D. K. Seth, J. - (1.) THE petitioners were appointed temporarily for a limited period in the Moradabad Development Authority, Moradabad, Section 5A was introduced by the U. P. Ordinance No. 19 of 1984 and has been replaced by the U. P. Act No. 21 of 1985. After the period of limitation to the appointment letter had expired, the petitioners were allowed to continue in service till 1988 though the original period was limited till 30th April, 1984. By order dated 1st August, 1988 further limitation was sought to be imposed by indicating that the services of the petitioners were for a period till 31st August, 1988. But the fact remains that in the year 1984, Section 5A was introduced in the U. P. Urban Planning and Development Act, 1973 by means of U. P. Act No. 21, 1985 following the U. P. Ordinance No. 19 of 1984 as aforesaid.
(2.) ON these backgrounds, Mr. B. D. Mandhyan, learned counsel for the petitioners contended that in view of the provisions contained in Section 5A service of the petitioners could not be terminated otherwise than in accordance with the provisions introduced by the said amendment. Mr. P. K. Singh, learned counsel for the Moradabad Development Authority, on the other hand contended that the petitioners' services were for a limited period and extended from time to time and the order dated 1st August, 1988 was the last extension so given. Therefore, there is no infirmity in the said order and the petitioners cannot claim benefits of sub-section (6) of Section 5A of the Act because of the specific duration in the appointment, which was a limited one. After having heard Mr. Mandhyan, learned counsel for the petitioners and Mr. P. K. Singh, learned counsel for the respondents, it appears that in order to appreciate the situation, it is necessary to refer to Section 5A of the U. P. Urban Planning and Development Act, 1973 as introduced by the U. P. Ordinance No. 19 of 1984 followed by U. P. Act No. 21, 1985. Section 5A is quoted below : "5A Creation of centralised services.-(1) Notwithstanding anything to the contrary contained in Section 5 or in any other law for the time being in force, the State Government may at any time, by notification, create one or more 'Development Authorities Centralised Services' for such posts, other than the posts mentioned in sub-section (4) of Section 59, as the State Government may deem fit, common to all the Development Authorities, and may prescribe the manner and conditions of recruitment to, and the terms and conditions of service of persons appointed to such service. (2) Upon creation of a Development Authorities Centralised Service, a person serving on the posts included in such service immediately before such creation, not being a person governed by the U. P. Palika (Centralized) Service Rules, 1966, or serving on deputation, shall, unless he opts otherwise, be absorbed in such service.- (a) finally, if he was already confirmed in his post, and (b) provisionally, if he was holding temporary or officiating appointment. (3) A person referred to in sub-section (2) may, within three months from the creation of such Development Authorities Centralised Service communicate to the Government in the Housing Department, his option not to be absorbed in such Centralised Service, failing which he shall be deemed to have opted for final or provisional. Centralised Service. (4) Suitability of a person absorbed provisionally for final absorption in a Development Authorities Centralised Service, shall be examined in the manner prescribed and if found suitable he shall be absorbed finally. (5) The service of an employee who opts against absorption or who is not found suitable for final absorption, shall stand determined and he shall, without prejudice to his claim to any leave, pension provident fund or gratuity which he would have been entitled to, be entitled to receive as compensation from the Development Authority concerned, as amount equal to- (a) three months' salary, if he was a permanent employee ; (b) one months' salary, if he was a temporary employee. Explanation.-For the purposes of this sub-section the term 'salary' includes dearness allowance, personal pay and special pay, if any. (6) It shall be lawful for the State Government or any officer authorised by it in this behalf, to transfer any person holding any post in a Development Authorities Centralised Service from one Development Authority to another."
(3.) BY reason of introduction of Section 5A Centralised service was sought to be created. For the purposes of creation of such service, the relevant provisions have been introduced which protected the cases of the persons holding temporary or officiating appointment as is apparent from sub-section (2) of clause (b) of Section 5A as aforesaid. It is not disputed that the centralised service has been created. Therefore, as soon as the centralised service is created, the provisions of sub-section (2) become operative. The said sub-section provides that a person who was already confirmed in his post immediately before the creation of the centralised service would be absorbed finally and those holding temporary and officiating appointments would be absorbed provisionally. It is not disputed that the centralised service has been created before 1st August, 1988. Therefore, the petitioners having held temporary/ officiating appointments were eligible for being provisionally absorbed in the centralised service as soon as it had been created by reason of sub-section (2) of Section 5A of the Act. But the said provisional absorption is subject to final absorption which is to be done in the manner prescribed, provided he does not opt out of the service as contemplated in sub-section (3) of Section 5A of the Act and examination in the manner prescribed for deciding his suitability in terms of sub-section (4) for being finally absorbed. Only when he has not opted out of the service and he is found suitable on such examination in terms of sub-section (5) of Section 5A of the Act, he would be eligible for final absorption. In case the person is not found suitable or he has opted out of service his services would stand determined in the manner prescribed in sub-section (5). In the facts and circumstances of the case, the petitioners having been held temporary or officiating appointments were entitled to be absorbed provisionally in terms of sub-section (2) and the said service is subject to the suitability to be determined in terms of sub-section (4), to be absorbed finally.;