.e. 1991 Rules, These rules are
applicable to only such category of
undertakings which are notified under Rule
3 thereof. Referring to these rules some
judgments were delivered by this Court of
Allahabad and Lucknow both but without
considering the above rules with threadbare
analysis, which resulted in issuance of some
1 All] Dileep Singh Chhabra V. State of U.P. Through Chief Secy.and 2 others

187
directions for absorption of the employees
of undertakings and corporations of State
Government without realizing whether they
were notified under the said rules or not.