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Once the deputation as a source of recruitment is available under the Rules of Recruitment, there is

Shripal Bhati and Anr. Vs. State of U.P. & Ors., Civil Appeal No. 802 of 2020 arising out of SLP ( C) No. 9276 of 2017 – 29 JANUARY, 2020

The Supreme Court bench comprising of Justice Mohan M Shanthagoudar and Justice Krishna Murari dismissed the appeals.

The appellants are the Assistant Project Engineer in NOIDA. The Respondent No.4 is to be appointed as the Project Engineer in NOIDA and this is being challenged by the appellants. On request of the respondent for the post which was vacant, the State Government required NOIDA to appoint him on deputation for a period of three years. The appellants have approached the Court by a writ to quash the letter of appointment and absorption and asking the respondents to fill the post following the Service Rules. During the pendency of the writ, the respondent no.4 was absorbed to the post. This order is being challenged through a writ petition by way of an amendment application which was allowed by the High Court. This was dismissed by an impugned judgment.

Issue:
Whether the recruitment of respondent No 4 on the post of Project Engineer (Electrical) on deputation and his subsequent absorption on the said post is permissible under NOIDA Service Regulations, 1981?
Whether the appellants are eligible for being promoted to the post on which respondent no.4 has been appointed and whether the appellant’s right of promotion gets eclipsed by absorption of respondent no.4 and in case the appellants were not found eligible for promotion whether any challenge to appointment or absorption of respondent no. 4 would be maintainable at their behest.
Section 5 of the Industrial Development Act of 1976 vests with the Authority the power to appoint officers/employees for performance of its functions including determining their grades and designations subject to control/restrictions of the State Government through general/special orders. Section 19 of the Act of 1976 vests with the Authority the power to make regulations with the previous approval of the State Government. Under section 19 of the Act, NOIDA has framed NOIDA Regulations 1981 govern the conditions of service of conditions of its employees. Regulation 16 of 1981 regulations provides sources of recruitment to all posts.

The contention of the learned counsel for appellants is that the post for Project Engineer belongs to group A (which is partly filled by direct recruitment and partly by way of promotion on the basis of seniority) and this could not have been filled in by way of deputation and thus this appointment is illegal and directly against the Service Rules. It was also submitted that the Recruitment and Promotion Policy 2005 provided the post of Project Engineer to be filled by 100% promotion and thus no recruitment should be made through deputation.  The Counsel submitted that respondent no.4 was not an employee of government department hence was not a government employee and thus could not be absorbed in NOIDA under the Absorption Rules, 1984 and that the rules are applicable only in case of a government employee.

The respondents stated that the provision Clause 16(i)(c) should be fully read and not in portions. This clause allows recruitment to any post under the Authority by deputation. According to the Recruitment and promotion policy 2005, it was said to be inconsistent as promotion was the only way od recruitment which was inconsistent with the 1981 regulations. The counsel submitted that according to 1987 regulations, employees of corporation can be absorbed in the service of State Government as under the Absorption Rules, 1984 against the argument of the counsel for appellants. It is vehemently contended that the appellant lacks qualifications and requires a minimum of 8 years of experience as Assistant Project Engineer.

The Court observed that the power of appointment of officers and employees lies with the Authority subject to such control and restrictions as may be determined by general or special orders of State Government.

The Court after hearing both the parties stated that the power of appointment of officers and employees lies with the Authority subject to such control and restrictions as may be determined by general or special orders of State Government.  Learned counsel for the appellants failed to place before us any such general or special orders of the State Government whereunder the power of appointment which includes power of appointment by deputation is restricted.  Contrary thereto, Regulation 16(1)(c) of 1981 Regulations gives express power to the NOIDA to make appointment on deputation which is one of source recognized under the sources of recruitment.  Once the deputation as a source of recruitment is available under the Rules of Recruitment, we do not see any impediment in assuming the power of absorption of a deputationist with the Authority by necessary intendment or implication, under Act of 1976 and 1981 Regulations framed thereunder.

“In view of provisions of Section 80 of 1981 Regulations read with Section 41 of U.P. Urban Planning and Development Act, 1976, not only respondent no. 2 is bound by every direction issued by the State Government from time to time, the appointment of respondent no. 4 in NOIDA on deputation and his subsequent absorption under the orders of the State Government cannot be faulted with or can be held to be in violation of 1981 Regulations.  The first issue stands answered accordingly.”

Both the appellants were not eligible for promotion to the post of Project Engineer for want of requisite 8 years’ experience as Assistant Project Engineer.

From all the submissions made by both the parties, the Court dismissed the appeal with no order as to costs as there is no merit.

–  Vydurya Selvi Baskaran

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