Allahabad High Court
Chahan Singh vs State Of U.P. And Anr. on 1 October, 2003
Equivalent citations: 2004(1)AWC464
Author: A.K. Yog
Bench: A.K. Yog
JUDGMENT A.K. Yog, J.
1. Heard learned counsel for the parties at length and perused the record of the writ petition as desired by them.
2. The petitioner, Chahan Singh at the relevant time working on deputation with New Okhla Industrial Development Authority called NOIDA (an authority under Article 12, Constitution of India) created under U.P. Industrial Area Development Act, 1976.
3. NOIDA, initially on its inception did not have its own permanent staff and hence, borrowed peoples on its staff on deputation from other source, e.g.. State Government. Later NOIDA employed, by making regular appointment on its staff, certain persons on its staff. U is admitted that several posts in 'NOIDA' Establishment are still being held by people brought on. deputation from their parent departments in the Government. NOIDA, thus, has two categories of employees-one, those who are appointed by the NOIDA itself and second, those who are employed elsewhere but brought on deputation as stop gap temporary arrangement and who hold their Hen in a cadre of service under control of their parent employer. The precise question for adjudication on these writ petitions for the purpose of preferential treatment in allotment of flat/plot, employees of both the categories can be bracketed as one class, in other words whether both regular employees those on deputation can be treated as employee of NOIDA in the context of the relevant G.O.
4. To appreciate the controversy in the writ petition in hand, it will be useful to note that a large number of writ petitions were filed before the Supreme Court of India challenging reservation in allotment on priority basis of plots and houses in favour of different categories of applicants. The Apex Court has already disapproved reservation in favour of political sufferers, employees of Central Government/Government of India, Public Undertakings and International Organisations (not working with NOIDA). Supreme Court, however approved reservation in favour of persons whose land was acquired and employee of NOIDA.
5. Para 5 of the Writ Petition No. 39155 of 2003 (as also mentioned in connected writ petition) for convenience quoted below :
"That a large number of writ petitions were filed in the Supreme Court challenging the reservation made by NOIDA in favour of different categories of applicants in the matter of allotment of plots and houses on priority basis. The Hon'ble Supreme Court while deciding the aforesaid writ petition clearly held that reservation in favour of political sufferers, employees of State Government, Government of India, Public Undertakings, and International Organisations was bad whereas the reservation in favour of persons whose land was acquired, entrepreneurs, NOIDA employees and employees of NOIDA was held to be sound. For convenient perusal the observation made by the Supreme Court is being reproduced herein below :
"...................... Keeping in view the object of the Act under which NOIDA was constituted, prima facie, the reservation in favour of political sufferers and employees of Central Government, Government of India, Public Undertaking and International Organisations appears to us to be bad, while reservation in favour of persons whose land has been acquired, entrepreneurs and NOIDA employees and employees of NOIDA appears to be sound."
A true copy of the judgment of the Supreme Court is being filed and marked as Annexure-1 to this writ petition.
6. Petitioner contended that persons working on deputation with NOIDA are also entitled to reservation in allotment of plots/flats, along with employees appointed by and working with NOIDA on ......... as its permanent staff but respondent No. 1 (State of U.P.) and respondent No. 2, NOIDA are denying such privilege on the ground that the two are in different category, deputationists are not the employee of NOIDA within the meaning of concerned G.O., they are not similarly situated as the regular/permanent employee of NOIDA and that deputationist cannot claim parity with its permanent employees (appointed by it).
7. Relief claimed in the Writ Petition No. 39155 of 003 (which are somewhat similar in connected writ petition) read :
(a) Issue a writ, order or direction in the nature of mandamus commanding upon the respondents to restore the facility of reservation of residential plots/buildings in favour of employees working on deputation in NOIDA on priority basis.
(b) Issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper and to which the petitioners may be found entitled to in the circumstances of this case.
(c) Award costs of this petition to the petitioner.
8. We directed the respondent to seek instruction for filing counter-affidavit. However, no counter-affidavit has been filed on the plea that the facts of the case are not in dispute and the only controversy required for consideration by this Court is as to whether the person working with NOIDA on deputation is covered by the expression "employees of NOIDA" and whether a deputationist is included in the term 'employee of NOIDA' when the Apex Court in earlier case of I.L. Dhingara v. State of U.P. and Ors. copy filed as Annexure-1 to the writ petition approved reservation in favour of NOIDA employee.
9. An extract of the said judgment is reproduced here :
"Keeping in view the object of the Act under which NOIDA was constituted, prima facie, the reservation in favour of the political sufferers and employees of Central Government, Government of India, Public Undertakings and International Organisations appears to us to be bad, while reservation in favour of person whose land has been acquired, entrepreneurs and NOIDA employees and employees of NOIDA appears to be sound. Reservation in favour of persons belonging to Scheduled Castes, Scheduled Tribes and Backward Classes was not questioned before us. Reservation in favour of nominees of HUDCO was question but it appears to us to be prima facie justifiable as HUDCO is the principal financier of the scheme."
10. The petitioners working on deputation claim to be within the category of "NOIDA employee and employee of NOIDA" approved by the Apex Court in the case of I.L. Dhingara (supra). According to the petitioner the expression "NOIDA employee and employee of NOIDA" used by Supreme Court in the case of I. L. Dhingara v. State of U.P. and Ors., means person employed by NOIDA whether appointed by NOIDA as its own regular employee on its staff strength or otherwise, brought to serve NOIDA on deputation.
The argument is not sound as discussed hereinunder.
11. The New Okhala Industrial Development Authority Service Regulations, 1981 (hereinafter called 'the Regulations') have been placed before us by the learned counsel for the NOIDA and both the sides relied upon it without disputing its question.
12. In particular Chapter I (Regulations 2 and 3, Chapter III Regulations 16 and 17), Chapter VI (Regulations 59, 60, 68, 70 and 271) and Chapter VII (Regulations 76, 78, 79 and 80) have relevance to the question in hand. Chapter I Regulation 2 reads :
"These regulations shall apply to every wholetime employee of the authority except a person working with the authority on deputation from the Union Government or any State Government or a local authority or a corporation or any other organisation, by whatever name called, and such a person shall continue to be governed by the rates applicable to him in relation to his service under his parent department or organisation, by whatever name called unless such person is absorbed, in the service of the authority as a regular employee."
(Italicised to lay emphasis) The aforesaid provision clearly, provide that these Regulations are applicable to whole time employee of NOIDA and clearly excludes those working on deputation who shall, according to this clause, continue to be governed by Rules of one's own parents department. A deputationist, has been, therefore, expressly excluded from the ambit of expression 'wholetime employee' of NOIDA.
13. Again Regulation 3 (g) defines the term of "employee" and it means an employee of the authority to whom this regulation apply.
14. We jointly enquired both the counsel for the parties whether the regulations apply to the persons working on deputation particularly Regulation 78 Chapter VII reads :
"Regulation 78. (1)--Every employee at the time of joining the post and in the case of an employee already in the service of the authority on the date of commencement of these regulations, within a period of thirty days from such commencement or within such extended time, as the Chief Executive Officer may allow, furnish a declaration in the form given in Annexure-D to the effect that he agrees to be governed by these regulations.
(2) When an employee who is in the service of the authority on the date of commencement of these regulations fails to furnish a declaration referred to in sub-regulation (1) he shall, notwithstanding anything contained in these regulations, continue to be governed by the terms of his initial appointment and shall not be entitled to any benefit of these regulations."
(Italicised by us)
15. Regulation 16 (2) provides that sixty six per cent of Group "A" posts shall be filled by direct recruitment and the remaining thirty four per cent posts shall be filled by promotion from amongst the employees upon the basis of seniority subject to the rejection of the unfit and fulfilment of the requisite qualifications and also subject to the condition of the particular employee having worked for prescribed period. It is further contemplated that various posts falling under group 'B' will be filled in such a way as to ensure that fifty per cent of the posts are filled in by the promotion from existing employees and such promotion shall be made on the basis of seniority subject to the condition given therein. Posts falling under Group C are to be filled to the extent of twenty five per cent by promotion from amongst the employees belonging to Group D on the basis of seniority subject to the rejection of the unfit and fulfilment of the requisite conditions and remaining seventy five per cent by direct recruitment.
16. It is interesting to note that Regulation 16 (2) does not deal with filling of any post in any cadre of NOIDA by deputation while it refers to the expression employee.
17. The aforesaid provisions in the Regulation, however, indicate that recruitment of a person working with NOIDA on deputation are not the regular employee of NOIDA in whose favour Apex Court approved reservation, in the case of I. L. Dhingara (supra).
18. Further, it is admitted by the learned counsel for the petitioner that the deputationists working with NOIDA are not required to furnish any declaration and even otherwise no declaration has been obtained by NOIDA or given by such deputationist as contemplated under Regulation 78 of Chapter VII (quoted above).
19. Provisions of the Regulations go to show different status of regular and permanent employees of NOIDA vis-a-vis those who are taken on deputation by NOIDA, and also that the deputationist cannot claim to be governed by similar service condition regular employee and deputationists are not at par and hence, no ground for claiming to parity with each other.
20. The learned counsel for the petitioner referred to a letter by the Government addressed to the Chief Executive Officer, NOIDA, for considering the benefit of reservation in the matter of allotment of flats/plots upon the officers working on deputation. In reply Chief Executive Officer, NOIDA sent a letter dated 7.12.2000 (Annexure-3 to the writ petition) wherein NOIDA categorically placed its stand that the deputationists are not the 'employee' of NOIDA. Chief Executive Officer, in response to the aforesaid letter quoted the provisions of Supreme Court's judgment in the matter of I. L. Dhingara and mentioned no additional category could be created.
21. Subsequently, Special Secretary, U.P. Government in his letter addressed to the Chief Executive Officer, NOIDA, informed that 'reservation' in the matter of allotment of plots/flats shall be available only to the permanent staff of NOIDA. This letter clearly excluded deputationists (Annexure-4 to the writ petition).
22. The petitioner relies upon letter dated 31st July, 2002, to show that same recommendation was made to the Government for allotment in favour of persons working with NOIDA on deputation (Annexure-5 to the writ petition).
23. We have perused the aforesaid letter and find that it was not finally accepted probably in view of Apex Court judgment in case of I. L. Dhingara (supra), holding that there should be no favour for no good reason in the matter of allotment.
24. In view of above discussion, we find no merit, in the case. Writ petitions are, accordingly, dismissed.