Braj Bhushan Patel vs State of U.P. and Others

Dilip Gupta, J.—The petitioner who was working as a Senior Clerk in the Office of District Development Officer, Maharajganj submitted an option for serving in the Minority Welfare Department and an order was thereafter issued by the Director, Minority Welfare Department, Uttar Pradesh on 1st December, 2006 posting the petitioner in the Minority Welfare Department for a period of two years with a specific condition that he can be repatriated to his parent department at any time without giving any reason. The petitioner was relieved on 2nd January, 2007 by the District Development Officer, Maharajganj and he joined the Minority Welfare Department at Maharajganj and the petitioner was thereafter posted as a Senior Clerk in the office of District Minority Welfare Officer, Maharajganj by the order dated 3rd January, 2007. The services of the petitioner in the office of District Minority Welfare Officer, Maharajganj were subsequently, on the request made by the petitioner, extended for a period of one year by the order dated 31st December, 2008. They were again extended for a period of one year by the order dated 18th January, 2010 on the request made by the petitioner. Thus, the services of the petitioner in the office District Minority Welfare Officer, Maharajganj shall continue upto 31st December, 2010.

In the meantime the petitioner submitted an application on 21st January, 2009 for absorption in Minority Welfare Department on which the District Development Officer, Maharajganj sent a communication dated 23rd January, 2009 to the Director, Minority Welfare Department, Uttar Pradesh, Lucknow that the Department will have no objection if the petitioner is absorbed in the Minority Welfare Department.

It is on the basis of the said no objection certificate that the petitioner has filed this petition for absorption in the Department of Minority Welfare.

Sri Ashok Khare, learned Senior Counsel for the petitioner has submitted that the petitioner was appointed in the Department of Minority Welfare by transfer and, therefore, when the parent department has no objection, the Minority Welfare Department should consider the case of the petitioner for absorption and in this connection he has placed reliance upon the decision of the Supreme Court in Ram Parkash Makkar Vs. State of Haryana and others,

Learned Additional Chief Standing Counsel appearing for the State has, however, submitted that the said judgment was delivered in view of the conditions contained in the appointment order of Ram Prakash Makkar, particularly that placing him on probation for one year. He has pointed out that the Supreme Court observed that after satisfactory completion of the probation period and after granting promotion to him, it was not open to the Department to repatriate him in the parent department, but the order passed in favour of the petitioner in the present case is entirely different and it specifically mentions that the term of the petitioner in the Minority Welfare Department shall be two years with the condition that he can be repatriated in the parent department even before the expiry of two years and it is only on the specific request of the petitioner that the services of the petitioner were subsequently extended for one year each. He has further submitted that in the absence of any specific rule providing for absorption, the petitioner cannot be absorbed.

In view of the fact that a decision has yet to be taken by the Minority Welfare Department, it is not necessary to express any opinion one way or other but suffice it to state that the Director, Minority Welfare Department, Uttar Pradesh, Lucknow may take an appropriate decision on the application submitted by the petitioner for absorption in the department.

The writ petition is, accordingly, disposed of with the observation that the Director, Minority Welfare, Uttar Pradesh, Lucknow may take an appropriate decision expeditiously, preferably within a period of one month from the date a certified copy of this order is filed by the petitioner since the term of the petitioner is to expire on 31st December, 2010.