JUDGMENT Amitava Lala, J.
1. According to the petitioners, all of them are presently employed in Greater NOIDA Authority and are posted on the post of Manager Grade-l (Engineering). Greater NOIDA Industrial Development Authority Service Regulations, 1993 (hereinafter called as 'Regulations, 1993') was promulgated in 1993. Service conditions including appointment, promotion and seniority of the employees of Greater NOIDA are governed by such Regulations. Regulation 16 (1) has been shown to us to satisfy the test of recruitment which is quoted hereunder leaving aside irrelevant parts:
16. Source of recruitment.-(1) Recruitment of any post under the Authority may be made from any of the following sources--
(a) by direct recruitment;
(b) by promotion from amongst the employees occupying posts carrying a lower scale of pay;
(c) by deputation or on contractual basis;
2. According to the petitioners, there is no provision for absorption of employee on deputation by the authority although it has been provided as one of the mode. There is no clear cut policy of absorption/merger of the employees. However, some of the deputationists were absorbed even without any clear cut policy but on the basis of Regulation 76 of the aforesaid Regulations. Such regulation is quoted hereunder:
76. Regulation of other matters.-In regard to the matters not specifically covered by these regulations, persons appointed to the Service shall be governed by the rules, regulations and orders applicable generally to Government servants serving in connection with the affairs of the State:
3. According to the petitioners, the respondent No. 3 belonged to the Development Authorities, Centralised Services. After serving under the Lucknow Development Authority, he was posted as Junior Engineer in Ghaziabad Development Authority. Vide Government Order dated 13th July, 1999 addressing all the Vice Chairman of the Development Authorities and Chairman of the Special Region, Development Authority, U.P., the State Government invited applications for appointments on deputation on the post of Junior Engineer, Assistant Engineer and Executive Engineer in the Industrial Development Authorities. The Industrial Development Commissioner also constituted a committee to make selection and recommend appointment on different posts in the Industrial Development Authority. The respondent No. 3 submitted his application showing his willingness and applied for the post of Manager (Civil). According to the petitioners, such post is equivalent to the post of Assistant Engineer (Civil), but since he was Junior Engineer in his parent department, he was recommended by the committee for appointment on equivalent post of Assistant Manager (Civil). Appointment letter was issued on 25th April, 2000. The respondent No. 3 joined accordingly. According to the petitioners, after about one year the respondent No. 3 submitted an application to the Greater NOIDA Authority for granting him the benefit of service rendered by him in his parent department. The respondent No. 3 was ultimately absorbed on the post of Assistant Manager (Civil) with effect from 28th July, 2001 after various clarifications. Such clarification arose with regard to knowledge of Software Engineering etc. Seniority of the respondent No. 3 on the post of Assistant Manager (Civil) shall be from the date of absorption and on production of qualification of Software Engineering within six months from the date of absorption 'and subject to satisfaction of the authority. However, in compliance with order dated 26th February, 2002 the respondent No. 3 joined on 27th February, 2002. According to the petitioners, his seniority is to be reckoned with effect from the date of absorption i.e. 26th February, 2002. Past service of the respondent No. 3 can not be taken into account for the purpose of seniority since he was not a Government servant as per the Uttar Pradesh Absorption of Government Servants in Public Undertakings Rules, 1984 (hereinafter called as the 'Rules, 1984'). The definition of "Government servant" as given under Rule 2(d) of Rules, 1984 is quoted hereunder:
2 (d)-"Government Servant" means a person appointed to a Public Service or a post in connection with the affairs of the State of Uttar Pradesh in permanent capacity in a pensionable establishment;
4. The petitioners contended that since the respondent No. 3 was not holding any post in a pensionable establishment, such Rule can not be applicable in his case. To establish such submission, the petitioners referred to paragraph-6 of a supplementary affidavit filed by an Under Secretary to an appropriate authority in some other Writ Petition No. 1589 (S/B) of 2002 (Om Prakash Tewari v. State of U.P. and Anr.). There the deponent stated that aforesaid absorption Rules are not applicable to the petitioner therein since the petitioner is substantive appointee of Centralised Service cadre of Nagar Vikas Development and being so, is not a Government servant.
5. However, we have to go by the legal interpretations not by the deposition of a deponent in the affidavit of some other matter.
6. Ultimately the petitioners have made the following prayers in this writ petition:
i) issue a writ, order of direction in the nature of writ of certiorari quashing the impugned order dated 02.06.2006 passed by the respondent No. 1;
ii) issue a writ, order of direction in the nature of writ of mandamus directing the respondents not to give effect to the impugned order dated 02.06.2006 during the pendency of the present petition;
iii) issue any other writ, order or direction that this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case;
iv) award cost of this petition to the petitioners.
7. From the prayers it appears that the petitioners are affected by the order dated 02nd June, 2006. From the perusal of the order impugned it appears to us that such order is passed by the Principal Secretary, Department of Industrial Development, Government of Uttar Pradesh on the basis of the representation made by the respondent No. 3 in compliance with the order dated 19th May, 2003 passed by the High Court in the Writ Petition No. 2778 of 2003 (Dharam Raj Singh v. State of UP. and Ors.).
8. Admittedly the respondent No. 3 was absorbed by the Greater NOIDA Authority on 26th February, 2002 on the post of Assistant Manager (Civil) with effect from 27th January, 2001. He was originally appointed in the post of Junior Engineer of the Lucknow Development Authority on 18th February, 1983 in the substantive capacity and since creation of Development Authorities Centralised Services on 22nd October, 1984 he is member of Centralised Services. His name was placed at Serial No. 147 in the final seniority list of Junior Engineers of Centralised Service Authority. He made his request on 07th May, 2001 for the purpose of absorption in Greater NOIDA Industrial Development Authority together with his seniority. He was absorbed and was working in the post of Assistant Manager (Civil). He worked there with one Sri Subhash Chandra and another Sri Rajendra Bhati. who are juniors to him and have been promoted on the post of Manager. We find from the cause title that both the persons are petitioners herein. Sri Rajendra Bhati himself is the deponent of the affidavit filed in support of the writ petition. No averment is available in the affidavit filed in support of the writ petition, from which it will appear that he has been authorised by the other petitioners to swear the affidavit on their behalf.
9. In any event the respondent No. 3 sought for determination of seniority and benefit in connection thereof on the strength of the judgement (Sub-Inspector Rooplal and Anr. v. Lt. Governor through Chief Secretary, Delhi and Ors.). He submitted that one Sri Bhagwan Singh, Senior Executive, has been given promotion from the post of Assistant Manager (Junior Engineer) to Manager (Assistant Engineer) directly by giving him benefit of previous service rendered by him in parent department i.e. Town and Country Planning Department of the State. He also said that one Sri S.S.A. Rizvi, General Manager (Project), was given promotion on the post of General Manager (Project) by giving him seniority of entire service rendered on the post of Executive Engineer/(Senior Manager) in his parent department i.e. Awas Vikas Parishad of the State. It further said that one Sri Kalu Ram Verma was given promotion from the post of Junior Engineer to Assistant Engineer directly by giving him benefit of 11 years service rendered by him in his parent department i.e. U.P.S.I.D.C. on the post of Assistant Engineer. Report of the Greater NOIDA Authority was also received by the authority concerned at the time of consideration of representation, which has corroborated the contention of the respondent No. 3 herein. Ultimately in view of the comments received from the Greater NOIDA Authority and representation of the respondent No. 3, an opinion was sought from the Department of Personnel, when the Administrative Department of the State clarified that absorption of the respondent No. 3 on the post of Manager Grade-l shall be treated as direct recruitment and he will be placed below the junior most person of the direct recruitment. He shall be given seniority with effect from his date of absorption i.e. 28th July, 2001 and besides this no other arrears, salary allowance shall be payable. In such event, the Personnel Department has no objection to the proposal of the Administrative Department. Therefore, the authority concerned considered the length of service of the respondent No. 3 as 18 years on the date of absorption and accordingly held that since he has worked more than 10 years being criteria for promotion on the post of Manager Grade-l. he should be absorbed accordingly.
10. If we carefully see the ratio of the judgement of 2000 (1) SCC 644 (supra) it will be known that the Supreme Court categorically held that there is no reason why one being absorbed in equivalent cadre in the transferred post should not be permitted to count his service rendered in the parent department. This question is not res integra. One is entitled to count substantive service rendered by him in the earlier post. It is, therefore, reasonable to expect that when a deputationist is absorbed in a department, he will certainly have expected that his seniority in the parent department would be counted. From the observations of the judgement of the Supreme Court it transpires that before absorbing, the deputationist should be made known about counting of the past service as a matter of policy so that the option can be open to them to accept or reject such offer. Admittedly, the respondent No. 3 has joined the services of the Centralised Development Authorities on 18th February, 1983. Therefore, if his past services are counted, it will be seen that he joined in the substantive post long before joining of the petitioner/s irrespective of date of actual absorption on 28th July, 2001 or on 26th February, 2002 with retrospective effect from 28th July, 2001.
11. However, at the time of drawing conclusion, the considering authority held that this case will not be considered as precedent in future.
12. The petitioners became aggrieved by such words of not creating precedent and apprehended that a back-door process has been adopted in giving seniority to the respondent No. 3.
13. According to us, the respondent No. 3 was given seniority without any financial benefit. Therefore, such case is considered specially in the given circumstances. As per Regulation 76 read with Regulation 12 of the Regulations, 1993, the power of relaxation has been given to the State Government to apply in any particular case. It means the authority is only confined to such case alone. Regulation 12 is quoted hereunder:
12. Power to relax.-Where the State Government is satisfied that the operation of any regulation caused any undue hardship in any particular case, in any, notwithstanding anything contained in these regulations appended to the case, by order dispensed with or relax the requirement of that regulation to such extent and subject to such condition as it may consider necessary for dealing with the case in a just and equitable manner.
14. Therefore, when the authority had considered the cause on the basis of the order of the High Court in any particular case without giving any financial benefit, writing of the words 'not be considered as precedent for the future' is not wrong on his part. However, irrespective of consideration of the cause by the authority creating precedent or not creating precedent, Court has to justify the cause independently. Hence, such objection is hypertechnical, superfluous and illusive.
15. Normally there are two sources of recruitment; one direct recruitment, and second, departmental promotion. In the instant case of recruitment by the Greater NOIDA Industrial Development Authority under the Regulations, 1993, there is a third mode. Such recruitment is by deputation or on contractual basis. Now the question is how the promotion of third category will be determined? Regulation 16(2)(c)(i) and (ii) of the Regulations, 1993 being relevant for the purpose is quoted below:
(c)(i) Out of the posts falling in Group 'C' such percentage of those posts in each cadre not exceeding thirty percent as the Chief Executive Officer may, from time to time determine, shall be filled in by promotion from amongst the employees belonging to Group 'D' and the remaining percentage there of in each cadre shall be filled in by direct recruitment or other source specified in Sub-regulation (1) as the Chief Executive Officer may, from time to time, determine.
(ii) Promotions shall be made having regard to seniority subject to rejection of unfit and subject to the fulfilment of requisite qualifications and also to the condition of the concerned employees has worked on a post carrying a scale of pay next below for at least a period of three years. If at any time it is found that sufficient number of employees are not available for filling in the percentage determined for promotion, such posts may be filled in by direct recruitment or other source specified in Sub-regulation (1) as per orders of the Chief Executive Officer.
16. Therefore, the third category recruitment by deputation etc. has to be covered by the category of direct recruit. Now the next question will obviously arise as to whether the petitioner or petitioners are direct recruit or promotee.
17. Learned Chief Standing Counsel contended that as per Regulation 16 (2)(c) of Regulations, 1993, 30% promotion will be determined from amongst the employees belonging to Group-D and the remaining will be filled up by direct recruitment or other source specified in sub-regulation (1). In further he contended that as per Regulation 23 (b) of the Regulations, 1993, seniority channel of the promotee and direct recruit are different from each other. The respondent No. 3 is a deputationist, therefore, his vacancy will be against the direct recruitment quota but not against the quota of departmental promotee i.e. the petitioners herein. Hence, the petitioners have no locus standi to challenge the promotion of the deputationist being part of the quota of the direct recruit. For the purpose of fixation of seniority two separate lists are being prepared and thereafter both the lists are amalgamated as per Regulation-23(b) of the Regulations, 1993.
18. However, such Regulation 23 in total is quoted hereunder:
23. Seniority.- (a) The cadrewise gradation list of all the employees of the Authority shall be maintained . for determining the inter se seniority of employees within the cadre in accordance with such instructions of the Chief Executive Officer as he may issue, from time to time. The Chief Executive Officer may order that the gradation list for any particular category shall be prepared for the Authority as a whole.
(b) The seniority of persons in any cadre shall be determined from the date of order of substantive appointment and if two or more persons are appointed together, by the order in which their names are arranged in the list prepared as a result of selection:
Provided that where appointments are to be made both by direct recruitment and by promotion simultaneously in any cadre, a combined list shall be prepared by taking the names of candidates from the relevant list in relation to such cadre, so however, that the prescribed percentage is maintained, the first name in the list being of the person appointed by promotion and the second name being of the person appointed by direct recruitment or other source, as the case may be, and so on, and the seniority shall be fixed according to the order in which the names find place in the list so prepared.
(c). Where appointment by promotion has been made as a result of one selection, the inter seniority shall be the same a it was in the lower grade from which the promotion is made.
19. According to the learned Chief Standing Counsel, how the promotees are affected by the promotion of respondent No. 3 against the vacancy of the direct recruit is unknown to them. Absorption of deputationist is permissible in terms of the Rules framed under proviso to Article 309 of the Constitution of India. When absorption of deputationist is against the post reserved for direct recruit quota, it is misplaced to allege that the seniority of promotee officers could be affected or chance of promotion will be diminished. The promotion will take place against the vacancies prescribed for promotion and not from the quota of direct recruit.
20. We have called upon the NOIDA authority to make submission if he has any different stand in this respect, but in fact he adopted the argument of the State as well as the respondent No. 3. Therefore, we do not find that there is any conflict of stand between the authority and the State. They are supporting the contention of the respondent No. 3.
21. The petitioners' further contention is that the respondent No. 3 was not the Government servant as per the Rules, 1984. It is a totally unacceptable ground. The petitioners wanted to take the plea only on the ground that unless one serves the Government in permanent capacity in pensionable establishment, he can not be treated as a Government servant. According to us, such definition can not be read in isolation or in piecemeal manner. Rule 2 (b) of Rules, 1984 gives a definition of deputation as follows:
2(b)- "deputation" means the lending by the Government of the Service of a Government Servant, on foreign Service to an undertaking;
22. Therefore, one should not be construed as a deputationist unless he is a Government servant. That apart, there are two parts of Rule 2(d) of Rules, 1984 as quoted above. The first part relates to appointment to a public service and second part is in connection with affairs of the State of Uttar Pradesh in permanent capacity in a pensionable establishment. Both the parts are disjunctive from each other. Now, we have to look whether the petitioners' case is covered by the first part or not. The Uttar Pradesh Development Authorities Centralised Services Rules, 1985 (hereinafter called as the 'Centralised Services Rules, 1985') is formed under Uttar Pradesh Urban Planning and Development Act, 1973 (hereinafter called as the 'Act, 1973'). Even under Rule 2(1)(ii) therein 'Appointing authority' means the Government. Section 47 of the Act, 1973 says that every member and every officer and other employee of the Authority shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code. The object of the Act and creation of centralised service is to make common services to all the development authorities. As per Section 5 (2) of such Act, subject to such control and restrictions as may be determined by general or special order of the State Government, the Authority may appoint such number of other officers and employees as may be necessary for the efficient performance of its functions and may determine their designations and grades. Therefore, the control of the State is not usurped by virtue of creation of centralised service for the purpose of the development authorities. As per Section 5-A (6) of such Act, the State Government has power to transfer any person holding any post in a Development Authorities Centralised Service from one development authority to another. Therefore, creation of centralised service is made for the betterment of the service and the employees can not be treated as not public servant in that way. Mere statement by the deponent in the other writ petition can not be placed beyond the law. Section 3 of such Act clearly says that if in the opinion of the State Government any area within the State requires to be developed according to plan it may, by notification in the gazette, declare the area to be a development area, and thereafter entrust the work to the development authority under Section 4 of such Act. Learned Counsel appearing for the petitioners contended that the employees of the authority can not get pension after the retirement, therefore, their services can not be said to be public service. She relied upon the last part of Rule 2(d) of the Rules, 1984 to the extent "pensionable establishment". We have called upon the learned Counsel appearing for the respondents to give answer to the query. Learned Counsel appearing for the respondent No. 3 contended that as per Clause 17 of Article 366 of the Constitution of India 'pension' includes the following as quoted:
17. 'pension' means a pension, whether contributory or not, of any kind whatsoever payable to or in respect of any person, and includes retired pay so payable, a gratuity so payable and any sum or sums so payable by way of the return, with or without interest thereon or any other addition thereto, of subscriptions to a provident fund;
23. Hence, it is clear that the pensionable establishment, as aforesaid, does not necessarily mean an establishment which makes payment of pension as such regularly month by month, but includes all types of retiral benefits as aforesaid. He further said that absorption of the respondent No. 3 is not challenged in this writ petition but only challenged in respect of the retrospectivity. If he seems to be a public servant and past service can not be ignored, such retrospectivity can not find place of argument in the matter.
24. The Supreme Court in (Union of India v. Kuldip Singh Permer and Ors.) has accepted the ratio of (supra) and held that ratio of earlier judgement leads to inevitable conclusion that one is entitled to the benefit of service rendered by him on regular basis from the date of his joining in the parent department. In other words, his seniority will be counted from such date. In 1995 (3) UPLBEC 1875 (Suresh Chandra Gupta v. State of U.P. and Ors.) a Division Bench of this High Court held on perusal of the Rules, which have been discussed above, that it indicates that the manner of recruitment, promotions and other conditions of service regarding leave, leave allowance, officiating fee and honorarium etc. are governed in accordance with U.P. Financial Hand Book and the provisions of U.P. Fundamental and Subsidiary Rules contained in Financial Hand Book Volume II Part II to IV etc. would be applicable to the employees of Centralised Services except as expressly provided in the Centralised Service Rules, 1985. Thus, it is evident that Fundamental Rules contained in Financial Hand Book Vol. II Part II to IV have been made fully applicable to the employees of the Centralised Services of the local bodies. As the U.P. Development Authorities Centralised Services Rules. 1985 are silent with regard to deputation and absorption on a deputation post, the matter relating to absorption etc, can be regulated under UP. Financial Hand Book and other rules and the orders issued by the State Government from time to time. There is no doubt that the person concerned was holding a public service or post in connection with the affairs of the State of Uttar Pradesh at the relevant time in permanent capacity in a pensionable establishment. Hence, it can not be said that such person was not a government servant.
25. In an unreported judgement dated 21st March, 2003 delivered in Civil Misc. Review Application No. 181964 of 2002 arising out of Civil Misc. Writ Petition No. 37341 of 2002 (S.S.A. Rizvi v. Greater NOIDA Industrial Development Authority and Ors.) a Division Bench of this High Court held that the law is well settled in Ruplal's case (supra) and other decisions that the past service of an employee, who is absorbed to another department, has to be added to the service of the department where he is absorbed.
26. Apart from that, the Acts and the Rules relevant for the purpose are to be taken into account as a whole and harmoniously constructed to draw conclusion in this respect. Rules, 1984 came into force in exercise of powers conferred by the proviso to Article 309 of the Constitution of India and in suppression of all other rules in this regard. The Governor was pleased to make the rules to regulate the conditions of absorption of Government servants, employed in connection with the affairs of the State of Uttar Pradesh, in public undertakings. Therefore, from the preamble of such Rules it can be construed that the respondent No. 3 is a Government servant. If it is so, his past service can not be ignored. Subsequent thereto, the Centralised Services Rules, 1985 was promulgated under the Act, 1973 saying that 'appointing authority' means the Government. Rule 2 (1) (vi) of the Centralised Services Rules, 1985 says that 'Member of the service' means a person absorbed against or appointed to a post in the cadre of the service under these rules. The Centralised Services Rules, 1985 also speaks about the seniority of finally absorbed officers and other employees. A candidate's continuous' length of service including services rendered in a Development Authority, Nagar Mahapalika, Nagarpalika or Improvement Trust on similar posts is applicable in case of such employee. The Regulations, 1993 was formed in exercise of powers under Section 19 of the Uttar Pradesh Industrial Area Development Act, 1976. Applicability of the Act says that the regulations shall apply to all employees of the Authority except a person working with the Authority on deputation from the Union Government or any State Government or a Local Authority or a Corporation or any other Organisation, by whatever name called, and such a person shall continue to be governed by the rules applicable to him in relation to his service in his parent department or organisation, as the case may be, unless such person is absorbed in the services of the Authority as an employee. Import of the word "unless", as aforesaid, can not disentitle a person from counting the entire length of his past service from the date of substantive appointment. Formation of Regulations, 1993 made for the Greater NOIDA i.e. one of the authorities can not usurp the Rules, 1984 made under Article 309 of the Constitution of India nor Centralised Services Rules, 1985 made under the Act, 1973. Approach of the petitioners can not be accepted by this Court.
27. Last but not the least the learned Counsel appearing for the petitioners contended that the respondent No. 3 did not complete minimum 3 years' period for the purpose of placing on the higher post on the basis of Rule 5 (2) (c) of the Rules, 1984 made for the absorption of the Uttar Pradesh Government servants in public undertakings. The relevant part of the Rules speaks as follows:
(2) The Government shall not agree to absorption:
(a) ...
(b) ...
(c) unless the Government servant is to be absorbed in an equivalent post in the undertaking or to such higher post in the undertaking as he has held on deputation for at least three years:
(d) ...
28. Again there are two parts of such Clause (c). The Government shall not agree to absorption unless the Government servant is to be absorbed in the equivalent post in the undertaking. Alternatively, the Government shall not agree to absorption to such higher post in the undertaking unless he has held on deputation for at least three years. Now, we have to consider what was the cause of consideration by the Government pursuant to the earlier order of the Court. The cause is that as per length of the past service the respondent No. 3 is entitled to be absorbed on the post of the Manager but wrongly absorbed on the post of the Assistant Manager. He had already made known three instances as available from the order impugned. Upon considering all pros and cons the respondent No. 3 was allowed to be absorbed on the post of the Manager instead of Assistant Manager giving notional benefits. Therefore, such clarification of initial absorption can not be treated to be absorption in the higher post than the equivalent post. In other words, the Government has agreed to the initial absorption of the respondent No. 3 on the post of the Manager not on the post of the Assistant Manager applying the first part of Clause (c).
29. The consideration of the writ petition is restricted to the cause of action available herein. Respondent No. 3 was already drawing equivalent pay scale of Manager. Hence, even such part of the argument of the petitioners seems to be misconceived in nature. In further when the qualification is not the criteria but the length of past service is the criteria for the purpose of seniority and when the substantive appointment of the respondent No. 3 was made in the year 1983 when the petitioners are shown as appointees of much later period i.e. in 1992 or thereafter and when zone of consideration of seniority of the respondent No. 3 falls within the zone of direct recruit and the petitioners are promotees having separate channel of seniority, we do not find any cogent reason to quash the order impugned herein.
30. Therefore, in totality we are of the view that the petitioners' grievance can not be held to be sustainable at all and the writ petition is liable to be dismissed and accordingly is dismissed. Interim order, if any, stands vacated.
31. However, no order is passed as to costs.