# Ram Kishan & Ors v. State of U.P. & Ors

- **Citation:** (2023) 8 ILRA 1376
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-03
- **Case number:** Writ A No. 962 of 2010
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kishan-ors-v-state-of-u-p-ors-50539
- **Pages:** 19

## Headnote

Civil Law - Constitution of India,1950 -
Articles 14, 16 & 21 - Uttar Pradesh
Absorption
of
Surplus
Employees
of
UPTRON India Limited in Government
Service Rules, 2011 - Absorption of
retrenched employees - Equal pay for
equal work - Surplus employees of
UPTRON
India
Limited
-
Denial
of
absorption in U.P. Civil Secretariat -
Impugned
order
dated
11.05.2010
quashed
-
Petitioners
entitled
to
absorption as Group-D employees and
revised pay scale from 01.01.2006.

Held: The petitioners, surplus employees of
UPTRON India Limited, appointed on contract
basis in U.P. Civil Secretariat as Class-IV
employees, are entitled to absorption as GroupD
employees
under
the
Uttar
Pradesh
Absorption of Surplus Employees of UPTRON
India Limited in Government Service Rules,
2011, and the Government Order dated
20.12.2011.
The
impugned
order
dated
11.05.2010, denying absorption on the ground
of 1983 Service Rules, is unsustainable as the
Absorption Rules, 2011, override inconsistent
provisions. Denial of absorption and revised pay
scale
from
01.01.2006
is
arbitrary,
discriminatory, and violates Articles 14, 16, and
21 of the Constitution. The principle of equal
pay for equal work applies, as petitioners
perform the same duties as regular Class-IV
employees. The St. Government's delay in
considering
absorption,
resulting
in
deprivation of benefits, is unjustifiable. The
petitioners are entitled to absorption on
suitable
Group-D
posts,
continuation
in
service until the age of superannuation (60
years), and payment of salary as per the
revised pay scale (minimum Rs.6050/- per
month) from 01.01.2006, along with other
admissible benefits. Impugned order dated
11.05.2010 quashed. Respondents directed to
treat
petitioners
as
absorbed
Group-D
employees in U.P. Civil Secretariat, allow
them to join suitable posts forthwith, continue
their service until superannuation at 60 years,
and pay salary as per revised pay scale from
01.01.2006.
Case Law Discussed:

Brahma Nand Lavaniya & anr. Vs St. of U.P. &
ors., Writ Petition No. 3316 (S/S) of 2013, dated
29.05.2014,
confirmed
in
Special
Appeal
Defective No. 430 of 2014.

## Text

_Characters 0–39,739 of 63,159. This is a partial read: ask again with offset=39739 for what follows._

1376 INDIAN LAW REPORTS ALLAHABAD SERIES
under the Government instructions and
even as per the decision of this Court in
State of Karnataka & Ors. v. Umadevi
2006 (4) SCC 1. This Court in the said
decision has laid down that in case services
have been rendered for more than ten years
without the cover of the Court's order, as
one
time
measure,
the
services
be
regularized of such employees. In the facts
of the case, those employees who have
worked for ten years or more should have
been regularized. It would not be proper to
regulate
them
for
consideration
of
regularisation
as
others
have
been
regularised, we direct that their services be
treated as a regular one. However, it is
made clear that they shall not be entitled to
claiming any dues of difference in wages
had they been continued in service
regularly before attaining the age of
superannuation. They shall be entitled to
receive the pension as if they have retired
from the regular establishment and the
services rendered by them right from the
day
they
entered
the
work-charged
establishment
shall
be
counted
as
qualifying service for purpose of pension."

71. This Court may note that the
services of the petitioner should have been
regularized earlier, but on account of the
apathetic and insensitive approach of the
respondents, the service of the petitioner
was not regularized earlier, and after
rendering about 21 years of service as
daily-wager
and
work-charged
establishment, his service was regularized.

72. In such factual backdrop, the State
cannot take shelter of the New Pension
Scheme notified in the year 2005 to
contend that as the service of the petitioner
has been regularized after the introduction
of
the
New
Pension
Scheme
by
Notification/ Government Order G-33379/X-2005-301(9)-2003,
dated
01.04.2005, therefore, the petitioner is not
entitled to Old Pension Scheme.

73. For the reasons given above, the
order
dated
31.05.2022
passed
by
respondent
no.5-Executive
Engineer,
Investigation
&
Planning
(Water
Resources), Division Mirzapur (Fatehi
Irrigation Colony), Mirzapur to the extent it
grants the benefit of New Pension Scheme
to the petitioner is set aside. Consequently,
the writ petition is allowed without any
order to as to cost.

74. The respondent concerned is
directed to place the petitioner in Old
Pension Scheme and calculate his pension
by adding the service w.e.f. 01.05.1989
with regular service. The petitioner is
further directed to deposit the amount of
the Employee's Contributory Fund which
he had received from the respondents
before the pension is released to him.

75. The aforesaid exercise shall be
completed by the respondents within three
months from the date of production of a
certified copy of this order.
----------
(2023) 8 ILRA 1376
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.08.2023

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ A No. 962 of 2010

Ram Kishan & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Dr. L.P. Mishra, V.K. Bajpai
8 All. Ram Kishan & Ors. Vs. State of U.P. & Ors.
1377
Counsel for the Respondents:
C.S.C., Sanjay Bhasin

Civil Law - Constitution of India,1950 -
Articles 14, 16 & 21 - Uttar Pradesh
Absorption
of
Surplus
Employees
of
UPTRON India Limited in Government
Service Rules, 2011 - Absorption of
retrenched employees - Equal pay for
equal work - Surplus employees of
UPTRON
India
Limited
-
Denial
of
absorption in U.P. Civil Secretariat -
Impugned
order
dated
11.05.2010
quashed
-
Petitioners
entitled
to
absorption as Group-D employees and
revised pay scale from 01.01.2006.

Held: The petitioners, surplus employees of
UPTRON India Limited, appointed on contract
basis in U.P. Civil Secretariat as Class-IV
employees, are entitled to absorption as GroupD
employees
under
the
Uttar
Pradesh
Absorption of Surplus Employees of UPTRON
India Limited in Government Service Rules,
2011, and the Government Order dated
20.12.2011.
The
impugned
order
dated
11.05.2010, denying absorption on the ground
of 1983 Service Rules, is unsustainable as the
Absorption Rules, 2011, override inconsistent
provisions. Denial of absorption and revised pay
scale
from
01.01.2006
is
arbitrary,
discriminatory, and violates Articles 14, 16, and
21 of the Constitution. The principle of equal
pay for equal work applies, as petitioners
perform the same duties as regular Class-IV
employees. The St. Government's delay in
considering
absorption,
resulting
in
deprivation of benefits, is unjustifiable. The
petitioners are entitled to absorption on
suitable
Group-D
posts,
continuation
in
service until the age of superannuation (60
years), and payment of salary as per the
revised pay scale (minimum Rs.6050/- per
month) from 01.01.2006, along with other
admissible benefits. Impugned order dated
11.05.2010 quashed. Respondents directed to
treat
petitioners
as
absorbed
Group-D
employees in U.P. Civil Secretariat, allow
them to join suitable posts forthwith, continue
their service until superannuation at 60 years,
and pay salary as per revised pay scale from
01.01.2006.
Case Law Discussed:

Brahma Nand Lavaniya & anr. Vs St. of U.P. &
ors., Writ Petition No. 3316 (S/S) of 2013, dated
29.05.2014,
confirmed
in
Special
Appeal
Defective No. 430 of 2014.

(Delivered by Hon'ble Irshad Ali, J.)

1 . Heard Dr. L.P. Misra, learned
counsel for the petitioners and Sri Pankaj
Khare, learned Standing Counsel for the
State-respondent.

2. By means of the present writ
petition, the petitioners have prayed as
under :-

"[a] To issue a writ, order or
direction in the nature of mandamus
commanding the Opp-parties to frame a
scheme for absorption of the petitioners as
Class-IV
employees
in
U.P.
Civil
Secretariat against the sanctioned and
vacant posts on which they are working
from the date of their initial appointment as
Class-IV employees.

[b] To issue a writ, order or
direction in the nature of mandamus
commanding the Opp-parties to make
payment of salary to the petitioners in the
minimum of the basic pay as per revised pay
scale w.e.f. 01.01.2006 along with other
admissible benefits including arrears thereof.

[c] To award the cost of this
petition in favour of the petitioners.

[d] To issue any other writ, order
or direction which this Hon'ble Court
deems just and proper in the circumstances
of the case.

[e] issue a writ, order or
direction in the nature of certiorari thereby
1378 INDIAN LAW REPORTS ALLAHABAD SERIES
quashing
the
impugned
order
dated
11.5.2010. contained as (annexure no. 40)

[f] issue a writ, order or direction
in the nature of mandamus commanding
the opposite parties to pay salary to the
petitioners as per revised pay-scale from
1.1.2006 i.e. from the date it is being paid
to
the
regularly
appointed
group-D
employees
of
U.P.
Secretariat.
The
opposite party no. 3 may further be
directed to make its contribution into the
provident fund account of the petitioners.

[g] prayer deleted

[h] Issue a writ, order or
direction in the nature of mandamus
commanding the opposite parties to extend
all the service benefits arising out from the
absorption of the petitioners as Group-D
employees from the date of their initial
appointment
including
the
services
rendered by the petitioners ass the
employees of Uptron notwithstanding the
absorption order dated 04.04.2012 issued
pursuant to Notification dated 20.11.2011."

3. Facts in nutshell are that Uptron
India Limited was established as a
subsidiary company of U.P. Electronics
Corporation which is directly controlled by
the department of I.T. and Electronics,
Government of U.P. It was engaged in the
designing and manufacturing of electronics
goods and up to the year 1991, the
company was running into profit but all of
a sudden, it received financial loss and on
20.6.1994, it was declared as a sick unit
and referred to BIFR.

4. The petitioners of the present writ
petition were appointed in the said
company against the sanctioned and vacant
posts after following the due procedure of
law in the years 1982, 1983, 1984, 1985,
1986 and 1987 after qualifying the written
examination followed by interview.

5. The Cabinet took a decision to
close all the units of the company except
the consultancy division and on account of
its closure, the petitioners as well as other
employees became unemployed due to
closure of work. A government order dated
11.11.1998 was issued, providing therein
that the employees of the sick units may be
appointed on contract basis against the
available
posts
in
the
government
departments/ establishments/ institutions.
On 1.12.1988, a decision was taken in the
Cabinet meeting in regard to closure of
Uptron as well as adjustment of its
employees.

6.

Government
order
dated
22.12.1998 was issued, directing all the
government departments/ establishments/
institutions for adjustment/ appointment of
the
Uptron
employees
as
per
the
availability of vacancies. Pursuant to the
aforesaid policy decision of the State
Government, a memorandum of agreement
was signed between the respondent Nos.3
and 4 and it was decided that the petitioners
will be appointed as Group-D employees in
the U.P. Civil Secretariat on contract basis.

7. A letter was issued on 23.7.2009,
directing the petitioners to submit their
joining report as Class-IV employees.
Thereafter, the petitioners, since the dates
of their respective appointments in U.P.
Civil Secretariat as Class-IV employees i.e.
from August, 1999 onwards, are being paid
minimum of the basic pay admissible to a
Class-IV employee till date although they
are doing same work as is performed by the
regularly appointed Class-IV employees of
the U.P. Civil Secretariat.
8 All. Ram Kishan & Ors. Vs. State of U.P. & Ors.
1379

8. Submission of learned counsel for
the petitioners is that the petitioners are
being paid minimum of the basic pay,
which is only Rs.2,550/- per month, is also
against the principle of equal pay for equal
work and as such the respondents are
legally bound to pay same pay scale which
is being paid to the regularly appointed
Class-IV employees of the U.P. Civil
Secretariat.

9. The government has extended the
benefit of revised pay scale pursuant to
recommendations
of
pay
committee
constituted
for
implementing
recommendation of 6th pay commission, to
the employees working on contract basis in
various
government
departments/
corporations as the employees working on
contract
basis
in
U.P.
State
Law
Commission have been given benefit of the
revised pay scale.

10. The employees of the Uptron who
were also appointed on contract basis in
U.P. State Human Rights Commission have
been given benefit of pay revision pursuant
to the recommendations of the 6th pay
commission vide order dated 21.5.2009.

11. Submission of learned counsel for
the petitioners is that the employees of the
Uptron were appointed on contract basis in
the U.P. State Human Rights Commission
on the same terms and conditions on which
the petitioners were appointed but the
employees of Uptron appointed in the
Human Rights Commission have been
extended the benefit of revised pay scale
vide order dated 21.5.2009, whereas the
petitioners have yet not been extended the
said benefit and, as such, the petitioners are
also entitled to be treated at par to their
counterparts
working
in
various
government departments who have been
given benefit of revised pay scale which is
Rs.6050/-.

12. The petitioners who are being
paid Rs.2550/- per month as minimum of
the basic pay of Class-IV employee since
the year 1999-2000 i.e. from the date of
their respective joining of U.P. Civil
Secretariat and at present as per the
recommendations
of
the
6th
pay
commission, the minimum of the basic pay
of Class-IV employee has been fixed as
Rs.6050/- per month and this pay has been
given to the Class-IV employee w.e.f.
1.1.2006 and as such, in this view of the
matter also, the petitioner are entitled to get
Rs.6050/- per month as minimum of the
basic pay scale admissible to Class-IV
employees in the U.P. Civil Secretariat.

13. Since the year 2005, the
petitioners
are
continuously
moving
representation before the respondent No.3
mentioning therein the entire facts and have
been requesting for their absorption against
the vacant posts of Group-D employees i.e.
on the post on which they are working
since last 10 years, but to no avail.

14.

Learned
counsel
for
the
petitioners submits that the petitioners are
legally entitled to be absorbed as Class-IV
employees in the U.P. Civil Secretariat in
view of the decisions taken in the high
level
meetings
dated
11.12.1998,
22.12.1998,
4.1.1999,
16.12.2004
and
8.11.2005 as well as in view of the
information given by the Department of
Law,
Finance,
Karmik,
Sachivalaya
Prashasan Vibhag, but the inaction on the
part of the respondents in this regard is
illegal, arbitrary and discriminatory.

15. It is submitted that after the
closure of Uptron India Ltd., all the
1380 INDIAN LAW REPORTS ALLAHABAD SERIES
employees who did not opt V.R.S. and
were appointed either on contract basis or
on deputation in various departments/
corporations
establishments
like
the
petitioners, are forming the same class and
more than 250 Uptron employees have
been permanently absorbed in various
departments like Department of Home,
U.P. Power Corporation, State Consumer
Forum, State Election Commission in
availability of vacancies, but the petitioners
who are similarly situated persons to those
who have been permanently absorbed but
they are not being by the respondents,
which
action of
the
respondents
is
discriminatory and is in violation of
Articles 14, 16 and 21 of the Constitution
of India.

16. It is submitted that number of
similarly situated persons have been
absorbed against Group-D posts of U.P.
Secretariat, vide order dated 23.2.2010, one
Siya Ram, who was retrenched employee
of
U.P.
Tyres
and
Tubes
Ltd.,
a
government undertaking like Uptron India
Limited, has been absorbed/ appointed
against Group-D posts of U.P. Secretariat
and as such in this view of the matter, the
reasoning assigned by the respondent No.3,
while rejecting the case of the petitioners
for their absorption is arbitrary and
discriminatory, which is not sustainable in
the eyes of law.

17. The reasoning assigned in the order
dated 11.5.2010 to the effect that since the
petitioners are retrenched employees of
Uptron, who are working on contract basis
against Group-D post of U.P. Secretariat,
cannot be absorbed against the said posts in
view of the prescription made in the 1983
Rules whereby service conditions of GroupD employees of U.P. Secretariat are governed
is not sustainable in the eyes of law for the
reason that the State Government is
competent to make necessary absorption.

18. He submits that all the petitioners of
the present writ petition are aggrieved by
their non absorption in the U.P. Civil
Secretariat in terms of the provisions
contained in Uttar Pradesh Absorption of
Surplus Employees of UPTRON India
Limited in Government Service Rules, 2011
(hereinafter referred to as 'Absorption Rules,
2011') notified on 20.12.2011 and the
Government Order dated 20.12.2011.

After successfully functioning as a
commercial venture for a considerable long
period in the business of production of
television sets and other electronic items,
UPTRON India Limited became sick and
ultimately the said successful venture of the
State of U.P. was closed down.

In a meeting held under the
Chairmanship of the Chief Secretary of U.P.
on 11.12.1998, which was attended by higher
officers of the State Government and other
officers of various other State Government
instrumentalities/ undertakings, a decision
was taken to appoint the surplus employees
of UPTRON India Limited on contract basis
to various Government departments/offices
and establishments.

In a similar case, this Court
passed an order on 05.03.2013 in Writ
Petition No. 4556 (S/S) of 2012 which runs
as under:-

"Pursuant
to
order
dated
22.02.2013, Sri Sunil Kumar, Principal
Secretary,
department
of
Basic
Education, Government of U.P. and Ms.
Amrita Soni, Project Director, Sarva
Shiksha Abhiyan, Uttar Pradesh are
present in Court.
8 All. Ram Kishan & Ors. Vs. State of U.P. & Ors.
1381

On a query being put to him, Sri
Sunil Kumar, Principal Secretary stated
that Uttar Pradesh Absorption of Surplus
Employees of UPTRON India Limited in
Government Service Rules, 2011 were
notified on 20.12.2011 as a piece of
beneficial subordinate legislation to benefit
those employees who before closer of
UPTRON India Limited were working in
the said organization. He further stated
that proposal for absorption of employees
of UPTRON India Limited including the
petitioners has been received from the State
Project Director, Sarva Shiksha Abhiyan in
the State Government on 24.12.2012 and
the same is under examination and
consideration. He assures the Court that
final decision in the matter shall be taken
by the State Government within a period of
eight weeks from today.

It may, however, be noticed that
the aforesaid Absorption Rules were
promulgated on 20.12.2011 and for the
purposes of its faithful implementation, the
Government Order was also issued on the
same day i.e. on 20.12.2011. However, it is
strange to notice that even after lapse of a
period of about 15 months, so far as the
case of employees of UPTRON India
Limited who are working in deputation in
Sarva Shiksha Abhiyan are concerned, no
concrete final decision has yet been taken.
True, the Rules do not provide for any time
limit to take decision in respect of
absorption of employees of UPTRON India
Limited, however, it has to be presumed
that since Rules have been framed for the
purpose of giving certain benefits to the
employees of UPTRON India Limited, the
decision ought to have been taken within
some reasonable time. Reasonable time,
though
cannot
be
defined,
however,
considering the facts and circumstances of
the case and the situation which has all
along been faced by the employees of
UPTRON India Limited after its closer, it
was expected of the State Government as
well as Sarva Shiksha Abhiyan to have
acted promptly so as to ensure that benefit
of the rights created under the Rules is
actually extended to the employees for
whom the Rules have been framed.

A very disturbing feature in this
case, which needs to be taken notice of, is
that the petitioners in both writ petitions,
namely, Brahma Nand Lavaniya and
Sharad
Mehrotra
have
retired
on
31.08.2012 and 31.10.2012, receptively
after attaining the age of superannuation of
58 years.

It is noticeable further that the
age of superannuation as per Rules
prevalent in UPTRON India Limited is 58
years whereas as per provision governing
the age of superannuation in respect of
State Government's employees it is 60
years. Since December, 2011 till October
2012, there elapsed a long time when cases
of both petitioners could have been and
ought
to have been
considered
for
absorption.
Had
their
cases
been
considered, they would have been able to
realize the right which stood crystallized to
them on promulgation of the Rules on
20.12.2011.

Sri
Sunil
Kumar,
Principal
Secretary, department of Basic Education,
Government of U.P has, however, assured
the Court that aforesaid aspect of the
matter shall also be looked into and will be
given sympathetic consideration at the time
of consideration of cases of petitioners for
absorption under the aforesaid Rules and
Government Order. The Court expresses its
complete trust and faith that the matter at
hand shall be considered by the authorities
1382 INDIAN LAW REPORTS ALLAHABAD SERIES
of
State
Government
in
its
correct
perspective.

Let this matter be listed on
13.05.2013.

Sri
Sunil
Kumar,
Principal
Secretary, department of Basic Education,
Government of U.P. and Ms. Amrita Soni,
Project Director, Sarva Shiksha Abhiyan,
Uttar Pradesh need not appear again
unless called for."

19. The Court while passing the order
dated 05.03.2013 recorded the assurance
given
by
the
Principal
Secretary,
department of Basic Education that the
matter relating to absorption of both the
petitioners shall be given sympathetic
consideration. The Court on the assurance
given by such a higher officer of the State
Government expressed its trust and faith
that matter of absorption of the petitioners
shall be considered by the authorities in its
correct perspective.

20. The question for consideration for
this Court in this matter is as to whether the
petitioners have wrongly been denied the
benefits of absorption in terms of the
provisions contained in Absorption Rules,
2011 and the Government Order dated
20.12.2011. Another question which falls for
consideration of the Court is as to whether the
authorities of the State Government have
unduly delayed the matter relating to
consideration of the case of the petitioners for
absorption
in
terms
of
the
aforesaid
Absorption Rules, 2011 and the Government
Order dated 20.12.2011 which has resulted in
denial of benefit of absorption of the
petitioners in government service.

21 . A policy decision was taken by
the State Government to absorb the surplus
employees of UPTRON India Limited
working
on
deputation
to
other
departments/organisations of the State
Government,
pursuant
to
which,
Absorption Rules, 2011 were framed and
the Government Order dated 20.12.2011
was issued. The Absorption Rules, 2011
notified on 20.12.2011 came into force on
its notification itself as per the provisions
contained in Rule 1 (2) of the said Rules.
Rule 2 (e) defines 'surplus employee' to
mean an employee of the Uptron India
Limited (other than an employee employed
on ad-hoc, casual, work-charge or contract
basis) who was rendered surplus from
Uptron India Limited as a result of winding
up either in whole or in part of the Uptron
India Limited and is working on contract
basis or body shopping basis or on
deputation in a Government Department.

It is also to be noticed that the
petitioners
are surplus employees of
UPTRON India Limited and they, being
regular employees of UPTRON India
Limited, are covered by the term 'surplus
employee' within the meaning of the said
word occurring in Rule 2 (e) of Absorption
Rules, 2011 and further that both the
petitioners were working on deputation on
the date of promulgation/notification of the
Absorption Rules, 2011 i.e. on 20.12.2011.

Rule 3 of the Absorption Rules,
2011 opens with a non-abstante clause and
provides that the Government may, by a
notified order, require the absorption of
surplus employees of Uptron India Limited
in
any
post
or
service
under
the
Government except a post or service which
falls within the purview of Uttar Pradesh
Public Service Commission. It further
provides
that
the
Government
may
prescribe the procedure for such absorption
including relaxation in the conditions of
8 All. Ram Kishan & Ors. Vs. State of U.P. & Ors.
1383
recruitment. Sub-rule (2) of Rule 3
provides that provisions contained in
relevant Service rules shall be deemed to
have been modified to the extent the same
are inconsistent with the provisions made
in the notified order as referred to in subrule (1).

Thus, Rule 3 of the Absorption
Rules, 2011 enabled the State Government
to provide for absorption of the surplus
employees of UPTRON India Limited by
issuing a notified order. The Rules, thus,
are enabling in nature.

Exercising the powers vested in
the State Government under Rule 3 (1) of
the Absorption Rules, 2011, the State
Government issued a notified order on
20.12.2011 itself which provides that
taking into account the concept of welfare
state
it
has
been
decided
by
the
Government that the surplus employees of
UPTRON India Limited working on
deputation shall be absorbed in the
government service. The notified order
dated 20.12.2011 contains a decision that
the surplus employees of UPTRON India
Limited
working
on
contract/body
shopping
basis
in
the
Government
Departments shall be absorbed in the same
Government
Departments.
Another
decision embodied in the said notified
order
dated
20.12.2011
is
that
the
provisions of Rule 2 (e) (ii) shall also be
applicable to those surplus employees of
the UPTRON India who are working in a
society or an authority or any other
organization/body functioning under any
department of the State Government.

The direction in the said notified
order is that the concerned department shall
adopt the Absorption Rules, 2011 for the
purpose of absorbing such employees
working in the government controlled
society, authority or any other organization
treating them to be working in the
Government Department.

Thus, the Government issued the
aforesaid notified order on 20.12.2011
making a provision for absorption of
surplus employees of the UPTRON India
Limited
working
on
deputation/contract/body shopping basis
not only in the government departments but
also for those who were working on
deputation in a society or an authority or an
organization
functioning
under
a
Government Department.

As
stated
above,
both
the
petitioners
are
undisputedly
surplus
employees of UPTRON India Limited in
terms of the meaning of said word
occurring in Rule 2 (e) of the Absorption
Rules, 2011. It can also not be disputed that
in terms of the provisions of notified order
dated 20.12.2011, since the Sarva Shiksha
Abhiyan in the State of U.P. is being
conducted through a Government owned
and administered society, namely, "mRRkj
izns'k lHkh ds fy, ifj;kstuk ifj"kn" (U.P.
Education for All Project Council), as such
the petitioners are also eligible to be
considered for absorption in terms of
notified order dated 20.12.2011. The
relevant provision in the notified order
which is applicable in the case of the
petitioners is as follows:-

"1⁄4[k1⁄2
mi;ZqDr
lanfHkZr
vkesyu
fu;ekoyh]
2011
fo"k;d
vf/klwpuk
la[;k&1477@78&1&2011&51bys0@92Vhlh&5]
fnukad 20 fnlEcj] 2011 dk izLrj&2bZ1⁄4ii1⁄2 mu
deZpkfj;ksa ij Hkh ykxw gksxk tks 'kklu ds fdlh
Hkh foHkkx ds v/khu fdlh lkslk;Vh] izkf/kdj.k
vFkok fdlh vU; laLFkk esa dk;Z dj jgs gSA ,sls
deZpkfj;ksa dks Hkh mlh foHkkx esa dk;Zjr ekurs
1384 INDIAN LAW REPORTS ALLAHABAD SERIES
gq, lek;ksftr djus ds fy, lacaf/kr foHkkx
fu;ekoyh dks vius ;gka vaxhd`r (Adopt) dj
ysaA"

Thus, provisions of Rule 2 (e) (ii)
of the Absorption Rules have also been
made applicable to the employees working
in a society functioning under the State
Government and such surplus employees of
UPTRON India Limited working in such a
society were to be treated to be employees
of
the
Government
Department
and
accordingly
their
cases
were
to
be
considered for absorption. The relevant
words
occurring
in
the
afore-quoted
provision of the notified order dated
20.12.2011 are "-------,sls deZpkfj;ksa dks Hkh
mlh foHkkx esa dk;Zjr ekurs gq,]". The
aforesaid phrase occurring in the notified
order dated 20.12.2011 clearly means that
the employees working in the societies or
other organizations functioning under the
State Government shall be treated to be
employees of the Government Department
for the purposes of absorption.

22. The ground in the impugned order
dated 11.5.2010 is that since the petitioners
are retrenched employees of Uptron, who are
working on contract basis against Group-D
post of U.P. Secretariat, cannot be absorbed
against the said posts in view of the
prescription made in the 1983 Rules whereby
service conditions of Group-D employees of
U.P. Secretariat are governed.

23.

Learned
counsel
for
the
petitioners
submits
that
in
similar
circumstances, co-ordinate Bench of this
Court in the case of Brahma Nand
Lavaniya & Another Vs. State of U.P. &
Others (Writ Petition No.3316 (S/S) of
2013, vide order dated 29.5.2014, has
passed the following order, which is quoted
below :-

"Since the facts of these three
petitions are interwoven, with the consent
of learned counsel for the parties, all the
three petitions are being decided by a
common judgement and order.

Heard Sri Vivek Raj Singh,
learned counsel for the petitioners, Sri
Zafaryab
Jilani,
learned
Additional
Advocate General assisted by Sri Badrul
Hasan, the Standing Counsel for the Staterespondents, Sri A.M.Tripathi, learned
counsel for U.P. Education for All Project
Council and Sri Sanjay Bhasin, learned
counsel for UPTRON India Limited/U.P.
Electronics Corporation Limited.

The facts of the case as deduced
from the pleadings of respective parties
available on record are as under:

Both the petitioners, namely,
Brahma
Nand
Lavaniya
and
Sharad
Mehrotra are surplus employees of M/s
UPTRON India Limited and are aggrieved
by their non-absorption in the Basic
Education Department in terms of the
provisions contained in Uttar Pradesh
Absorption of Surplus Employees of
UPTRON India Limited in Government
Service Rules, 2011 (hereinafter referred to
as 'Absorption Rules, 2011') notified on
20.12.2011 and the Government Order
dated 20.12.2011.

Sri Brahma Nand Lavaniya was
initially appointed under the services of
UPTRON India Limited on the post of
Dispatch Assistant by means of an order
dated 13.07.1982. Similarly, Sri Sharad
Mehrotra was appointed as Assistant under
the
services
of
UPTRON
India
Limited/U.P.
Electronic
Corporation
Limited
by
means
of
order
dated
07.07.1979.
8 All. Ram Kishan & Ors. Vs. State of U.P. & Ors.
1385

After successfully functioning as
a commercial venture for a considerable
long period in the business of production of
television sets and other electronic items,
UPTRON India Limited became sick and
ultimately the said successful venture of the
State of U.P. was closed down.

In a meeting held under the
Chairmanship of the Chief Secretary of
U.P. on 11.12.1998, which was attended by
higher officers of the State Government
and other officers of various other State
Government
instrumentalities/undertakings, a decision
was taken to appoint the surplus employees
of UPTRON India Limited on contract
basis
to
various
Government
departments/offices and establishments.

Pursuant to the said decision,
Brahma Nand Lavaniya was appointed on
the
post
of
Computer
Operator
on
deputation in the office of specialist/Basic
Education Officer, District Agra under the
Education for All Project of the State of
U.P (hereinafter referred to as 'Sarva
Shiksha Abhiyan') by means of an order
dated 22.04.2000. Similarly, the petitionerSharad Mehrotra was also appointed on
deputation on the post of Assistant Finance
and Accounts Officer in the office of
specialist/Basic Education Officer/District
Basic Education Officer, Balia under the
Sarva Shikha Abhiyan by means of an
order dated 24.05.2002 passed by the
Project Director, Sarva Shikha Abhiyan,
U.P., Lucknow.

The age of superannuation in
terms of the provisions contained in
fundamental Rules in respect of State
Government employees is 60 years whereas
in terms of the provision of the Services
Rules applicable to the employees of
UPTRON India Limited, the age of
superannuation is 58 years. In the case of
Brahma Nand Lavaniya, an order was
passed
by
the
Managing
Director,
UPTRON India Limited on 31.07.2012
observing therein that he shall be retired
from the services of the company with
effect from the close of office hours on
31.08.2012. Similarly, in the case of Sharad
Mehrotra,
an
order
was
passed
on
27.09.2012 by UPTRON India Limited
stating therein that he shall be retired from
the services of the company with effect
from the close of office hours on
31.10.2012. The aforesaid orders dated
31.07.2012 and 27.09.2012 appear to have
been passed taking into account the fact
that the age of superannuation in UPTRON
India Limited is 58 years and the date of
birth of Brahma Nand Lavaniya is
31.08.1954
whereas
that
of
Sharad
Mehrotra is 23.10.1954.

The
aforesaid
orders
dated
31.07.2012 and 27.09.2012 are the subject
matter of challenge in Writ Petition
No.4556 (S/S) of 2012 and Writ Petition
No. 5600 (S/S) of 2012 filed by Brahma
Nand Lavaniya and Sharad Mehrotra,
respectively.

During pendency of the aforesaid
two petitions, certain directions were issued
by this Court on 01.02.2013 in Writ
Petition No.4556 (S/S) of 2012 wherein
this Court had expressed its expectation
that authorities of Sarva Shikha Abhiyan
and State Government shall work together
and come forth with a definite time-bound
proposal of absorption of the surplus
employees of UPTRON India Limited
including the petitioners. The said order
dated 01.02.2013 was passed by this Court
keeping in view the fact that the proposal
for absorption of erstwhile employees of
1386 INDIAN LAW REPORTS ALLAHABAD SERIES
UPTRON
India
Limited
who
were
appointed in Sarva Shiksha Abhiyan on
deputation
was
pending
consideration
before the State Government. The Court
thereafter passed an order on 05.03.2013 in
Writ Petition No. 4556 (S/S) of 2012 which
runs as under:-

"Pursuant
to
order
dated
22.02.2013, Sri Sunil Kumar, Principal
Secretary, department of Basic Education,
Government of U.P. and Ms. Amrita Soni,
Project Director, Sarva Shiksha Abhiyan,
Uttar Pradesh are present in Court.

On a query being put to him, Sri
Sunil Kumar, Principal Secretary stated
that Uttar Pradesh Absorption of Surplus
Employees of UPTRON India Limited in
Government Service Rules, 2011 were
notified on 20.12.2011 as a piece of
beneficial subordinate legislation to benefit
those employees who before closer of
UPTRON India Limited were working in
the said organization. He further stated
that proposal for absorption of employees
of UPTRON India Limited including the
petitioners has been received from the State
Project Director, Sarva Shiksha Abhiyan in
the State Government on 24.12.2012 and
the same is under examination and
consideration. He assures the Court that
final decision in the matter shall be taken
by the State Government within a period of
eight weeks from today.

It may, however, be noticed that
the aforesaid Absorption Rules were
promulgated on 20.12.2011 and for the
purposes of its faithful implementation, the
Government Order was also issued on the
same day i.e. on 20.12.2011. However, it is
strange to notice that even after lapse of a
period of about 15 months, so far as the
case of employees of UPTRON India
Limited who are working in deputation in
Sarva Shiksha Abhiyan are concerned, no
concrete final decision has yet been taken.
True, the Rules do not provide for any time
limit to take decision in respect of
absorption of employees of UPTRON India
Limited, however, it has to be presumed
that since Rules have been framed for the
purpose of giving certain benefits to the
employees of UPTRON India Limited, the
decision ought to have been taken within
some reasonable time. Reasonable time,
though
cannot
be
defined,
however,
considering the facts and circumstances of
the case and the situation which has all
along been faced by the employees of
UPTRON India Limited after its closer, it
was expected of the State Government as
well as Sarva Shiksha Abhiyan to have
acted promptly so as to ensure that benefit
of the rights created under the Rules is
actually extended to the employees for
whom the Rules have been framed.

A very disturbing feature in this
case, which needs to be taken notice of, is
that the petitioners in both writ petitions,
namely, Brahma Nand Lavaniya and
Sharad
Mehrotra
have
retired
on
31.08.2012 and 31.10.2012, receptively
after attaining the age of superannuation of
58 years.

It is noticeable further that the
age of superannuation as per Rules
prevalent in UPTRON India Limited is 58
years whereas as per provision governing
the age of superannuation in respect of
State Government's employees it is 60
years. Since December, 2011 till October
2012, there elapsed a long time when cases
of both petitioners could have been and
ought
to have been
considered
for
absorption.
Had
their
cases
been
considered, they would have been able to
8 All. Ram Kishan & Ors. Vs. State of U.P. & Ors.
1387
realize the right which stood crystallized to
them on promulgation of the Rules on
20.12.2011.

Sri
Sunil
Kumar,
Principal
Secretary, department of Basic Education,
Government of U.P has, however, assured
the Court that aforesaid aspect of the
matter shall also be looked into and will be
given sympathetic consideration at the time
of consideration of cases of petitioners for
absorption under the aforesaid Rules and
Government Order. The Court expresses its
complete trust and faith that the matter at
hand shall be considered by the authorities
of
State
Government
in
its
correct
perspective. Let this matter be listed on
13.05.2013.

Sri
Sunil
Kumar,
Principal
Secretary, department of Basic Education,
Government of U.P. and Ms. Amrita Soni,
Project Director, Sarva Shiksha Abhiyan,
Uttar Pradesh need not appear again
unless called for."

The Court while passing the
order dated 05.03.2013 recorded the
assurance given by the Principal Secretary,
department of Basic Education that the
matter relating to absorption of both the
petitioners shall be given sympathetic
consideration. The Court on the assurance
given by such a higher officer of the State
Government expressed its trust and faith
that matter of absorption of the petitioners
shall be considered by the authorities in its
correct perspective.

In compliance of the aforesaid
order dated 05.03.2013 passed by this
Court, an order dated 28.05.2013 has been
passed whereby the petitioners have not
been
absorbed
in
the
Education
Department, rather it has only been
provided that since they have retired on
31.08.2012
and 31.10.2012
on
their
attaining the age of superannuation after
completion of 58 years of age, they shall be
entitled to be given the benefits of postretiral dues treating them to have served
till the age of superannuation on their
attaining 60 years of age. Another order on
the same date i.e. 28.05.2013 was also
passed by the State Government whereby
as many as 75 surplus employees of
UPTRON India Limited who were working
on deputation with Sarva Shiksha Abhiyan
were directed to be absorbed in the
services of Basic Education Department of
the State Government. It is the aforesaid
order dated 28.05.2013 by which the
petitioners were not absorbed; rather they
have been given the post-retiral dues
treating them as retired on their completion
of the age of 60 years which is under
challenge in the Writ Petition No. 3316
(S/S) of 2013.

The question for consideration
for this Court in this matter is as to whether
the petitioners have wrongly been denied
the benefits of absorption in terms of the
provisions contained in Absorption Rules,
2011 and the Government Order dated
20.12.2011. Another question which falls
for consideration of the Court is as to
whether the authorities of the State
Government and Sarva Shiksha Abhiyan
have unduly delayed the matter relating to
consideration of the case of the petitioners
for absorption in terms of the aforesaid
Absorption
Rules,
2011
and
the
Government Order dated 20.12.2011 which
has resulted in denial of benefit of
absorption of the petitioners in government
service.

It is not in dispute that both the
petitioners are the surplus employees of
1388 INDIAN LAW REPORTS ALLAHABAD SERIES
UPTRON India and that a policy decision
was taken by the State Government to
absorb the surplus employees of UPTRON
India Limited working on deputation to
other departments/organisations of the
State Government, pursuant to which,
Absorption Rules, 2011 were framed and
the Government Order dated 20.12.2011
was issued.