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Akhil Bhartiya Manav Kalyan Evam Samajothhan & Another v/s State of U.P. & Others


Company & Directors' Information:- AKHIL INDIA PRIVATE LIMITED [Active] CIN = U51109JK2000PTC002046

Company & Directors' Information:- AKHIL CORPORATION PRIVATE LIMITED [Under Process of Striking Off] CIN = U74900TG2015PTC098902

Company & Directors' Information:- KALYAN CORPORATION PRIVATE LIMITED [Strike Off] CIN = U65991TN1947PTC001239

    Public Interest Litigation (PIL) No. 29592 of 2016, Civil Misc. Writ Petition No. 49534 of 2015

    Decided On, 01 July 2016

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLR MR. JUSTICE ARUN TANDON & THE HONOURABLE MRS. JUSTICE SUNITA AGARWAL

    For the Petitioners: Amar Nath Singh, S.K. Mishra, Advocates. For the Respondents: C.S.C., A.N. Singh, A.S.G.I., Amit Misra, Anjali Upadhya, B.B. Jauhari, Shivam Yadav, N.I. Jafri, Rajesh Kumar Tripathi, Ramendra Pratap Singh, Suresh Singh, Advocates.



Judgment Text

1. Heard learned counsel for the petitioners, learned Chief Standing Counsel, Sri M.C. Chaturvedi, learned Senior Advocate on behalf of the respondent-Noida Development Authority, Sri Bhanu Bhushan Jauhari, learned Advocate on behalf of respondent-Greater Noida Development Authority.

2. These two Public Interest Litigations (PILs) have been filed before this Court raising serious concern in the matter of appointment and continuance of officers including the highest officer namely Chief Executive Officer (CEO) in three Industrial Development Authorities created around the National Capital Region (NCR) namely NOIDA, Greater NOIDA and Yamuna Expressway Industrial Development Authority.

3. According to the petitioners Mr. Rama Raman an IAS officer is the blue eyed boy of the Government of Uttar Pradesh. The same officer holds charge of Chief Executive Officer (CEO) of NOIDA, Greater NOIDA and Yamuna Expressway Industrial Development Authority. The extra ordinary competence of the officer can be seen from the said fact itself and the lack of competent officers with the State Government for manning three different posts is also apparent from the same assertion. The State Government for last six years i.e. since 2010 has not been able to find required number of suitable officers, who can hold the post of Chief Executive Officers for three Industrial Development Authorities, independently.

4. The High Court, while entertaining the first writ petition in the year 2015 vide order dated 2.9.2015, had noticed as under:-

'Heard Counsel for the petitioner, Standing counsel and Sri Bhanu Bhusan Jauhari, learned counsel for respondent no. 8 and Sri Rajesh Kumar Tiwari, learned counsel for respondent nos. 4 and 10.

If the allegations made in the present writ petition are correct then prima facie it is established that respondent nos. 11 to 16 are blue eyed boys of the State Government. By way of example of respondent no. 11, Sri Rama Raman, is presently posted as Chief Executive Officer, Noida, Greater Noida and Chairman of Yamuna Expressway Authority. He has remained posted in these authorities for years together.

We fail to understand as to why the State Government could not appoint any other officer and why Sri. Rama Raman has not been transferred to any other post in any other district, what is so special about him and why should he remain as head of three authorities at the same time.

Learned counsel for the Yamuna Express Way Authority submits that Sri Santosh Yadav, Chief Executive Officer, Yamuna Express Way Authority has joined recently on 10.06.2015.

He may supply the details of other officers appointed in Yamuna Express Way Authority since the date of initial appointment.

The Court has been informed that the officers who are appointed in Noida Industrial Development Authority, Greater Noida Development Authority, and in Yamuna Express Way Authority continue to remain posted therein as they are not holdes of transferable post.

We may record that the posts in all other development authorities in State of Uttar Pradesh established under the U.P. Urban Planning Development Act are transferable posts. The Chief Secretary must explain as to why the post in these Industrial development authorities have not been made transferable.

Sri. Bhanu Bhushan Jauhri appearing for respondent no. 8 has informed the Court that Sri. Rama Raman has been posted in Noida since 05.07.2010 on deputation. The Chief Secretary may inform the Court as to whether the posts held by Rama Raman are cadre posts and whether Cadre Rules admit appointment by deputation or not.

All other respondents are also granted time to file their reply to the averments made in the writ petition by the next date. Particulars of their place of posting since they have entered into Government Service/Service of Industrial Development Authority must be disclosed in form of a chart. Personal affidavit must be filed by the Chief Secretary of U.P. by the next date in response to what is state above.'

5. An affidavit has been filed on 30th September, 2015 by the then Chief Secretary of the Government of U.P., Lucknow and in paragraphs 8, 9 and 11 to 14 of the affidavit, it has been stated as under:-

'8. That it is clarified that the senior officers in rank of Additional CEO, Deputy CEO, and at times the Head of the Finance and Planning Department, Chairman are sent on deputation by the State Government.

9. That the Chief Executive Officer is appointed by the State Government in terms of Section 4 of the U.P. Industrial Development Act, 1976. The said provisions is extracted herein below for ready reference of the Hon'ble Court:-

'Section 4 of the U.P. Industrial Development Act, 1976

'(1) The Chief Executive Officer of the Authority shall be appointed by the State Government and shall be a whole time officer of the Authority.

(2) The Chief Executive Officer shall be entitled to receive from the funds of the Authority such salaries and allowances and be governed by such conditions of service as may be determined by general or special order of the State Government in this behalf.

(3) The Chief Executive Officer shall exercise such power and perform such duties as may be specified in the regulations or delegated to him by the Authority.'

11. That as far as the posting of Shri Rama Raman is concerned, he was substantively posted as CEO, Greater NOIDA, Gautam Budh Nagar since 4.7.2010 and the same is the cadre post of IAS. Sri Rama Raman was, at different times, given additional charge of Chairman & CEO NOIDA, Chairman Greater NOIDA and Chairman & CEO Yamuna Expressway Industrial Development Authority.

12. That at present Shri Rama Raman is substantively posted on the cadre post of CEO Greater NOIDA and he is holding additional charge of Chairman NOIDA, Chairman Greater NOIDA, Chairman Yamuna Expressway Industrial Development Authority and CEO NOIDA.

13. That it is clarified that posts of CEO NOIDA and CEO Greater NOIDA are cadre posts of Indian Administrative Service.

14. That it is further clarified that posts of Chairman & CEO NOIDA, Greater NOIDA and Yamuna Expressway Industrial Development Authority are transferable and officers posted on these posts are transferred time and again.'

6. This Court, therefore, enquired from the learned Chief Standing Counsel of the State of U.P. defending the State Government to explain that when the post of Chief Executive Officer has been created under the U.P. Industrial Development Act, 1976 and it has been provided under Section 4 of the Act that the Chief Executive Officer shall be a whole-time officer of the Authority and that he shall draw salary and allowances from the funds of the Authority and shall be governed by such conditions, as may be determined by general or special order of the Government, then what is the intent of the statement made in paragraph '11' of the affidavit of the Chief Secretary that the post of CEO, NOIDA and CEO, Greater NOIDA are cadre posts of IAS.

7. The Court enquired from the Chief Standing Counsel (a) can a particular post fall within two cadres, one created under the statutory provisions of Industrial Development Act and the other under the IAS cadre? (b) can a person be a full time officer for three statutory bodies at the same time. (c) if the statutory provisions do not permit appointment on a post by deputation can such mode of appointment be restored to?

8. The learned Chief Standing Counsel made a statement in the open Court that he cannot answer the query made by the Court without obtaining instructions from the State Government.

9. After the Court dictated the said part of the order, the learned Chief Standing Counsel stood up to state that the learned Advocate General shall appear in the matter and the Court may adjourn the matter for today.

10. It is admitted to the respondents that Mr. Rama Raman has been continuing at a particular place for six years as on date and that he is admittedly an IAS officer holding a transferable post. As on date he is holding charge of the following statutory posts:- (i) CEO, Greater NOIDA (ii) Chairman, NOIDA (iii) CEO NOIDA, (iv) Chairman, Yamuna Expressway Industrial Development Authority.

11. We may take judicial notice of the fact that during all this period, serious scams in respect of allotment of land and wrongful utilisation of the property put in the hands of above named Development Authorities have come in light and employees/officers of these Authorities like Yadav Singh, Ramendra Singh and V.K. Goel are confined to prison for accumulating wealth/properties worth hundreds of crores of rupees. Investigation of the scams is being done by CBI. But the State has continued with the same officers as Chief Executive Officer/Chairman under whom Yadav Singh etc. were working during the period the scams had taken place.

12. This Court had indicated to the State in its order dated 2nd September, 2015 in so many words that it must decide for itself as to how long Mr. Rama Raman could continue at one particular place and hold charge of so many statutory posts simultaneously for such a long period.

13. We are of the opinion that the State Government even in the matter of posting of its officers must act in a manner, which may inspire confidence in the public at large and its action must not reflect favouritism in favour of the selected few. Transparency must be the rule of the day. If the State Government is not able to find suitable officers to replace the blue eyed officers, it would be a sad day for the administration in the State.

14. Section 3 of U.P. Act No. 6 of 1976 provides for the constitution of the Industrial Development Authority for any industrial area. Sub-section (2) of Section 3 of U.P. Act No. 6 of 1976 declares that the authority shall be a body corporate. The Secretary to the Government, Uttar Pradesh, Industries Department or his nominee not below the rank of Joint Secretary shall be ex officio Member-Chairman.

15. So far as the Chief Executive Officer is concerned, as already noticed above, he has to be appointed by the State Government as a whole-time officer of the Authority with a right to draw salary and other allowances from the funds of the Authority itself. His conditions of service etc. are to be determined by general or special orders of the State Government made in this behalf.

16. Prima facie what logically follows is that the post of Chief Executive Officer is a statutory post created under the provisions of the U.P. Act No. 6 of 1976.

17. Section 4 of the U.P. Act No. 6 of 1976 contemplates that Chief Executive Officer shall be a whole-time officer of the Authority.

18. From the aforesaid, it can be seen that for each Industrial Development Authority, there has to be a separate whole-time officer.

19. We are of the prima facie opinion that one person cannot work as a whole-time officer for three different Industrial Development Authorities, as it belies the very concept of the incumbent being whole-time officer subject to the condition that for some short duration, till regular appointment is made, an officer already appointed as Chief Executive Officer for one Industrial Development Authority may hold the charge of other Industrial Development Authority. But the said arrangement has to be for a very limited duration. Giving of additional charge for years in respect of three Industrial Development Authorities to one person frustrates the very intent of the word 'whole-time officer' as contemplated by Section 4 of the U.P. Act No. 6 of 1976.

20. Another query, which has gone unanswered, despite specific order passed by the High Court as early as on2nd September, 2015 in Writ-C No. 49534 of 2015 (Jitendra Kumar Goel v. State of U.P. and 15 Others), namely, if the statutory provisions do not contemplate appointment by deputation, how can an IAS officer be appointed on the post of Chief Executive Officer of Industrial Development Authority, the post whereof has been statutorily created.

21. The Chief Secretary of the State has not responded to the said query in his counter affidavit nor the learned Chief Standing Counsel is ready to answer the same.

22. Surprisingly, the Chief Secretary in his affidavit has not disclosed as to whether or not the State Government has determined by general or special orders the conditions of service for the post of Chief Executive Officer as required under Section 4 (2) of the U.P. Act No. 6 of 1976 even after expiry of 40 years of the enforcement of the said Act.

23. In the perception of a common man, continuance of such person as the top administrative officer of the Authority can never be in the interest of the Authority. Every day's continuance of such officer would be detrimental to the interest of the Statutory Authority itself.

24. In our opinion, in the aforesaid legal and factual background, the continuance of an I.A.S. officer against the post for such long period and his continuance to hold charge of three different Industrial Development Authorities at the same time cannot be said to be proper, fair and just. It adversely reflects upon the administration of the Development Authorities, which are facing huge scams as already noticed above.

25. Another issue, which needs to be examined in the present Public Interest Litigation is as to whether the appointment of Mr. Rama Raman is on deputation and if so, then can such deputation continue for unlimited period or it must also come to an end within the maximum time period fixed for such appointment on deputation under the Government Orders applicable. Reference may be made to the Office Memorandum dated 19th January, 1988 bearing No. G-1-70/10-88-250/87, which intern refers to the Uttar Pradesh Sarvajanik Upkramon Mey Sarkari Sevokon Ka Aamelan Niyamawali, 1984 (hereinafter referred to as the 'Rules, 1984'). Rule-3 of Rule, 1984 provides that no Government servant beyond the age of 50 years could be appointed on deputation and the maximum period of such deputation would be 5 years, only. In case it is proposed to extend the period of deputation beyond 5 years, as an exceptional case, then in that circumstance, the proposal must be submitted three months prior to the expiry of the maximum period.

26. The learned Chief Standing Counsel had referred to us a letter sent by the Special Secretary, U.P. Government at Lucknow dated 30th June, 2016, wherein after noticing the prayer made in the present petition, the learned Chief Standing Counsel has been informed that the matter pertaining to the transfer of an IAS officer has to be considered by the Civil Service Board constituted under the Chairmanship of the Chief Secretary of the State vide Office Memorandum dated 18th February, 2014 and that there is no time limit fixed in the matter of continuance of an IAS officer on a particular post. The final decision is taken with the concurrence of the Chief Minister of the State.

27. The learned Chief Standing Counsel suggested that the matter pertaining to the transfer of Mr. Rama Raman may be directed to be considered by the Civil Service Board created under the Office Memorandum dated 18th February, 2014.

28. We may not express any opinion on the aforesaid aspect, inasmuch as it is always open to the Civil Service Board to make its recommendations in the matter of transfer of an IAS officer and the same does not require any order from the High Court. We leave it open to the State Government to place the matter pertaining to transfer of Mr. Rama Raman before the Civil Service Board, if it so desires. However, we clarify that if any decision is taken by the Civil Service Board as suggested by the learned Chief Standing Counsel, the same may be brought to the notice of the Court when the matter is listed next.

29. We must also fairly take note of the two preliminary objections, which have been raised by the learned Chief Standing Counsel and Sri M.C. Chaturvedi, learned Senior Advocate on behalf of respondent-State and Noida Development Authority, namely, (a) that the averments made in the present petitions do not satisfy the required disclosures for maintaining the Public Interest Litigation on behalf of the petitioner and (

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b) no application disclosing the urgency for entertaining the present Public Interest Litigations during summer vacation has been filed. 30. For explaining the urgency, averments made in paragraph-32 of Public Interest Litigation No. 29592 of 2016 have been reiterated by the learned counsel for the petitioner. 31. So far as the first objection is concerned, material averments are on record of these two petitions, namely, paragraph-3 of the Public Interest Litigation No. 29592 of 2016 and paragraph-4 of Writ C No. 49534 of 2015. The petitioners have disclosed their identity in both the petitions. 32. We permit the respondents to file their objections with regard to the credentials of the petitioners so disclosed. But having regard to the facts as are on record of these petitions, we feel that a case for exercise of suo motu powers is made out, even if some statement of facts required to be stated by the petitioners, as are wanting in these two petitions, qua their credentials. Larger public interest must prevail. We are, therefore, entertaining the present public interest litigation's. 33. In the totality of the circumstances on record, we feel compelled to issue following directions: (a) Mr. Rama Raman shall not exercise any powers of the Chief Executive Officer of NOIDA Industrial Development Authority, Greater NOIDA Industrial Development Authority, Yamuna Expressway Industrial Development Authority hence forth. However, he shall continue to draw his salary and other allowances as earlier. (b) Notice be issued to the respondent nos. 10 to 18 by speed post fixing 20th July, 2016 as the date. Steps be taken within a week. All the respondents may file counter affidavit by the next date. 34. List on the date fixed. Order accordingly.
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