Allahabad High Court
Noida Employees Association And 2 ... vs State Of U.P. And 3 Others on 29 March, 2019
Equivalent citations: AIRONLINE 2019 ALL 1673, (2019) 5 ADJ 602 (ALL) 2020 (138) ALR SOC 31 (ALL), 2020 (138) ALR SOC 31 (ALL)
Author: Pankaj Mithal
Bench: Pankaj Mithal, Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED/AFR Case :- WRIT - A No. - 25309 of 2018 Petitioners:- Noida Employees Association and 2 others Respondents:- State of U.P. and 3 others Counsel for Petitioners:- Aditya Singh, Anoop Trivedi, Mr. Jayant Mehta (Sr. Adv.) Counsel for Respondents:-C.S.C., Aditya Bhushan Singhal, Kaushalendra Nath Singh Hon'ble Pankaj Mithal, J.
Hon'ble Saumitra Dayal Singh, J.
(Per Saumitra Dayal Singh, J.)
1. The present writ petition has been filed by NOIDA Employees' Association, a registered Trade Union having its head office at Noida and two others. It has been disclosed in the writ petition that the said Association has over 1400 officers/employees of New Okhla Industrial Development Authority (hereinafter referred to as the NOIDA) as its members and it has been duly authorised to institute the present writ petition on their behalf. Also, Shri Ashok Kumar Sharma, General Secretary of petitioner no.1 Association and also an employee of NOIDA is the petitioner no.2 while Shri Kushal Pal Singh, another employee of NOIDA is the petitioner no.3 in this writ petition. Initially, the writ petition had been filed seeking, by way of first relief, a declaration that Section 5-A of the Uttar Pradesh Industrial Area Development Act, 1976 (hereinafter referred to as the 'Act') as introduced by the Uttar Pradesh Industrial Area Development (Amendment) Act, 2017 (hereinafter referred to as the 'Amending Act'), would be applicable to officers and employees only, who may have been recruited subsequent to the enactment of the Amending Act. Alternatively, a prayer was made to quash Section 5-A of the Act. While the writ petition remained pending, an amendment application was filed, that has also been allowed, and a further relief has been sought to declare the Uttar Pradesh Industrial Development Authorities Centralised Service Rules, 2018 (hereinafter referred to as the 'Rules'), ultra vires.
2. Before coming to the exact challenge raised, certain facts giving rise to the present writ petition, may be noted. In 1976, U.P. Act No. 6 of 1976 i.e. the Uttar Pradesh Industrial Area Development Act, 1976 was enacted, to provide for the constitution of separate Authorities for the development of certain areas in the State, into industrial and urban townships, and for matters connected therewith.
3. Under Section 2(b) of the Act, the term 'Authority' was defined to mean such Authority as may be constituted under Section 3 of that Act.
4. By Section 3 of the Act, the State Government was authorised to notify and thus constitute an Authority for any industrial development area. It was required to be known by the name of the area for which it was constituted as also it would be a body corporate having 11 members of whom the Secretary to the Government of Uttar Pradesh, Industries Department or his nominee would be its Member-Chairman, while three other Secretaries of the Government of Uttar Pradesh being Secretary, Public Works Department; Secretary, Local-self Government, and; Secretary, Finance Department would be its ordinary Members. Further, the Managing Director of the Uttar Pradesh State Industrial Development Corporation would also be it's Member, while 5 other Members would be nominated by the State Government, by notification. In addition, a Chief Executive Officer would be its Member Secretary. NOIDA had been constituted as one such authority. Also, some other industrial area development authorities have also been similarly constituted and are in existence in different parts of the state.
5. Under Section 4 of the Act, the Chief Executive Officer of the Authority is appointed by the State Government. He is the whole-time officer of that Authority.
6. Under Section 5(1) of the Act, the 'Authority' may appoint such number of officers and employees as may be necessary for the performance of its functions and it may determine their grades and designations. However, that power is subject to the control and restrictions of the State Government, by general or special orders. Also, under Section 5(2) of the Act, the officers and other employees of the Authority are entitled to receive such salary and allowance from the funds of the 'Authority' as may be agreed upon with the latter.
7. The functions of the 'Authority' are specified under Section 6 of the Act. Under Section 18 of the Act, the State Government may, by notification, make Rules to carry out the purposes of the Act.
8. Under Section 19 of the Act, each 'Authority' is empowered to make Regulations (not inconsistent with the provisions of the Act or the Rules made thereunder), to administer the affairs of the Authority. Such Regulations may be made with the previous approval of the State Government. Amongst others, the 'Authority' is empowered to make Regulations as to such other matters as may be provided for in the Regulation. In exercise of the powers vested under Section 19 read with Section 6 of the Act, the NOIDA framed various Regulations for administration of its affairs.
9. Then, the NOIDA, acting as the Appointing Authority under Section 5 of the Act, granted various appointments on different posts to numerous persons including to petitioner nos. 2 and 3. Copies of some such letters of appointment have been annexed to the writ petition. Relevant to the present controversy, such appointment letters have been shown to contain a specific clause to provide that the services of the concerned employee would be governed by the Rules and Regulations of the Authority framed from time to time. Also, such appointment letters contain a clause, though the headquarter of the employee/petitioner would be at the main office of the NOIDA Authority, however, his services would be transferable to any other place under the Authority.
10. Subsequently, by the Amending Act published on 06.01.2018, a new Section 5-A was introduced to the Act. By way of the Statement of Objects and Reasons to introduce that amendment, it was stated, the officers posted at various Industrial Development Authorities, namely at NOIDA, GREATER NOIDA, GIDA, SIDA, LIDA, YEIDA, UPEIDA and UPSIDA had been found working at one place for several years, that had affected the functionality and efficiency of those Authorities. Therefore, to bring greater efficiency and transparency in the working of those Authorities, the amendment was introduced to create centralised services and to empower the State Government to transfer a person holding post under the Industrial Development Authorities Central Services, from one Industrial Development Authority to another. Since challenge has been raised principally to this Amending Act, it may be fruitful to extract the amendment thus made. Section 5-A of the Act as introduced by the Amending Act. It reads as below:
"5-A. Creation of Centralized 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 'Industrial Development Authorities Centralized Services' for such posts, as the State Government may deem fit, common to all the Industrial 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 an Industrial Development Authorities Centralised Service, officer or employee serving on the posts included in such service immediately before such creation, not being a person governed by the Uttar Pradesh Palika (Centralised) Services 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) An officer or employee referred to in sub-section (2) may, within three months from the creation of such Industrial Development Authorities Centralized Service communicate to the Government in the Industrial Development Department, his option not to be absorbed in such Centralized Service, failing which he shall be deemed to have opted for final or provisional, as the case may be, absorption in such centralized Service.
(4) Suitability of officer or employee absorbed provisionally, for final absorption in an Industrial Development Authorities Centralised Service, shall be examined in the manner prescribed and if found suitable he shall be absorbed finally.
(5) The services of officer or 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 Industrial Development Authority concerned, an amount equal to -
(a) three month's salary, if he was a permanent employee;
(b) one month's 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 authorized by it in this behalf, to transfer any person holding any post in an Industrial Development Authorities Centralized Service from one Industrial Development Authority to another."
11. In view of that amendment, the State Government has, in exercise of powers vested under Section 5-A read with Section 18 of the Act, framed the Uttar Pradesh Industrial Development Authorities Centralized Service Rules, 2018 (hereinafter referred to as the 'Rules'). Relevant to our purpose, Rule 2(1)(b) defines the Appointing Authority as the State Government. All powers to determine cadre and strength, suitability of provisionally absorbed persons, fresh recruitment, manner of making direct recruitment (for posts mentioned in Schedule II and IV), manner of recruitment by promotion for posts specified in Schedule III and IV, appointment, probation, confirmation and seniority have, for all practical purposes, been placed under the direct control of the State Government.
12. It is in the above context, that the challenge has been raised in the present writ petition to the Amending Act/Section 5-A of the Act and the Rules. Shri Anoop Trivedi, learned counsel for the petitioners has advanced submissions to the effect that the Amending Act is ultra vires, inasmuch as it is in stark conflict with the unamended Act and the amendment if allowed to stand, would destroy the autonomy of each Industrial Development Authority which autonomy is the essential feature conceived and created by the Act. He submits, under Section 3 of the Act, each Authority constituted by the State Government is a body corporate, independent of the State Government. Upon their constitution as body corporate, they exist and function completely independent of the State Government. Then, referring to Section 5 of the Act, he submits, the Authority is the Appointing Authority qua its employees, who it appoints in such numbers as may be deemed necessary for its functioning and efficiency and in such grade/s and designation as it may provide. Even as to the provisions of salaries and allowances, the matter falls within the exclusive domain of the Authority by virtue of Section 5(2) of the Act. The autonomy thus granted to the Authority was absolute and necessary for the purpose of its functions specified under Section 6(2) of the Act.
13. Shri Trivedi further submits, because the Authority is completely autonomous under the Act, the State Government may only make Rules to carry out the purpose of the Act but not for the administration of the affairs of the Authority. Thus, again referring to Section 5 read with Sections 18 and 19 of the Act, he submits, the State Government had no legal competence to make any Rule governing or affecting the services of the employees of the Authority, as that subject matter remained within the confines of the affairs of the concerned Authority and it had no direct connection or nexus with the purpose of the Act.
14. By way of second limb of the aforesaid argument, it has been further submitted, by adding a non obstante clause to Section 5-A introduced by the Amending Act, the State Legislature has sought to destroy the autonomy of the Authority which is against the basic scheme and purpose of the Act (which has remained unamended). It brings the Amending Act in direct conflict with the Act and therefore ultra vires.
15. According to him, the two enactments i.e. the Act and the Amending Act cannot be harmonised, inasmuch as under the Act, qua its officers and employees, the Authority continues to be the appointing authority. Therefore, in so far as Section 5-A of the Act seeks to centralise the services of all Industrial Area Development Authorities and to authorise inter-Authority transfer of such officers and employees, it is ultra vires Section 5 of the Act as such a measure destroys the indefeasible 'autonomy' of the Authority embodied in and represented by that provision of law.
16. In this regard, besides others, it has been further canvassed before us, the Appointing Authority has not been defined under the Amending Act and the definition of that term under Rule 2(1)(b) of the Rules, is wholly without any statutory sanction and, in fact, it is also in conflict with Section 5 of the Act and therefore, ultra vires.
17. Also, it has been submitted by learned counsel for the petitioners that Section 5-A introduced by the Amending Act, is wholly arbitrary and therefore unconstitutional, inasmuch as any existing officer or employee of an Industrial Area Development Authority, who opts against absorption may find his services determined. Insofar as petitioner nos. 2 and 3 and other members of petitioner no.1 were all appointed as employees of the NOIDA, by that Authority itself, the stipulation under sub-section (5) of Section 5-A, depriving them of an option to seek absorption in the centralized services or to continue in service under the NOIDA, is wholly arbitrary inasmuch as, in the first place, the Appointing Authority was and it continues to be the NOIDA Authority itself. Second, in any case, the stipulation noted above is wholly unfair and unreasonable, inasmuch as though it seeks to give an option but in real terms no option has been given to the petitioners.
18. Next, it has been submitted, even if the challenge as raised above were to fail, vested rights of the petitioners and other similarly situated persons could not be altered or amended, except with their prior consent. Referring to the clauses of individual appointment letters (as noted above), learned counsel for the petitioners submits, the posts of the petitioners were not transferable outside the area of operation of the NOIDA. Therefore, petitioner nos. 2 and 3 and all other members of petitioner no.1 had a vested right to be always posted within Noida and that vested right could not be destroyed by transferring them outside the area of operation of NOIDA. In this regard, it has been further submitted the Appointing Authority and the scheme of Section 5 of the Act being intact, the Rules that provide for a contrary scheme without any statutory backing or validation are wholly ultra vires. He has supported his submissions with volumes of precedents. Those will be noted and discussed a little later.
19. Responding to the above, the learned Advocate General first raised a preliminary issue with regard to maintainability of the writ petition at the instance of petitioner no.1 who is only a Trade Union. Relying on a Full Bench decision of this Court in Umesh Chand Vinod Kumar & Ors. Vs. Krishi Utpadan Mandi Samiti & Ors., AIR 1984 Alld. 46, it has been submitted, such a writ petition may have been filed by an Association or Trade Union either if the members of the Trade Union were shown to be unable to approach this Court or the cause of action involved in the writ petition related to a public injury or if the rules of its Association declared that the decision in such writ petition would bind all its members. According to him, in absence of such condition being satisfied, the writ petition was wholly not maintainable.
20. However, the nature of the preliminary objection is such as involves vital factual aspects to be adjudicated first, before it may be accepted. The counter affidavit filed by the State-respondents, does not contain any fact pleaded to establish that the bye-laws of the petitioner-Trade Union do not have any such stipulation as may bind all its members with the decision. Also, it has not been disputed that petitioner no.1 has been authorized to file the writ petition on behalf of its members. In any case, there is no objection raised as to the maintainability of the writ petition on behalf of petitioner nos. 2 and 3.
21. Thus, the writ petition on behalf of petitioner nos. 2 and 3 is wholly maintainable. Once this Court would rule on the vires of the Amending Act and the Rules framed thereunder, on their petition, that decision would, in any case, always be a decision in rem and not a decision in personam inasmuch as the declaration of law that may arise upon the final decision of the writ petition filed on behalf of petitioner nos.2 and 3, would remain a decision of this Court as to the validity of the Amending Act and the Rules framed thereunder. That declaration, would, by its very nature, would remain a pure declaration of law, though at the instance of petitioner nos 2 and 3. It would operate against all. Consequently, the preliminary objection raised by the learned Advocate General is repelled both on account of the fact that it is not founded on any factual objection raised in the counter affidavit as also on account of the fact that the writ petition is undisputedly maintainable on behalf of petitioner nos.2 and 3.
22. Coming to the substance of the matter, it has been submitted, the Amending Act had become necessary in view of the fact, with the passage of time and in absence of transferability, it was found, the functioning and efficiency of the individual Industrial Area Development Authorities was adversely affected because its officers and employees had been found working at the same place for long years. In case of certain officers and employees, it had been also noticed, they had developed vested interests on account of such prolonged posting leading to widespread corruption, nepotism and losses to their employer namely, the individual Industrial Area Development Authorities. Even upon retirement, some such officers and employees were found to have gained fresh employment with builders with whom they had developed undesirable relationship, owing solely to long duration of service rendered at a particular Industrial Area Development Authority. This was itself a malpractice and, in any case, it was having a detrimental impact, both on the functioning and the efficiency of the individual Industrial Area Development Authorities as also the society in general. In this regard, reference has been made to the Statement of Objects and Reasons, to the Amending Act.
23. Coming to the exact challenge raised by the petitioners, the learned Advocate General would submit, the challenge being to the enactment of the State Legislature, the grounds of challenge are limited i.e. two and strict, being either the Act be shown to be beyond the legislative competence of the State Legislature or in violation of any of the fundamental rights guaranteed under Part-III of the Constitution of India or of any other constitutional provision. There does not exist any third ground to challenge the Amending Act. Relying on that principle firmly emphasised by the Supreme Court in State of A.P. & Ors Vs MCDOWELL & Co. & Ors., (1996) 3 SCC 709, it has been submitted, the burden to establish unconstitutionality of a Statute is a heavy burden that lies strictly on the challenger/petitioners. It cannot be discharged in a cavalier manner by merely stating that the Amending Act is arbitrary or unreasonable. In absence of any challenge raised to the legislative competence or any constitutional infirmity in the Amending Act, it does not lie with the petitioners to set up a loose plea of the Amending Act being contrary to the original Act. Such a ground does not exist. According to him, 'arbitrariness' does not exist as a ground to challenge plenary legislation.
24. Relying on yet another decision of the Supreme Court in Namit Sharma Vs. Union of India, (2013) 1 SCC 745, it has been submitted for such a challenge to succeed, the petitioners were burdened to establish either that the Amending Act suffered from the vice of legislative incompetence or it was violative of the fundamental rights contained in Part-III of the Constitution. There being no challenge to the legislative competence and no conflict shown to exist between the Amending Act and Part III of the Constitution, the challenge is stated to be wholly unfounded.
25. Last, relying on another decision of the Supreme Court in Rajbala & Ors Vs State of Haryana & Ors., (2016) 2 SCC 445, it has been submitted, a Statute may not be declared to be unconstitutional on a mere allegation of it being arbitrary. Wide powers are accepted to exist with the legislature on the subject it is competent to make laws. The legislature has plenary powers to legislate an appropriate law on any subject matter that falls in its domain. The legislative competence of the State legislature not being in doubt, the law made by it is not required to satisfy any test of consistency with the pre-existing law on that subject. Therefore, the amendment made is stated to be wholly valid.
26. Coming to the provisions of the Amending Act, it has been submitted, it is wholly wrong and unfounded to allege that it does not specify the State Government as the Appointing Authority. Referring to Section 5-A(1), it has been submitted, upon that amendment made, the State Government became the Appointing Authority with respect to all the employees and officers to whom a centralized service rules were made applicable by the State Government. In fact, if the State Government had failed to make the Rules affecting the services of the petitioners, even then no conflict would arise between Sections 5 and 5-A of the Act, inasmuch as those persons would continue to be governed by the old law, being the Regulations framed by the NOIDA Authority. However, once the centralized service rules were enforced by the State Government, then, by virtue of the provisions of Section 5-A, the State Government became the Appointing Authority and the old law governing the services of the petitioners under Section 5 of the Act and the Regulations framed thereunder, ceased to have effect.
27. Then, it has been submitted, use of the non obstante clause in Section 5-A clearly removed any possible doubt or conflict that may arise in such a situation. In view of the non obstante clause attached to Section 5-A of the Act (introduced by the Amending Act), the pre-existing provisions of the Act, insofar as they governed the services of the petitioners, stood eclipsed upon the Rules being enforced. Only one law would now govern the service of the petitioners being the law in force in accordance with the scheme Section 5-A of the Act. Therefore, there is no conflict between the Act and the Amending Act, as was sought to be made out by the petitioners.
28. Then, specific to the powers of the State Legislature to alter service rules or to effect changes in service, reliance has been placed on another decision of the Supreme Court in P.U. Joshi & Ors. Vs Accountant General, Ahmedabad & Ors., (2003) 2 SCC 632, to submit that questions relating to constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, etc. fall within the domain of policy to be framed by the State at its exclusive discretion. The State may also amalgamate or bifurcate Departments and create or merge different categories of posts and cadres by undertaking fresh or destroying existing classifications, bifurcations etc. No employee may have a right to claim that the rules governing conditions of his service may forever remain the same, except to ensure or safeguard rights or benefits already earned, acquired or accrued.
29. Referring to the averments made in the counter affidavit wherein, by means of paragraph 14, a detailed comparative chart has been presented (which has remained unrebutted), it has been submitted, other than the stipulation of transfer arising upon centralization of services, all other conditions of service have been revised to the benefit/advantage of the concerned employees after granting full/complete pay protection. In fact, the result of the Amending Act and the Rules is stated to be an upgradation of the status of the petitioners from that of an employee of an Industrial Area Development Authority to that of the State Government. It may be fruitful to extract the contents of paragraph 14 of the counter affidavit filed by the State. It reads as under:-
"14. That the services of the employees of NOIDA are being governed by the NOIDA Industrial Development Authority Regulation, 1981 as amended from time to time (hereinafter referred as Regulation, 1981) prior to the Rule of 2018. It is pertinent to mention here that except the employees/officers, who are covered under the Rule of 2018, the other employees will remain be governed by the Regulation, 1981 as usual. For the better appreciation of the case the difference between the Regulation 1981 and Rule 2018 a comparative chart is being placed herein below:
Sl. No. NOIDA Service Regulation, 1981 U.P. Industrial Development Authority (Centralized) Service Rules, 2018
1.
This Regulation was applicable to the employees/officers of NOIDA This rule is uniformly applicable to the employees/officers of the entire Industrial Development Authorities belongs to Centralized Group A, B, C, (except driver)
2. Under this Regulation the transfers of the employees/officers was made within the Authority from one desk to another on administrative ground Under this Rule employees/officers, mentioned in Scheduled-I may be transferred from one Industrial Development Authority to another Industrial Development Authority which also increases the efficiency of the officials, increases the level of work, ensure transparency and will helpful to stop corruption which will be in the public interest.
3. Under this Regulation in recruitment/promotion of the employees of NOIDA can be made by the Authorities by the Authorities NOIDA itself.
Under this Rule the recruitment/promotion will be made by a Commission uniformly at State level which will bring transparency and will ensure the availability of competent employees.
4. Under this Regulation nomenclature, pay-scale and other service conditions of the employees were determined by the NOIDA Authority after taking the approval from the Government.
After promulgation of this Rule there will be an uniformity in the nomenclature, pay-scale and other service conditions of the entire employees of Industrial Development Authority.
5. The Regulation provides the recruitment process, pay and allowances, leave, disciplinary proceedings and other conditions of service of employees of NOIDA This Rule will apply uniformly to all employees/officers of entire Industrial Development Authority so far as it relates to recruitment process, pay and allowances, leave, disciplinary proceedings and other service conditions. It is pertinent to note that this Rule no way curtails the said provisions mentioned in the Regulation 1981.
Under this Rule those posts will remain under the authority services as usual which is not mentioned in Scheduled-I of Centralized Rule.
The assets and properties alongwith its employees of U.P. State Industrial Development Corporation Limited has been merged in U.P. State Industrial Development Authority. There was already a provision to transfer the employees/officers including class-III cadre of U.P. State Industrial Development Corporation Limited from one zone to another. Now it will apply in Industrial Development Authority.
In view of the above it is clear the service condition of the employees of the NOIDA have not been affected rather it has become more strengthen and reasonable. It is pertinent to mention here that by framing the Rule, 2018, the employee/officers of one Industrial Development Authority may be transferred to other Industrial Development Authorities and in this way they will have an opportunity to give their services to another Industrial Development Authority and also to increase their efficiency and work culture. In this manner, the benefit of their intellect, efficiency and work culture may also be extended to other Industrial Development Authorities."
30. Then, it has been submitted, transfer (in service jurisprudence), is not a vested, acquired or accrued right. Such rights are confined to monetary benefits, pay scales etc. They would never extend to other conditions of service, such as transfer arising upon centralization of the services.
31. Relying on another decision of the Supreme Court in A.P. Cooperative Oil Seeds Growers Federation Ltd. Hyderabad Andhra Pradesh Vs. D. Achyuta Rao & Ors., (2007) 13 SCC 320, it has been submitted, mere hardship or inconvenience or even injustice caused to a particular section of employees is not a ground to strike down the Rules itself. The constitutionality of the service rule may not be tested from the perspective of its effect on any particular individual. If the Rule itself appears to be fair, just and reasonable and does not suffer from the vice of Articles 14 and 16 of the Constitution, some hardship or injustice, even if found to have been caused to some person, may not be a ground to strike down the Rule itself.
32. Further reliance has been placed on another decision of the Supreme Court in K.A. Nagamani Vs. Indian Airlines & Ors., (2009) 5 SCC 515, to submit, no challenge may be raised on the basis of violation of pre-existing Rules. The Authority (in that case) was found entitled to determine all conditions of service, alteration thereof by amending the Rules, constitution, classification, abolition of posts, cadres or categories of service etc. In that case also, the Supreme Court relied upon and restated the principle contained in its earlier decision in P.U. Joshi & Ors Vs. Accountant General Ahmedabad & Ors. (supra).
33. The Rules, it has been submitted, had been framed wholly consistent with the Act. Once under Section 5-A the State Government centralized the services (of the various Industrial Area Development Authorities), it became the appointing authority for all members of that centralized service, by virtue of Section 5-A(1) of the Act. Thereafter, by virtue of section 18 of the Act, it would only be the State Government that could make the Rules under Section 18 of the Act for the purpose of that Act.
34. The pre-existing power of the Authority to make Regulations for the purpose of Section 5 of the Act, would stand preserved and intact, so however that Authority may continue to make Regulations for services that had yet not been centralized. However, the plain effect of the enforcement of Rules by the State Government would be that the pre-existing Regulations framed by the Authority would cease to be applicable to a centralised service.
35. As to the submission of lack of option given to the petitioners, it has been submitted, neither it was a vested right of the petitioners to be given an option either to be included in the centralized service or to be allowed to continue as before nor can such an inference be reached solely on account of use of the word 'option' used in sub-section (5) of section 5-A of the Act. Sub-section (5) of Section 5-A of the Act exists only to provide for the mechanism and consequence of the amendment made to the law. It is to ensure, all serving officers and employees (whose services had been centralized), would have to join the same, failing which it shall be presumed in law that they desire their services to be determined. Even in that case, their claim as to leave, pension, provident fund and gratuity would stand preserved alongwith notice pay.
36. Having considered the arguments advanced by learned counsel for the parties and having perused the record, first there can be no doubt as to limited grounds available to challenge the validity of the Amending Act or section 5-A of the Act. There is no scope to enlarge or add to the same. The law being well settled, it first requires to be tested whether the State Legislature lacked competence to enact the Amending Act or whether the Amending Act was plainly in conflict with Part-III of the Constitution, especially Article 14 or most if the Amending Act was plainly arbitrary. In State of A.P. & Ors Vs MCDOWELL & Co. & Ors.(supra), it has been held :
"In India, the position is similar to the United States of America. The power of Parliament or for that matter, the State Legislatures is restricted in two ways. A law made by Parliament or the legislature can be struck down by courts on two grounds and two grounds alone, viz., (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. There is no third ground.
It is enough for us to say that by whatever name it is characterized, the ground of invalidation must fall within the four corners of the two grounds mentioned above. In other words, say, if an enactment is challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by clauses (a) to (g) of Article 19(1), it can be struck down only if it is found not saved by any of the clauses (2) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that court thinks it unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom."
37. At the same time, we are unable to accept the submission advanced by learned Advocate General, that there does not exist a third ground to challenge a plenary legislation. Recently, that ground was discussed and recognized as pre-existing, in Shayara Bano v. Union of India, (2017) 9 SCC 1, in the judgment by Hon'ble Justice Rohinton Fali Nariman (for himself and Hon'ble Justice Uday Umesh Lalit), with which Hon'ble Justice Kurian Joseph had agreed (in paragraph 5 of the report). That principle has been further discussed and recognized by a Constitution Bench of the Supreme Court in K.S. Puttaswamy Vs. Union of India, (2019) 1 SCC 1, wherein it has been held as below:
"103. In support of the aforesaid proposition that an Act of Parliament can be invalidated only on the aforesaid two grounds, passages from various judgments were extracted [State of M.P. v. Rakesh Kohli, (2012) 6 SCC 312 : (2012) 3 SCC (Civ) 481], [Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 : 3 SCEC 35]. The Court also noted the observations from State of A.P. v. McDowell and Co., (1996) 3 SCC 709, wherein it was held that apart from the aforesaid two grounds, no third ground is available to validate any piece of legislation. In the process, it was further noted that in Rajbala v. State of Haryana, (2016) 2 SCC 445 (which followed McDowell and Co. case, (1996) 3 SCC 709), the Court held that a legislation cannot be declared unconstitutional on the ground that it is "arbitrary" inasmuch as examining as to whether a particular Act is arbitrary or not implies a value judgment and courts do not examine the wisdom of legislative choices, and, therefore, cannot undertake this exercise.
104. The issue whether law can be declared unconstitutional on the ground of arbitrariness has received the attention of this Court in a Constitution Bench judgment in Shayara Bano v. Union of India , (2017) 9 SCC 1: (2017) 4 SCC (Civ) 277, R.F. Nariman and U.U. Lalit, JJ. discredited the ratio of the aforesaid judgments wherein the Court had held that a law cannot be declared unconstitutional on the ground that it is arbitrary. The Judges pointed out the larger Bench judgment in K.R. Lakshmanan v. State of T.N. ,(1996) 2 SCC 226 and Maneka Gandhi v. Union of India, (1978) 1 SCC 248 where "manifest arbitrariness" is recognised as the third ground on which the legislative Act can be invalidated. Following discussion in this behalf is worthy of note: (Shayara Bano case, (2017) 9 SCC 1 : (2017) 4 SCC (Civ) 277, SCC pp. 91-92 & 97, paras 87-88 & 99) "87. The thread of reasonableness runs through the entire fundamental rights chapter. What is manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article 14. Further, there is an apparent contradiction in the three-Judge Bench decision in McDowell (1996) 3 SCC 709 when it is said that a constitutional challenge can succeed on the ground that a law is "disproportionate, excessive or unreasonable", yet such challenge would fail on the very ground of the law being "unreasonable, unnecessary or unwarranted". The arbitrariness doctrine when applied to legislation obviously would not involve the latter challenge but would only involve a law being disproportionate, excessive or otherwise being manifestly unreasonable. All the aforesaid grounds, therefore, do not seek to differentiate between State action in its various forms, all of which are interdicted if they fall foul of the fundamental rights guaranteed to persons and citizens in Part III of the Constitution.
88. We only need to point out that even after McDowell [State of A.P. v. McDowell and Co., (1996) 3 SCC 709], this Court has in fact negated statutory law on the ground of it being arbitrary and therefore violative of Article 14 of the Constitution of India. In Malpe Vishwanath Acharya v. State of Maharashtra, (1998) 2 SCC 1, this Court held that after passage of time, a law can become arbitrary, and, therefore, the freezing of rents at a 1940 market value under the Bombay Rent Act would be arbitrary and violative of Article 14 of the Constitution of India (see paras 8 to 15 and 31).
99. However, in State of Bihar v. Bihar Distillery Ltd., (1997) 2 SCC 453, SCC at para 22; in State of M.P. v. Rakesh Kohli, (2012) 6 SCC 312 : (2012) 3 SCC (Civ) 481, SCC at paras 17 to 19; in Rajbala v. State of Haryana, (2016) 2 SCC 445, SCC at paras 53 to 65 and in Binoy Viswam v.Union of India, (2017) 7 SCC 59, SCC at paras 80 to 82, McDowell [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] was read as being an absolute bar to the use of "arbitrariness" as a tool to strike down legislation under Article 14. As has been noted by us earlier in this judgment, McDowell [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] itself is per incuriam, not having noticed several judgments of Benches of equal or higher strength, its reasoning even otherwise being flawed. The judgments, following McDowell [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] are, therefore, no longer good law."
105. The historical development of the doctrine of arbitrariness has been noticed by the said Judges in Shayara Bano [Shayara Bano v. Union of India, (2017) 9 SCC 1 : (2017) 4 SCC (Civ) 277] in detail. It would be suffice to reproduce paras 67 to 69 of the said judgment as the discussion in these paragraphs provide a sufficient guide as to how a doctrine of arbitrariness is to be applied while adjudging the constitutional validity of a legislation: (SCC pp. 75-77, paras 67-69) "67. We now come to the development of the doctrine of arbitrariness and its application to State action as a distinct doctrine on which State action may be struck down as being violative of the rule of law contained in Article 14. In a significant passage, Bhagwati, J., in E.P. Royappa v. State of T.N., (1974) 4 SCC 3 : 1974 SCC (L&S) 165 stated: (SCC p. 38, para 85) ''85. The last two grounds of challenge may be taken up together for consideration. Though we have formulated the third ground of challenge as a distinct and separate ground, it is really in substance and effect merely an aspect of the second ground based on violation of Articles 14 and 16. Article 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution, Article 16 is only an instance of the application of the concept of equality enshrined in Article 14. In other words, Article 14 is the genus while Article 16 is a species. Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose, J., "a way of life" [Ed.: The reference is to S. Krishnan v. State of Madras, AIR 1951 SC 301 : (1951) 52 Cri LJ 1103] and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it effects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16.'
68. This was further fleshed out in Maneka Gandhi v. Union of India, (1978) 1 SCC 248], where, after stating that various fundamental rights must be read together and must overlap and fertilise each other, Bhagwati, J., further amplified this doctrine as follows: (SCC pp. 283-84, para 7) 'The nature and requirement of the procedure under Article 21
7. Now, the question immediately arises as to what is the requirement of Article 14 : what is the content and reach of the great equalising principle enunciated in this article? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. We must reiterate here what was pointed out by the majority in E.P. Royappa v. State of T.N. , (1974) 4 SCC 3 : 1974 SCC (L&S) 165, namely, that: (SCC p. 38, para 85) "85. ... From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14...."
Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.'
69. This was further clarified in A.L. Kalra v. Project & Equipment Corpn. of India Ltd., (1984) 3 SCC 316 : 1984 SCC (L&S) 497, following Royappa, (1974) 4 SCC 3 : 1974 SCC (L&S) 165 and holding that arbitrariness is a doctrine distinct from discrimination. It was held: (A.L. Kalra case, (1984) 3 SCC 316 : 1984 SCC (L&S) 497, SCC p. 328, para 19) ''19. ... It thus appears well settled that Article 14 strikes at arbitrariness in executive/administrative action because any action that is arbitrary must necessarily involve the negation of equality. One need not confine the denial of equality to a comparative evaluation between two persons to arrive at a conclusion of discriminatory treatment. An action per se arbitrary itself denies equal of (sic) protection by law. The Constitution Bench pertinently observed in Ajay Hasia case [Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : 1981 SCC (L&S) 258] and put the matter beyond controversy when it said: (SCC p. 741, para 16) ''16. ... Wherever therefore, there is arbitrariness in State action whether it be of the legislature or of the executive or of an "authority" under Article 12, Article 14 immediately springs into action and strikes down such State action.' This view was further elaborated and affirmed in D.S. Nakara v. Union of India, (1983) 1 SCC 305 : 1983 SCC (L&S) 145]. In Maneka Gandhi v. Union of India, (1978) 1 SCC 248, it was observed that Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. It is thus too late in the day to contend that an executive action shown to be arbitrary is not either judicially reviewable or within the reach of Article 14.' The same view was reiterated in Babita Prasad v. State of Bihar, 1993 Supp (3) SCC 268 : 1993 SCC (L&S) 1076], SCC at p. 285, para 31."
(emphasis in original and supplied) This doctrine is, thus, treated as a facet of both Articles 14 and 21 of the Constitution.
106. We would like to record that we have proceeded on the premise that manifest arbitrariness also furnishes a ground on the basis on which a legislative enactment can be judicially reviewed. In the process, even the constitutional validity of Section 139-AA of the Income Tax Act, 1961 is given a fresh look on the touchstone of this norm."
38. That being the settled principle, in the present case, first, there is no challenge to the legislative competence of the State Legislature to enact the Amending Act. Once the legislative competence is conceded in favour of the Amending Act, a very limited scope exists to challenge its validity.
39. Therefore, the first aspect that requires consideration is whether the Amending Act offends Part-III of the Constitution of India especially Article 14. The State Legislature has plenary powers to enact such law as may appear to be proper and/or required to the State legislature. No ex facie or other unconstitutionality has been pleaded or shown to exist in the Amending Act. Therefore, that ground also does not arise in the present facts.
40. Then, as to 'manifest arbitrariness', as noted above, the very object and reason to enact the amendment was to cure the various Industrial Area Development Authorities of the ills and malpractices besides corruption and nepotism that was found to have crept in their working due to long tenures of the same officers of the individual Industrial Area Development Authorities. As for the ground of challenge to the Amending Act being pressed, of it being plainly arbitrary, other than merely stating that the amendment made is arbitrary, the petitioners have not discharged the burden to establish how, the Act is in manifestly arbitrary.
41. It is not for this Court to doubt to the existence of the fact circumstances that form the basis for the amendment made. In any case, those are not in dispute. Considerations being found existing, the enactment made providing for centralization of the services of all Industrial Area Development Authorities has an apparent and direct nexus with the object sought to be achieved - in the interest of functionality and efficiency of the individual Industrial Development Area Authority. The Amending Act may never suffer from the vice of 'manifest arbitrariness'.
42. Then, the State legislature being vested with plenary powers to legislate on a subject that clearly fell within its competence, has wide latitude while enacting a law on such subject. The manner in which the legislature thought it wise to deal with the ills noticed by it, is not and it cannot be justiciable. Insofar as the nexus or the link (between the mischief and the remedial measure brought in by the legislature), is clear and direct, no further scrutiny is permissible in the present proceeding. All that was required to be seen was whether the Amending Act suffered from manifest arbitrariness. That not being so, the individual hardship or even other measure possible (to address the mischief), are factors that will forever remain foreign and extraneous to the test of validity of the enacted law.
43. The decision in Girdhari Lal & Ors. Vs. Balbir Nath Mathur & Ors., (1986) 2 SCC 237, cited by Sri Trivedi, is also of no help to the petitioners and, in fact, is counter productive, inasmuch as in that case, the Supreme Court held, once the Court ascertains the object and purpose of a legislation, it becomes its duty to give the statute a purposeful or a functional interpretation and for that purpose, the Court must ascertain the intention of the legislature, actual or imputed. Applying that rule, we find the real purpose of the legislature while introducing the amendment was to centralize the services in the interest of functionality and efficiency of various Industrial Area Development Authorities. That being the purpose, plainly, there arises no ex facie illegality or 'manifest arbitrariness' in giving effect to it.
44. Coming to the prayer made to strike down or read down the Amending Act so as to apply it to persons engaged post the amendment, in support of the submission advanced by learned counsel for the petitioners that the Industrial Area Development Authorities, such as NOIDA, were autonomous bodies and their autonomy could not have been destroyed by enacting Section 5-A of the Act, reliance has been placed on the following decisions:
(1) Maharishi Markandeshwar Medical College and Hospital & Ors. Vs. State of Himachal Pradesh & Ors., (2017) 6 SCC 675.
(2) Dr. K.K. Gupta Vs. State of Uttar Pradesh & Ors., 1993 AWC 1411 (All).
(3) Sarat Chatterjee and Co. Pvt. Ltd. Vs. Chairman, CGIT & Ors., IR 1962 Pat 472.
45. In the first place, as noted above, even prior to the Amending Act, the NOIDA and other Industrial Area Development Authorities were constituted and managed, even in matters of service Regulations, under the control and supervision of the State Government. There did not pre-exist an inviolable/inherent autonomy created and preserved in favour of NOIDA or other authorities. Though, in actual functioning, such authorities may have acted with some independence qua the State Government, however, there was no statutory provision to envision or create or protect the autonomy of those authorities. Therefore, the submission made by learned counsel for the petitioners is unfounded or without factual or legal basis.
46. Insofar as the decision in Maharishi Markandeshwar Medical College and Hospital & Ors. Vs. State of Himachal Pradesh & Ors. (supra) is concerned, in that case, the autonomy of the University established under the Maharishi Markandeshwar University (Establishment and Regulation) Act, 2010 (University Act in short) was found to be inviolable and unaffected by the amendment made to another Act enacted for another purpose, namely Himachal Pradesh Private Medical Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2006 (Regulation Act in short). The Regulation Act dealt with the subject of admission and fee in medical colleges only, while the University Act existed for the purposes of establishing and granting affiliation to various colleges. Insofar as the amendment made to the Regulation Act sought to enforce affiliation contrary to the University Act, that amendment was held to be unconstitutional. No such fact exists in the present case. Neither there are two Acts nor there is any aspect of autonomy of the Industrial Area Development Authorities otherwise found pre-existing, independent of the Amending Act.
47. Then, the judgment in Dr. K.K. Gupta Vs. State of Uttar Pradesh & Ors. (supra) is also wholly distinguishable that being a case where parity was claimed by a teacher of a medical college maintained by the State Government with a teacher at another medical college maintained by an autonomous University. The plea of discrimination thus set up was discarded on the reasoning that the Universities were autonomous bodies and no plea of discrimination may be raised by a teacher working at a medical college, not maintained by such University but by the State Government. The claim of autonomous character of University was recognised in that case, in the context of governing statute law. It is of no avail to the present petitioners who have been unable to establish that status of the NOIDA or other Authority, under the Act.
48 Then, in Sarat Chatterjee and Co. Pvt. Ltd. Vs. Chairman, CGIT & Ors. (supra), the autonomy of the Calcutta Dock Labour Board established under a statutory scheme formulated under the Dock Workers (Regulation of Employment) Act, 1948 was in question. In that context, it was held that the said Board was an autonomous body competent to determine and prescribe wages, allowances and other conditions of service of the dock workers. That determination having been done, it was held, no reference may have been made of any industrial dispute contrary to the determination made by the Board. Again, the question of autonomy had arisen in the context of two different Acts. In the present case, that situation does not exist.
49. Even otherwise, as a rule of interpretation of laws, one provision of the Act may never be cited or canvassed as inconsistent to the other, so as to strike down the validity of either. Modern legislations often provide for complex and completely different fact situations arising under one/common legislative entry. Resultantly, different provisions of one Act, may, at times, appear to be in apparent conflict with the others, if they are attempted to be examined de hors the different fact situation each such provision addresses. It may never give rise to a challenge to validity of one or the other provision of such an enactment.
50. However, it is equally well settled and common legislative practice to deal with possible/potential or existing inconsistencies in law, by providing an overriding effect to one of the apparently inconsistent provision, by introducing or adding a non obstante clause to that provision which the legislature, in its collective wisdom, chooses to prefer over any particular or all other provisions of law, whether in the same enactment or other enactments. Once such clause is incorporated by the legislature, it itself-cures the inconsistency in law, even if it is shown to exist. By providing such a non obstante clause, the legislature provides an inbuilt resolution in the enactment itself, such that if any conflict or inconsistency arises between the ordinary provision of the Act and another provision having a non obstante clause, it is the latter provision that prevails.
51. Thus, even if it were to be assumed, Section 5 and Section 5-A of the Act were to remain in force and apply to a common fact situation, still, in view of the non obstante clause contained in Section 5-A of the Act, it would seamlessly over ride and effectively prevail over Section 5, in view of that plain legislative intent. No real conflict may be assumed or claimed or survive on that count, on any artificial reasoning. Pre-existing autonomy, if any, claimed in favour of NOIDA (under Section 5 of the Act) would stand validly and completely breached by Section 5-A of the Act.
52. Thus, once Section 5-A was incorporated in the Act, it became an integral part of that Act and it would be futile and completely erroneous to still attempt to look at Section 5-A as a foreign provision in the context of the Act. In fact, if at all, by use of the non obstante clause, it not only became the integral part of the Act but it gained a controlling effect over other provisions of the Act (including pre-existing provision such as Section 5), in an eventuality of its conflict with any other provision of that Act including section 5-A.
53. Then reliance was placed on the judgment in Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram, (1986) 4 SCC 447, to submit that Section 5-A of the At is inconsistent with Section 5 of the Act. It is wholly misconceived. In the said judgment, the Supreme Court considered the effect of non obstante clause appearing in Section 15-A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, introduced by amendment, and held that the same must be given full operation and that it would not be an impediment in the operation of that enactment. Rather than taking the case of the petitioner any further, reliance placed on that judgment pushes the case of the petitioner further down. In the present case also, the non obstante clause appended to Section 5-A of the Act, has to be allowed to operate with full force to give its plain meaning, full effect.
54. The reliance on the judgment of the Supreme Court in P. Virudhachalam & Ors. Vs. Management of Lotus Mills & Anr., (1998) 1 SCC 650, is also wholly inappropriate, inasmuch as, in that case, the Supreme Court had noted the absence of a non obstante clause and in the conspicuous absence of such clause, the provision of law was interpreted. As noted above, in the present case, there exists a non obstante clause and, therefore, that decision is wholly inapplicable.
55. Learned counsel for the petitioners has referred to the decisions in (1) Geeta Vs. State of Uttar Pradesh & Ors., (2010) 13 SCC 678; (2) Union of India & Anr. Vs. G.M. Kokil & Ors., (1984) Supp SCC 196; (3) JIK Industries Ltd. & Ors. Vs. Amarlal V. Jumani & Anr., (2012) 3 SCC 255 and (4) ICICI Bank Ltd. Vs. SIDCO Leathers Ltd. & Ors., (2006) 10 SCC 452, in support of the proposition, that a non obstante clause attached to Section 5-A could not give an overriding effect on Section 5. More than anything else, the said judgments make the point clear that the non obstante clause attached to one Section must be given full effect so as to override anything to the contrary contained under any other provision of an Act. It is a well accepted and established legislative device adopted to give overriding effect to a particular provision/s to over some contrary or conflicting provision either under that particular legislation itself or even over a provision contained in any other law.
56. However, in the present case, quite apart the non obstante clause used in Section 5-A, by operation of law contained in sub-section (1) of that section, the State Government became the Appointing Authority with respect to all services that have been centralised thereunder. That is the clear import of language used in section 5-A (1) of the Act. Thus the State Government became the Appointing Authority over the petitioner nos. 2 & 3 and all other employees and officers of NOIDA, by virtue of issuance of the notification to centralize their services. Consequently, at that very moment, the NOIDA ceased to be their Appointing Authority. For that reason itself, there did not exist two Appointing Authorities qua the petitioners, at any point of time. Any doubt in that regard stood completely dispelled by use of the non obstante clause to Section 5-A of the Act. Thus there did not survive any room for any inconsistency to be pleaded or established between Section 5-A and 5 of the Act as both provisions operate in mutually exclusive fields.
57. Again, there did not exist any vested, accrued or acquired right in the petitioners to remain posted at the NOIDA till they attained the age of superannuation. Even, according to their letters of appointment, the petitioners were appointed on transferable posts, though such transfers could be made within the area of operation of NOIDA. Once their services were centralized and therefore they became members of a service common to more than one Industrial Area Development Authority and those posts were made specifically transferable under Section 5-A(6) of the Act, no right, as has been claimed by the petitioners, survived contrary to the law thus enacted. Any stipulation of law contained in the letter of appointment stood validly modified by duly enacted law.
58. As members of the centralized services, the petitioners became subject to transfer by the State Government. They cannot be heard to say that they cannot be transferred because their services were governed by Section 5 of the Act. As discussed above, protection of Section 5 did not survive centralisation of the services of the petitioners. Post-centralization, their services are governed only by the Rules and not by the pre-existing law.
59. It is in this regard a legal consequence was provided to those persons who may not accept the new scheme enforced by Section 5-A of the Act introduced by the Amending Act and the Rules framed thereunder-of determination of their services. It is only a declaration of the effect of the Amending Act. Once the protection of section 5 and the Regulations framed thereunder did not survive, the State Government was neither obliged to grant any option to the petitioners to continue in the service of the NOIDA nor any arbitrariness or other illegality is seen in lack of option given to the petitioners in that regard.
60. Then, reliance has been placed on the following decisions for the proposition that the Rules are inconsistent with the Act:
(1) H.S. Vankani & Ors. Vs. State of Gujarat & Ors., (2010) 4 SCC 301.
(2) State of Kerala Vs. Unni, (2007) 2 SCC 365.
(3) Mahalakshmi Sugar Mills Co. Ltd. Vs. Union of India & Ors. (supra).
(4) Management of D.T.U. Vs. B.B.L. Hajelay, (1972) 2 SCC 744.
(5) State of Karnataka & Anr. Vs. H. Ganesh Kamath & Ors., (1983) 2 SCC 402.
(6) State of Punjab Vs. Hari Kishan Sharma, AIR 1966 SC 1081.
(7) Dipak Babaria & Anr. Vs. State of Gujarat & Ors., (2014) 3 SCC 502.
(8) Additional District Magistrate (Rev.) Delhi Admin. Vs. Siri Ram, (2000) 5 SCC 451.
(9) Kunj Behari Lal Butail & Ors. Vs. State of H.P. & Ors., (2000) 3 SCC 40.
(10) State of Tamil Nadu & Ors. Vs. P. Krishnamurthy & Ors., (2006) 4 SCC 517.
(11) Shri Sitaram Sugar Co. Ltd. & Ors. Vs. Union of India & 7 Ors., (1990) 3 SCC 223.
(12) Indian Express Newspapers (Bombay) Pvt. Ltd. & Ors. Vs. Union of India, (1985) 1 SCC 641.
(13) Supreme Court Employees' Welfare Association & Ors. Vs. Union of India & Ors., (1989) 4 SCC 187.
(14) St. Johns Teachers Training Institute Vs. Regional Director, National Council for Teacher Education & Ors., (2003) 3 SCC 321.
(15) Minerva Talkies, Bangalore & Ors. Vs. State of Karnataka & Ors., AIR 1988 SC 526.
(16) Premium Granites & Ors. Vs. State of Tamil Nadu & Ors., (1994) 2 SCC 691.
(17) Sukhdev Singh & Ors. Vs. Bhagat Ram & Ors., (1975) 1 SCC 421.
(18) Chief Secretary to Government of Andhra Pradesh & Ors. Vs. V.J. Cornelius & Ors., (1981) 2 SCC 347.
61. The argument has two limbs. In the first place, since Section 5-A was claimed to be ultra vires the Act, the consequent Rules enacted had also been challenged for that reason. Second, it was submitted, by virtue of Sections 18 and 19 of the Act, the State Government had no power to frame Rules to govern the services of the employees of the Industrial Area Development Authorities and that only the Authority itself could frame Regulations for that purpose.
62. In the first place, as we have already held above, the Amending Act and Section 5-A introduced thereby, are wholly valid piece of legislation that are not in conflict with each other. Also, we have held, in case of conflict, Section 5-A of the Act would override all other provisions of the Act, including Section 5 thereof. Therefore, the first limb of the submission advanced by learned counsel for the petitioners does not survive for any further consideration.
63. Insofar as the second limb of the submission is concerned, once Section 5-A came into force and the State Government acted thereunder and notified the centralized services for various Industrial Area Development Authorities, it became the sole appointing authority viz a viz the members of the centralised services. By virtue of Section 18 of the Act, the State Government alone could frame Rules to carry out the purpose of the Act contained in Section 5-A thereof. The Regulation making power of the Industrial Area Development Authorities including NOIDA stood denuded and those Authorities were deprived of touching upon the control over the centralized services. Therefore, the judgments that have been relied upon by learned counsel for the petitioners seeking to set up invalidity in the subordinate legislation or the rule-making power are a completely misdirected effort and the same do not call for any consideration, individually. Therefore, the State Government acted in valid delegation of powers, in enforcing the Rules to carry out the purpose of section 5-A(1) of the Act, as authorised under section 18 of the Act.
64. Last, it was attempted to be established that the petitioners could not have been deprived of their vested right. In this regard, it was submitted that prior to the Amending Act, the service of the petitioners was not transferable outside the area of operation of a particular Industrial Area Development Authority where they may have been appointed. This right could not have been taken away by the Amendment. Reliance has been placed on the following decisions:-
(1) Chairman, Railway Board & Ors. Vs. C.R. Rangadhamaiah & Ors., (1997) 6 SCC 623.
(2) P.D. Aggarwal & Ors. Vs. State of U.P. & Ors., (1987) 3 SCC 622.
(3) Union of India & Ors. Vs. Tushar Ranjan Mohanty & Ors., (1994) 5 SCC 450.
(4) BALCO Captive Power Plant Mazdoor Sangh Vs. National Thermal Power Corporation & Ors., (2007) 14 SCC 234.
(5) State of Andhra Pradesh Vs. CH Gandhi, (2013) 5 SCC 111.
(6) Dr. D.C. Saxena Vs. State of Haryana & Ors., (1987) 3 SCC 251.
65. The decision in the case of BALCO Captive Power Plant Mazdoor Sangh Vs. National Thermal Power Corporation & Ors.(supra), was a case where the rights were being altered by a managerial decision and not by valid legislative action as has been done in the present case. The ratio laid down by the Supreme Court in that case had arisen in such different fact context. Therefore, the same is not applicable.
66. Again in State of Andhra Pradesh Vs. CH Gandhi (supra), the violation alleged was of Article 311 of the Constitution of India. That being the ground of challenge made, that case also stands on a completely different footing. In the present case, no challenge has been raised for the Amendment made or the Rules framed as being violative of any constitutional provision. Therefore, the said judgment is wholly distinguishable.
67. Insofar as the judgment in Chairman, Railway Board & Ors. Vs. C.R. Rangadhamaiah & Ors., (supra) is concerned, it was a case of alteration of pensionary benefits that had already accrued to the employee. It being a pecuniary benefit, again the same stood on a completely different footing. That benefit accrued at an earlier point in time and it could not be taken away at a later point in time for reason of it being a computed amount (in accordance with then existing law), to which the employee became entitled by virtue of his service rendered at an earlier point in time.
68. In P.D. Aggarwal & Ors. Vs. State of U.P. & Ors., (supra), the issue involved was of seniority and absorption. Under the pre-existing rules, there was an existing scheme providing for a certainty and a time period for absorption and fixation of seniority of the temporary employees. Upon the Amendment made, that right was taken away. It became uncertain and unknown if and when absorption would arise and the seniority also stood compromised. Here, there has not been shown to exist any uncertainty or denial of any pre-existing right. Full protection of status and pay and other benefits has been granted. In fact, according to the pleadings made by the State, it appears that the emoluments and other benefits available to the employees of individual Industrial Area Development Authorities have been improved upon under the centralized services under a duly enacted law.
69. The case of Union of India & Ors. Vs. Tushar Ranjan Mohanty & Ors.(supra), also involved prejudice cause to the seniority under the pre-existing rules. Here, no prejudice to seniority has been shown to exist.
70. Only effect which is claimed to be adverse to the petitioners is of inter-Authority transfer. That itself can never be claimed to be a prejudicial decision. The status and pay etc. being protected, it may only be a matter of perception inasmuch as while one human being may consider it an improvement in the terms and conditions of services in being transferred from one place to another, another person similarly situated may perceive the same to be detrimental and yet another may remain indifferent. That is not the case in other situations such as grant or denial of monetary benefit, seniority positions, or promotional avenues where loss caused is measurable/quantifiable and that which becomes due to an employee upon his rendering service, in terms of the then existing law. It is in those matters that a vested right arises which may not be taken away to the disadvantage of an employee. Transfer is certainly not one of those rights. The petitioners cannot be heard to say that they acquired any right to be not transferred (under the centralised services), because of the service rendered by them to the NOIDA.
71. Reliance has also been placed on the decision in B. Varadha Rao Vs. State of Karnataka & Ors., (1986) 4 SCC 131 and Matadin Maurya Vs. State of U.P. & Ors., 2014 (9) ADJ 250 (DB) (LB). The same do not, in any way, seek to establish that transfer is not an incidence of service. Inasmuch as in B. Varadha Rao Vs. State of Karnataka & Ors (supra) in paragraph 4, it was specifically held that transfer is always understood and construed as an incident of service and that it does not result in any alteration of any of the condition of service to the employees disadvantage. Similarly, the Division Bench of this Court in Matadin Maurya Vs State of U.P. (supra) had dismissed the writ petition on the reasoning that the transfer does not impinge the status of an employee.
72. Insofar as the decision in K.C. Arora & Ors. Vs. State of Haryana & Ors. (1984) 3 SCC 281 is concerned, the same is wholly distinguishable inasmuch as no vested right was ever acquired by the petitioners as may have been deceptively taken away by the Amending Act.
73. Other decisions that have been made part of the four compilations submitted by the learned counsel for the petitioners, have not been dealt with here since no argument was advanced on that basis and the same were never referred to during the course of oral arguments and, in any case, they are, on the face of it, not relevant to the adjudication of the dispute in view of the reasoning taken above.
74. In view of the above, the challenge raised to the Amending Act and the Rules is devoid of merit. Individual hardships, howsoever, genuine can never be a ground to successfully challenge an Amending Act or even a Rule.
75. Consequently, the writ petition fails and is accordingly dismissed. No order as to costs.
March 29, 2019 AHA/S Chaurasia