# Smt. Geeta Dixit & Ors v. The Secy. Govt. of U.P. & Ors

- **Citation:** (2016) 1 ILRA 81
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-01-29
- **Bench:** V.K. Shukla, Mahesh Chandra Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-geeta-dixit-ors-v-the-secy-govt-of-u-p-ors-43464
- **Pages:** 19

## Headnote

C.S.C.
U.P. Absorption of Retrenched Employees of
Government
or
Public
corporation
in
Government Service Rules 1991-Rule 3 (1)
read with U.P. Absorption of Retrenched
Employee
of
Government
or
Public
Corporation
in
Government
Services
(Recession) Rules 2003-Rule 3 (2)(ii)-
Project officers working under non formal
education
scheme-after
abolition
of
scheme-Government decided to absorb
them as L.T Grade teacher in Government
Inter College-the G.O. by which decision
taken-High Court directed to re-consider
the feasibility of protection of status and
pay-High
Court
considering
them
as
retrenched
employee
issued
directionadmittedly the petitioners not worked since
April 2001-after 08.04.2003 the date on
enforcement of (Recession) Act 2003-their
services automatically dispense with-no
question of arrears of salary and other
consequential benefits-as two wrong can
not make one right-petition dismissed.
Held: Para-23 & 24

## Text

_Characters 0–39,677 of 68,967. This is a partial read: ask again with offset=39677 for what follows._

1 All. Smt. Geeta Dixit & Ors. Vs. The Secy. Govt. of U.P. & Ors.
81
and the next date was fixed as 10.12.2015.
It also does not appear to be a disputed fact
that the counsel who had been conducting
the trial was no more counsel in the case
because of his own refusal or because of the
withdrawal of the instructions by the
applicants.
In such a situation, the
opportunity of two days time to engage the
new counsel to cross examine the witness
and conduct the trial does not appear to be
an adequate opportunity. It cannot be said
with any justification that in such a short
time even if a new counsel was engaged he
could have prepared the case and do justice
with the trial of murder.
In such
circumstances, in order to arrive at the ends
of justice and in order to meet and fulfill the
vital requirements of equity and in order to
ensure a fair trial, this Court feels inclined
to direct that the trial court should fix some
date and call the aforesaid witness to be
cross examined by the accused.
6. It may be observed that whenever
the witness appears in the Court to be
cross examined, no adjournment shall be
sought on behalf of any of the accused
and cross examination will be done on
that very date. If at all any adjournment is
sought by accused, the court shall be at
liberty to close the evidence and proceed
with the trial in accordance with law.
7. In view of the above, the
impugned order dated 16.12.2015 stands
set aside. The court below is required to
take steps in order to get the witness cross
examined in the light of the directions
made in this order.
8. The application stands allowed.
9. A copy of this order be certified
to the lower court forthwith.
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.01.2016
BEFORE
THE HON'BLE V.K. SHUKLA, J.
THE HON'BLE MAHESH CHANDRA TRIPATHI, J.
Writ -A No. 45262 OF 2015
Smt. Geeta Dixit & Ors.
 ...Petitioners
Versus
The Secy. Govt. of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
L.C. Srivastava, Neeraj Srivastava
Counsel for the Respondents:
C.S.C.
U.P. Absorption of Retrenched Employees of
Government
or
Public
corporation
in
Government Service Rules 1991-Rule 3 (1)
read with U.P. Absorption of Retrenched
Employee
of
Government
or
Public
Corporation
in
Government
Services
(Recession) Rules 2003-Rule 3 (2)(ii)-
Project officers working under non formal
education
scheme-after
abolition
of
scheme-Government decided to absorb
them as L.T Grade teacher in Government
Inter College-the G.O. by which decision
taken-High Court directed to re-consider
the feasibility of protection of status and
pay-High
Court
considering
them
as
retrenched
employee
issued
directionadmittedly the petitioners not worked since
April 2001-after 08.04.2003 the date on
enforcement of (Recession) Act 2003-their
services automatically dispense with-no
question of arrears of salary and other
consequential benefits-as two wrong can
not make one right-petition dismissed.
Held: Para-23 & 24
23. We are constrained to make a
mention that inspite of categorical provision
of Rule 1991 no other provisions were
available to the State Government for any
absorption of incumbent, once the project
82
 INDIAN LAW REPORTS ALLAHABAD SERIES
was abrogated but at no point of time
neither Rule, 1991 nor Rule, 2003 has been
looked into. As indicated above, detail
procedure was prescribed for absorption of
retrenched
employee,
but
no
such
procedure had ever been adopted in the
matter. This is undisputed factual position
that in the State of U.P for retrenched
employees the State Government has
framed the Rules of 1991 and thereafter the
State
Government
had
proceeded
to
promulgate Recession Rules of 2003. Once
the Rules of 1991 was rescinded by means
of Rules of 2003 and as such thereafter
there is no provision of absorption of the
retrenched employees. Whereas in the
present case undisputed factual position,
which is emerging is that petitioners' claims
are
not
better
than
the
retrenched
employees. They were engaged purely
under the project known as 'Non-Formal
Education Project' and the said project had
come to an end itself in the year 2001.
Thereafter the State Government under its
wisdom has proceeded to absorb the
Project Officers against L.G. Grade teachers
and once the petitioners have not chosen to
be absorbed under the L.T. Grade Teachers,
even though they were not the retrenched
employees.
24.
The petitioners have contended
that their right had accrued in the past in
their favour and as such, they were entitled
for absorption according to their status but
as indicated above at no point of time the
petitioners were given any certificate to
indicate that they were the retrenched
employees contrary their engagement was
purely temporary in nature and was liable
to be terminated at any time without any
prior
information.
The
petitioners
are
claiming that they may be absorbed
according to their status whereas the writ
jurisdiction is meant to enforce the rule of
law and not to violate the law. Once the
State Government had framed the Rules of
1991, which was eventually rescinded by
means of Rules of 2003 and admittedly the
case of petitioners did not fall under the
category of retrenched employees, no
directive can be issued in violation to the
Rules merely because some incumbents
have been offered appointment, under the
cover of the orders passed by this Court will
not improve the case of the petitioners as
two wrongs will not make a thing right, and
equality in illegality, is totally against the
rule of fair play and demand of petitioners,
if accepted would be clearly violative of
Articles 14 and 21 of Constitution of India.
Case Law discussed:
(1997) 8 SCC 372; AIR 1973 SC 2641; 1996
(3) ESC 622 (SC); Civil Appeal No. 5203 of
2004.
(Delivered by Hon'ble M.C. Tripathi, J.)
1. Smt. Geeta Dixit and 5 others are
before this Court for quashing Para 5 (1)
of the impugned order dated 15.6.2015
passed by the Secretary, Basic Education,
Government of UP, Lucknow-respondent
no.1 and have further prayed for direction
commanding the respondents to extend all
consequential benefits alongwith 12%
interest thereon treating cadre holder post
as per terms of earlier judgment dated
5.4.2002.
2. Brief background of the case, as is
reflected from the record, is that a NonFormal Education Scheme was initially
introduced by the Central Government in the
year 1979-80 for imparting education to
children in the age group of 6 to 14 years,
who either did not attend any school or who
after the joining left the school before
completing primary education. Initially the
expenses incurred towards the said scheme
were shared by the State Government and
Central Government in the ratio of 50 : 50
but later on, it was revised to 40% : 60%.
The said scheme was implemented in the
State of Uttar Pradesh under the Directorate
of Education (Basic) U.P. For the smooth
running of the scheme, certain posts,
including the posts of Supervisors were
1 All. Smt. Geeta Dixit & Ors. Vs. The Secy. Govt. of U.P. & Ors.
83
created by the State Government vide
Government Order dated 11.8.1981 to
supervise the work at various centres.
Consequently appointments were made to
the post of Supervisors by the Government
on 11.2.1982. The said scheme was purely
temporary in nature. Appointments were
made purely on temporary and adhoc basis
and were liable to be terminated at any time
without notice. It appears that subsequently
the said scheme was modified and was
known as 'Non-Formal Education Project'.
Various
posts
were
created
by
the
Government on 30.3.1988. The said posts so
created included the post of Project Officer at
project level. It is also reflected that the
project itself was temporary in nature. The
Government Order clearly visualised that all
the posts would be temporary liable to be
abolished at any time without any prior
information.
3.
It is also reflected that the posts
other than the posts of Project Officer
(Pariyojana Adhikari) had their equivalent
posts in the education department under the
Director of Education, U.P. and accordingly
all the posts other than posts of Pariyojana
Adhikari were filled on deputation by
transfer
of
officers/officials
holding
equivalent posts in the regular education. The
State
Government
vide
order
dated
15.7.1988 had proceeded to appoint a
Selection Committee empowered to select
Project Officers. As per terms and conditions
the persons appointed as Project Officers
would be bound to work for at least three
years and further that on cessation of the
project, their services would automatically
come to an end. The Non-formal Education
Project as indicated above continued till
31.3.2001.
Thereafter,
the
Central
Government stopped funding and abrogated
the
project.
Consequently,
the
State
Government proceeded to come out with a
revised project under the name of 'Education
Guarantee Scheme and Alternative and
Innovative Education' w.e.f. 1.4.2001. The
petitioners did not hold any lien on any posts
as
they
were
initially
appointed
as
supervisors under 'Non-Formal Education
Scheme', the posts were abolished but they
were selected and re-engaged on the post of
Project Officers under the 'Non-Formal
Education Project' itself. Most of the
petitioners were issued appointment letters
on 13.8.1989 and on 27.2.1991. A Writ
Petition being Civil Misc. Writ Petition No.
42806 of 2000 came to be filed by
Pradeshiya Pariyojana Adhikari Anopcharik
Shiksha Sangh, U. P., through its General
Secretary and ors. v. State of U. P. and Ors.,
inter-alia for the following reliefs :
"(a) A writ, order or direction of a
suitable nature commanding the respondents
to treat the posts of Project Officer, NonFormal Education as cadre post in the
subordinate education (Gazetted) service
with all consequential benefits thereof to the
petitioners and the members of the petitioner
No. 1 Association;
(b) A writ, order or direction of a
suitable
nature
commanding
the
respondents to treat the petitioners as
regularly and substantively appointed on
the post of Project Officer, Non-Formal
Education and as members of Subordinate
Education (Gazetted) Service with all
consequential benefits thereof;
(c) A writ, order or direction of a
suitable
nature
commanding
the
respondent No. 1 to take a Director, NonFormal Education, U. P., Lucknow, as
contained in his communication dated
4.2.1999 and 19.1.2000 (Annexures-20
and 17 to the writ petition) ; within a
period to be specified by this Hon'ble
Court and to maintain the existing status
of the petitions till such decisions ;"
84
 INDIAN LAW REPORTS ALLAHABAD SERIES
4.
The aforesaid writ petition was
finally disposed of by order dated 9.10.2000
with a direction to the State Government to
take final decision on the representations
filed by the petitioners therein after taking
into reckoning the recommendation made by
the Director, Non-Formal Education, U. P.,
Lucknow vide letters dated 4.2.1999 and
19.1.2000. The decision was required to be
taken by means of a reasoned order, if
possible, within two months from the date of
production of certified copy of that order.
Consequent upon the said direction, the State
Government took up the matter but
ultimately rejected the representations vide
order
dated
23.3.2001.
However,
on
24.3.2001 the Government issued another
order visualising thereby that after the
cessation/revision of 'Non-Formal Education
Project' w.e.f. 31.3.2001 due to non-sanction
of funds by the Central Government, services
of the Project Officers/ Assistant Project
Officers working at project level on ex-cadre
posts although came to an end but it was
decided by the Government on humanitarian
grounds that such Project Officers/Assistant
Project Officers, who were working on excadre posts would be absorbed in the
available posts of Assistant Teacher L.T.
Grade in the pay scale of Rs. 4,500-7,000
with a clear stipulation that they would not
get any pay protection on account of such
absorption. The orders dated 23.3.2001 and
24.3.2001 were challenged in Writ Petition
No.13653 of 2001. After exchange of the
pleadings between the parties, the aforesaid
Writ Petition alongwith 32 writ petitions
were partly allowed by a common judgment
dated 5.4.2002, being leading Writ Petition
No.12879 of 2001 (Uma Shanker Singh and
ors vs. State of UP and ors) with following
observations:-
"6. On behalf of the petitioners main
argument was advanced by Sri Ashok Khare,
Senior Advocate while on behalf of the State,
Sri Vinod Swarup, Additional Advocate
General appeared in these petitions. The nub
of the submissions of Sri Ashok Khare is two
fold : first, that the petitioners have been
illegally denied the status and pay they were
enjoying as Project Officers on erroneous
view that the posts of Project Officers were
ex-cadre posts ; and second, that the
petitioners have been illegally discriminated
from the incumbents of other posts in the
project whose status and pay have not been
disturbed after the cessation of the project,
Sri Vinod Swarup on the other hand
submitted that the petitioners could not
legally claim any parity
with those
incumbents of the posts of Project Officers,
who had permanent lien in the education
department and who have been repatriated to
their substantive posts after abolition of the
posts of Project Officers. As regards pay
protection it has been submitted by the
learned Additional Advocate General that
any protection of status and pay if given to
the petitioners would result in denial of
equality of treatment to those, who have been
repatriated to their parent department.
7.
As regards the plea that the
petitioners were not appointed on deputation,
we are of the view that the use of the word
'deputation' in the appointment orders in
relation to the petitioners was a misnomer. In
State of Punjab and ors vs. Inder Singh and
ors, (1997) 8 SCC 372, the Supreme Court
explained the concept of 'deputation' in the
following words :
The concept of "deputation" is well
understood in service law and has a
recognised meaning. "Deputation" has a
different connotation in service law and
the dictionary meaning of the word
"deputation" is of no help. In simple
words "deputation" means service outside
the
cadre
or
outside
the
parent
1 All. Smt. Geeta Dixit & Ors. Vs. The Secy. Govt. of U.P. & Ors.
85
department. Deputation is deputing or
transferring an employee to a post outside
his cadre, that is to say, to another
department on a temporary basis. After
the expiry of period of deputation the
employee has to come back to his parent
department to occupy the same position
unless in the meanwhile he has earned
promotion in his parent department as per
the Recruitment Rules. Whether the
transfer is outside the normal field of
deployment or not is decided by the
authority who controls the service or post
from which the employee is transferred.
There can be no deputation without the
consent of the person so deputed and he
would, therefore, know his rights and
privileges in the deputation post. The law
on deputation and repatriation is quite
settled as we have also seen in various
judgments which we have referred to
above. There is no escape for the
respondents now to go back to their
parent departments and working there as
Constables or Head Constables as the case
may be."
8.
Since the petitioners did not have
any lien on any of the posts and rather they
were appointed directly on the posts of
Project Officers and not on transfer from any
other department, they cannot be said to be
deputationists. The earlier report of the
Director Basic Education (Non-Formal
Education) submitted in this regard on
19.1.2000, was correct and the subsequent
report justifying the use of the word
"deputation" in the appointment orders of the
petitioners is unsustainable. However, since
the posts of Project Officers were abolished
and incumbents could not claim absorption
or regularisation as of right on equivalent
posts, in the absence of the statutory rules,
what is now to be examined is whether
Government having decided to absorb the
petitioners could legally protect their status
and pay. In this connection, Sri Vinod
Swarup has submitted that is the status and
pay of the petitioners are protected, that
would be violative of fundamental rights of
other Project Officers, who have been
repatriated to their substantive posts of SubDeputy Inspector, Inspector of Schools,
Assistant Teacher L.T. Grade, Lecturer and
Extension Teacher after abolition of the
project. The Government have not adverted
to this aspect of the matter while deciding the
petitioners' representation and since for the
reasons
disclosed
hereinafter,
we
are
persuaded to remit the matter to the State
Government for reconsideration. We do not
consider it necessary to express any opinion
on the submission of the Additional
Advocate General that if status and pay of
the petitioners are protected, that would
result in violation of fundamental rights
guaranteed by Articles 14 and 16 of the
Constitution of other Project Officers, who
have been repatriated to their parent
department. It is for the Government to see
whether protection of status and pay to the
petitioners would lead to violation of Articles
14 and 16 of the Constitution.
9.
There is no denying fact that
creation and abolition of posts are the
attributes of the exercise of sovereign power
of the State, State of U. P. and Anr., v. Dr. P.
B. L. Saxena, AIR 1969 All 449 (FB), for
"every sovereign Government has within its
own jurisdiction the right and power to create
whatever public offices it may regard as
necessary to its proper functioning and its
own internal administration and to abolish
such offices as it may deem superfluous, 42
Am Jur 902 para 31 quoted in para 36 of the
judgment by R.S. Pathak, J. (as he then was)
in State of V.P. And another vs. Dr. P. B. L.
Saxena (supra)." The Supreme Court in N.
Ramanatha v. State of Kerala, AIR 1973 SC
2641. too has very clearly laid down that the
power to create, continue and abolish any
86
 INDIAN LAW REPORTS ALLAHABAD SERIES
civil post is Inherent in every sovereign
Government and the decision in this regard is
taken as a matter of Government policy
depending on exigencies of circumstances
and administrative necessities. In fact, the
petitioners have not questioned the abolition
of posts of Project Officers and other posts
created under the Non-Formal Education
Project. What is essentially under challenge
in these petitions is the denial of status and
pay
protection
while
absorbing
the
petitioners after abolition of posts of Project
Officers. We are of the considered view that
although the petitioners could not claim, on
abolition of posts of Project Officer created
under Non-Formal Education in which they
were appointed as of right, their absorption
but once it was decided by the Government
to absorb the retrenched Project Officers, it
was obligatory for the Government to follow
such norms and conditions as may have been
laid down from time to time for absorption of
surplus or retrenched employees.
10. Attention of the Court was
invited to G.O, No. 88 (l)/66 O&M dated
Lucknow March 2, 1967, laying down the
terms and conditions of absorption of
surplus employees. Surplus employees
according to the said Government order
could broadly be placed in the following
categories :
"(a) those rendered surplus as a result
of raising of norms of work or other
economy
measures
approved
by
Government.
(b) those rendered surplus as a result
of
reorganisation
of
a
department/
organisation/ office with a view to
improve efficiency or to effect economy.
(c) all other viz., who have been
recruited for specified jobs expected to
last for a specified period or whose
services are terminated in the normal
course in accordance with the terms and
conditions of their service such as
additional
copyists,
seasonal
peons
attached to collection Amins, etc."
11.
So far employees under category
(c) above are concerned, the Government
order aforesaid visualised that since they
were recruited for a particular work and they
clearly knew that their term of employment
would expire after a specified period,
therefore,
their
services
should
stand
terminated on completion of the work or on
the expiry of the fixed period for which they
were employed in accordance with the terms
and conditions of their appointments. As
regards the employees under categories (a)
and (b) above, they may be either permanent
or temporary. These persons are to be
absorbed on posts which may fall vacant on
account of retirements, discharge, death, etc.
or on new posts which may be created in
future to meet the requirements of public
work, and for that purpose, the terms and
conditions of their absorption as laid down in
the Government order are as under :
"A. Permanent employees will be
absorbed in posts in identical or higher scale
of pay, their pay being fixed in accordance
with the existing rules except that in case of
absorption on a higher posts, their pay will
not be fixed at a stage next above the existing
pay because such a case cannot be treated as
a case of promotion and of assumption of
duties and responsibilities of higher order in
the normal course. They will also be allowed
to draw their next increment on the same
date on which they would have drawn it on
their old post. On absorption in other
departments, they will retain their lien on
their permanent posts until they are
confirmed on their new posts. They will also
be eligible for promotion in their old
department in clear and regular vacancies till
they are confirmed on their new posts ; but
their cases will not be considered for
promotion to vacancies of shorter duration as
that will mean unnecessary dislocation. The
1 All. Smt. Geeta Dixit & Ors. Vs. The Secy. Govt. of U.P. & Ors.
87
procedure of absorption will be the same as
adopted in normal course in releasing
permanent Government servants for taking
up new appointments in other departments
and they will be entitled to all such facilities
as are admissible under normal rules except
as provided above.
B. (i) Temporary employees, as far
as possible, will be absorbed in identical
scale of pay. If such posts are not
available they may be absorbed in posts in
lower or higher scales of pay. Pay in such
cases will be fixed in accordance with the
following orders and they will be allowed
to draw their next increment on the same
date on which they would have drawn it
on their old post:
(a) In case of absorption in lower posts,
pay will be fixed at the same stage at which
he was drawing pay in his old post by taking
recourse to the provisions of Fundamental
Rule 27, Financial Hand Book, Vol. II, Part
II subject to the condition that the pay so
fixed does not exceed the maximum of the
pay scale of the new post. If there is no
corresponding stage, the pay will be fixed at
the next lower stage, difference being
allowed under Fundamental Rule 19 read
with Fundamental Rule 9 (23) (b), Financial
Hand Book, Vol. II, Part II as personal pay to
be absorbed in future increments. If an
employee is drawing more than the
maximum of scale of pay of his new post, the
difference will be allowed as personal pay to
be absorbed in future increases of pay on
account of promotion, if any, or for any other
reasons
(b) In case of absorption in a highest
post, the benefit of fixation of pay at the
stage next above the present pay will not
be allowed and the pay will be fixed at the
same stage, or if there is no such stage
then at the" next below stage-difference
being allowed under Fundamental Rule
19 read with Fundamental Rule 9 (23) (b).
Financial Hand Book, Vol. II, Part II as
personal pay to be absorbed in future
increments.
(ii) To facilitate fixation of pay of
these employees, the Governor has been
pleased
to
delegate
to
Heads
of
Departments, the power of fixation of pay
of such employees under Fundamental
Rule 27, Financial Hand Book Vols. II to
IV
in
accordance
with
the
above
principles. The cases -not covered by
these orders should be referred to
Government
in
the
administrative
department concerned.
(iii) The procedure for absorption will
be that as soon as an alternative appointment
is available, the surplus employee shall be
served with the formal orders, to be passed
by the competent authority, for termination
of the services of the employee concerned. in
accordance with his terms and conditions of
appointment and simultaneously informed
about the alternative appointment. If he
agrees to join the new post within the period
allowed, he will be appointed on the new
post by the appropriate authority for the new
post, but if he fails to do so, his services shall
stand terminated in accordance with the
formal orders already served on him. If he
Joins the new post, he will be allowed a
compensatory allowance which will be equal
in amount to what would have been
admissible to him under Rule 42, Financial
Hand Book, Vol. III in the event of his
transfer in the Interest of Government work
from his old to the new post. The amount so
paid will be debited to the primary unit
"Allowances
and
Honoraria"
of
the
departmental budget from which the pay of
the new post is to be met. On absorption, the
temporary employee will be deemed to have
severed all connections with his previous
post, but he will carry forward his leave
account and his post service will count for
pension if he is later confirmed in his new
88
 INDIAN LAW REPORTS ALLAHABAD SERIES
post without interruption in service. Any
break occurring between the relinquishment
of the charge on the old post and the
assumption of the charge on the new post
which does not exceed the rules on the
subject as standing on the date of such
relinquishment in a case of transfer from the
old to the new post will not be deemed to be
an interruption within the meaning of Article
420, C.S.R., but the period of such break
itself will not count as qualifying service.
Inter se seniority of such an employee in the
new department or in respect of new post
will be fixed in accordance with principles
which will be communicated separately by
the Appointment Department."
12. In Dr. Chittaranjan Sharma and ors
vs. State of Himachal Pradesh and another,
1996 (3) ESC 622 (SC), the appellants
therein were not regularly appointed in H.
I.M. Ayurvedic Degree College, Paprola,
Kangra, which was taken over by the
Government and handed over to Himachal
Pradesh
Health
and
Family
Welfare
Department and under relevant clause of the
agreement, existing staff, Principal, Teaching
and another employees were eligible to be
absorbed in the college on a recommendation
made by the screening committee after
taking into consideration as to whether they
fulfilled requisite conditions. The appellants
therein
were
absorbed
in
suitable
administrative posts to which they were
eligible. They challenged their absorption
before the Administrative Tribunal. The
Tribunal directed to maintain the scale of pay
which they were drawing on the date of the
takeover and directed their absorption in the
posts of Ayurvedic Chikitsa Adhikaries, etc.
The Supreme Court held :
"It is seen that since the appellant had
not fulfilled the requisite qualifications either
when they were initially appointed by the
committee before takeover nor when
statutory rules were made by the Governor
so as to enable for absorption. Instead of
retrenching them from service, due to nonfulfilment of the requisite qualifications, the
Government came to absorb them in the
Ayurvedic Chikitsa, Adhikaries post, etc. to
which they are eligible. The Tribunal has
given the direction to maintain the pay scales
and to make adjustment and absorption. In
our view, directions are correct and based on
equity and do not call for any interference.
They may also be considered for further
promotion from the absorbed posts in
accordance with the rules."
13. Since the Government have not
addressed itself to factors relevant to the
question as to protection of pay and
status, we are of the view that the matter
should
be
remitted
to
the
State
Government for reconsideration.
14. Accordingly, the petitions succeed
and are allowed in part. The impugned order
dated 23.3.2001 is quashed. The matter is
remitted to the State Government to
reconsider the feasibility of protection of pay
and status of the petitioners after taking into
reckoning all the relevant factors stated in this
judgment and if necessary to modify its order
dated 24.3.2001, accordingly."
5. It is also reflected from the record
that the State Government has proceeded to
challenge the aforesaid judgement passed by
Division Bench of this Court by means of
Special Leave Petition No.12422 of 2002
(State of UP and ors vs. Smt. Vandana Singh
and ors). Hon'ble Supreme Court vide an
order dated 22.7.2002 had stayed operation
of the judgement dated 5.4.2002 passed by
the Division Bench. Finally the Civil Appeal
No.8658 of 2002 and other connected
appeals were dismissed on 1.12.2011 with
following observations:-
"Having heard learned counsel for
the parties and perused the impugned
1 All. Smt. Geeta Dixit & Ors. Vs. The Secy. Govt. of U.P. & Ors.
89
judgment, we are of the opinion that the
direction by the High Court to the
Government to consider the question of
protection of pay and status of the writ
petitioners in the light of the observations
made in the impugned judgment, does not
warrant
our
interference
with
the
impugned judgment. Accordingly, the
appeal is dismissed.
However, having regard to the fact
that the issue is hanging fire for over 10
years, we would request the authorities
concerned to take a final decision in the
matter, as expeditiously as practicable and
in any case, not later than 6 months from
the date of receipt of a copy of this order.
In view of the order passed in the
appeal, all applications for impleadment
and intervention are rendered infructuous
and are disposed of accordingly.
CIVIL APPEAL NO. 631 of 2007
In light of the order passed in Civil
Appeal No. 8658 of 2002 arising out of
SLP(C) No. 12422 of 2002 [@ C.M.W.P.
No. 18619 of 2001], this appeal also
merits dismissal. We order accordingly.
However, insofar as the enforcement of
order dated 5th September, 2002 passed
by the High Court of Uttarakhand at
Nainital in terms of the subsequent order
dated 8th June, 2004 passed in Civil
Contempt Petition No. 96 of 2003 is
concerned, it will be open to the parties to
pursue appropriate remedy as may be
available to them in this behalf."
6. After the aforesaid matter attained
finality, the opposite parties considered
the matter and passed an order on
27.09.2012, whereby the petitioners were
granted
the
revised
pay
scale
corresponding to the pay scale of post of
Project Officer/ Assistant Project Officer
after seeking approval of the finance
department. The relevant extract of the
order dated 27.09.2012 is being quoted
hereinbelow:
"2- bl laca/k esa 'kklu }kjk ekuuh; mPpre
U;k;ky; esa ;ksftr dh x;h fo'ks"k vuqKk ;kfpdk
la[;k& 8658@2002] fnukad 01 fnlEcj] 2011 esa
fn;s x;s vkns'kksa ds dze esa iquZfopkj djrs gq;s foRr
foHkkx }kjk dh x;h fVIi.kh ds izdk'k esa fuEuor
fu.kZ; fy;k x;k gS%&
"ifj;kstuk vf/kdkjh ,oa lgk;d ifj;kstuk
vf/kdkjh ds inksa ij in/kkjd dze'k% osrueku :0
6500&10500 ,oa 5000&8000 esa rSukr FksA NBs osru
vk;ksx ds lanHkZ esa bu osruekuksa dk lkekU;
iqujh{k.k dze'k% osru cS.M&2 :0 9300&34800 ,oa
xzsM osru :0 4600 ,oa osru cS.M&2 :0
9300&34800 ,oa xzsM osru :0 4600 ,oa osru
cS.M&2 :0 9300&34800 xszM osru :0 4200 ds
inksa ij rSukrh fn;s tkus ls muds osru ,oa Lrj dk
laj{k.k (protection of pay and status) gks
tkrk gSA
3- bl laca/k esa eq>s dgus dks funsZ'k gqvk gS
fd ,sls ifj;kstuk vf/kdkjh@ lgk;d ifj;kstuk
vf/kdkjh dks 'kklu ds i= la0 454@15&68&izkS0&
2001&200&93@2000 fnukad 24 ekpZ] 2001 }kjk
,y0Vh0xzsM ds lgk;d v/;kid ds laoxhZ; inksa ij
lek;ksftr fd;k x;k FkkA rRle; 281 ifj;kstuk
vf/kdkjh@ lgk;d ifj;kstuk vf/kdkjh }kjk
dk;ZHkkj xzg.k fd;k x;k Fkk dsoy 36 ifj;kstuk
vf/kdkjh@
lgk;d
ifj;kstuk
vf/kdkjh
us
,y0Vh0xzsM ds lgk;d v/;kid ds laoxhZ; inksa ij
dk;ZHkkj ugha xzg.k fd;k FkkA mudh iwoZ dh lsokvksa
dks n`f"Vxr j[krs gq;s ek0 mPpre U;k;y; ds
vkns'k ds vuqikyu esa mijksDr 'klukns'k dk ykHk
iznku djrs gq;s ,y0Vh0xzsM ds lgk;d v/;kid ds
laoxhZ; fjDr inksa ij lek;ksftr @ rSukrh fd;s
tkus dh dk;Zokgh lEiUu djk;k tk; A
4- mDr vkns'k rRdky izHkko ls ykxw ekuk
tk;sxk A"
7. After the decision was taken by
the State Government on 27.9.2012, the
petitioners again approached to this Court
by means of Writ Petition No.61522 of
2012 (Smt. Meena Manral and ors vs.
State of UP and ors) and while
entertaining the writ petition an interim
90
 INDIAN LAW REPORTS ALLAHABAD SERIES
order was passed on 27.11.2012 by which
the impugned order dated 27.9.2012 was
stayed leaving it open to the State
Government to pass appropriate order
dealing with the issue. However, no such
decision
was
taken
by
the
State
Government during the pendency of the
writ petition. On 09.3.2014, after hearing
the matter at length, this court had passed
the following order:
"By means of this writ petition the
petitioners have challenged the order
dated 27.9.2012 passed by the State
Government in-purported compliance of
the earlier judgment of the Apex Court
dated 1.12.2011 passed in Civil Appeal
No.8658 of 2002 and connected matters.
By means of the impugned order as per
the State Government the claim of pay and
status of the post of Project Officer/Assistant
Project Officer have been granted to the
petitioners who have been absorbed as L.T.
Grade Assistant Teachers. However, the
grievance of the petitioners is that under the
judgment dated 1.12.2011 their case for grant
of status equivalent to the post of Project
Officer was required to be considered which
has not been done by the State Government.
The contention is that in view of the
said judgment they are entitled to be
considered for being absorbed on the post
equivalent to the post of Project Officer,
namely, D.I./A.D.I/.D.I.G.S. and to be
given
salary
in
the
pay
scale
corresponding to the said post which has
not been done in the instant case.
Sri Sashi Nandan, learned senior
counsel appearing for the petitioners in one
of the matters has invited the attention of the
Court to certain recommendations made by
Under Secretary, Education Department,
Government of U.P. to the State Government
by which he has proposed that the post of
Deputy Basic Education Officers in the payscale of Rs.6000-10500/- which are vacant
should be kept vacant and the absorption of
the petitioners should be considered against
the said post which are equivalent to the
earlier post of Project Officer.
The
contention
is
that
this
recommendation has not been considered
and the impugned order has been passed
in a mechanical manner.
Put up this matter on Tuesday next,
i.e. 13.5.2014.
Learned counsel for the respective
parties shall address the Court on the issue
that what would be the modality for
absorbing the petitioners on a post equivalent
to the post of Project Officer as also the
feasibility by such an exercise keeping in
view the relevant service rules applicable to
the
said
post
and
the
promotional
opportunities etc. of the Feeder Cadres as
also the nature of duties to be performed."
8. The Court had considered the
matter in detail on the issue of according
status equivalent to the post of Project
Officer/ Assistant Project Officer and
partly allowed the writ petition on
13.5.2014 with following observations:-
"After hearing learned counsel for
the petitioners as also the learned standing
counsel for State and after perusing the
material on record including the affidavits
filed, we are of the view that the State has
not considered the
matter strictly in
accordance with the observations of this
court made in the earlier judgment dated
05.04.2002. Under some misconception, it
has arrived at the conclusion that by
absorbing the petitioners in L.T. Grade as
Assistant Teachers and granting the
revised pay-scale in respect of the payscale of the erstwhile post of Project
Officer,
status
of
Project
Officer/
Assistant Project Officer also stood
1 All. Smt. Geeta Dixit & Ors. Vs. The Secy. Govt. of U.P. & Ors.
91
conferred.
Learned counsel
for the
petitioners have contended that under the
non-formal education scheme, they were
not performing a teaching job but were
exercising supervisory functions, whereas
their absorption has been made on the
post of Assistant Teachers in L.T. Grade,
which is a teaching post. Learned counsel
for the petitioners have also invited the
attention
of
the
court
to
a
recommendation dated 23.06.2010 made
by the Under Secretary, Department of
Education to the State Government, a
copy of which is annexed as Annexure-6
to the writ petition. The relevant extracts
of the said recommendation are as under:
"bl laca/k esa iwoZ i`"B&7 ,oa 8 ij fLFkfr
Li"V dh tk pqdh gSa A izdj.k esa ;g mYys[kuh; gS
fd
dkfeZd
vuqHkkx&2
ds
'kklukns'k
l[a;k&20@1@91@dk&2&2008 fnukad 9 twu
2009 esa ;g uhfrxr fu.kZ; fy;k tk pqdk gS fd
foHkkxksa esa miyC/k ljIyl dkfeZdksa dk lek;kstu
dj fn;k tk;s vkSj buds lek;kstu gksus rd fjDr
inksa dks u Hkjk tk;s A blfy, ljdkj @ foHkkx
dk ;g nkf;Ro curk gS fd budk vfr'kh?kz
lek;kstu dj fn;k tk;sA buds iSr`d foHkkx csfld
f'k{kk vUrxZr gh fujh{k.k vuqHko ds vuq:i
osrueku :0 6500&10500 esa mi csfld f'k{kk
vf/kdkjh ds 27 vkLFkfxr in fjDr gSA blfy,
mDr fjDr inksa ds lkis{k lek;kstu fd;s tkus esa
dksbZ fof/kd vFkok vU; dfBukbZ ugha gSA vr% fouez
vuqjks/k gS fd iz'uxr ljIyl ifj;kstuk vf/kdkfj;ksa
dk bUgha ds iSr`d foHkkx csfld f'k{kk vUrxZr mi
csfld f'k{kk vf/kdkjh ds fjDr 27 vkLFkfxr inksa ds
lkis{k lek;kstu vkns'k fuxZr fd;s tkus ds laca/k esa
d`i;k mPpkns'k izkIr djuk pkgsa A"
On an overall consideration of the
facts and circumstances of the case, we
find that the impugned order does not
show
any
consideration
of
the
observations made in the report of the
Under Secretary as quoted hereinabove.
The relevant aspects noted by us in the
order dated 09.05.2014 have also not been
adverted to by the State Government
while taking the impugned decision.
The reasons given in the impugned
order for granting of status of Assistant
Teacher in L.T. Grade does not appear to
be sound. The State has not considered
the relevant aspects of the matter, as
directed by this court on 05.04.2002 and
as has been noticed by us in the order
dated 09.05.2014.
In the aforesaid circumstances, the
impugned order, in so far as it relates to
the grant of status of Assistant Teacher in
L.T. Grade to the petitioners is concerned,
is not sustainable and the same is
quashed, and so far as the grant of status
equivalent to the post of Project Officer/
Assistant Project Officer was concerned,
the same requires no interference at this
stage.
Consequently, we direct the State
Government to reconsider the matter
pertaining to the issue of grant of
equivalent status to the petitioners as
ordered by this court in its judgment dated
05.04.2002 by considering all the relevant
aspects of the matter including the
recommendation dated 23.06.2010 against
existing post or any other equivalent post.
It shall be open for the petitioners also to
file appropriate representation stating
therein their version before the State
Government. The State Government shall
take a decision in this regard within a
period of three months from the date of
production of a certified copy of this
order before it and in the event, the claim
of the petitioners is accepted then all
consequential benefits flowing therefrom
shall also be granted to them.