State
of U.P. & Ors Vs. Chandra Prakash Pandey
& Ors [2001] Insc 151 (20 March 2001)
G.B.
Pattanaik & B.N. Agrawal B.N. Agrawal,J.
L.I.T.J
WITH CIVIL
APPEAL NO. OF 2001(Arising out of SLP (Civil) No.15849/1993), C.A. No.36/1994,
C.A. No.6075/1997.
Leave
granted in SLP (C) No. 15849 of 1993.
The
question involved in these appeals is whether Kurk Amins appointed on
commission basis by different District Magistrates/Collectors within the State
of Uttar Pradesh for realisation of outstanding dues of the various cooperative
societies as arrears of land revenue can be treated to be employees of the
State Government holding civil post under the State of Uttar Pradesh within the
meaning of Article 311 of the Constitution of India inasmuch as they are
entitled to a scale of pay which is payable to Kurk Amins appointed in the
Revenue Department.
The
short facts are that the Registrar, Cooperative Societies, Uttar Pradesh framed
a scheme on 8.5.1978 for appointment of Kurk Amins throughout the State by the
concerned District Collector for realisation of outstanding dues of the
cooperative societies as land revenue and their salary and conditions of
service were also prescribed.
Pursuant
to the said scheme, Kurk Amins were appointed in different Districts of the
State. Subsequently, it transpired that such Kurk Amins were not recovering
sufficient outstanding dues to meet even payment of salary to them. Therefore,
they were asked to work on commission basis. Those Kurk Amins who agreed to
work on commission basis were retained in service whereas services of others
were terminated, which led to filing of a writ application before the Allahabad
High Court by one Ram Bihari Misra giving rise to CMWP No. 738/1980 claiming
therein that he was regular employee as such his services could not have been
terminated. Similarly situated persons also filed other writ applications in
the same year. All the writ applications were heard and disposed of by a
Division Bench of the High Court on 16.11.1985 whereby orders of termination of
the writ petitioners were quashed and it was held that they were Government
servants as such their services could not have been terminated otherwise than
in accordance with the procedure prescribed under law.
Thereafter
one Chandra Prakash Pandey and others, who are respondents in Civil Appeal Nos.
8467-68 of 1995, filed a writ application before the High Court for a direction
to the State to pay regular scale to them as was payable to Kurk Amins of the
Revenue Department. The learned Single Judge of the High Court following the
judgment rendered by the Division Bench on 16.11.1985 in CMWP No. 738/1980
referred to above allowed the writ application and directed to pay salary and
regular scale of pay to the writ petitioners against which order Special Appeal
was preferred by the State of Uttar Pradesh before the Division Bench whereas
writ petitioner Chandra Prakash Pandey also preferred an appeal against the
judgment of the learned Single Judge as no direction was given for fixing their
pay and granting arrears. Both the appeals were disposed of by judgment dated 5th May, 1995. The appeal preferred by the State
was dismissed and the appeal preferred by the writ petitioner was allowed which
gave rise to Civil Appeal Nos.8467-68 of 1995.
In the
meantime, Uttar Pradesh Sahakari Sangharsh Karamchari Sangh filed a writ
petition being Writ Petition No. 2829(S)/92 praying therein, inter alia, for
payment of regular scale to Kurk Amins appointed on commission basis for realising
dues of the cooperative societies as was payable to Kurk Amins of Revenue
Department. Some other organisations and individual Kurk Amins also filed
separate writ applications and following the decision rendered in CMWP No.
738/1980 on 16.11.1985, a Division Bench of the High Court held that the
principle laid down in the aforesaid case also applied to the case of Kurk Amins
appointed on commission basis as if both stood on the same footing, without
considering the distinction between the two. The said decision was challenged
before this Court by way of a Special Leave to Appeal being SLP (C) Nos. 1046,
945, 1462-1463 of 1991 and when the same were placed for consideration before
this Court on 16.1.1992 leave was granted, appeals were allowed and the matter
was remanded to the High Court for considering the question as to whether cases
of Kurk Amins appointed on commission basis can be treated to be at par with
that of Kurk Amins appointed on salary basis and the ratio of the decision in
CMWP No.738/1980 rendered by the High Court on 16.11.1985 would be applicable
to them or not. As by the time the matter was remanded, writ applications,
according to the Rules of that High Court, were required to be heard by a
Single Judge, the same were placed for consideration before a Single Judge,
who, by order dated 22.3.1996, recorded a tentative finding that the cases of Kurk
Amins appointed on commission basis were at par with that of Kurk Amins
appointed on salary basis, but was of the opinion that the matter should be
heard by a larger bench. Against the said order, special appeal was preferred
before the High Court and a Division Bench disposed of the same on 4.4.1997 by
allowing the appeal, setting aside that portion of judgment rendered by the
learned Single Judge whereby he directed the matter to be placed before a
larger bench and held that the Kurk Amins appointed on commission basis also
held civil posts like Kurk Amins appointed on salary basis for realisation of
outstanding dues of cooperative societies. Challenging the said decision of the
Division Bench, Civil Appeal No. 6075 of 1997 has been preferred.
In the
meantime, one Syed Zurrar Ahmed, who is respondent in Civil Appeal arising out
of SLP (C) No. 15849 of 1993, filed a writ application before the High Court
claiming that he being appointed as Kurk Amin on commission basis was also
entitled to similar relief and the High Court by order dated 14.1.1991 allowed
the writ application and directed that he shall be treated to be a Government
servant holding civil post and paid regular salary in accordance with law which
judgment is under challenge in the Civil Appeal arising out of the aforesaid
SLP. In the meantime, one Ram Kishore, respondent in Civil Appeal No. 36 of
1994, filed a writ application being CMWP No. 5660/90 claiming regular scale of
pay as payable to Kurk Amins of Revenue Department as he was also appointed as Kurk
Amin on commission basis. The High Court following its earlier judgment granted
the prayer which necessitated filing of the said appeal. In all these appeals
preferred by the State of Uttar Pradesh, Mr. Rakesh Dwivedi, learned senior
counsel appearing on behalf of the State, has assailed the judgments on the
ground that Kurk Amins appointed for realisation of outstanding dues of cooperative
societies could not have been treated to be Government servants and the High
Court was not justified in holding that they held civil posts under the State
of Uttar Pradesh as the Kurk Amins were appointed under a scheme framed by the
Registrar of Cooperative Societies for recovery of outstanding dues of the
cooperative societies.
On the
other hand, Mr. R.K. Jain, learned senior counsel appearing on behalf of the
respondents, submitted that neither in Civil Appeal Nos.8467-68 of 1995 nor in
Civil Appeal No. 6075 of 1997 in which separate detailed judgments have been
rendered by the High Court, any counter affidavit was filed on behalf of the
State before the High Court inasmuch as even after remand of the matter by this
Court no affidavit in opposition was filed on behalf of the State. It has been
further submitted that the so-called scheme, which is the basis of submission
of the State before this Court, was not brought on the record either before the
High Court or before this Court and the same has been produced during the
course of argument as such it should not be taken into consideration. It has
been further submitted that for deciding the question as to whether there was
relationship of master and servant between the Kurk Amins appointed for realisation
of outstanding dues of cooperative societies and the State, there would be host
of circumstances which have to be considered for determining the same and such
a question whether a person or class of persons is servant of the State, which
is a question of fact, has been decided in the present case by the High Court
after considering the various ingredients which are required under law for
coming to a conclusion that the respondents were holding a civil post and they
were Government servant, but the State has failed to challenge the said
statements of facts, in the judgments. Undisputedly, the decision of the Allahabad
High Court that the Kurk Amins, appointed on salary basis for realisation of
dues of co-operative societies, held civil posts and became Government servant
has attained finality as its correctness has not been challenged by the State
of Uttar Pradesh by bringing the matter to this Court, rather the same got
approval of this Court while remanding the matter to the High Court for considering
the question whether cases of Kurk Amins appointed on commission basis stand on
the same footing as that of Kurk Amins appointed on salary basis in whose cases
it was declared that they held civil posts and would be entitled to the same
salary as is payable to Kurk Amins of Revenue Department. The question as to
when a person can be said to be holder of a civil post has been subject matter
of consideration before this Court on numerous occasions. In Dutta, (1967) 1
SCR 679, a Constitution Bench of this Court was considering a case where a Mauzadar
was appointed for collection of land revenue under the Mauzadari System
prevailing in the Assam Valley whose primary duty was to collect land revenue
and other government revenues. He was working as Revenue Officer and ex-officio
Assistant Settlement Officer exercising delegated powers of the Government and
the State had the power and right to select and appoint him inasmuch as power
to suspend and dismiss.
The Mauzadar
was drawing not a regular salary but commission by way of a remuneration. The
Court observed that there must be existence of relationship of master and
servant between the State and its employees and such a relationship can be
established by presence of all or some of the ingredients. After due consideration
of the entire matter, the Court laid down the law as follows:- Judged in this
light, a Mauzadar in the Assam Valley is the holder of a civil post under the State. The State
has the power and the right to select and appoint a Mauzadar and the power to
suspend and dismiss him. He is a subordinate public servant working under the
supervision and control of the Deputy Commissioner. He receives by way of
remuneration a commission on his collections and sometimes a salary.
There
is a relationship of master and servant between the State and him. He holds an
office on the revenue side of the administration to which specific and onerous
duties in connection with the affairs of the State are attached, an office
which falls vacant on the death or removal of the incumbent and which is filled
up by successive appointments.
He is
a responsible officer exercising delegated powers of Government. Mauzadars in
the Assam Valley are appointed Revenue Officers and ex-officio Assistant
Settlement Officers. Originally, a Mauzadar may have been a revenue farmer and
an independent contractor. But having regard to the existing system of his
recruitment, employment and functions, he is a servant and a holder of a civil
post under the State. Counsel for the State stressed the fact that normally a Mauzadar
does not draw a salary. But a post outside the regularly constituted services
need not necessarily carry a definite rate of pay. The post of a Mauzadar
carries with it a remuneration by way of a commission on collections of Government
dues. Counsel stressed the fact that a Mauzadar is not a whole-time employee.
But a post outside the regularly constituted services may be a part-time
employment. The conditions of service of a Mauzadar enable him to engage in
other activities.
In Venkata
Swamy v. Superintendent of Post Offices, AIR 1957 Orissa 112, the Orissa High
Court held, on a consideration of the relevant conditions of employment, that a
temporary extra-departmental branch post-master was not a person holding a
civil post, but the observation in that case that a part-time employee cannot
be the holder of a civil post outside the regularly constituted services is too
wide and cannot be supported.
(emphasis
added) In the case of Superintendent of Post Offices etc. etc. vs. P.K. Rajamma
etc. etc., (1977) 3 SCR 678, this Court was considering the case whether extra
departmental agent held a civil post and for his dismissal or removal the
provision of Article 311(2) of the Constitution was applicable. The Court laid
down that an extra departmental agent held a civil post and his dismissal or
removal would be invalid if there was infraction of provisions of Article
311(2) of the Constitution as it then stood. The Court observed that extra
departmental agent was not a casual worker but he held a post under the
administrative control of the State and the relationship between the postal
authorities and the extra departmental agent was that of a master and servant.
In the
case of State of Gujarat & Anr. again a Constitution Bench of this Court
was considering the question as to whether the Panchayat Service constituted
under Section 203 of the Gujarat Panchayat Act was a civil service of the State
and the members of the service were Government servants. The Court after due
consideration enumerated the following indicias for deciding whether a
particular person is a member of civil service of the State and a Government
servant in paragraph 27 which runs thus:- We do not propose and indeed it is
neither politic nor possible to lay down any definitive test to determine when
a person may be said to hold a civil post under the Government. Several factors
may indicate the relationship of master and servant. None may be conclusive. On
the other hand, no single factor may be considered absolutely essential. The
presence of all or some of the factors, such as, the right to select for
appointment, the right to appoint, the right to terminate the employment, the
right to take other disciplinary action, the right to prescribe the conditions
of service, the nature of the duties performed by the employee, the right to
control the employee's manner and method of the work, the right to issue
directions and the right to determine and the source from which wages or salary
are paid and a host of such circumstances, may have to be considered to
determine the existence of the relationship of master and servant. In each
case, it is a question of fact whether a person is a servant of the State or
not.
(emphasis
added) In the light of the foregoing discussions, we consider these appeals. In
the impugned judgment under Civil Appeal Nos. 8467-68 of 1995, the Division
Bench of the High Court after due consideration recorded its conclusion which
runs thus:- It appears that the Collector was the appointing authority and the
petitioners were being paid out the cost recovered according to provisions for
the recovery of land revenue and that they had been given revised scale of pay
having been performing the same duties and responsibilities as other Kurk Amins
of other departments and that their counter parts on salary basis having been
so found to hold civil posts by the Honble Supreme Court, as referred to
herein-before, and that the petitioners were working under the control and
supervision of Assistant Registrar of Co-operative Society and are performing
public duties.
Likewise,
in another detailed judgment under Civil Appeal No. 6075 of 1997, rendered by
another Division Bench of the High Court upon the matter being remanded by this
Court, the Court after due consideration came to the following conclusion:- It
is not disputed that the appointing authority in case of both is the District
Magistrate/Collector, the power to terminate the service of both the categories
vests in the same authority, they are amenable to same disciplinary authority,
the nature of their duties is the same and they exercise similar power. The Kurk
Amin appointed on commission basis similarly enjoys and exercises the power to
arrest a person, who is defaulter, can attach his property, which he can put to
auction like his counter part on regular basis. A Kurk Amin on commission basis
and on regular basis similarly follows the provisions of U.P. Zamindari
Abolition and Land Reforms Act, 1951 and U.P. Land Revenue Act, 1901 in so far
as the recovery of land revenue.
Once
the District Magistrate issues a recovery citation both the sets of Kurk Amins
in order to execute the recovery follow the same procedure and exercise the
powers and they are under the control of one and same authority. The Kurk Amin,
be on commission basis or on regular basis, gets his salary from the Government
exchequer out of 10 per cent collection charges realized as arrears of land
revenue. It is, thus, clear that both the sets of Kurk Amins work in the same
capacity under the control of the State Government and their appointment and
duties fully comply with the tests laid down by the Supreme Court in the
decision of State of Gujarat and another vs. Raman Lal Keshav Lal Soni and
Others, 1983 (2) SCC 33.
From a
bare perusal of the aforementioned decisions of the two different benches of
the High Court it would be clear that after taking into consideration all
relevant factors as laid down by this Court in its judgment referred to above,
the High Court has come to the conclusion and recorded a finding of fact that Kurk
Amins appointed on commission basis for recovery of outstanding dues of the
cooperative societies were members of service and government servants. On
behalf of the State, it has not been challenged that the aforesaid statements
of facts in the two judgments are incorrect. During the course of arguments
learned senior counsel appearing on behalf of the State made an unsuccessful
attempt to refer to a scheme prepared by the Registrar of Cooperative
Societies, but in view of the fact that neither any counter affidavit was filed
before the High Court nor the said scheme was filed before this Court either
along with the Special Leave Petitions or with any other affidavit, we are of
the opinion that it is not possible for us to look into the said scheme as such
the same can be of no avail to the State by its mere production in Court during
the course of argument.
In
view of the foregoing discussions, we do not find any infirmity in the
judgments rendered by the High Court so as to be interfered with by this Court.
The
appeals are, accordingly, dismissed but there shall be no order as to costs.
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