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2017 DIGILAW 455 (ALL)

SHRIPAL BHATI v. STATE OF U. P.

2017-02-08

SATYENDRA SINGH CHAUHAN, VIRENDRA KUMAR II

body2017
JUDGMENT Hon’ble Satyendra Singh Chauhan, J.—Heard learned counsel for the petitioners, learned counsel for respondent No. 4, learned Standing Counsel as well as learned counsel for the New Okhala Industrial Development Authority. 2. The present writ petition has been filed challenging the order dated 16.2.2015, by means of which, recommendation has been sent for absorbing respondent No. 4 in New Okhala Industrial Development Authority (for short ‘’NOIDA’) as well as the orders dated 13.2.2014 and 19.2.2014, by means of which, respondent No. 4 has been sent on deputation for a period of three years in NOIDA on the post of Project Engineer (Electrical) and the orders dated 5.5.2015 and 7.5.2015, by means of which, absorption of respondent No. 4 has been made. 3. Brief facts giving rise to the present dispute are that the petitioners are presently posted in NOIDA as Assistant Project Engineer (Electrical). On 19.10.1993, an amendment was made in the promotion Rules of NOIDA’s employees, which provided that the promotion on Class-I post would be made on the basis of merit and the post of Project Engineer would be filled up, 65% by promotion and 34% by direct recruitment/deputation. 4. The aforesaid Rules were later on amended in 125th meeting of the Board, which was held on 15.4.2005 and the amendment was incorporated therein that the Board is empowered to fill up the post of Project Engineer 100% by promotion. The source of recruitment w.e.f. 15.4.2005 to fill up the post of Project Engineer is only by promotion. 5. The petitioner No. 1 filed Claim Petition No. 1464 of 2008, claiming promotion on the post of Project Engineer from the year 2003, which was decided on 19.3.2011 holding therein that the petitioner No. 1 is entitled for promotion. The aforesaid promotion is to be granted w.e.f. 1.8.2003 when the petitioner No. 1 acquired eligibility. In the like manner, remaining two petitioners also claimed promotion to the post of Project Engineer as and when they became eligible. 6. The respondent No. 4 came to be posted in NOIDA on deputation on the basis of request made by his mother, who was the then District President of Samajwadi Party (Mahila Staff), Unnao. The aforesaid letter was processed and the NOIDA was asked to send recommendation within three days. 7. 6. The respondent No. 4 came to be posted in NOIDA on deputation on the basis of request made by his mother, who was the then District President of Samajwadi Party (Mahila Staff), Unnao. The aforesaid letter was processed and the NOIDA was asked to send recommendation within three days. 7. The Chief Executive Officer, NOIDA wrote a letter on 29.4.2013, informing the State Government that the post of Project Engineer is to be filled up on the basis of 100% promotion and out of four posts, three posts have already been filled up and one post is lying vacant. The post to be held by respondent No. 4 is equivalent to the post of Assistant Project Engineer in U.P. Power Corporation. 8. The State Government again wrote a letter on 2.5.2013 to NOIDA pointing out therein that the recommendation has not been made as desired by the Government. Again on 10.5.2013 in reply to the letter dated 2.5.2013, the Chief Executive Officer, NOIDA wrote a letter to the State Government, reiterating the same facts, which were written on 29.4.2013. The State Government again wrote a letter on 14.5.2013, seeking a report on two points, which were replied by the NOIDA on 14.5.2013, specifically mentioning therein that on two posts of Assistant Project Engineer, three persons are working on the basis of direct recruitment and none is working on deputation and it was also mentioned that against two posts of Assistant Project Engineer, process of promotion is going on, which is to be completed shortly. 9. The State Government on 13.2.2014 wrote a letter to the Chief Executive Officer, NOIDA that a decision has been taken to appoint respondent No. 4 on the post of Project Engineer (Electrical) on deputation for a period of three years and in compliance thereof, the NOIDA issued an appointment letter appointing respondent No. 4 on the post of Project Engineer (Electrical) on deputation for a period of three years. The respondent No. 4 joined on the post in question on 17.2.2014 and was handed over the charge on 26.2.2014. 10. In the month of January, 2015, the State Government again wrote a letter to the NOIDA to make recommendation for absorption of respondent No. 4. The respondent No. 4 joined on the post in question on 17.2.2014 and was handed over the charge on 26.2.2014. 10. In the month of January, 2015, the State Government again wrote a letter to the NOIDA to make recommendation for absorption of respondent No. 4. The petitioners have taken specific objection to the same by stating that there is no provision for absorption of any employee brought on deputation in NOIDA and more particularly on the post of Project Engineer, which is to be filled up 100% by promotion. The NOIDA authority has made recommendation for absorption of respondent No. 4. 11. The State Government has taken a decision for absorption of respondent No. 4 on 5.5.2015 on the post of Project Engineer and in pursuance thereof, the Chief Executive Officer, NOIDA has issued an order dated 7.5.2015 in respect of absorption of respondent No. 4 on the post of Project Engineer (Electrical) in pursuance of the Government Order dated 5.5.2015. Hence, this writ petition. 12. Submission of learned counsel for the petitioners is that once the Rules have been amended, the absorption of respondent No. 4 cannot be made against the Rules and if any absorption is made, then the same is illegal and cannot be sustained in law. Learned counsel has also submitted that the petitioners are the persons, who are eligible for promotion and, therefore, they have every right to challenge the order of absorption of respondent No. 4. 13. Learned counsel for the petitioners further submits that the absorption of respondent No. 4, which has been made is mala fide and is also based on the recommendation of his mother, who happens to be a political person. He also submits that the respondent No. 4 could not have been sent on deputation as there is no provision of deputation in NOIDA and the Rules have also been amended in 2005 in contrast to the Rules of 1993. 14. Learned counsel for the NOIDA, by filing counter-affidavit, has submitted that the power to frame regulations under the Act of 1976 is vested with the NOIDA with the previous approval of the State Government. The regulations were framed in the year 1981, known as The New Okhla Industrial Development Authority Service Regulations, 1981 (for short ‘’the Regulations of 1981') to provide the conditions of service of the employees of the NOIDA and the matters identical thereto. The regulations were framed in the year 1981, known as The New Okhla Industrial Development Authority Service Regulations, 1981 (for short ‘’the Regulations of 1981') to provide the conditions of service of the employees of the NOIDA and the matters identical thereto. The source of recruitment has been provided in Regulation 16 of the Regulations of 1981. The sources of recruitment provided under Regulation 16(1) are by direct recruitment, by promotion, by deputation or reemployment or on contractual basis and from any other source approved by the authority. Regulation 16(2) provides for the percentage of the direct recruits and promotees. He has also submitted that the eligibility for promotion on the post of Project Engineer is Degree in Engineering and eight years’ experience as Assistant Project Engineer. The petitioner No. 1 has been promoted on the post of Assistant Project Engineer vide order dated 24.7.2012 from the date of joining and not from the year 2003. The petitioner No. 1 has also given an affidavit to the effect that he will not claim promotion on the post of Assistant Project Engineer (Electrical and Mechanical) w.e.f. 1.9.2003. 15. Further submission of learned counsel for the NOIDA is that petitioner No. 1 is not eligible for promotion on the post of Project Engineer and this fact has been concealed in the writ petition. He also submits that the petitioner Nos. 2 and 3 are admittedly not eligible for promotion. Submission is that the petitioners, therefore, cannot maintain the writ petition as they are not the aggrieved persons and neither their rights are going to be affected in any manner. He further submits that the respondent No. 4 has submitted an application on 3.2.2015 to the Chairman and Chief Executive Officer, NOIDA for absorption of his services in the NOIDA on the post of Project Engineer and on the basis of the said application, the NOIDA wrote a letter on 16.2.2015 to the State Government and as such the allegations of mala fide made against respondent No. 4 are baseless and have no legs to stand on. Learned counsel also submits that in pursuance of the decision taken by the State Government dated 5.5.2015 for permanent absorption of respondent No. 4, corrected vide order dated 20.10.2015, he has been absorbed vide Office Order dated 7.5.2015 in accordance with the U.P. Absorption Rules, 1984. Learned counsel also submits that in pursuance of the decision taken by the State Government dated 5.5.2015 for permanent absorption of respondent No. 4, corrected vide order dated 20.10.2015, he has been absorbed vide Office Order dated 7.5.2015 in accordance with the U.P. Absorption Rules, 1984. The said Rules are still operative, which conferred power upon the State Government to absorb any person in any Government department. 16. Learned Standing Counsel has also taken more or less the same stand and has submitted that Section 41 of the U.P. Industrial Area Development Act, 1976 (for short ‘’the Act’) gives controlling power to the State Government. It has also been submitted that Regulation 80 of Chapter 7 (Miscellaneous) of Service Regulations, 1981 gives power to the State Government to make any order over and above the Regulations under Section 41 of the U.P. Urban Planning and Development Act, 1973. 17. Learned counsel for respondent No. 4 has also filed counter-affidavit and has submitted that various other similarly situated persons have been absorbed and no objection has been taken by any person at any point of time. Learned counsel has placed on record various orders issued from time to time absorbing various persons, namely, Mohd. Ishrat vide order dated 28.3.1998, Sri Atul Kumar vide order dated 3.10.2008 and Sri Subhash Chandra vide order dated 3.11.2014. He has further submitted that it has been the consistent policy of the NOIDA to absorb the persons on deputation and so no illegality has been committed by the NOIDA in absorbing respondent No. 4, who has rightly been given the benefit of absorption as contemplated under Regulation 80 of Chapter 7 (Miscellaneous) of Service Regulations, 1981. 18. It has also been submitted that the petitioners have no locus standi to challenge the absorption of respondent No. 4 as they are not eligible for promotion and neither their case can be considered for promotion. 19. We have heard learned counsel for the parties and perused the record. 20. The main thrust of the argument of learned counsel for the petitioners is that respondent No. 4 could not have been absorbed in the NOIDA in view of the amendment incorporated in the Rules on 15.4.2005, wherein the amendment was incorporated to the effect that the Board is empowered to fill up the post of Project Engineer 100% by promotion. 21. 21. The aforesaid argument of the learned counsel for the petitioners has to be considered in the light of the fact as to what are the relevant provisions in this regard. The power to make regulations is vested with the NOIDA with the previous approval of the State Government as contemplated under Section 19 of the Act. The NOIDA is empowered to make service Rules in respect of employees of the NOIDA. The service Rules known as The New Okhala Industrial Development Authority Service Regulations, 1981 were framed by the NOIDA. The source of recruitment has been provided in Regulation 16 of the Regulations of 1981. The sources of recruitment provided under Regulation 16(1) are by direct recruitment, by promotion, by deputation or reemployment or on contractual basis and from any other source approved by the authority. Regulation 16(2) provides for the percentage of the direct recruits and promotees. 22. The Regulation, which has been framed was subsequently amended in the year 2005, wherein an amendment was incorporated to the effect that the promotion to the post of Project Engineer shall be made 100% on the basis of promotion. Learned counsel for the petitioners has taken the shelter of the aforesaid provision and has argued that once this provision has been incorporated, there is no escape to the respondents to make promotion on the basis of deputation. 23. To what extent, the Rule has been amended has not been brought on record, except that a proposal for amending the regulations and promotion rules came up before the Board in its 125th meeting. To what extent, Regulation 16 of the Regulations of 1981 has been amended, has not been stated clearly, but only the decision of the NOIDA has been brought on record to indicate that the post of Project Engineer would be filled up 100% by promotion. Whether Regulation 16 has been amended in toto or only the promotion quota has been extended. 24. Regulation 16 provides for the source of recruitment from various sources, so in absence of any amendment being brought to Regulation 16(1), the power remains with the State Government to fill up the post as contemplated under Regulation 16(1). 25. Whether Regulation 16 has been amended in toto or only the promotion quota has been extended. 24. Regulation 16 provides for the source of recruitment from various sources, so in absence of any amendment being brought to Regulation 16(1), the power remains with the State Government to fill up the post as contemplated under Regulation 16(1). 25. The reliance placed by the learned counsel for the petitioners on Annexure-4 to the writ petition, only deals with the promotion and change in policy but nothing has been brought on record, which may go to indicate that Regulation 16 has been amended drastically so as to curtail the power of the State Government in making appointment on deputation or fill up the post by means of absorption. 26. Regulation 16(2) only provides the percentage of direct recruitment and promotion and if any amendment can be said to have been incorporated, then the same would apply in respect of Regulation 16(2) and not in respect of Regulation 16(1). The power as contemplated under Regulation 16(1) remains as it is and the argument of learned counsel for the petitioners, therefore, has to be tested in the light of the aforesaid provisions. 27. The promotions to the post of Project Engineer are to be made on the basis of decision taken in 2005 by the NOIDA, but the power as contemplated under Regulation 16(1) remains with the State Government and thereby the State Government is empowered to take a decision in respect of the post in question. No doubt the application was moved by the mother of respondent No. 4 and the said application was processed by the State Government and after deliberations and scrutiny, the State Government proceeded to pass an order, posting respondent No. 4 for a period of three years on deputation. It is thereafter that the respondent No. 4 moved an application for his absorption and the Government took a decision to absorb respondent No. 4, in view of the power conferred under the U.P. Absorption Rules, 1984. The Absorption Rules of 1984 have been given overriding effect, wherein the Government is empowered to absorb any employee. 28. It is thereafter that the respondent No. 4 moved an application for his absorption and the Government took a decision to absorb respondent No. 4, in view of the power conferred under the U.P. Absorption Rules, 1984. The Absorption Rules of 1984 have been given overriding effect, wherein the Government is empowered to absorb any employee. 28. Rule 5 of the U.P. Absorption Rules, 1984 provides for absorption in undertaking that any Government servant may be permitted to be absorbed in the services of undertaking in which the employee is on deputation, if he applies to the Government for his absorption in the undertaking before 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 moved the Government for his absorption within such period and the Government agrees to such absorption in public interest. 29. A specific stand has been taken by the Government as well as NOIDA by issuing orders in this regard that respondent No. 4 has been absorbed under the U.P. Absorption Rules, 1984, that Section 41 of the U.P. Urban Planning and Development Act, 1973 has been adopted by the NOIDA. 30. Section 41 of the U.P. Urban Planning and Development Act, 1973 reads as under: “41. Control by State Government— (1) The (Authority, the Chairman or the Vice-Chairman) shall carry, out such directions as may be issued to it from time to time by the State Government for the efficient administration of this Act. (2) If in, or in connection with the exercise of its power and discharge of its function by the) Authority, the Chairman or the Vice-Chairman) under this Act any dispute arises between the (Authority, the Chairman or the Vice-Chairman) and the State Government the decision of the State Government on such dispute shall be final. (3) The State Government may, at any time, either on its own motion or an application made to it in this behalf, call for the records of any case disposed of or order passed by the Authority or the Chairman for the purpose of satisfying itself as to the legality or propriety of any order passed or direction issued and may pass such order or issue direction in relation thereto as it may think fit. Provided that the State Government shall not pass any order prejudicial to any person without affording such person a reasonable opportunity of being heard. (4) Every order of the State Government made in exercise of the powers conferred by this Act shall be final and shall not be called in question in any Court.” 31. Learned counsel for the NOIDA as well as learned Standing Counsel have submitted that in view of the aforesaid provision, which has been adopted by the NOIDA, the decision taken by the State Government was binding upon the NOIDA and the NOIDA in pursuance of the direction issued by the State Government, proceeded to absorb respondent No. 4. 32. Learned Standing Counsel has relied upon Regulation 80 of Chapter 7 (Miscellaneous) of Service Regulations 1981, which reads as under: “80. For the removal of doubt it is hereby declared that these regulations shall be subject to any rules made by the State Government under the Act or and directions issued by the State Government under Section 41 of the U.P. Urban Planning and Development Act, 1973 or to the provision.” 33. Learned Standing Counsel has submitted that in view of the power conferred upon the State Government, the State Government has proceeded to take a decision so the absorption of respondent No. 4 cannot be faulted nor the decision of the State Government can be faulted in any manner. 34. A further argument has been raised by the learned counsel for the NOIDA that the petitioners are not qualified to be promoted and as such, they are not eligible persons and they cannot maintain the writ petition. He further submits that the eligibility for promotion to the post of Project Engineer is Degree in Engineering with minimum eight years experience as Assistant Project Engineer. The petitioner No. 1 has been promoted on the post of Assistant Project Engineer vide order dated 24.7.2012 from the date of joining and not from the year 2003. The petitioner No. 1 has also given an affidavit to the effect that he will not claim promotion on the post of Assistant Project Engineer (Electrical and Mechanical) w.e.f. 1.9.2003. As such, the petitioner No. 1 is not eligible and entitled for promotion on the post of Project Engineer and this fact has been concealed in the writ petition. It has also been submitted that petitioner Nos. As such, the petitioner No. 1 is not eligible and entitled for promotion on the post of Project Engineer and this fact has been concealed in the writ petition. It has also been submitted that petitioner Nos. 2 and 3 are presently not eligible and entitled for promotion, for which, no defence could be taken by the learned counsel for the petitioners. Learned counsel for the NOIDA has annexed a copy of minutes of the meeting dated 27.1.2012, which explicitly demonstrates the aforesaid position. It has been submitted that the decision taken by the State Government does not suffer from any illegality and rather the Government was fully empowered to take a decision in regard to absorption of respondent No. 4. 35. Once the petitioners are not eligible for promotion, then also, they do not have any right to maintain the writ petition in the nature of quo warranto, challenging the absorption of respondent No. 4 as they are not being affected in any manner and neither their rights have been curtailed on account of absorption of respondent No. 4 at the moment. 36. The Apex Court in the case of Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmad and others, AIR 1976 SC 578 , has held that unless injury is suffered personally, no petition shall be filed. In Para-47 of the said judgment, the Apex Court held as under: “47. In the light of the above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something. He has not been subjected to a legal wrong. He has suffered no legal grievance. He has no legal peg for a justiciable claim to hang on. Therefore he is not a ‘person aggrieved’ and has no locus standi to challenge the grant of the No Objection Certificate.” 37. In the case of Dr. (Mrs.) Seshu Lavania and another v. State of U.P. and others, (2007) 3 UPLBEC 98, a Division Bench of this Court, dealing with almost similar issue in Paras-70 and 71 of the judgment observed as under: “70. In the case of Dr. (Mrs.) Seshu Lavania and another v. State of U.P. and others, (2007) 3 UPLBEC 98, a Division Bench of this Court, dealing with almost similar issue in Paras-70 and 71 of the judgment observed as under: “70. The respondent became entitled for promotion on 3rd May, 2001 but since no selection committee in Botany was held between 3rd May, 2001 and 28th November, 2001, when the Feeder Cadre Scheme was withdrawn, he was given the benefit under the directive of the State Government dated 30.1.2004, which extended the benefit of the said Scheme for those who became eligible and entitled for promotion up-to 28th November, 2001. The respondent thus was fully eligible and the Circular issued by the U.G.C. in the year 2003 neither relates to the Feeder Cadre Scheme, which stood abolished with effect from 28.11.2001, nor they can be read contrary to the specific Government orders defining the Feeder Cadre, both in respect of the post of Reader and for the post of Professor and length of service of 17 years, as required. For this reason also the selection of the respondent cannot be challenged -nor can be held to be invalid. 71. For the reasons aforesaid, the challenge made by the petitioners to the promotion of the respondent is not tenable. The petitioners are neither eligible nor they have been able to establish that the respondent was not eligible for promotion under the relevant Government orders, under the Career Advancement Scheme/Feeder Cadre Scheme and, therefore, the petitioners do not have any locus standi to challenge the said promotion.” 38. The service regulations in respect of NOIDA employees can be made with the previous approval of the State Government as contemplated under Section 19 of the Act. Regulations have been framed in the year 1985 with the previous approval of the State Government. So far Annexure-4 to the writ petition, which is sought to be relied upon by the learned counsel for the petitioners, is concerned, there is no indication of previous approval of the State Government and neither it is so stated in the body of the writ petition, so until and unless there is any approval of the State Government, the said provisions cannot be said to have come into effect. 39. 39. Learned counsel for the NOIDA has also placed reliance upon a decision of the Division Bench of this Court in the case of Pradeep Kumar Garg v. State of U.P., decided on 3.7.2007, to give support to the action taken by the State Government. In Para-62 of the said judgment, the Court observed as under: “62. In view of the aforesaid settled legal position, in our considered and concluded opinion, the cases in hand fall within first category or line of cases, where the deputation has been provided as one of the source of recruitment amongst the sources of recruitment on the post in question under Regulation 16(1)(c) of Service Regulations 1981, therefore, in view of law laid down by Hon’ble Apex Court in K.Madhavan’s case (supra), which has been consistently followed and crystallized by Hon’ble Apex Court in subsequent decisions rendered in K. Anjaiah’s case (supra), M. Ramchandran’s case (supra) and Sub Inspector Rool Lal’s case (supra), the past services rendered by deputationists of present case on regular or substantive basis in their post department or organisation in respective categories or posts or grades before joining the post on deputation in the services of the Authority shall be counted and computed towards length of their service for the purpose of determination of their seniority on respective deputed posts and after joining their post on deputation till their permanent absorption on said post the services rendered by the deputationists shall also be counted towards length of service for determination of their seniority on deputed post, as it is not in dispute that prior to joining their post on deputation in respective categories the deputationists-respondents were already working in regular and substantive capacity on equivalent post or category or grade in their parent organisation/department. Although no statutory rule or office order or circular has been shown to us which takes away the benefit-of past services rendered by the deputationists before their joining the post on deputation in the services of the Authority, but in view of law laid down by Hon’ble Apex Court in Sub Inspector Roop Lal’s case (supra) any-rule, regulation or executive instruction which has the effect of taking away the services rendered by deputationists man equivalent post in parent department while counting their services deputed post would be violative of Articles 14 and 16 of the Constitution of India, Juice liable to be struck down. Therefore, by taking the risk of repetition we further hold that Regulations 24(2) of Service Regulations should be interpreted in such a manner by reading down the observation made herein before so as to save its exposure from attack on the ground of its being violative of Article 14 and Article 16(1) of the Constitution of India, until it is suitably amended by taking into account the law laid down by Hon’ble Apex Court indicated herein before.” 40. Considering the legal position emerging in the present case and from the legal provisions, we come to the conclusion that the present writ petition has no merit and is liable to be dismissed. 41. The writ petition is accordingly dismissed. 42. The parties shall bear their costs.