REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 802  OF 2020 (ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 9276  OF 2017)

SHRIPAL BHATI & ANR. ….. APPELLANT(S)

VERSUS

STATE OF U.P. & ORS. ….. RESPONDENT(S)

J U D G M E N T

KRISHNA MURARI, J.

Leave granted.

2. This appeal has been preferred against the judgment of the High

Court1 dated  08.02.2017  dismissing  the  Writ  Petition  filed  by  the

appellants laying a challenge to the appointment of respondent no. 4 on

the post  of  Project  Engineer (Electrical)  on deputation in New Okhla

Industrial  Development  Authority  (hereinafter  referred  to  as  ‘NOIDA’)

and his subsequent absorption.

1 High Court of Judicature at Allahabad,   Lucknow Bench   Page 1 of 16

3. The appellants are presently posted as Assistant Project Engineer

(Electrical) in NOIDA.

4. On a request made by respondent no. 4, who was employed as a

Sub-Divisional  Officer  with  U.P.  Power  Corporation  Ltd.,  seeking

appointment on a vacant post of Project Engineer (Electrical) in NOIDA,

State Government, vide letter dated 13.02.2014 required the NOIDA to

appoint him on the said post on deputation for a period of three years.

In  pursuance  to  the  aforesaid  letter,  an  appointment  order  dated

19.02.2014 was issued by NOIDA and respondent no 4 was permitted

to  join  the  said  post.   Subsequently  vide  letter  dated  16.02.2015,

respondent  no.  2  made  a  recommendation  to  respondent  no.  1  for

absorption of respondent no. 4.  Aggrieved by the same, the appellants

approached the High Court by way of a Writ Petition praying, inter-alia,

for:-

(i)  Quashing  the  recommendation  letter  dated  16.02.2015  for

absorption.

(ii)  Quashing  letter dated 19.02.2014 appointing respondent no 4

on deputation on the post of Project Engineer (Electrical).

(iii)  Commanding  the  respondents  to  fill  up  the  post  of  Project

Engineer  in  accordance with  Service Rules and to  restrain

respondent  no.  4  from  functioning  as  Project  Engineer

(Electrical) in NOIDA.

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5. During  the  pendency  of  Writ  Petition  before  the  High  Court,

respondent  no.  4  was  absorbed  on  the  post  of  Project  Engineer

(Electrical) vide order dated 07.05.2015, issued by the respondent no.1.

This order was challenged in the Writ Petition by way of an amendment

application which was allowed by the High Court.

6. Vide  impugned  judgment  dated  08.02.2017,  the  High  Court

dismissed the Writ Petition.

7. The core issue which arises for our consideration is 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.

8. Incidentally another issue which arises is 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.

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9. NOIDA was constituted by the State Government  by means of

notification issued under Section 3 of the U.P. Industrial Development

Act, 1976 (hereinafter referred to as ‘Act of 1976’) enacted by the State

legislature to provide for constitution of an authority for development of

certain areas in the State, into Industrial and Urban Township.

10. Section 5 of the 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.

11. In exercise of powers vested under Section 19 of the Act of 1976,

NOIDA has  framed  the  New Okhla  Industrial  Development  Authority

Service  Regulations,  1981  (hereinafter  referred  to  as  ‘1981

Regulations’)  to  govern the conditions  of  service  of  conditions  of  its

employees.  Regulation 16 of 1981 Regulations provides for sources of

recruitment to all posts.  The same reads as under :-

“   Section 16 – Sources of Recruitment 16.  (1)   Recruitment  to  any post  under  the Authority  may be made from any of the sources - (a) by direct recruitment; (b) by promotion from amongst the employees occupying post carrying  a  lower  scale  through  a  departmental  test  or  an

Page 4 of 16

interview of selection or in any other manner specified by the Authority. (c) by deputation or re-employment or on contractual basis. (d) from any other source as approved by the Authority.

(2) (i) Sixty six percent of Group ‘A’ posts shall  be filled in by direct  recruitment  and the  remaining  thirty  four  percent  posts shall be filled in by promotion from amongst the employees upon the basis  of  seniority  subject  to  the  rejection of  the unfit  and fulfillment of the requisite qualifications and also subject to the condition of the particular employee having worked for at least a period of two years on a post carrying scale of pay next below. If at any time it is found that sufficient number of employees are not  available  for  filling  in  the  percentage  prescribed  for promotion such posts may be filled in by direct recruitments;

(ii) Various posts falling under Group 'B' will be filled in such a way as to ensure that fifty percent of the posts are filled in the promotion  from  amongst  the  employees  and  such  promotion shall be made on the basis of seniority subject to the rejection of the unfit  and fulfillment of  the requisite qualifications and also subject  to  the  condition  of  the  particular  employee  having worked on a carrying the scale of pay next below for a period of at least two years;

(iii) Posts under Group 'C carrying lowest scale of pay shall be filled in to the extent of twenty five percent by promotion from amongst the employees belonging to the Group 'D' on the basis of seniority subject to the rejection of the unfit and fulfillment of the requisite qualifications and also subject to the condition of the  particular  employee  having  worked  on  a  post  carrying  a scale of pay next below for at least a period of two years. The remaining seventy five percent of such posts shall be filled in by direct recruitment;

(iv)  Notwithstanding  anything  hereinbefore  contained  the Authority  shall  have  full  power  to  modify  the  source  of recruitment or the percentage of promotion or direct recruitment in relation to any posts or class of posts.”

12. It has been contended by learned counsel for the appellant that

since Clause 16 (2) provides that 60% of Group ‘A’ posts are to be  filled

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in by direct recruitment and remaining 34% by way of promotion from

amongst the existing employees on the basis of seniority, the post of

Project Engineer (Electrical) which is a Group ‘A’ post could not have

been  filled  in  by  way  of  deputation  and  thus  the  appointment  of

respondent no. 4 on the said post on deputation is illegal and directly in

the teeth of Service Regulations.

13.  The argument is based on an isolated reading of Regulation 16(2)(i)

which is impermissible.  It is well settled that a provision is required to

be read in whole and not in part and in isolation to the other parts of the

provision.  The entire provision is required to be read out harmoniously .

Regulation 16 (i) (c) clearly provides that recruitment to any post under

the Authority can be made by deputation. If the provisions of Regulation

16 are to be read in a manner suggested by learned counsel for the

appellant it would render Clause 16 (i) (c) totally redundant.  It is well

settled principle of law that any particular portion of provision cannot be

read in isolation in a manner so as to render the other part of the same

provision totally redundant.  Similar situations exist under Clause 16 (2)

(ii) and (iii) providing for appointment on post falling under Group ‘B’ and

‘C’ .  If the provisions of Regulation 16 are read in the mode and manner

suggested by the learned counsel for the appellant, the provisions of

Section 16 (i) (c) would be rendered totally redundant in respect of posts

falling under Group ‘B’ and ‘C’ as well.   Regulation 16 is intended to

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provide the modes of recruitment and combined reading of the entire

regulations makes it amply clear that an appointment to a post falling

either under Group ‘A’, ‘B’ and ‘C’ can very well be made on deputation.

14. Learned counsel for the appellants further submitted that NOIDA

had formulated a Recruitment and Promotion Policy in the year 1993,

wherein the mode of  recruitment provided was by way of promotion,

direct  recruitment  and deputation.  Subsequently  another  Recruitment

and Promotion Policy was framed in 2005, which provided that the post

of Project Engineer in the Engineering cadre was required to be filled in

100%  by  promotion.  Thus,  the  three  sources  of  recruitment

contemplated in  the 1993 Policy  were reduced to one source in  the

2005 and thus thereafter no recruitment could have been made on the

post Project Engineer by way of deputation.

15. In the counter affidavit filled on behalf of the NOIDA, it has been

stated that the Recruitment and Promotion Policy,  2005 was sent for

approval of the State Government.  Vide letter dated 18.10.2007, the

State Government while clarifying that the Board is competent to frame

its Recruitment and Promotion Policy directed the NOIDA to ensure that

Policy is not inconsistent with the provisions of Regulations, 1981. It is

the specific case setup by NOIDA in its counter affidavit that the Policy

could not be implemented in view of the directions issued by the State

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Government, since the proposal to do away with direct recruitment to

Group ‘A’ posts and to fill  them only  on the basis of  promotion was

inconsistent with the NOIDA Service Regulations 16 (i) (c) of the 1981

Regulations.   In  view of  the  specific  case  setup  by  NOIDA that  the

Policy of 2005 was never implemented being inconsistent with the 1981

Regulations and that no part of Regulation 16 of 1981 Regulations has

been amended till date, the reliance placed by the appellants upon the

2005 Policy is completely misplaced and erroneous.  Regulation 16 as it

stands (quoted hereinabove) that holds field with regard to source of

recruitment in the Authority.  The State Government has taken the same

stand in its counter affidavit.

16. Now  coming  to  the  issue  of  absorption  of  respondent  no.  4

Regulation no. 16 of 1981 expressly provides that recruitment can be

made  either  by  deputation  or  direct  recruitment  or  from  any  other

source.   Regulation 2 deals with applicability of these Regulations and

expressly  provides  for  posting/recruitment  on  deputation  basis  and

absorption of such persons in the service of NOIDA.  It may be useful to

extract Regulation no. 2 which reads as under:-

“2. These regulations shall apply to every whole time 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 organization,  by  whatever  name  called,  and  such  a  person shall continue to be governed by the rules applicable to him in relation  to  his  service  under  his  parent  department  or organization, by whatever name called unless such person is

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absorbed  in  the  service  of  the  Authority  as  a  regular employee.”  

17. The  decision  to  absorb  respondent  no.  4  was  taken  by  the  State

Government  exercising the powers under  the U.P.  Absorption Rules,

1984 framed in exercise of the powers conferred by Article 309 of the

Constitution  of  India.   Rule  5  of  the  U.P.  Absorption  Rules,  1984

provides that any Government servant may be permitted to be absorbed

in the services of undertaking in which the employee is on deputation, if

he  applied  to  the  Government  for  his  absorption  in  the  undertaking

before  expiry  of  three years  from the date  of  commencement  of  his

deputation or before the date on which he attains the age of 53 years

whichever  is  earlier  and  the  undertaking  concerned  also  moved  the

Government for his absorption within such period and the Government

agrees to such absorption in public interest.  

18. A specific stand has been taken by the State Government as well as

NOIDA in the counter affidavit that the State Government has exercised

the power under the U.P. Absorption Rules, 1984 by issuing orders of

absorption of respondent no. 4 in the NOIDA.

19. Learned counsel for the appellants submits that respondent no. 4 was

employee  of  erstwhile  U.P.  Power  Corporation  which  is  not  a

government department hence he was not a government employee and

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thus  could  not  be  absorbed  in  the  service  of  NOIDA  under  the

Absorption Rules,  1984 as the said Rules are applicable only in the

case of a government employee.  No doubt respondent no.4 was not a

government  servant  and  Absorption  Rules  are  applicable  only  to  a

government servant, but the issue need not detain us for the reason that

there are another set of Rules known as “Uttar Pradesh Rajya Vidyut

Parishad Ke Sewako Ka Sashan Evam Anya Upkarmo Me Samvilayan

Viniyam 1987” (hereinafter referred to as ‘1987 Regulations’), which is a

Statutory Regulation framed under the provisions of  Section 79(c)  of

Electricity Supply Act, 1948, whereunder the employees of corporation

can  be  absorbed  in  the  service  of  State  Government  or  in  other

undertakings of  Government  or  corporations in  the same manner  as

employees  of  the  Government  can  be  absorbed  under  Absorption

Rules, 1984.

20. Reference at this stage may be made to provisions of Section 5 of the

Act of 1976 which reads as under :-

“ 5   Staff of the Authority –  (1) Subject to such control and restrictions as may be determined

by  general  or  special  orders  of  the  State  Government, Authority  may  appoint  such  member  of  officers  and employees  as  may  be  necessary  for  performance  of  its functions and may determine its grades and designations.

(2) Subject  as  aforesaid  the  officers  and  other  employees  of Authority  shall  be entitled to receive from the funds of  the Authority,  such  salaries  and  allowances  and  shall  be governed  by  such  other  conditions  of  service  as  may  be agreed upon with the Authority.”

Page 10 of 16

21. From a perusal  of  aforesaid  provisions,  it  is  clear  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.

22. Besides  this  Regulation  80  of  1981 Regulations  provides  that  these

Regulations are subject to the provisions of any Rule made by the State

Government  under  the  Act  of  1976  as  directions  issued  by  State

Government under Section 41 of U.P. Urban Planning and Development

Act, 1973 or to the provisions of any other law made on the subject by

an Act of Legislature of Uttar Pradesh or the Parliament.  Regulation 80

of 1981 Regulations reads as under:-

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“80. For the removal of doubt it  is hereby declared that these Regulations shall  be subject  to  any Rules made by the State Government under the Act or any directions issued by the State Government under Section 41 of the U.P. Urban Planning and Development  Act,  1973 or  to  the provisions of  any other  law made on the subject by an Act of Legislature of Uttar Pradesh or the Parliament.   

Section 41 of the U.P. Urban Planning and Development Act reads as

under:-

   “41. Control by State Government :- (1)  The [Authority),the Chairman or  the (Vice-Chairman]  shall

carry out such directions as may be issued to it from time to time  by  the  State  Government  for  the  efficient administration of this Act.

(2)  If in, or in connection with, the exercise of its powers and discharge of its functions by the [Authority, the Chairman or the  Vice-Chairman)  under  this  Act  any  dispute  arises between the authority, the Chairman or the Vice-Chairman) and  the  State  Government  the  decision  of  the  State Government on such dispute shall be final.

(3) The State Government may, at any time, either on its own motion or on application made to it in this behalf, call for the records of  any case disposed of  or order passed by the [Authority  or  the  Chairman)  for  the purpose  of  satisfying itself as to the legality or propriety of any order passed or direction issued and may pass such order or issue such direction in relation thereto as it may think fit: Provided that the State Government shall not pass an order prejudicial to any person without affording such person a reasonable opportunity of being heard.

(4)  Every order of the State Government made in exercise of the powers conferred by this Act shall be final and shall not be called in question in any court.”

Section 41 of the U.P. Urban Planning and Development Act, 1976

is applicable to Act of 1976 by virtue of Section 12 of the said Act.

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1987  Regulations  having  been  framed  under  the  provisions  of

Section 79(c) of Electricity Supply Act, 1948, a parliamentary enactment

authorizing  absorption  of  employees  of  erstwhile  U.P.  Power

Corporation  in  Government  undertakings  or  other  Statutory

Corporations, 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.

23. Question of maintainability of challenge to appointment and subsequent

absorption at the behest of appellants has also been raised by learned

counsel for  respondent nos.  2 & 3.   It  is vehemently contended that

appellant lacks requisite necessary qualifications for being considered

for  promotion  to  the  post  of  Project  Engineer  (Electrical)  and  being

ineligible for promotion any challenge to appointment on the said post at

their  behest  is  not  maintainable.   It  is  pointed  out  that  eligibility  for

promotion to the post of Project Engineer is Degree in Engineering with

minimum 8 years of experience as Assistant Project Engineer.

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24. Specific case set up by NOIDA in its counter affidavit is that appellant

no. 1 was appointed as Junior Engineer in 1987 and was promoted to

the post of Assistant Project Engineer on 27.08.2013.  Thus he lacks

necessary qualification of 8 years experience and shall be eligible for

being considered for promotion in 2021.  Insofar as appellant no. 2 is

concerned, he was appointed on the post of Assistant Project Engineer

in February, 2009.  As prescribed by Service Regulations, he became

eligible for  being considered for  promotion on completing 8 years of

service  in  February,  2017.   Thus,  at  the  time  of  appointment  of

respondent no. 4 in 2014, and his subsequent absorption in 2015, 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.

25. For  the  aforesaid  facts  and  reasons  the  challenge  made  by  the

appellants to the appointment and absorption of respondent no. 4 is not

tenable and they have no locus standi in the matter.  It may be relevant

to refer to the observations made by this Court in the case  Jasbhai

Motibhai  Desai  Vs.  Roshan  Kumar,  Haji  Bashir  Ahmed  &  Ors.2,

relied upon by the High Court,  holding that  unless injury  is  suffered

personally a  person can not be said to be aggrieved and has no locus

standi.

2 AIR 1976 SC 578  Page 14 of 16

“In the light of above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact,  the  impugned  order  does  not  operate  as  a  decision against  him,  much less  does it  wrongfully  affect  his  title  to something. He has not been subjected to a legal wrong. He has suffered no legal grievance.  He has no legal peg for a justiciable claim to hang on.  Therefore, he is not a ‘person aggrieved’ and has no locus standi to challenge the grant of ‘No Objection Certificate’.”

26. There  is  yet  another  aspect  of  the  matter  liable  to  be  taken  into

consideration, undisputedly after absorption of respondent no. 4 in the

NOIDA he was relieved from his parent department and his lien with the

parent department ceased. Considering a somewhat similar controversy

in  the  case  of  Jamil  Ahmed  Vs.  Industrial  Development

Commissioner  and  Principal  Secretary  &  Ors.3,  where  a  Senior

Inspector in Railway Protection Force was initially deputed to NOIDA

and subsequently absorbed, this Court after analysing the provisions of

1981  Regulations  while  holding  the  appointment  on  deputation  and

subsequent absorption in NOIDA was permissible, observed that such a

employee can not be put  in a position which results in his being an

employee neither of the Authority nor of the parent department. It may

be  relevant  to  reproduce  observations  made  in  Paragraph  9  of  the

reports.

“On the facts and circumstances of this case,  we need not go in depth into the question sought to be urged on behalf of the Authority, for, we are of the view that the appellants having resigned from the Railways and having been absorbed in the Authority eight years back, can not be put in a position, for no fault of his, which results in his being an employee neither of

3 2004 (13) SCC 736  Page 15 of 16

the  Authority  nor  of  his  parent  department.  The  appellant cannot be made to suffer for the discrepancy, if any, assuming there is any such deficiency which is now pleaded as a reason by the Authority.”

27.  As a result of our aforesaid discussion, we do not find any merit in this

appeal and the same accordingly stands dismissed with no order as to

costs.

…………..................................J. (MOHAN M. SHANTANAGOUDAR)

...............................J. (KRISHNA MURARI)

NEW DELHI; 29TH JANUARY, 2020             

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