Rameshwar Prasad vs U.P. Rajkiya Nirman Nigam Ltd.

Akhtar Husain Khan, J.—Petitioner Rameshwar Prasad has filed this writ petition under Article 226 of the Constitution of India with the following prayers;

"(i) That a writ, direction or order in the nature of certiorari be issued quashing that part of the order dated 21.12.1999 by which the petitioner has been absorbed on the post of Project Manager w.e.f. 19.11.1988.

(ii) That a writ, direction or order in the nature of mandamus be issued commanding the respondents to absorb the petitioner on the post of General Manager in the U.P. Rajkiya Nirman Nigam Ltd. w.e.f. 19.11.1990 by treating him on the post of General Manager w.e.f. 1.1.1990 on the date he was promoted to the post of Superintending Engineer (Selection Grade) in his parent organisation.

(iii) That a writ, direction or order in the nature of mandamus be issued commanding the respondents to grant the petitioner the promotion to the next higher post of Chief General Manager/Jt. Managing Director with effect from 1.1.1994 on the basis of his absorption in the U.P. Rajkiya Nirman Nigam Ltd. at the appropriate post from the appropriate date as directed by the Hon''ble Supreme Court and as per eligibility criteria for promotion provided in the Service Rule, 1980 of Nigam and in view of the fact that the petitioner was promoted to the post of Chief Engineer Grade II by the parent department from 1.1.1994 which has been held by Hon''ble Supreme Court in its judgment.

(iv) That a writ, direction or order in the nature of mandamus be issued commanding the respondents to pay to the petitioner all arrears of salary and allowances which have accrued to him on the basis of his absorption in the U.P. Rajkiya Nirman Nigam Ltd. and consequential promotions.

(v) That such other order which this Hon''ble Court may deem fit and proper in the nature and circumstances of the case in favour of the petitioner may also be passed in the interest of justice.

(vi) That the cost of the petition be awarded to the petitioner."

Parties have exchanged their affidavits.

We have heard Mr. Satya Narain Shukla, learned counsel for the petitioner as well as Mr. Shishir Jain, learned counsel for U.P. Rajkiya Nirman Nigam Ltd.

In brief, the relevant facts for determination of this writ petition, are that the petitioner, Rameshwar Prasad, was working on the post of Executive Engineer in U.P. Small Industries Corporation Ltd. (herein after referred to as ''UPSICL''. He joined as Project Manager in U.P. Rajkiya Nirman Nigam Ltd. (hereinafter referred to as ''Nigam'') on deputation on 29.11.1985. Thereafter on 22.12.1987 the General Manager of the Nigam wrote him letter inviting his option for his permanent absorption in prescribed proforma on or before 31.12.1987. Petitioner gave his option on 31.12.1987. Thereafter on 17.9.1988 the General Manager (North East Zone) of the Nigam wrote a letter to the General Manager (Head Quarters) that the petitioner had completed three years as Project Manager, his work and conduct during this period was excellent and it would be in the interest of Nigam to absorb him.

The U.P. Absorption of Government Servants in Public Undertakings Rules, 1984 (hereinafter referred to as ''Rules, 1984'') have been promulgated by the State of U.P. Under Article 309 of the Constitution of India in which there is provision that no Government servant could remain on deputation for over five years and if before expiry of period of five years he opts for absorption in the borrowing department, then such absorption may be permitted in accordance with the rules. Therefore, in pursuance of the said Rules, 1984 petitioner was eligible for absorption but no order was passed by the Nigam for absorption of the petitioner. In the meantime, the parent department of the petitioner passed an order granting notional promotion to the petitioner on the post of Superintending Engineer (Selection Grade) w.e.f. 1.11.1990 and on the post of Chief Engineer (Level II) on 1.1.1994. Petitioner thereafter made several representations to the Nigam for his absorption but no order was passed and ultimately on 28.10.1994 the Nigam issued a letter to the petitioner intimating him that his option for absorption was not possible. Feeling aggrieved, petitioner preferred writ petition being W.P. No. 39594 of 1994 before this Court at Allahabad challenging the order dated 28.10.1994 which was decided finally vide judgment & order dated 09.12.1994 and the Nigam was directed to decide the petitioner''s representation within two months. In pursuance of this order of High Court, petitioner preferred a representation to the authority concerned which was rejected by the Nigam on 4.3.1995. Feeling aggrieved with the order dated 4.3.1995, passed by the Nigam petitioner again approached this Court at Lucknow by filing Writ Petition No. 7640 of 1995 but during pendency of writ petition, the Nigam passed an order on 5.7.1995 repatriating all the deputationists who had completed five years'' service of deputation and relieved petitioner vide order dated 11.7.1995. Petitioner again preferred other Writ Petition No. 19882 of 1995 before this Court at Lucknow challenging the order of repatriation dated 11.7.1995. The above writ petition No. 7640 of 1995 and Writ Petition No. 19882 of 1995 were jointly heard and were dismissed by this Court vide judgment & order dated 09.4.1997. Feeling aggrieved, petitioner preferred Civil Appeal No. 5318-20 of 1999 before the Hon''ble Apex Court challenging the judgment & order dated 09.4.1997, passed by High Court. The Hon''ble Supreme Court allowed the appeal vide judgment & order dated 16.9.1999. The common judgment & order dated 09.4.1997, passed by High Court in Writ Petition No. 19882 of 1995 and 7640 of 1995 was set aside and the order dated 11.7.1995 relieving the petitioner from the post on which he was working in the Nigam, was quashed with the direction to the Nigam to pass orders on or before 31.12.1999 absorbing the petitioner at the appropriate place and from the appropriate date in accordance with the Rules. Thereafter, in compliance of the order of Hon''ble Apex Court the Nigam passed order dated 21.12.1999 whereby petitioner was absorbed by the Nigam on the post of Project Manager w.e.f. 19.11.1988. But the petitioner is not satisfied with this order of absorption passed by the Nigam. Petitioner is claiming his absorption w.e.f.. 19.11.1990 on the post of General Manager in the Nigam and to treat him on the post of General Manager w.e.f. 1.1.1990 on which date he was promoted to the post of Superintending Engineer (Selection Grade) in his parent organisation. Petitioner is claiming further promotion on the next higher post of Chief General Manager w.e.f. 1.1.1994.

Petitioner has assailed absorption order dated 21.12.1999 passed by the Nigam and has made above claims on the following grounds:

(a) That the absorption order dated 21.12.1999 is against the provisions of Rules, 1984 because proviso 3 of Rule 5 of the Rules, 1984 provides that such absorption shall not be accepted with effect from any date prior to the date on which the undertaking first expresses its agreement to absorb the government servant in its service.

(b) That the Rule 5(2) of the Rules, 1984 provides that the government servant shall be absorbed on an equivalent post in the undertaking or such higher post in the undertaking as he has held on deputation for at least three years.

(c) That as per Government Order dated 12.9.1994 (Annexure 9 to the Writ Petition) the Government has taken a decision that persons would be absorbed in the Nigam on the basis of the substantive post held by them in their parent department.

(d) That the post of Project Manager in the Nigam was higher than the post of Executive Engineer held by the petitioner is absolutely incorrect.

(e) That as per Government Order dated 22.9.1991, the equivalent post of the petitioner in Nigam was Senior Project Manager as the petitioner had been Executive Engineer for more than 12 years.

(f) That two engineers junior to the petitioner were taken on deputation from PWD as Senior Project Manager on the basis of their service of more than ten years as Executive Engineer.

(g) That according to Service Rules, 1980 of the Nigam for Engineers and Architects, a Project Manager is eligible for promotion as Senior Project Manager after three years. The petitioner having served as Project Manager in the Nigam since 19.11.1985 was eligible to be absorbed as Senior Project Manager at least from 19.11.1988.

Opposite Parties No. 1 & 2 have denied the claim of the petitioner. It has been contended on their behalf that the controversy has already been decided by the Hon''ble Supreme Court of India and the impugned absorption order has been passed by the Nigam in compliance of the order of Hon''ble Apex Court.

It has been further contended on behalf of the opposite parties that the Government Order dated 12.9.1994, relied on by the petitioner, is applicable only on engineers who were taken on deputation from PWD.

It has been contended on behalf of the opposite parties that the petitioner gave his option for absorption in the Nigam on 1.1.1987. At that time, he was working in the pay-scale of Rs. 1150-1600 whereas at that time pay-scale of the Project Manager in the Nigam was Rs. 1400-1800. Petitioner has completed three years of deputation in Nigam on 18.11.1988. Therefore, he has been absorbed in the Nigam w.e.f. 19.11.1988 on the post of Project Manager in the pay-scale of Rs. 1400-1800.

We have considered the submissions made by learned counsel for the parties.

Admittedly, the impugned absorption order has been passed by the Nigam in compliance of the judgment & order dated 16.9.1999, passed by the Hon''ble Apex Court in Civil Appeal No. 5318-20 of 1999, Rameshwar Prasad vs. Managing Director, U.P. R.N.N. and others. In its judgment the Hon''ble Apex Court has observed as under:

"It is apparent that he was absorbed from 19.11.90 because from that date the deputation allowance was also discontinued. If he was to be continued on deputation, there was no reason for non-payment of deputation allowance. So on the basis of statutory rules as well as the policy, appellant stand absorbed in the service of Nigam."

In view of above observation, Hon''ble Apex Court has allowed appeal of the petitioner. Operative portion of the judgment of Hon''ble Supreme Apex Court is extracted below:

"In this view of the matter, these appeals are allowed. The impugned order dated 9.4.1997, passed by the High Court in Civil Miscellaneous Writ Petition No. 19892 of 1995 and Writ Petition No. 7640 of 1995 is quashed and set aside the impugned order dated 11th July, 1995 relieving the appellant from the post which he was holding in the U.P. Rajkiya Nirman Nigam Ltd., Lucknow is quashed and set aside. Respondent No. 1-Nigam is directed to pass order on or before 31st December, 1999 absorbing the appellant at appropriate place and from appropriate date in accordance with Rules. There will be no order as to costs."

Rule 4 of above Absorption Rules, 1984 provides that no government servant shall ordinarily be permitted to remain on deputation for a period exceeding five years.

Rule 5 of the said Absorption Rules, 1984 provides procedure of absorption in the service of undertaking as well as fixation of pay of absorbed employee in the service of undertaking.

Admittedly, petitioner has joined services of Nigam on 19.11.1985 on deputation and he has given his consent for absorption in Nigam on 31.12.1987. He has completed five years'' period of deputation in Nigam on 18.11.1990. Thereafter Nigam permitted him to continue in service and stopped deputation allowance to him. In such situation, Hon''ble Supreme Court has held that on the basis of statutory rules as well as the policy, petitioner stands absorbed in the services of Nigam.

Clause (iii) of Proviso second of Rule 5 of Absorption Rules, 1984 provides that absorption shall not be accepted with effect from any date prior to the date on which the undertaking first expresses its agreement to absorb the government servant in its service.

Indisputably Nigam invited option of petitioner for absorption on 22.12.1987 and petitioner gave his option on 31.12.1987 but no decision was taken by Nigam on option of the petitioner and Nigam paid deputation allowance to the petitioner till 18.11.1990. Deputation allowance to the petitioner has been stopped with effect from 19.11.1990. Therefore, 19.11.1990 is the date when Nigam firstly expressed its agreement to absorb the petitioner. Therefore, absorption of the petitioner cannot be effected prior to this date.

In view of above, we are of the considered opinion that the impugned order dated 21.12.1999 passed by opposite party No. 2 whereby petitioner has been absorbed in Nigam w.e.f. 19.11.1988 is contrary to law as well as judgment of Hon''ble Supreme Court rendered in above Civil Appeal No. 5319-20 of 1999. Petitioner is entitled to be absorbed in Nigam w.e.f. 19.11.1990.

For the reasons mentioned above, writ petition is allowed and the impugned order dated 21.12.1999, passed by opposite party No. 2 is quashed with direction to opposite parties No. 1 & 2 to pass fresh order within one month from today to absorb the petitioner in the services of Nigam with effect from 19.11.1990 and to fix his post and pay in accordance with Rule 5 of Absorption Rules, 1984 on the basis of his services as well as pay-scale admissible to him on 19.11.1990.