R.A. Sharma, J. - (1.) PETITIONER No. 1, Abdul Aziz Khan was appointed in 1957 as Tax Superintendent in Municipal Board Khurja, which was at that time Class -III Municipal Board. Subsequently it was raised to Class -II Municipal Board and on 15 -11 -1966 it was upgraded as Class -I Municipal Board. Petitioner No. 2 Intezar Rasool was initially appointed in 1963 as mortuary clerk in Municipal Board Bulandshahr and in 1964 was promoted as Assistant Tax Superintendent and thereafter he was again promoted in 1966 as Water Tax Superintendent. The Municipal Board Bulandshahr was upgraded to Class -I on 1 -12 -1966. U.P. Palika (Centralised) Services Rules, 1966 (hereinafter referred to as Rules) came into force on 9 -7 -1966. By these rules centralised services, common to Municipal Boards and Nagar Mahapalikas were created. Amongst the posts which were included in the centralised services were' the post of Tax Superintendent of Class -I Municipal Board. As mentioned above, the Municipal Board Khurja was up -graded as Class -I on 15 -11 -1966 whereas Municipal Board Bulandshahr was raised to Class -I Municipal Board on 1 -12 -1966. At the time of up -gradation of these Municipal Boards the petitioners were holding the posts of Tax Superintendent. After up -gradation of these Municipal Boards the petitioner No. 1 was called by the Divisional Committee, Meerut on 10 -3 -1967 for finalising his absorption in centralised services. The petitioner appeared before the Divisional Committee but nothing thereafter was heard. Petitioner No. 2 was not even called for interview for the purpose of absorption. The petitioners also made representations for their promotion to the post of Executive Officer of Class -I Municipal Boards and no action having been taken on their request the petitioners filed claim petition before the U. P. Public Services Tribunal, Lucknow (hereinafter referred to as the Tribunal), which has been dismissed by order dated 7 -8 -1981. It is against this order that this writ petition has been filed by the petitioners for quashing the aforesaid order of the Tribunal and for a writ of mandamus directing the respondents to promote them to the post of Executive Officer of Class -I Municipal Board and for fixing of their seniority just below Sri Saran Bihari Lal. A further prayer for setting aside the 9th amendment of the Rules made in 1979, has also been made.
(2.) THE Tribunal has rejected the claim petition of the petitioners on two grounds, namely, (i) Rule 6(2), which provides for absorption, will not be applicable to the petitioners as it applies to the servants and officers who were holding the posts referred to in Rule 3 immediately before the commencement of the rules i.e., before 9 -7 -1966, whereas the petitioners came to hold those posts of centralised services for the first time when their Municipal Boards were up -graded to Class -I after July 9, 1966; and (ii) the petitioners were not entitled to be promoted as Executive Officer in as much as all the absorbed Tax Superintendents have so far not been promoted on the said posts. Section 69B of the U.P. Municipalities Act (hereinafter referred to as the Act) and Section 112A of the U.P. Nagar Mahapalika Adhiniyam (hereinafter referred to as the Adhiniyam), enable the Government to provide by rules for creation of one or more services of such officers and servants as the State Government may deem fit common to Municipal Boards and Nagar Mahapalikas of the State. Sub -sections (2) of Section 69B of the Act and Section 112A of the Adhiniyam provide for absorption of the officers and servants serving or the posts belonging to centralised services. The sub -section (2) of the Act is reproduced below: (2) When any such service is created officers and servants serving on the posts included in the service may, if found suitable, be absorbed in the service provisionally or finally and the services of others shall stand determined in the prescribed manner. Identical provision has been made in sub -section (2) of Section 112A of the Adhiniyam. In pursuance of the power conferred by the aforesaid provisions the Government of U.P. had, by the rules, created services mentioned in Rule 3 as centralised services. By Rule 6(2) procedure for absorption or determination of services of the officers and servants of the Palika holding or performing the duties and functions of the posts referred to in Rule 3 immediately before the commencement of the rules, was provided. This sub -rule, so far as it is relevant is as follows: (2) The absorption or determination of services of officers and servants of the Palika holding, or performing the duties and functions of the post referred to in Rule 3 immediately before the commencement of these rules shall be governed by the following provisions: (i) Permanent officers and servants of the Palika as well as Officers and servants referred to in Clause (s) of Section 577 of the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959, shall, unless they opt otherwise, stand absorbed provisionally subject to such orders as Government may in each case pass. (ii) Other temporary officers and servants shall, unless they opt otherwise, stand absorbed provisionally subject to such orders as Government may in each case pass. (iii) Such officers and servants as are provisionally absorbed under Clauses (i) and (ii) may by subsequent orders of Government, to be passed before the 31st day of August, 1967, be finally absorbed if found suitable. (iv) If in any case no orders to the contrary are passed by Government before the date mentioned in Clause (ii) the officers or servants, shall be deemed to be finally absorbed. The effect of this rule is that officers and servants of the Palika holding or performing the duties and functions of the post referred to in Rule 3 immediately before the commencement of these rules stand absorbed provisionally unless they opt otherwise. The Government was given power to absorb them finally if found suitable and if no order was passed by the Government before 31st August, 1967 such servants and officers will be deemed to be finally absorbed. These rules did expressly deal with the cases of officers and servants of those local bodies whose posts came within the purview of Rule 3 much after the commencement of the Rules. Such a contingency arises when, due to up -gradation of the Municipal Boards, certain posts of these local bodies became part of the centralised services. However, the officers and servants, who are performing the duties of the posts which came within the purview of Rule 3 after commencement of the rules, cannot be denied of the right given to them by sub -sections (2) of Section 69B and Section 112A of the Act and the Adhiniyam, respectively, which provide for absorption of such employees provisionally or finally and determination of their services, if not found suitable. These rights of absorption created by sub -sections (2) of the aforesaid Sections and Rule 6(2) merely provide for the procedure for absorption. In the absence of procedural provisions in the rules the right created by the Statutes cannot be defeated. The petitioners, who were Tax Superintendents working in Class -II Municipal Boards became entitled to be absorbed provisionally in the centralised services the moment these Municipal Boards were up -graded to Class -I, on 15 -11 -1966 and 1 -12 -1966 and unless unsuitable they are also entitled to be absorbed finally. The Government, however, did not pass any order for absorption of the petitioners after their Municipal Boards were upgraded to Class -I on the ground that Rule 6(2) does not provide for absorption of those employees whose posts came within the purview of centralised rules after the commencement of the rules. This view of the Government was unwarranted, The right to be absorbed is created by sub -sections (2) of Section 69B and Section 112A of the Act and the Adhiniyam, respectively, and not by Rule 6(2), which has merely provided procedure for absorption of those employees who were working on the posts referred to in Rule 3 at the time of the commencement of the rules. The rights which are created by the Statutory provisions cannot be defeated by not making the rules of procedure covering all the contingencies. The Tribunal was not justified to reject the claim petition of the petitioners on the aforesaid ground. Petitioners have been working on the posts of the centralised services for the last several years. There cannot be any justification now to determine services. They are as such entitled to be treated as members of centralised services.
(3.) AS Rule 6 did not lay down procedure for absorption covering all the contingencies, rules were amended in 1979 by U.P. Palika (Centralised) Services (Ninth Amendment) Rules, 1979, where by sub -rules (3) to (6) were added. Sub -rule (6), the validity of which has been challenged before me, is as follows: The employees of local bodies which were up -graded or converted on or after July 9, 1966, shall also be entitled to exercise their options at any time before 15th day of December, 1979, and the intimation of the exercise thereof shall be sent to Government, their cases of absorption in the Palika Centralised Services or otherwise shall be dealt with in accordance with sub -rules (3), (4) and (5). Learned counsel for the petitioners has attacked this sub -rule on the ground that it is retrospective in operation, although the Government was not authorised to make rules with retrospective effect. It is not possible to agree with the learned counsel. By the aforesaid rules provision has been made enabling the employees of the local bodies to exercise their option at any time before 15th December, 1979. The right of absorption and the right to exercise option in connection therewith by employees of the local bodies has been created by sub -section (2) of the aforesaid U.P. Acts. What was implied in the aforesaid provisions of the Acts has been made explicit in sub -rule (6) as introduced in 1979. This rule does not purport to take away the rights conferred on an employee by sub -sections (2) of Section 69B and Section 112A of the U.P. Acts This sub -rule appears to have been added by way of abundant caution. The employees who acquired right of absorption in 1966 and 1967 or in even subsequent years cannot be deprived of such rights by sub -rule (6) which only prescribes the procedure and not a rule of limitation.;