# Samiti, Roorkee v. D.M., Hardwar and

- **Citation:** (2002) 1 ILRA 156
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001-12-21
- **Case number:** Civil Misc. Writ Petition No. 49798 of 1999
- **Bench:** S.R. Singh, D.R. Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/samiti-roorkee-v-d-m-hardwar-and-39765
- **Pages:** 6

## Headnote

Constitution
of
India,
Article
226-
appointment on Deputation - on the post
of Zila Pichhra Varg Kalyan Adhikari -
under U.P. Backward Classes Welfare
Department (Gazetted) Officers Service
Rules 1998- admittedly post in Question
falls within the preview of Public Service
Commission
-
Regular
Vacancy
advertised- Can not be questioned by
such deputanits held- No right- direction
issued to make necessary amendment if
Government think proper.
1All] Ram Anurag Verma, Z.P.V.K.A., Sultanpur and others V. State of U.P. and others
157
Held- Paras 9 and 10

In the circumstances, therefore, the
petitioners are not entitled to the reliefs
claimed herein and the writ petitions are
liable to be dismissed without prejudice
to the benefits which the petitioners
might have earned had they remained in
their parent department during all this
period.

It
is,
however,
added
by
way
of
clarification that it is always open to the
respondents to provide for absorption of
the deputationists if it is considered
expedient
so
to
do
by
the
State
Government.

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2002
156
Andheri, A.I.R. 1986 S.C. 391; B.S.M.
Samiti, Roorkee Vs. D.M., Hardwar and
others (1995) 2 U.P. Local Bodies
Education Cases 1182; M/s Munna
Industries Vs. State of U.P. and others
1994 A.L.J. 1116 and Anand Kumar
Gupta Vs. State of U.P. and others (1993)
1 U.P. Local Bodies Education Cases 165,
it was ruled that Rule 7 of Chapter XXII
of the Rules of the Court prohibits filing
of successive petitions under Article 226
of the Constitution of India.

13. Similar view was taken in 1990
(1) AWC 732. Even the Apex Court in
AIR 1986 SC 391 was pleased to rule that
the order dismissing the first writ petition
operates as res-judicata between the
parties and the person against whom the
order has been passed has got no right to
file second petition on the same facts.

14. In view of the aforesaid
discussion, I am of the view that the
petitioners are guilty of concealment and
misstatement of material facts, violation
of orders passed by this Court, violation
of Rule 7 of Chapter XXII of the Rules of
Court, abuse of process of Court and they
have not approached this Court with clean
hands as they have been attempting to
usurp the money of the Bank. They,
therefore, do not deserve any sympathy;
but looking to the fact that contempt
proceedings have already been initiated
against the petitioners, which are pending
disposal in this Court. I do not consider it
necessary at this stage to impose special
cost or to direct initiation of proceedings
for criminal contempt. I simply admonish
the petitioners not to commit such
mistakes, as pointed out above again,
failing which they will have to suffer very
serious
consequences.
It
is
further
directed that this order shall be without
prejudice to the contempt proceedings,
which are pending against the petitioners
and will not affect them adversely in any
manner.

15. In view of the aforesaid
discussions, the writ petition fails and is
hereby dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2001

BEFORE
THE HON'BLE S.R. SINGH, J.
THE HON'BLE D.R. CHAUDHARY, J.

Civil Misc. Writ Petition No. 49798 of 1999

Ram Anurag Verma, Zila Pichhare Varg
Kalyan Adhikari, Sultanpur and others

 ...Petitioners
Versus
State of Uttar Pradesh and others

 ...Respondents

Counsels for the Petitioners:
Sri R.N. Singh
Sri Ashok Khare
Sri A. Kumar
Sri Tarun Verma

Counsel for the Respondents:
C.S.C.
Sri Kripa Shankar Singh

Constitution
of
India,
Article
226-
appointment on Deputation - on the post
of Zila Pichhra Varg Kalyan Adhikari -
under U.P. Backward Classes Welfare
Department (Gazetted) Officers Service
Rules 1998- admittedly post in Question
falls within the preview of Public Service
Commission
-
Regular
Vacancy
advertised- Can not be questioned by
such deputanits held- No right- direction
issued to make necessary amendment if
Government think proper.
1All] Ram Anurag Verma, Z.P.V.K.A., Sultanpur and others V. State of U.P. and others
157
Held- Paras 9 and 10

In the circumstances, therefore, the
petitioners are not entitled to the reliefs
claimed herein and the writ petitions are
liable to be dismissed without prejudice
to the benefits which the petitioners
might have earned had they remained in
their parent department during all this
period.

It
is,
however,
added
by
way
of
clarification that it is always open to the
respondents to provide for absorption of
the deputationists if it is considered
expedient
so
to
do
by
the
State
Government.

(Delivered by Hon'ble S.R. Singh, J.)

1. Petitioners in this bunch of 14
writ petitions have, inter alia, prayed for
issuance of writ of certiorari quashing the
U.P.
Backward
Classes
Welfare
Department (Gazetted Officers) Service
Rules, 1998 (in short the Rules) in so far
as it excludes from the Rules the clause
pertaining to absorption/continuation of
those officers who have been working
from the very inception of the Department
on ad-hoc basis; a writ, order or direction
in the nature of certiorari quashing the
order dated 31.8.1999 where by the
petitioners representation for absorption
has been rejected; a writ, order or
direction in the nature of mandamus
commanding the respondents not to fill
up the posts of Zila Pichhare Varg Kalyan
Adhikari on the basis of recommendation
of the U.P. Public Service Commission; a
writ, order or direction not to fill up the
posts held by the petitioners as 'Zila
Pichhara Varg Kalyan adhikari' and not to
interfere, in any manner, with their
functioning as 'Zila Pichhara Varg
Kalyan
Adhikari'
in
the
Backward
Classes Welfare Department; and a writ,
order or direction in the nature of
mandamus commanding the U.P. Public
Service Commission not to proceed with
the final selection in respect of the posts
of District Backward Class Welfare
Officer held by the petitioners herein on
ad-hoc basis.

2. Facts necessary to highlight the
controversy stated briefly are these.
Petitioners herein were working in their
respective Departments as confirmed
employees. It would appear that on the
creation of a new Department known as
Backward Class Welfare Department
w.e.f. 12.8.1995, an advertisement was
issued in the newspaper to the effect that
appointments for the functioning for the
new Directorate in the new Department
will
have
to
be
made,
at
the
divisional/district levels on the gazetted
and
non
gazetted
temporary
posts
indicated in the notification, for the period
commencing from the date of notification
or the date of appointment, whichever
happens to be later, and ending on
29.2.1996 unless terminated earlier. A
letter dated 20.9.1995 was issued from the
office of the Chief Secretary, U.P.
Government, Lucknow visualizing there
that the appointments on the post of
gazetted and non-gazetted posts in the
new Department would be made on
temporary basis on transfer/deputation
from other departments. According to the
said communication, 53 posts of District
Backward Class Welfare Officer were
vacant in various districts. Another letter
dated 18.12.1995 was issued by the Chief
Secretary to various Secretaries and other
departmental heads informing them that
appointments on the gazetted posts of
District
Backward
Classes
Welfare
Officer would have to be made on the
recommendation by the U.P. Public
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
158
Service Commission but since it would
take time, appointments might be made
by way of transfer/deputation from other
departments such as Vikas Vibhag,
Chikitsa
Vibhag,
Shiksha
Vibhag,
Shiksha Vibhag and officers who have
had sufficient experience and were
willing to go to the present posts might be
selected for appointment on service
transfer/deputation basis. The petitioners,
it is alleged, applied and were selected for
appointment to the posts of District
Backward Classes Welfare Officer which
they accepted in the hope that they would
later on be absorbed in the department. It
is
further
alleged
that
though
the
petitioners are appointed on deputation
but no deputation allowance was ever
paid to them. Selection, it is further
alleged,
was
made
after
due
recommendation by the departmental
selection committee.

3. Respondents, however, issued an
advertisement dated 11.1.1999 in the
newspaper Rashtriya Sahara inviting
applications for regular appointments to
the 52 posts of Backward Classes Welfare
Officer
through
Public
Service
Commission
on
the
basis
of
a
preliminary/final Examination. Pursuant
to the said advertisement U.P. Public
Service
Commission
completed
the
selection the final result of which, it is
alleged, was expected to come in the first
week of May, 2000. Some of the
petitioners,
it
is
alleged,
preferred
representations to the Director, Backward
Class Welfare Department to the effect
that a provision was made for absorption
in the draft Niyamawali known as U.P.
Adhinastha Seva Chayan Ayog Vaiyaktik
Sahayak Niyamawali, 1995, but the
Public Service Commission in exercise of
powers
under
Article
320
of
the
Constitution of India declined to approve
of the clause providing for absorption of
deputationist in the U.P. Backward Class
Gazetted Officers Service Rules, 1998.
The representation having been rejected
by the State Government vide impugned
order dated 31.8.1999 (annexure no. 13)
to the writ petition no. 49798 of 1999 and
the petitioners have approached this Court
for the aforesaid reliefs.

4. We have had heard Sri R.N.
Singh, Senior Advocate for the Petitioners
and Sri Ashok Khare, Senior Advocate
representing the candidates who claimed
to have been selected by the Public
Service Commission for the appointment
to the posts aforestated. We have also
heard
Sri
Kripa
Shankar
Singh
representing the State.

5. Legal position well settled is that
a government servant on deputation can
be reverted to his parent department at
any time in that he does not get any right
to be absorbed on the deputation post.1 In
the absence of statutory rules providing
for absorption of a deputationist in the
borrowing department, absorption. If
made, would be contrary to law and
violative of Articles 14 and 16 of the
Constitution of India. The Posts of
District
Backward
Classes
Welfare
Officer concededly falls within the
purview of Public Service Commission
and it being not disputed that the
petitioners herein were appointed on the
posts
on
the
basis
of
service
transfer/deputation
with
specific
stipulation that it would continue till
availability of candidates selected by the
Commission or further order whichever

1 Rati Lal B.Soni & ors. Vs. State of Gujrat &
others AIR 1990 SC 1132
1All] Ram Anurag Verma, Z.P.V.K.A., Sultanpur and others V. State of U.P. and others
159
event might happen earlier, acquired no
right,
in
the
absence
of
statutory
provisions, to be absorbed. The right to
absorption
claimed
by
them
is
impermissible. A deputationist can claim
right to be considered for absorption only
if the rules provide for absorption and not
otherwise.2

6. It has, however, been submitted
by Sri R.N. Singh that upon regard being
had to the services rendered by the
petitioners, the Government ought to have
directed
their
absorption
in
the
department in which they have been
serving on deputation with a view to
avoiding 'undue hardship' by invoking
the provision of relaxation as visualized
by Rule 26 of the Service Rules, Shri
Ashok Khare submits that Rule 26 has no
application to conditions of recruitment,
Rule 26 of the Uttar Pradesh Backward
Classes Welfare Department (Gazetted
Officers) Service Rules, 1998 may be
quoted hereunder:

"Relaxation from the conditions of
Service - Where the State Government is
satisfied that the operation of any rule
regulating the conditions of service of
persons appointed to the service causes
undue hardship in any particular case, it
may, notwithstanding anything contained
in the rules applicable to the case, by
order,
dispense
with
or
relax
the
requirements of that rule to such extent
and subject to such conditions as it may
consider necessary for dealing with the
case in a just and equitable manner:

Provided that where a rule has been
framed
in
consultation
with
the

2 G.Muniyappa Naidu Vs. State of Karntaka &
ors. (1976) 4 SCC 543
Commission, that body shall be consulted
before the requirements of that rule are
dispensed with or relaxed."

7. It cannot be gainsaid that if the
Rules
provide
for
absorption
of
employees on deputation then such
employees do have a right to be
considered for absorption in accordance
with Rules3 but the Rules in the instant
case do not provide for any absorption in
that the provisions contained in Rule 26
providing
for
relaxation
pertain
to
'conditions of service' which is district
from 'conditions of recruitment' We find
substance in the submissions made by Sri
Ashok Khare that the power of relaxation
under Rule 26 is confined to 'conditions
of service' and it does not authorize
relaxation
of
any
rule
regulating
'conditions of recruitment'. In Syed
Khalid Rizvi and others Vs. Union of
India and others4 it has been held that
"conditions of service may be classified
as
salary,
confirmation,.
Promotion,
seniority, tenure or termination of service
etc..." Rule 3 of the Residuary Rules
therein conferred the power to relax rules
and regulations in certain cases where the
Central Government was satisfied that the
operation of any rule made or deemed to
have been made under the Act, or any
regulation made under any such rule
regulating the conditions of service" of
persons appointed to an all India Service,
causes "undue hardship" in any particular
case. Construing the said rule, the Apex
Court held as under:

"Rule
3
empowers
the
Central
Government to relieve undue hardship

3 Rameshwar Prasad Vs. M.D.U.P.Rajkiya
Nirman Nigam Ltd. 7 ors. 1999 (83) FLR 442
4 1993,Supp (3) SCC575
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
160
caused. due to unforeseen or unmerited
circumstances. The Central Government
must be satisfied that the operation of the
rule or regulation brought about undue
hardship to an officer. The condition
precedent, therefore, is that there should
be an appointment to the service in
accordance with rules and by operation of
the rule, undue hardship has been caused.
That too in an individual case. The
Central Government on its satisfaction of
those conditions, have been empowered to
relieve such undue hardship by exercising
the power to relax the condition. It is
already held that the conditions of
recruitment and conditions of service are
distinct and the latter is preceded by an
appointment according to Rules. The
former cannot be relaxed."

8. It may be pertinently observed
that one Mahendra Singh who was
similarly appointed to the service on
deputation filed a writ petition, being Writ
Petition no. 55 (S/B) of 2001, in the
Lucknow Bench of the Court seeking
issuance of a writ in the nature of
mandamus commanding the opposite
parties thereto to absorb him to the post of
District Pichhra Varg Kalyan Adhikari
and for that purpose to amend the service
rules. A Division Bench of this Court
held, that in view of the fact that the
petitioner was appointed purely on ad-hoc
basis till availability of a candidate
selected by the Commission and since
regularly selected candidates had become
available, the State Government had no
option but to repatriate the petitioner to
his parent department and accordingly
dismissed the writ petition and vacated
the interim order passed therein. In the
appointment
letters
issued
to
the
petitioners it was specifically provided
that they would be repatriated to their
parent departments on candidates selected
by
the
Public
Service
Commission
becoming available. In the circumstances
there can not be any estoppel against
State. The view taken by the Government
that in the absence of any Rules,
absorption of the petitioners in the cadre
is impermissible, cannot be termed
arbitrary or whimsical and, therefore,
cannot be faulted. It is not disputed that
the petitioners have not lost their lien in
their parent departments. The decision in
Nitasha Paul Vs. Mahrishi Dayanand
University, Rohtak & others, 5 relied on
by Sri R.N. Singh has no application to
the facts of the present case. In the
circumstances, therefore, the petitioners
are not entitled to the reliefs claimed
herein and the writ petitions are liable to
be dismissed without prejudice to the
benefits which the petitioners might have
earned had they remained in their parent
department during all this period,

9. It is, however, added by way of
clarification that it is always open to the
respondents to provide for absorption of
the deputationists if it is considered
expedient
so to do by the State
Government.
Absorption
of
deputationists, it cannot be gainsaid
involves and requires taking of a policy
decision
at
the
end
of
the
State
Government and once decision is taken to
regularise the services of deputationists,
appropriate rules may be made in that
regard. That is the purport of the letter
dated 9.3.1998 of the joint Secretary,
Public
Service
Commission,
Uttar
Pradesh to Secretary, U.P. Government
Pichhare
Varg
Kalyan
Annubhag-1,
Lucknow. The said letter, in our opinion,
would not operate as a bar to making of

5 JT 1996 (1) SC 636
1All] Mewa Ram & another V. State of U.P. through Shiksha Sachiv(Basic) & another
161
appropriate Regularisation Rules either by
amending the existing Rules or otherwise.

In the result, therefore, the petitions
fail and are dismissed with costs on
parties subject, of course, to above
observations.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD DECEMBER 6, 2001

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 39189 of 2001

Mewa Ram and another ...Petitioners
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioners:
Sri Syed Wajid Ali

Counsel for the Respondents:
S.C.

Constitution
of
India,
Article
226-
Selection for special B.T.C.- Rejection on
candidature on the ground they have
obtained B.Ed. Degree from Kumaun
University which out of state of U.P.-
held not proper Kumaun University still
governs with the Provisions of U.P. State
Universities Act 1975 apart from law laid
down by the Court reported in 2000 (2)
UPLBEC-1340.

Held - Para 4

In this regard, two factors are relevant
to be kept in mind, first that Kumaun
University, Nainital is still regulated and
governed by the provisions of U.P.State
Universities Act, 1975 and secondly in
view of the law laid down by this (sic) in
the case of Upendra Rai Versus State of
U.P. and others, reported in 2000 (Vol.2)
U.P. L.B.E.C. 1340, even assuming that
petitioner Mewa Ram has passed his
B.Ed. Degree from an University outside
State of U.P., which is established under
law, his application form can not be
declared as not maintainable as this
condition has been held to be ultra vires
by the Division Bench of this Court in the
aforesaid case of Upendra Rai (supra).

(Delivered by Hon'ble Anjani Kumar, J.)

1. Heard Sri Syed Wajid Ali,
learned, counsel appearing on behalf of
the petitioners and learned Standing
Counsel representing the respondents.

2. This petition has been filed by
two petitioners, namely, Mewa Ram and
Mahipal Singh for the relief that their
applications for selection for Special BTC
pursuance to the advertisement dated
14.8.2001,Annexure-5 to the writ petition,
as amended from time to time may not be
rejected only on the ground that the
petitioners, who have passed their B. Ed.
course from Kumayun University, which
now from part of Uttaranchal State.

3. It is submitted that petitioner no. 2
has passed his B.Ed. examination in the
year 1999. At that time, State of
Uttaranchal has not come into existence,
which came into existence in the month of
November,
2000
by
U.P.
State
Reorganisation Act, 2000, therefore at
that time the petitioner no.2 who has
passed his B.Ed. course from Kumaun
University. Nainital can not be said to be
passed the degree from an University
situated outside the State of U.P. and in
this view of the matter his application can
not be rejected on the ground that he has
not passed his B.Ed. degree from an
University situated within the State of
U.P.