# RAJA SINGH & ANR v. STATE OF U.P. & ANR

- **Citation:** [2019] 7 S.C.R. 171
- **Court:** Supreme Court of India
- **Decided:** 2019-05-06
- **Case number:** Civil Appeal No. 4642 of 2019
- **Bench:** R. Banumathi, R. Subhash Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/raja-singh-anr-v-state-of-u-p-anr-34003
- **Pages:** 10

## Headnote

Service law:
UP Minority Welfare Department Gazetted Officers Service
Rules 2001: Appointment - Post of District Minority Welfare Officer
on deputation/transfer of service basis - Appellant selected for
appointment to the said post prior to coming into force of UP Service
Rules 2001 and continued as such - UP Service Rules 2001
providing for filling up the posts in cadre of District Minority Welfare
Officers by way of direct recruitment or by way of promotion -
Representation by the appellant seeking absorption in the cadre of
District Minority Welfare Officer - Thereafter, writ petition by the
appellant seeking quashing the UP Service Rules 2001 and for
issuance of mandamus directing respondents to regularize their
services on the post of District Minority Welfare Officer - Dismissed
by High Court - On appeal, held: Appellants having been appointed
prior to coming into force of UP Service Rules 2001, their
appointment cannot be said to be on deputation - In the absence of
any material to show that the appellants were appointed only against
temporary posts created only for a period of two years, it cannot be
held that they were appointed only against temporary posts for a
period of only two years - Though UP Service Rules 2001 is silent
about the appointment of the appellants made prior to coming into
force of the Rules, the appellants having been appointed on the
post of District Minority Welfare Officer prior to coming into force
of UP Service Rules 2001, cannot be deprived of their rights of
absorption in the Minority Welfare Department - Pension to be paid
to the appellants as admissible to the District Minority Welfare
Officer - Order of the High Court set aside.
 [2019] 7 S.C.R. 171
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SUPREME COURT REPORTS
[2019] 7 S.C.R.
Allowing the appeal, the Court
HELD: 1.1 In the letter of Secretary, Minority Welfare
Department dated 15.11.1997 communicated to other
departments, the employees of their departments-appellants were
selected for appointment 'on the post of the District Minority
Welfare Officer' by service transfer. Even though the said letter
states that the appellants were appointed by deputation/service
transfer, considering the surrounding circumstances that the
appellants have undergone the selection process by appearing
for interview before the Committee and that they were selected
for appointment shows that it was 'selection and appointment' in
the Department of Minority Welfare and not 'deputation'. Even
though, the appellants were appointed for the period of two years,
after two years, no order was passed repatriating them to their
Parent department. Of course, in the meanwhile, writ petitions
came to be filed by the appellants. However, there was no
communication from the Department of Minority Welfare and Waqf
to the other departments proposing for repatriation of the
appellants to their Parent department. [Para 12] [177-C-F]
1.2 At the time of appointment of the appellants, there were
no Service Rules. The appellants having been appointed prior
to coming into force of UP Minority Welfare Department Gazetted
Officers Rules 2001, their appointment cannot be said to be on
deputation. Though it is stated that their appointment was only
temporary, there is nothing on record to show that the posts were
only temporary posts for a fixed time. In the absence of any
material to show that the appellants were appointed only against
temporary posts created only for a period of two years, it cannot
be held that they were appointed only against temporary posts
for a period of only two years. [Para 14] [178-D-E]
1.3 Rule 5 of the UP Minority Welfare Department Gazetted
Officers Service Rules 2001 contemplated that 75% post of
District Minority Welfare Officer will be filled up through Public
Service Commission by direct recruitment and 25% by promotion
through Public Service Commission from amongst substantively
appointed Chief Waqf Inspectors and Senior Waqf Inspectors who
have completed ten years

## Text

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RAJA SINGH & ANR.
v.
STATE OF U.P. & ANR.
(Civil Appeal No. 4642 of 2019)
MAY 06, 2019
[R. BANUMATHI AND R. SUBHASH REDDY, JJ.]
Service law:
UP Minority Welfare Department Gazetted Officers Service
Rules 2001: Appointment - Post of District Minority Welfare Officer
on deputation/transfer of service basis - Appellant selected for
appointment to the said post prior to coming into force of UP Service
Rules 2001 and continued as such - UP Service Rules 2001
providing for filling up the posts in cadre of District Minority Welfare
Officers by way of direct recruitment or by way of promotion -
Representation by the appellant seeking absorption in the cadre of
District Minority Welfare Officer - Thereafter, writ petition by the
appellant seeking quashing the UP Service Rules 2001 and for
issuance of mandamus directing respondents to regularize their
services on the post of District Minority Welfare Officer - Dismissed
by High Court - On appeal, held: Appellants having been appointed
prior to coming into force of UP Service Rules 2001, their
appointment cannot be said to be on deputation - In the absence of
any material to show that the appellants were appointed only against
temporary posts created only for a period of two years, it cannot be
held that they were appointed only against temporary posts for a
period of only two years - Though UP Service Rules 2001 is silent
about the appointment of the appellants made prior to coming into
force of the Rules, the appellants having been appointed on the
post of District Minority Welfare Officer prior to coming into force
of UP Service Rules 2001, cannot be deprived of their rights of
absorption in the Minority Welfare Department - Pension to be paid
to the appellants as admissible to the District Minority Welfare
Officer - Order of the High Court set aside.
 [2019] 7 S.C.R. 171
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SUPREME COURT REPORTS
[2019] 7 S.C.R.
Allowing the appeal, the Court
HELD: 1.1 In the letter of Secretary, Minority Welfare
Department dated 15.11.1997 communicated to other
departments, the employees of their departments-appellants were
selected for appointment 'on the post of the District Minority
Welfare Officer' by service transfer. Even though the said letter
states that the appellants were appointed by deputation/service
transfer, considering the surrounding circumstances that the
appellants have undergone the selection process by appearing
for interview before the Committee and that they were selected
for appointment shows that it was 'selection and appointment' in
the Department of Minority Welfare and not 'deputation'. Even
though, the appellants were appointed for the period of two years,
after two years, no order was passed repatriating them to their
Parent department. Of course, in the meanwhile, writ petitions
came to be filed by the appellants. However, there was no
communication from the Department of Minority Welfare and Waqf
to the other departments proposing for repatriation of the
appellants to their Parent department. [Para 12] [177-C-F]
1.2 At the time of appointment of the appellants, there were
no Service Rules. The appellants having been appointed prior
to coming into force of UP Minority Welfare Department Gazetted
Officers Rules 2001, their appointment cannot be said to be on
deputation. Though it is stated that their appointment was only
temporary, there is nothing on record to show that the posts were
only temporary posts for a fixed time. In the absence of any
material to show that the appellants were appointed only against
temporary posts created only for a period of two years, it cannot
be held that they were appointed only against temporary posts
for a period of only two years. [Para 14] [178-D-E]
1.3 Rule 5 of the UP Minority Welfare Department Gazetted
Officers Service Rules 2001 contemplated that 75% post of
District Minority Welfare Officer will be filled up through Public
Service Commission by direct recruitment and 25% by promotion
through Public Service Commission from amongst substantively
appointed Chief Waqf Inspectors and Senior Waqf Inspectors who
have completed ten years' service as Chief Waqf Inspector or
Senior Waqf Inspector or both. Though UP Minority Welfare
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Department Gazetted Officers Service Rules 2001 is silent about
the appointment of the appellants prior to coming into force of
2001 Rules, the appellants having been appointed on the post of
District Minority Welfare Officer prior to coming into force of
Service Rules 2001, cannot be deprived of their rights of
absorption in the Minority Welfare Department. [Para 15]
[178-F-H]
1.4 It is stated that since appellant R has retired, the Parent
department of R has paid all the retiral dues and pension is being
paid at the admissible rate in the Department of Training and
Employment. Since appellant R and three other appellants are
held to be the employees of Department of Minority Welfare and
Waqf in the cadre of District Minority Welfare Officer, they are
entitled to the retiral benefits and pension as to the District
Minority Welfare Officer, after adjusting the pension paid to
appellants R and H. [Para 17] [179-F-G; 180-A]
1.5 The impugned order of the High Court is set aside.
The appellants would be absorbed in post of District Minority
Welfare Officer in the Department of Minority Welfare and Waqf
from the date of their appointment. Insofar as the retired
employees R and H, the Minority Welfare Department would
comply with the aforesaid directions. [Para 18] [180-B-C]
Managing Director, UP Rajkiya Nirman Nigam v. P.K.
Bhatnagar and others (2007) 14 SCC 498 - referred
to.
Case Law Reference
(2007) 14 SCC 498
referred to
Para 13
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4642
of 2019.
From the Judgment and Order dated 07.03.2014 of the High
Court of Judicature at Allahabad in Civil Misc. Writ Petition No. 13148
of 2002.
With
Civil Appeal Nos. 4643, 4644 of 2019.
Ratnakar Das, A.T.M. Rangaramanujam, Sr. Advs., Kamal Kant
Tripathy, Ms. Anu Gupta, Sanjay Mani Tripathi, Advs. or the Appellants.
RAJA SINGH & ANR. v. STATE OF U.P. & ANR.
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[2019] 7 S.C.R.
Pradeep Misra, Upendra Mishra, Suraj Singh, Vinay Garg, Advs.
for the Respondents.
The Judgment of the Court was delivered by
R. BANUMATHI, J. 1. Leave granted.
2. These appeals arise out of the judgment and order dated
07.03.2014 passed by the High Court of Judicature at Allahabad in
CMWP No. 13148 of 2002 and batch in and by which the High Court
held that the appointment to the post of District Minority Welfare Officer
is to be governed by UP Minority Welfare Department Gazetted Officers
Service Rules 2001 and that the appellants have no legal right to claim
their absorption in the Minority Welfare Department and the same has
been rightly rejected by the State Government.
3. In all these appeals, the point falling for consideration is one
and the same and all the appeals shall stand disposed of by this common
judgment. For easy reference, the facts in appeal arising out of SLP(C)
No.8725 of 2014 are referred to.
4. Brief facts which led to filing of these appeals are:
That the State Government of Uttar Pradesh vide its Notification
No. 4056/XX-E-95-539(2)/95 dated 12.08.1995 created four Departments
known as:- (a) Minority Welfare Department; (b) Backward Class
Welfare Department; (c) Handicapped Welfare Department; and (d)
Ambedkar Village Development Department. The Secretary, Minority
Welfare and Muslim Waqf Department, Government of U.P. vide its
letter No. 2160/52/1-96-1(85)/95 dated 22.11.1996 addressed to all
Principal Secretaries/Secretaries of Government of U.P. stated that the
posts of District Minority Welfare Officer is to be filled through U.P.
Public Service Commission and due to non-availability of adequate
officers, it had been decided to fill such posts by way of deputation/
transfer of service of the officers having at least twelve years of
experience and working in the pay scale of immediately below Rs.20003500. The Secretary requested heads of various departments that the
names of interested applicants be forwarded for appointment for the
post of District Minority Welfare Officer on deputation/transfer of
services basis.
5. The appellants applied for the newly created post of District
Minority Welfare Officer through proper channel and they were directed
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to appear for interview and selection process. After facing the interview,
the appellants were selected for appointment for the post of the District
Minority Welfare Officer vide Government Order dated 30.12.1997. In
the said appointment orders, it was stated that their deputation/service
transfer was for a period of two years or till further orders whichever is
earlier. The appellants continued in the post even after two years. The
Government framed UP Minority Welfare Department Gazetted Officers
Service Rules 2001. The said Rules provided that 75% post of District
Minority Welfare Officer will be filled up through Public Service
Commission by direct recruitment and 25% by promotion through Public
Service Commission from amongst substantively appointed Chief Waqf
Inspectors and Senior Waqf Inspectors who have completed ten years'
service as Chief Waqf Inspector or Senior Waqf Inspector or both, on
the first date of the year of recruitment.
6. The appellants made representations before respondent No.1
on 14.02.2002 and 16.02.2002 seeking absorption in the cadre of District
Minority Welfare Officer in the Department of Minority Welfare and
Waqf. When their representation was pending for consideration, the
appellants filed writ petition being WP(C) No.13148/2002 seeking
issuance of writ of certiorari for quashing the UP Minority Welfare
Department Gazetted Officers Service Rules 2001 insofar as it excludes
the clause of merger/absorption on the post of District Minority Welfare
Officer and for issuance of Mandamus directing respondents to regularize
the services of the appellants on the post of District Minority Welfare
Officer. By an interim order, the High Court protected the service of
the appellants till the disposal of the writ petition. The Government vide
its order No.2188A/52-1-2002-Writ/2002 dated 02.08.2002 rejected the
appellant's representation seeking absorption in the cadre of District
Minority Welfare Officer in the Department of Minority Welfare and
Waqf. While rejecting the representation, the Government observed that
there is no provision in the Service Rules 2001 to fill the posts in the
cadre of District Minority Welfare Officers from any other source except
either by way of direct recruitment or by way of promotion.
7. In WP(C) No.13148/2002 then pending, the appellants moved
an amendment application with a prayer for quashing the aforesaid order
dated 02.08.2002. The respondents filed their counter opposing the writ
petition as well as amendment. The respondents averred that the
appellants do not belong to the Minority Welfare Department and that
RAJA SINGH & ANR. v. STATE OF U.P. & ANR.
[R. BANUMATHI, J.]
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they were borrowed on deputation basis and their lien in the Parent
department still exists. It was averred that the appellants were retained
in the Minority Welfare Department only on account of interim order
passed by the High Court and that the appellants have no right to continue
in the Department of Minority Welfare and Waqf and claim absorption.
8. The High Court dismissed the writ petition by the impugned
order dated 07.03.2014 by stating that the issue involved in the writ
petition is similar to the issue involved in WP No. 44112 of 2011 and that
the writ petition has no merits. In the relied upon judgment in WP No.
44112 of 2011 titled Saeed Ahmad Khan & Ors. v. State of U.P. Through
Secretary Ministry of Welfare Department and Others, the High Court
held that the appellants who were on deputation/transfer of service in
the Department of Minority Welfare have no legal right to claim absorption
of their services in the Minority Welfare Department.
9. We have heard the learned senior counsel appearing for the
parties and carefully considered the submissions and perused the
impugned judgment and also the relied upon judgment in WP(C) No.44112
of 2011 and WP(C) No.44100 of 2013 and the other materials placed on
record.
10. The point falling for consideration is that the appellants having
been selected and appointed as District Minority Welfare Officer prior
to coming into force of UP Minority Welfare Department Gazetted
Officers Rules 2001, can it be said that the appellants were only on
deputation and that they have no legal right to claim absorption as District
Minority Welfare Officer.
11. After the separation of the Social Welfare Department, a new
department i.e. Minority Welfare Department was carved out in the
year 1995. The Government Order dated 22.11.1996 was issued to the
various departments of Uttar Pradesh inviting applications from the eligible
candidates of various departments for the post of District Minority Welfare
Officer on service transfer/deputation basis. In the said Government
order, it was specifically pointed out that the candidates may apply for
the aforesaid post or in the pay scale of Rs.2000-3500 or just below the
pay scale of Rs.2000-3500 and he is eligible for promotion in pay scale
of Rs.2000-3500 or above.
12. Appellant Raja Singh was District Employment Officer.
Appellant Makrand Prasad was Assistant Employment Officer in
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Employment Department. Appellant Dharam Deo Tripathi was the Senior
Auditor in the Office of District Audit Officer (Finance Department) at
Deoria. Appellant Hem Raj Singh was working as Superintendent in
Social Welfare Department. All the appellants applied for the post of
District Minority Welfare Officer through proper channel and after facing
interview before the Selection Committee and undergoing the selection
process, they were duly selected for the post of the District Minority
Welfare Officer. The appointment letters were issued on 03.10.1997.
As per the office order dated 30.12.1997, the appellants were appointed
"to the temporary post of newly created Minority Welfare Officers
under the Minority Welfare and Waqf Department on deputation/
service transfer for the period of two years or till further orders
whichever is earlier". In the letter of Secretary, Minority Welfare
Department dated 15.11.1997 communicated to other departments, the
employees of their departments viz. Makrand Prasad, Raja Singh, Dharam
Deo Tripathi and Hem Raj Singh were selected for appointment 'on the
post of the District Minority Welfare Officer' by service transfer. Even
though the said letter states that the appellants were appointed by
deputation/service transfer, considering the surrounding circumstances
that the appellants have undergone the selection process by appearing
for interview before the Committee and that they were selected for
appointment shows that it was 'selection and appointment' in the
Department of Minority Welfare and not 'deputation'. As pointed out
earlier, even though, the appellants were appointed for the period of two
years, after two years, no order was passed repatriating them to their
Parent department. Of course, in the meanwhile, writ petitions came to
be filed by the appellants. However, there was no communication from
the Department of Minority Welfare and Waqf to the other departments
proposing for repatriation of the appellants to their Parent department.
13. In Managing Director, UP Rajkiya Nirman Nigam v. P.K.
Bhatnagar and others (2007) 14 SCC 498, it was held that the mere
fact the employee has spent several years in service in the Department
where he has been sent on deputation, will not alter the position from
that of a deputationist to a regular employee. Of course, it is wellsettled that the employee who has been sent on deputation, has no right
to claim absorption. But in the case in hand, as we have discussed
earlier, appointment was not on deputation; but by transfer of service
much prior to coming into force of the Service Rules 2001.
RAJA SINGH & ANR. v. STATE OF U.P. & ANR.
[R. BANUMATHI, J.]
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14. UP Minority Welfare Department Gazetted Officers Service
Rules 2001 came into force w.e.f 02.07.2001. Rule 3(h) of the said
Rules defines 'Member of the Service' as under:-
3(h) 'Member of the service' means a person substantively
appointed under these rules or the rules or orders in force prior to
the commencement of these rules to a post in the cadre of the
service.
Rule 3(k) defines 'Substantive appointment' as under:-
3(k) 'Substantive appointment' means an appointment not being
an ad hoc appointment, on a post in the cadre of the service,
made after selection in accordance with the rules and, if there
were no rules, in accordance with the procedure prescribed for
the time being by executive instructions issued by the Government.
Be it noted that at the time of appointment of the appellants, there
were no Service Rules. The appellants having been appointed prior to
coming into force of UP Minority Welfare Department Gazetted Officers
Rules 2001, their appointment cannot be said to be on deputation. Though
it is stated that their appointment was only temporary, there is nothing on
record to show that the posts were only temporary posts for a fixed
time. In the absence of any material to show that the appellants were
appointed only against temporary posts created only for a period of two
years, it cannot be held that they were appointed only against temporary
posts for a period of only two years.
15. Rule 5 of the UP Minority Welfare Department Gazetted
Officers Service Rules 2001 contemplated that 75% post of District
Minority Welfare Officer will be filled up through Public Service
Commission by direct recruitment and 25% by promotion through Public
Service Commission from amongst substantively appointed Chief Waqf
Inspectors and Senior Waqf Inspectors who have completed ten years'
service as Chief Waqf Inspector or Senior Waqf Inspector or both.
Though UP Minority Welfare Department Gazetted Officers Service
Rules 2001 is silent about the appointment of the appellants prior to
coming into force of 2001 Rules, the appellants having been appointed
on the post of District Minority Welfare Officer prior to coming into
force of Service Rules 2001, cannot be deprived of their rights of
absorption in the Minority Welfare Department.
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16. In the impugned order, the High Court relied upon WA No.
44112 of 2001 which is a subject matter of challenge in SLP(C) No.8885/
2014 which in turn relied upon CMWP No. 44100 of 2013 titled
Chandrabhan Srivastava and Another vs. State of U.P. and Others.
In WP No. 44100 of 2013, the petitioners thereon were selected and
joined in the cadre of District Minority Welfare Officer on 27.09.2009,
long after the service Rules 2001 came into force. In that context, the
High Court held that the persons who were appointed to the Minority
Welfare Department, are governed by the Uttar Pradesh Minority
Welfare Department Gazetted Officers Service Rules 2001. The
petitioners thereon having been appointed by the Office Memorandum
dated 27.07.2009, cannot claim to be a 'Member of the Service' as they
do not fulfill the requirement under Rule 3(h) of the Rules. The said
case in WP No. 44100 of 2013 is clearly distinguishable on facts. In the
present case, the appellants having been appointed in 1997 much prior
coming into force of UP Minority Welfare Department Gazetted Officers
Service Rules 2001 clearly covered under Rule 3(h) of the Rules and
stand on different footing. The High Court, in our view, was not right in
placing reliance on Saeed Ahmad Khand and Chandrabhan
Srivastava to dismiss the writ petition filed by the appellants.
17. It is stated that Raja Singh and Hem Raj Singh retired on
30.06.2018. Claiming their ACP (Assured Career Progression) and other
benefits, WP No.23563(S/B) of 2018 was filed by Raja Singh which
was disposed of by the High Court vide order dated 31.08.2018 directing
the Parent department namely Department of Training and Employment
to process the pension papers relating to payment of post-retirement
dues. It is stated that pursuant to the said direction of the High Court,
Director of Training and Employment vide its order dated 30.10.2018
sanctioned payment of all retiral benefits and other dues payable to
appellant Raja Singh. It is stated that the Parent department of Raja
Singh has paid all the retiral dues and pension is being paid at the
admissible rate in the Department of Training and Employment. Since
appellant Raja Singh and three other appellants namely Hem Raj Singh,
Dharam Deo Tripathi and Makrand Prasad are held to be the employees
of Department of Minority Welfare and Waqf in the cadre of District
Minority Welfare Officer, they are entitled to the retiral benefits and
pension as admissible to the District Minority Welfare Officer.
Department of Minority Welfare and Waqf shall process the pension
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[R. BANUMATHI, J.]
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papers and pay all the retiral benefits after adjusting retiral benefits paid
to the appellants Raja Singh and Hem Raj Singh by their respective
departments. The pension shall be paid to the appellants as admissible
to the District Minority Welfare Officer after adjusting the pension paid
to appellants Raja Singh and Hem Raj Singh.
18. In the result, the impugned order of the High Court is set aside
and these appeals are allowed. The appellants shall be absorbed in post
of District Minority Welfare Officer in the Department of Minority
Welfare and Waqf from the date of their appointment. Insofar as the
retired employees Raja Singh and Hem Raj Singh, the Minority Welfare
Department shall comply with the directions in para(17) above
expeditiously. We make it clear that this judgment shall not be quoted as
a precedent as it is passed in the peculiar facts and circumstances of the
case that these officers were appointed in the post prior to coming into
force of Service Rules 2001 and continued as such.
Nidhi Jain
Appeals allowed.