Judgment:
D.P. Mohapatra, C.J.
1. Admit.
2. With consent of the learned Counsel for parties, the case has been heard for final disposal.
3. Heard Sri Ashok Khare for the appellants, Sri N.C. Rajvanshi for the respondent No. 1 and the learned Standing Counsel for respondents Nos. 2 and 3.
4. The short question that arises for determination in this case is whether in the facts and circumstances of the case, the appellants can be said to have been permanently absorbed in the service of the UP. State Bridge Corporation Ltd. respondent No. 1 (for short, the Corporation). The answer to this question depends on interpretation of Rule 5 of the Uttar Pradesh Absorption of Government Servants in Public Undertakings Rules, 1984 (hereinafter referred to as the 1984 Rules).
5. The factual backdrop of the case relevant for appreciation of the issue raised in the case may be stated thus:
6. The two appellants Heera Ram Maura and Jagdish Lal and one Ram Lakhan Singh Yadav were appointed as Junior Engineers in the Public Works Department (PWD) of the State Government on different dates in 1973. Subsequently, they were sent on deputation to the Corporation where they. continued till filling of the writ petition by them. While the appellants were in the service of the Corporation, the 1984 Rules came into force. It is the case of the appellants that they duly submitted their options for permanent absorption in the Corporation Service. Despite provision in the said Rules that a Government employee shall not ordinarily continue under deputation for period exceeding five years, the appellants continued in the service of the Corporation for long periods, which gave them an impression that they had been permanently absorbed in Corporation Service and their services in the P.W.D. stood automatically terminated. However, the State Government by an order dated 7.9.1992 directed the appellants to return to the parent department in their parent post of Junior Engineer The appellants claim to have been promoted to the post of Assistant Engineer in the Corporation.
7. Being aggrieved by the aforementioned Government Order, the appellants and Ram Lakhan Yadav filed Civil Misc. Writ Petition No. 36768 of 1992 challenging the order on the ground, inter alia, that on the acceptance of their options for permanent absorption in the Corporation service, their services in the P.W.D. stood automatically terminated and the relationship of master and servant between them and the State Government was snapped. Thereafter the State Government ceased to have any control over them, and therefore, was not competent to pass the order directing their repatriation to the P.W.D.
8. No counter-affidavit was filed by the State Government. In the counter-affidavit filed on behalf of the Corporation, the case of the petitioners was refuted. It was stated, inter alia, that they had submitted their options in February, 1987 long after expiry of the period prescribed for submission of options under the 1984 Rules and, therefore, their options could not be accepted; in fact, neither the Corporation accepted the options submitted by the petitioners, nor the State Government consented to their permanent absorption in Corporation service; therefore, the claim of the petitioners that their services in the P.W.D. had ceased and their relationship with the State Government as its employees had snapped is not correct. Regarding the case of the petitioners that they had earned promotions to the rank of Assistant Engineer in the Corporation, the fact was denied and it was stated that they were merely officiating as Assistant Engineers without getting benefit of salary admissible for the post. It was further stated in the counter-affidavit that the petitioners had already been relieved in October, 1992 from Corporation service.
9. The learned Single Judge by his judgment dated 26.11.1996 dismissed the writ petition. The said judgment is assailed in the present appeal filed by two of the petitioners as noticed earlier.
10. On perusal of the impugned judgment, we find that the learned Single Judge has given two grounds in support of his decision to dismiss the writ petition; firstly that the time limit for submission of options by the appellants under the Rules was six months from the date of enforcement of the 1984 Rules and the appellants having failed to submit their options within the said period, the same could not be accepted and secondly that the State Government had not give its consent for permanent absorption of the appellants in Corporation Service, which is also a condition precedent for their absorption as provided as Rule 5 of the 1984 Rules.
11. On the case of the parties as discussed above, the question formulated earlier arises for consideration.
12. Before proceeding to consider the case on merit, it would be convenient to quote certain provisions of the 1984 Rules, which are relevant for the purposes of the case :-
'Rule 2 (a) 'absorbed person' means a Government servant those absorption in the services of an undertaking has been accepted by the Government under Rule 5;
(b) 'Deputation' means the lending by the Government of the Service of a Government Servant, on foreign service to an undertaking;
*** *** *** ****(g) 'Undertaking' means-
(i) a statutory body incorporated by or under any Uttar Pradesh Act or Central Act;
(ii) a government company within the meaning of Section 617 of the Companies Act, 1956;
(iii) a Local Authority within the meaning of clause (25) of Section 4 of the Uttar Pradesh General Clauses Act, 1904;
(iv) a scientific organisation registered under the Societies Registration Act, 1860, wholly or partly under the control of the Central Government or any State Government.
*** *** *** ****Rule 4-Time limit for deputation- No Government servant shall ordinarily be permitted to remain on deputation for a period exceeding five years.
Rule 5-Absorption in Undertaking-(1) (A) Government servant may be permitted to be absorbed in the service of the undertaking in which he is on deputation if-
(i) He applies to the Government for his absorption in the Undertakings before the expiry of three years from the date of commencement of his deputation or before the date on which he attains the age of 53 years, whichever is earlier, and the Undertaking concerned also moves the Government for his absorption within such period, and
(ii) The Government agrees to such absorption in public interest:
Provided that a Government servant who is an deputation in an Undertaking on the date of commencement of these rules may apply and the Undertaking may move, for his absorption, within six months of such commencement or within the period specified in clause (i) whichever expires later.(2) The Government shall not agree to absorption;
(a) of a Government servant belonging to Group 'D' in any post in the Undertaking;
(b) of a Government servant who holds a ministerial post under the Government, in a ministerial post in the Undertaking;
(c) Unless the Government servant is to be absorbed in an equivalent post in the undertaking or to such higher post in the undertaking as he has held on deputation for at least three years;
(d) Unless his pay in the pay scale of the post on which he is to be absorbed is fixed at the stage arrived at by adding the deputation allowance to the pay admissible to him in the pay scale of his post in the parent department, treating it as his basic pay:
Provided that :-
(i) if there is no such stage in the pay scale of the Undertaking, his pay is fixed at the stage next below and the difference is granted as personal pay, liable to be absorbed in future increments;
(ii) if the aggregate of the pay admissible in the pay scale of parent department and the deputation allowance falls short of the minimum in that pay scale of the undertaking his pay is fixed at such minimum and if such Undertaking, his pay is fixed at such maximum and the difference is granted as personal pay.
(iii) Such absorption shall not be accepted with effect from any date prior to the date on which the Undertaking first expreses its agreement to absorb the Government servant in its service.'
13. From a perusal of the Rules quoted above:
It is clear that there is no scope for automatic absorption of a Government employee in the service of an Undertaking on submission of his option. The conditions to be fulfilled for such absorption are : (1) option is exercised by the Government employees within the period specified under the Rules, (2) the Undertaking moves the State Government for his absorption within such period and (3) the Government agrees to such absorption in public interest. The proviso to Rule 5 (1) lay down that a Government servant who is an deputation in an undertaking on the date of commencement of the Rules, may apply and the undertaking may' move for his absorption within six months of such commencement or within a period specified in clause (i) whichever expires later. A fair reading of the proviso would show that the Government servant on deputation may exercise his option either within six months of the commencement of the 1984 Rules or before the expiry of three years from the date of the Commencement of the deputation or before the date on which he attains the age of 53 years, whichever expires later. The language of the Rule being clear and unambiguous its plain meaning is to be accepted. We do not find any good reason to restrict the period stated in the proviso to only a part of the periods stated in clause (i) of Rule 5.
14. In the present case, undisputedly the appellants had not completed 53 years of age on the date they submitted their options. Therefore, their options could not be summarily rejected as time-barred. The learned Single Judge was not right in holding that the appellants had to exercise their options within six months of the commencement of the 1984 Rules only. The use of the expression 'within the period specified in clause (i) whichever expires later' clearly shows that the benefit of the period specified in clause (1) of Rule 5 is not taken away by the proviso. In addition to that period, a further benefit is conferred on the employee who may not have submitted his option under clause (i) to submit the same within six months of the commencement of the 1984 Rules.
15. But the above finding will not entitle the appellants to success in the case. An noted earlier, before the options can be said to have been accepted, two other conditions have also to be fulfilled. That the undertaking moves the State Government for its consent within the specified period and that the State Government agrees for permanent absorption of the employee in the service of the undertaking. The finding of fact recorded by the learned Single Judge in this regard is that no such consent of the State Government was obtained in the case of the appellants. No material has been produced before us to disturb the said finding. It follows, therefore, that the case of the appellants that they should be taken to have been permanently absorbed in Corporation service cannot be accepted.
16. On the discussions in the foregoing paragraphs, the appeal fails and is dismissed but in the circumstances of the case, without any order for costs.