Kumar Chopra Vs. Pradeshik Co. Operative Dairy Federation Ltd. & Ors 
INSC 189 (6 August 1992)
DAYAL (J) YOGESHWAR DAYAL (J) SHARMA, L.M. (J) PUNCHHI, M.M.
CITATION: 1992 AIR
2093 1992 SCR (3) 755 1992 SCC (4) 17 JT 1992 (4) 459 1992 SCALE (2)125
Pradesh Cooperative Societies Act, 1965- Sections 122-A and 122-U.P.
Cooperative Dairy Federation and Milk Union Centralised Service Rules 1984-Rule
17(1) and (3)-U.P.
Societies Employees Service Regulations 1975- Para 17, 18, 19-Termination of
provisionally absorbed employee appointed to a temporary post upon creation of
a new service-Held, the post not being regular under Regulation 17(1), and his
status before he became such absorbed employee not being relevant, termination
On 29 August, 1984, the U.P. Cooperative Dairy
Federation and Milk Union Centralised Service Rules 1984 were promulgated which
created a new service known as U.P.
and Dairy Federation and Milk Unions Centralised Service which was to consist
of all the managerial posts of the Pradeshik Cooperative Dairy Federation Ltd.,
Lucknow and the Cooperative Milk Unions and Cooperative Milk Boards within the
Operation Flood II Project registered under the 1965 Act, with some exceptions.
By Resolution dated 28
September, 1984, the
1975 Regulations were made applicable, and the rules relating to probation,
confirmation and termination were extended to the employees in the new service.
appellant was appointed as Assistant Manager (Quality Control) in the Cattle
Feed Plant, Varanasi on 24 July, 1981 and placed on probation for a period of one year.
On 30 May, 1987 and 25 May, 1987, the appellant received orders, by the first of which he
was relieved by the Dugadh Utpadak Sahkari Sangh Ltd., Agra, where he was then posted, and was to report at the Pradeshik
Cooperative Dairy Federation Ltd., Head Office at the earliest. By the second
order, his services were terminated under Paras 17 (1) and 19 (A) of the 1975
Regulations by giving one month's salary. The appellant 756 challenged the
orders mainly on the ground that he was a permanent employee having been
finally absorbed in service holding a regular post since 1981, in a clear
vacancy after due selection.
High Court, on consideration of the 1975 Regulations, the 1984 Rules, the
appointment orders and the facts of the case, held that the appellant continued
in service as a temporary employee, and that the services of the appellant with
the Federation had no relevance.
the appeal, this Court,
1. By Explanation to Regulation 17(1) no post shall be deemed to be regular
unless it is in existence continuously for the last five years. The post of
Manager Grade III had been sanctioned only with effect from the coming into
force of the 1984 Rules. [766G] Till the date of termination of the appellant's
service even three years had not expired. Therefore the post which he was
holding could not be deemed to be a regular post.
status of an employee before he became an employee of the Centralised Service
created by the 1984 Rules, his terms and conditions were to be governed by the
1975 Regulations and he had to become a regular employee once again. Having
become an employee of the new service, and since the post was not in existence
continuously for five years, it could not be treated as a regular post.
the services of the appellant is that of a temporary employee. [767A-C] Om Prakash
Maurya v. Cooperative Sugar Factories Federation, Lucknow,  Supp SCC 95, referred to.
view of Section 122-A of the 1965 Act and the creation of the new Service under
different Authority by the 1984 Rules and the provisions of Regulation 17 of
the 1975 Regulations, the appellant had no choice but to take his chance with
the new authority. [767D]
Though the impugned order of termination does not cast any stigma on the
appellant which can be called by way of punishment, in the counter-affidavit it
was stated that his work was unsatisfactory. [767E] National Textile Workers
Union & Ors. v. P.R. Ramakrishnan & Ors., 757  1 SCC 228. The
Govt. Branch Press & Ors. v.D.B.
 2 S.C.R. 458 = A.I.R. 1979 S.C. 429; Ajit Singh & Ors. v. State of Punjab & Anr.,  2 S.C.R. 517 Anoop
Jaiswal v. Government of India & Anr.,  2 S.C.C.
APPELLATE JURISDICTION : Civil Appeal Nos. 3321 and 3320 of 1990.
the Judgment and Order dated 21.7.1989 of the Allahabad High Court in W.P. No.
3845 and 4371 of 1987.
and S. Murlidhar for the Appellants.
Tulsi, Addl. Solicitor General, Pradeep Misra and Arun Sharma for the
Respondents The Judgment of the Court was delivered by YOGESHWAR DAYAL, J.
Civil Appeal 3321 of 1990 and Civil Appeal 3320 of 1990 arise out of a common
judgment of the Allahabad High Court dated 21st July, 1989 passed in Writ
Petition No. 3845 of 1987:Indra Kumar Chopra v. State of U.P. and others and
Writ Petition No. 4371 of 1987: Ashwani Kumar Jha v. Pradeshik Cooperative
Dairy Federation Ltd., and another.
common questions of facts and law arise in both the appeals, the same are being
disposed of by a common judgment. For facility of reference we may deal with
the facts of the appeal of Indra Kumar Chopra.
appellant, claiming himself to be a permanent employee-Manager Grade-III
(Quality Control) posted at Dugadh Utpadak Sahkari Sangh Limited Agra, had
challenged the orders dated 30th May, 1985 and 25th May, 1987, passed by the
General Manager, Dugadh Utpadak Sahkari Sangh, Agra and Chairman Administrative
Committee of the said Sangh. By the first order the appellant was relieved by
the said Sangh in the afternoon of 30th May, 1985 and to report at Pradeshik
Cooperative Dairy Federation Ltd., Head Office, at the earliest and by the
second order his services were terminated under Paras 17(1) and 19(A) of the
Uttar Pradesh Cooperative Societies Employees Service Regulations, 1975
(hereinafter called `the 1975 Regulations') by giving one month's salary in
lieu of notice period.
The orders were impugned mainly on the ground that the appellant was a
permanent employee having been finally absorbed in service holding a regular
post since 1981, in a clear vacancy after due selection, hence his services
could not be terminated without following the due process of law.
submitted before the High Court that the Regulations under which the services
of the appellant were terminated would not apply in the case of the appellant
as the same apply to the employee on probation. On July 24, 1981, the appellant was appointed as Assistant Manager (Quality
Control) in the Cattle Feed Plant, Varanasi and was placed on probation for a period of one year after his joining.
It was pleaded that it was mentioned in the order that on the expiry of the
probation he will be confirmed provided the period of probation is not extended
by the Federation, at its discretion without assigning any reason thereof: It
was alleged that he was appointed on one year's probation which was not
extended and was satisfactorily concluded.
On 29th August, 1984 the Governor of Uttar Pradesh
issued a Notification promulgating the Uttar Pradesh Cooperative Dairy
Federation and Milk Union Centralised Service Rules, 1984 (hereinafter called
`the 1984 Rules').
17(1) of the 1984 Rules provides as follows:- "The employees of the
Federation or Unions working on the managerial posts on the date of enforcement
of these rules shall provisionally be deemed to be members of the
service." Rule 17(3) of the 1984 Rules reads thus:
Committee shall screen such provisionally absorbed employees......in accordance
with the qualifications and norms laid down by the Registrar. If, as a result
of such screening, a provisionally absorbed employee is not found suitable for
final absorption in the service by the Committee, his service in the Federation
or Union concerned, as the case may be, shall be determined with effect from
the date of communication of such decision of the Committee." The
appellant contended that as a result of the screening, the appellant was
finally absorbed in the service.
19 of the 1984 Rules makes provision for the training of the 759 members of the
service. The appellant alleged that after absorption he was sent for training
at Government expenses which he completed successfully. The appellant also
contended that his work, conduct and performance was always appreciated by
superiors, as a result of which he was sent as Manager Grade-III to Dugadh Utpadak
Sahkari Sangh Ltd., Agra. While he was posted at Agra, he received the impugned orders.
writ petition a detailed counter affidavit was filed on behalf of respondent
Nos. 2 and 3, by one Sh. Sharad Tondan, who was Manager Grade-III in the office
of the Pradeshik Cooperative Dairy Federation Ltd., 29 - Park Road, Lucknow. In this counter- affidavit the background of the Service
has been given. It was stated thus:
That the Pradeshik Cooperative Dairy Federation Ltd., (hereinafter referred to
as Federation) is an apex level Cooperative Society under the U.P.
Societies Act, 1965.
That the Federation has been entrusted with the implementation of the Operation
Flood Scheme by the State Government. The Scheme is sponsored by National Dairy
Corporation, the purpose of the scheme is to procure milk from rural areas of
the State and market the milk and milk products in urban areas. In all, 28
districts have been covered under Operation Flood II scheme in three phased the
various milk unions have been established in these districts will have separate
identity but worked under the guidance of the Federation which is an agency for
implementing the scheme.
That in the initial stage of member of persons working in the Federation and
several milk unions were engaged in implementing the scheme. But later on the centralised
services were created under the Centralised Services Rules and the persons
working on the Managerial post under the Federation and the milk unions were
given option for becoming member of the service by way of appointing through
That Uttar Pradesh Cooperative Dairy Federation and Milk Unions Centralised
Service Rules, 1984 (hereinafter referred to as `Rules') inter alia provide for
the creation of Cadre 760 Authority and Administrative Committee and created
Uttar Pradesh Cooperative Dairy Federation and Milk Union Centralised Service
(hereinafter referred to as `Service') F. That the Centralised Services as
created by the Rules 1984 consists of the following posts, their category and
their scales in the ascending order.
Manager Grade IV
Manager Grade III
Manager Grade II
Manager Grade I
General Manager G. That after creation of the centralised service under the
rules for implementation of the Operation Flood Scheme, the managerial posts
under the Federation were abolished and the persons working on the managerial
posts in the service of the Federation were given option or their absorption in
the centralised service which is a new and different services with that of
services under the Federation.
That under Rule 17 of the Rules the persons were given option to give notice in
writing to the Secretary of the Committee for their non-absorption into the
services under the centralised services and the provisions were also made for
determination of the services of the employees who has given option for not
becoming a member of the services and the persons who had given option for
becoming a member of the service were absorbed after found suitable by the
Screening Committee and in case they are not found suitable, there services
were liable to termination. The provision for training of the members of the
service were also made in the Rules.
Thus after framing of the centralised service Rules in the year 1984, for
implementation of the Operation Flood-II Scheme which in itself a temporary
scheme, a number of 761 temporary posts of Manager Grade III were created and
the persons who were previously working in the Federation or in the unions on
the managerial posts were appointed by way of absorption on those posts under
the appointing authority of Chairman of the Administrative Committee. It is
further stated the service under the Cadre Authority are different with that of
service under the federation or the Unions. It is a new services under the
different appointing authority under different terms of service conditions. It
is further stated that either there was no post of Manager Grade-III in the
Federation and in the Union. It is specifically stated that the
service under the Federation has no like whatsoever with that of the services
under the Cadre Authority.
That the Centralised Service Rules also provide for framing or regulation
enumerating service conditions of the member of the service by the Cadre
Authority which are still under process of framing. That in the meantime, the
Committee by means of Resolution decided to govern the services condition of
the members in accordance with the U.P. Cooperative Employees Service
Regulation under the power derived from Rule 25." It was further stated that
by Resolution dated 20th September, 1984 the Cadre Authority resolved that
during the implementation of Regulations being farmed under the 1984 Rules the
service conditions of the members of the Centralised Service shall be governed
by the 1975 Regulations. It was also stated specifically that the post of
Manager Grade-III upon which the appellant was working was not a regular post
and hence the question of confirmation did not arise and the appellant was only
a temporary employee. It was further pleaded that the work of the appellant was
not found upto the mark and the same was found unsatisfactory by the appointing
authority. It was further alleged that on account of unsatisfactory work of the
answering respondents was put to financial loss and loss of reputation.
Division Bench of the High Court on consideration of the 1975 Regulations, the
1984 Rules and looking at the various appointment orders as well as facts of
the case took the view that the appellant continued to remain in service as a
temporary employee and negatived the contentions 762 of the appellant that as
the appellant continued to remain in service even after the completion of
probationary period, he would be deemed to be confirmed on the post which he
was holding. The Division Bench also took the view that the service of the
appellant with the Federation had no relevance and all that was concerned was
the appellant's service under the Cadre Authority as per the 1984 Rules.
these observations the High Court dismissed both the writ petitions.
service conditions of the appellant, who was initially appointed by letter
dated 24th July, 1981 as Assistant Manager (Quality
Control) With Pradeshik Cooperative Dairy Federation Limited, 29 Park Road, Lucknow, were governed by the 1975 Regulations. The 1975
Regulations have been framed under Section 122 of the Uttar Pradesh Cooperative
Societies Act, 1965. The appellant was placed on probation for a period of one
year from the date of his joining and would be confirmed provided the period of
probation had not been extended by the Federation at its discretion as per the
averments in the writ petition. The 1984 Rules were promulgated by the Governor
of Uttar Pradesh through the Notification dated 29the August, 1984. These Rules
were again framed in exercise of powers conferred by section 122 A of the Uttar
Pradesh Cooperative Societies Act, 1965, as amended (hereinafter referred to as
`the 1965 Act'). Section 122 A of the 1965 Act provides as under:- 122 A.
CENTRALISATION OF CERTAIN SERVICE- (1) Notwithstanding anything contained in
this Act, the State Government may by rules provide for the creation of one
more services of such employees of such cooperative societies or class of
cooperative societies as the State Government may think fit, common to such
cooperative societies and prescribed the method of recruitment, appointment,
removal and other conditions of service of persons appointed to any such
When any such service is created, all employees of such societies existing on the
date of creation of such service on the posts included in such service, shall
be deemed to have been provisionally absorbed in the service with effect from
the date of creation of such service:
that any such employee may, by notice in writing to 763 the prescribed
authority within the prescribed period, intimate his option of not becoming a
member of such service, and in that event his service in the society shall
stand determined with effect from the date of such notice and he shall be entitled
to compensation from the society which shall be- (a) in the case of a permanent
employee, a sum equivalent to his salary (including all allowances) for a
period of three months or for the remaining period of his service, whichever is
the case of a temporary employee, a sum equivalent to his salary (including all
allowances) for a period of one month or for the remaining period of his
service, whichever is less.
employee provisionally absorbed under sub- section (2) may be absorbed finally
in the service if found suitable after screening in accordance with the
instructions issued by the Registrar; and the services of any such employee as
is not found suitable for absorption in the service shall stand determined with
effect from the date of issue of orders in that behalf by the prescribed
authority and until such authority prescribed by the officer specified by the
Registrar in that behalf in such instructions and he shall be entitled to
compensation as laid down in clause (a) or clause (b) of sub-section (2)
according as he was a permanent or a temporary employee." As stated
earlier, in exercise of the powers conferred by Section 122 A of the 1965 Act
the Governor of Uttar Pradesh was pleased to make the 1984 Rules. These Rules
were notified by Notification dated 29th August, 1984 and came into force from the same
date. By virtue of these Rules a new Service, known as Uttar Pradesh
Cooperative Dairy Federation and Milk Unions Centralised Service, was created
which was to consist of all the managerial posts of the Pradeshik Cooperative
Dairy Federation Ltd., Lucknow, (including all its Units) and the Cooperative
Milk Unions and Cooperative Milk Boards falling within the area of Operation
Flood II project, registered under the 1965 Act, except the posts of Managing
Director, Chief Commercial Manager and Chief General Manager of the Federation
Rule 2(k) of the 1984 Rules defines -"Service" means the Uttar
Pradesh Co-operative Dairy Federation and Milk Unions Centralised Service
created under rule 3 of these Rules.
from the provisions of 764 Section 122 A of the 1965 Act quoted earlier Section
17(1) of the 1984 Rules also provided that the employees of the Federation or
Unions working on the managerial posts on the date of enforcement of these
Rules shall provisionally be deemed to be members of the Service created by the
1984 Rules. Sub-rule (2) thereof gave an option to the employees who have been
included in the Service provisionally to intimate for not becoming the member
of the Service and in that case his service shall be determined with effect
from the date of such notice and on such determination, in case he was a
permanent employee, he would be entitled to the salary for a period of three
months or for the remaining period of service, whichever is less and in the
case of a temporary employee he would be entitled to only one month's salary or
remaining period of service, whichever is less.
(3) of Rule 17 of the 1984 Rules provides for screening of provisonally
absorbed employee for final absorption in the Service by the Committee. Rule 9
of the 1984 Rules contemplated the Authority under the Rules to frame
regulations relating to recruitment, training, employments etc. and other
conditions of service of the members. Rule 25 of the 1984 Rules provides as
follows:- "25 (1) So long as the regulations referred to in sub- rule (1)
of rule 9 are not framed, all or any matters referred to therein for which
there is no other specific provision in the rules, shall be governed by such orders
or directions as may be issued by the Authority with the approval of the
Any matter not covered by these rules shall be governed by such directions as
may be issued by the Authority with the approval of the Government." As
mentioned earlier the Cadre Authority by means of a Resolution dated 28th
September, 1984 had resolved that the service conditions of the members of the
Service to be governed by the 1975 Regulations till the new Regulations are
framed under the 1984 Rules.
clear from the counter-affidavit filed by the respondents that the post of
Manager Grade-III had been sanctioned only with effect from the coming into
force of the 1984 Rules. Regulations 17, 18 and 19 of the 1975 Regulations
which became applicable by virtue of the Resolution dated 28th September, 1984
provide as follow:- 765 "17 PROBATION (i) All persons on appointment
against regular vacancies shall be placed on probation for a period of one
that the appointing authority may, in individual cases, extend the period of
probation in writing by such further period not exceeding one year, as it may
No post shall be deemed as regular unless it has been in existence continuously
for the last five years.
If, at any time during or at the end of the period of probation or the extended
period of probation, it appears to the appointing authority that a person
placed on probation, has not made sufficient use of the opportunity offered to
him, or has otherwise failed to give satisfaction, he may be discharged from
service, or reverted to the post held by him substantively, if any immediately
before such appointment (iii) A person discharged from service during or at the
end of the period of probation or the extended period of probation under clause
(ii) shall not be given any compensation unless, under mandatory provisions of
any law applicable to his case, he is entitled to the same.
CONFIRMATION (i) Confirmation of an employee shall, on the satisfactory
conclusion of the probationary period, be made by the appointing authority if
the post is regular one in terms of the preceding regulation.
Where a person holding a post not being a regular one, has not been treated as
on probation in terms of Regulation No. 17(i), the question of confirmation
shall not arise.
If doubt arises whether a particular post in a particular cooperative society
is `regular' or not and the matter is not sub-judice, it shall be referred to
the Board, whose decision shall be final.
(iii) Where the number of posts on which confirmation has to be made are less
than the persons eligible for the same, confirmation shall be made on the basis
of seniority subject to rejection of the unfit.
TERMINATION-Services of an employees shall be terminable:- (a) In case of a
temporary employee, on one month's notice in writing on either side, or in lieu
thereof by payment of one month's salary by the party which gives notice:
that in case of direct appointments made for a specific period, it shall not be
necessary to give any notice or any pay in lieu thereof.
: `Specific period' means stated period of less than six months.
three months' notice in writing on either side in case of a confirmed employee.
:- (1) A notice given by an employee under Regulation No. 19 shall be deemed to
be proper only if he remains on duty during the period of the notice:
that the employee may be allowed on request to avail such portion of earned
leave as may be due to him which shall however not exceed the notice period.
The expression `month' used in this regulation shall be a period of thirty days
commencing on the date immediately following the date on which the notice is
received by the employee or the appointing authority, as the case may be."
It is clear from the Explanation to Regulation 17(1) that no post shall be
deemed to be regular unless it is in existence continuously for the last five
years. Till the date of termination of the appellant's service even three years
had not expired. Therefore the post which the appellant was holding could not
be deemed to be the regular post. Once the post is not regular, Regulation 17
would not be applicable. We are, therefore, concerned only 767 with Regulation
19(a) of the 1975 Regulations.
clear to us that whatever may be the status of an employee before he became a
provisionally absorbed employee of the service, namely - the Centralised
Service created by the 1984 Rules, his terms and conditions were to be governed
by the 1975 Regulations and he had to become a regular employee once again and
if he was not willing, he could stay on with the Federation and Section 122 A
of the 1965 Act provided the consequences for terminating the services of both
regular as well as temporary employees. Having become the employee of the new
service and since the post was not in existence continuously for the last five
years of its creation, it could not be treated as a regular post.
the services of the appellant is that of a temporary employee. In this view of
the matter we do not find it necessary to go into the question of the status of
the appellant while he was working with the Federation and, therefore, we have
not gone into the applicability of the decision of this Court in the case of Om
Prakash Maurya v. U.P. Cooperative Sugar Factories Federation, Lucknow and
others,  Supp SCC 95 which directly deals with the interpretation of
Regulation 17 of the 1975 Regulations. In fact in view of Section 122 A of the
1965 Act and the creation of the new Service under different Authority by the
1984 Rules and the provisions of Regulation 17 of the 1975 Regulations, the
appellant had no option but to take his chance with the new Authority. Though
the impugned order of termination does not cast any stigma on the appellant which
can be called by way of punishment, in the counter- affidavit, it was stated
that the appellant's work was unsatisfactory. Before us the averments made in
the counter- affidavit were not challenged on behalf of the appellants.
impugned order of termination of service as a temporary employee was challenged
on the ground that it was passed by way of punishment in the written note of
arguments and following cases were referred to:
Textile Workers Union and others v.P.R. Ramakrishnan and other,  1 SCC
228; The Govt. Branch Press and another v. D.B. Belliappa,  2 SCR 458 =
AIR 1979 SC 429; Ajit Singh and others v. State of Punjab and another,  2
SCR 517 and Anoop Jaiswal v. Government of India and another,  2 SCC 369.
of these cases are applicable to the facts of the present case.
The first case relates to the right of the workman in the winding up petition.
The second case was found to be the case of discrimination in the method of
termination. The third case was peculiar to its own facts inasmuch as the
permanent posts in Improvement Trusts were abolished and the termination of the
employees were on the basis of the abolition of these posts but same posts were
created thereafter. The decision of the last case was on facts found by this
Court as punitive in nature against a member of an Indian Police Service.
in complete agreement with the reasoning and conclusion of the Division Bench
of the High Court. The appeals consequently fail and are dismissed without any
order as to costs.