State
Of U.P. & Ors Vs. Ruk Mangal Singh Rathaur
[2006] Insc 876 (28
November 2006)
H.K.
Sema & P.K.Balasubramanyan
WITH CIVIL
APPEAL NOS. 7350, 7320, 7321, 7322, 7323, 7324, 7325, 7326, 7327, 7328, 7329,
7330, 7331, 7332, 7333, 7334, 7335, 7336, 7337, 7338-7339, 7342, 7343-7349,
7351, 7352 of 2003, C.A.No. 5243 of 2006 (arising out of SLP (Civil) No.21480
of 2002 and C.A.No. 5242 of 2006 (arising out of SLP (civil) No.22787 of 2002
and W.P.(Civil) No.647 of 2002. H.K.SEMA,J.
Delay
condoned in S.L.P. (Civil) No. 22787 of 2002.
Leave
granted in both the Special Leave Petitions.
This
bunch of appeals involve common questions of fact and law and as such they are
being disposed of by this common judgment.
We
have heard Dr.R.G. Padia, learned senior counsel, Mrs. Shobha Dikshit, learned
senior counsel Mr.Naresh Kaushik, Mr.Shakil Ahmed Syed, Mr.Ramesh Chandra Mishra,
Mr.Girdhar G. Upadhyay, Mr.Rameshwar Prasad Goyal and Mr.Sunil Kumar Singh,
learned counsel appearing for different appellants/respondents.
We may
briefly notice the facts of each case.
Respondent
in C.A.No.7318 of 2003 was appointed as Co-operative Supervisor, which is a
non-government post on 1.02.1959. He was confirmed in the post on 30.04.1972.
He was
promoted to the post of Co-operative Inspector Grade II vide order dated
15.5.1985. Under Rule 5 of the Subordinate Co-operative Service Rules, 1979 the
promotion to the post of Co-operative Inspector Grade II is either by direct
recruitment or by promotion through the State Public Service Commission.
He
retired from service on 31.07.1989 as Co-operative Inspector Grade II. In 1993,
he filed a claim petition before the Tribunal inter alia claiming that the
period of his service rendered as Co-operative Supervisor be reckoned for the
purpose of gratuity, leave encashment, family pension and other retiral
benefits. The Tribunal by an order dated 17.8.1994 allowed the claim and
directed that the period from 1.2.1959 to 31.7.1989 be reckoned towards the
respondent's total length of service for the purpose of determining family
pension and gratuity. The Tribunal further directed that the respondent would
also be entitled to arrears of pension and gratuity. Aggrieved thereby, the
appellant filed a Writ Petition before the High Court, which was dismissed by
the impugned order of the High Court. Hence the present appeal.
Respondent
in C.A.No.7320 was appointed as Co- operative Supervisor on 8.10.1959. He was
promoted to Inspector Grade II on 1.3.1979 and retired on 31.8.1993.
Respondent
in C.A.No. 7326 of 2003 was appointed as Co-operative Supervisor on 22.6.1959.
He was promoted to Inspector Grade II on 5.8.1978 and retired on 31.7.1994.
Respondent
in C.A.No.7334 of 2003 was holding the post of Co-operative Supervisor. He was
promoted to the post of Co-operative Inspector Grade II on 7.11.1978 and
retired on 31.1.1989.
Respondent
in C.A.No.7350 of 2003 was appointed as Co-operative Supervisor on 5.4.1956. He
was promoted to the post of Co-operative Inspector Grade II on 7.10.1977. He
retired on 30.6.1986.
Respondent
in C.A.No.7321 of 2003 was appointed as Co-operative Supervisor on 1.12.1954.
He was promoted to the post of Co-operative Inspector Grade II on 15.1.1971. He
retired on 31-3-1989.
Respondent
in C.A.No.7322 of 2003 was appointed as Co-operative Supervisor on 1.2.1956. He
was promoted to the post of Co-operative Inspector Grade II on 1.2.1964. He
retired on 30-6-1989.
Respondent
in C.A.No.7323 of 2003 was appointed as Co-operative Supervisor on 15.12.1947.
He was promoted to the post of Co-operative Inspector Grade II on 29.4.1962.
He
retired on 31-7-1983.
Respondent
in C.A.No.7325 of 2003 was appointed as Co-operative Supervisor on 22.3.1958.
He was promoted to the post of Co-operative Inspector Grade II on 20.2.1977. He
retired on 30.6.1994.
Respondent
in C.A.No.7327 of 2003 was appointed as Co-operative Supervisor on 17.2.1958.
He was promoted to the post of Co-operative Inspector Grade II on 25.5.1985. He
retired on 31.1.1991.
Respondent
in C.A.No.7328 of 2003 was appointed as Co-operative Supervisor on 15.7.1952.
He was promoted to the post of Co-operative Inspector Grade II on 7.5.1963. He
retired on 31.7.1983.
Respondent
in C.A.No.7329 of 2003 was appointed as Co-operative Supervisor on 24.6.1959.
He was promoted to the post of Co-operative Inspector Grade II on 25.11.1988.
He retired on 31.1.1994.
Respondent
in C.A.No.7331 of 2003 was appointed as Co-operative Supervisor on 2.1.1958. He
was promoted to the post of Co-operative Inspector Grade II on 29.5.1976. He
retired on 31.7.1993.
Respondent
in C.A.No.7335 of 2003 was appointed as Co-operative Supervisor on 16.2.1961.
He was promoted to the post of Co-operative Inspector Grade II on 31.5.1994. He
retired on 31.7.1997.
Respondent
in C.A.No.7336 of 2003 was appointed as Co-operative Supervisor on 14.4.1958.
He was promoted to the post of Co-operative Inspector Grade II on 24.5.1985. He
retired on 31.12.1994.
Respondent
in C.A.No.7337 of 2003 was appointed as Co-operative Supervisor on 12.8.1957.
He was promoted to the post of Co-operative Inspector Grade II on 16.7.1979. He
retired on 31.7.1986.
Respondent
in C.A.No.7338 of 2003 was appointed as Co-operative Supervisor on 22.3.1958.
He was promoted to the post of Co-operative Inspector Grade II on 25.5.1985. He
retired on 31.12.1994.
Respondent
in C.A.No.7344 of 2003 was appointed as Co-operative Supervisor on 1.1.1951. He
was promoted to the post of Co-operative Inspector Grade II on 8.9.1965. He
retired on 31.7.1985.
Respondent
in C.A.No.7352 of 2003 was appointed as Co-operative Supervisor on 19.1.1953.
He was promoted to the post of Co-operative Inspector Grade II on 16.10.1971.
He retired on 30.11.1989.
Respondent
in C.A.No.7333 of 2003 was appointed as Co-operative Supervisor w.e.f
31.3.1958. He was promoted to the post of Co-operative Inspector Grade II on
9.5.1985. He retired on 31.1.1995.
Respondent
in C.A.No.7332 of 2003 was appointed as Co-operative Supervisor on 2.5.1958. He
was promoted to the post of Co-operative Inspector Grade II on 25.5.1985 and
retired on 31.7.1991.
All
the respondents claimed that the period they have worked as Co-operative
Supervisor (which is a non- governmental post) be reckoned towards the period
for computing the pensionary benefits as government servants.
In
fact, in a similar case involving similar facts, the question of law has been
decided by this Court on 31.1.2006 in Civil Appeal Nos.7340-7341 of 2003 with
Civil Appeal Nos.7315-7316 of 2003, 7317/2003 and 7319 of 2003 titled State of
U.P. & Ors. versus Roshan Singh & Ors. This Court, by the aforesaid
judgment allowed the appeals of the appellants in C.A.Nos.7340-7341 and 7315-16
of 2003. Civil Appeal Nos.7317 and 7319 of 2003 filed by the respondents were
dismissed. By the aforesaid judgment this Court held that according to the relevant
Rules the post of Co-operative Supervisor is a non-governmental post.
Legally
speaking, therefore, the aforesaid decision squarely covers the facts of the
present case. However, since the counsel representing respective respondents
desired to urge the facts of each case, we have heard them, albeit without any
further aspect to be considered.
At
this stage, we may dispose of the preliminary objections raised by Mrs.Shobha Dikshit,
learned senior counsel for the respondents, that the judgment of the High Court
has attained finality in some other cases and this Court should not unsettle
the settled issue. This contention has no substance. The legality and validity
of the orders passed by the Tribunal and the High Court have been assailed in
this bunch of appeals. More so, this Court has granted stay while issuing
notice on 6.5.2002. Moreover, the appeals are on principle and this Court is
not precluded from deciding the question of law. This Court is not controlled
by any decision that might have been taken by the High Court in some other
cases.
The
next preliminary objection is that the appeals stand abated as the respondents
in Civil Appeal Nos.7345, 7330 and 7348 have expired and no legal heirs have
been brought on record. From the record it appears that I.A.Nos.17, 4, 5, 18
and 19 have already been filed to bring on record the legal heirs with
applications for condonation of delay. Therefore, it cannot be said that legal
heirs were not brought on record.
The
basic question that arises in all the appeals is as to whether the period of
service rendered by the respondents as Co-operative Supervisor (which is a non-
governmental post) can be reckoned in the case of Co- operative Inspectors
Grade II (government post) for the purpose of computing pensionary benefits as
government servants.
Respondents
would contend that the Co-operative Supervisor being the feeder post for
promotion to the post of Co-operative Inspector Grade II, it cannot be said
that the post of Co-operative Supervisor is not a government post. The further
contention is that the supernumerary posts of Co- operative Supervisor were
created in the name of Governor and, therefore, such posts shall be deemed to
be the government posts. We are unable to countenance with this contention.
To
answer the aforesaid question, it will be necessary to have the benefit of
relevant sets of Acts and Rules governing the subject. In this connection, the
Co-operative Federation Authority (Business) Regulations 1976 (in short the
Regulations) would be relevant. In the said Regulations, the post of
Co-operative Supervisor has been brought under the Authority of Co-operative
Federation. Regulation 17 defines the "Members of the employees" mean
such persons who are working as the Co-operative Supervisor or worker working
under the control of the Authority, irrespective of the fact that he draws
wages from the Authority or any other sourcewhose appointing authority will be
the Administrative Committee will be deemed to be the employees of the
authority.
Regulation
72 in Chapter 5 of the Regulations deals with the Provident Fund. Clauses 1, 2
and 3 of the Regulation 72 reads:-
(1)
The authority in respect of the members of the employees will establish a
Contributory Provident Fund Account in which all the necessary provisions of
the Uttar Pradesh Co-operative Federation Contributory Provident Fund
Regulation with necessary changes will be applicable in accordance with the
provisions of rule 201 to 204 of the Regulations in which in place of direction
of any Co-operative Committee the cross-reference of the Authority will be
kept.
(2)
The member of the employees will make his contribution in accordance with the
provisions of rule 202 of the Regulations in the above fund.
(3)
The Authority will invest the amount of the said fund in accordance with rule
204 of the regulations and will get the interest accrued thereon under the
provision of rule 302 of the regulations.
Regulation
73 deals with Gratuity. Regulation 74 deals with Surety and Regulation 75 deals
with Honorarium, Commission and Reward. There is no provision in the
Regulations providing pension or pensionary benefits to its employees.
Subordinate
Co-operative Service Rules, 1979 (in short the Rules) regulating recruitment
and conditions of service of persons appointed to Co-operative service were
framed in exercise of powers conferred by the proviso to Article 309 of the
Constitution of India.
Rule
4(d) of the Rules defines "Co-operative Supervisor" means the
Supervisor under the employment of Co-operative Institutions.
Rule
4(p) defines "Village Level Workers" means the Group III Workers
under the employment of the community development department in the State of Uttar Pradesh.
The
respondents would contend that since the Subordinate Co-operative Service
Rules, 1979 have been framed by the Governor in exercise of the power proviso
to Article 309 of the Constitution, the Co-operative Supervisor shall be deemed
to be a government servant. This contention has no substance. A fascicule
reading of the definitions of Rules 4(d) and 4(p) clearly indicates the
intendment of the legislature. Definition in Rule 4(d) is the clear intendment
of the legislature that the Co-operative Supervisor shall be under the
employment of the Co-operative Institutions; whereas in Rule 4(p) village level
workers have been brought under the employment of the community development
department in the State of Uttar Pradesh.
Therefore, wherever the legislature intended to do so, they have done it
expressly. In the case of Co-operative Supervisor the legislature intended that
the Supervisor is under the employment of the Co-operative Institutions and the
intendment of the legislature is clearly expressed in Rule 4(d) of the Rules.
There is no doubt in our mind, therefore, that the post of Co-operative
Supervisor was completely kept out of the purview of the government department.
This
apart, Part III of the Rules deals with the recruitment. Recruitment to the
post of Group II is from two sources; by direct recruitment through the
Commission and by promotion through the Commission. It reads:- Inspector Group
II
(a) by
direct recruitment through the Commission;
(b) by
promotion through the Commission from amongst permanent Inspectors. Group III
and such permanent Cooperative Supervisors and Village Level Workers who have
passed Intermediate Examination of the Board of High School and Intermediate
Education or an examination declared by the Governor as equivalent thereto or
who are covered by G.O.No.3084/XXXV-A-129-NES-58, dated June 14/15, 1961.
The
above provisions also clarified the intendment of the legislature that they can
come to the government service only through the procedure established by the
Rules and Regulations, as government servants. In other words, they are being
treated as government servants when they are recruited according to the
procedure provided in (a) and (b) of Part III of the Rules. We have already
noticed that in the Co- operative regulations there is no provision for pensionary
benefits. We have also noticed that Co-operative Supervisors were under the
control of the Co-operative Federation Authority. Therefore, the Tribunal and
the High Court clearly erred in law and in facts in directing the period they
served as Co-operative Supervisors to be added for reckoning the pensionary
benefits of retired Co-operative Inspectors Grade II.
We may
also notice the Office Circular dated 1.7.1989 issued by the Government of U.P.
on the admissibility of pensionary benefits on superannuation of temporary
government employees. The aforesaid circular was brought out aimed at to
provide some sort of succor to the government employees (like the respondents'
case) who are not confirmed within the stipulated time and who are not entitled
for pensionary benefits for non-confirmation during which period the employee
attained the age of superannuation without being confirmed debarring them from
getting the pensionary benefits after the superannuation. Clause Nos. 2 and 3
of the Circular read:-
"2.As
aforesaid the question for removal of difficulties of the government employees
who retires as the temporary employees has been under consideration of the
Government for a long period, and after thorough consideration His Excellency
has passed the orders that such Government employees who have completed their
regular services for a minimum period of 10 years superannuate after attaining
the age of retirement or for doing further service on furnishing the
certificate from the competent Medical Authority, will be entitled for pensionary
benefits like gratuity and family pension in the same manner as are available
to the confirmed employees in the same circumstances admissible in accordance
with the rules.
3.
This system will also be applicable in those cases where despite being
temporary employee permission has been granted for taking voluntary retirement
after completing the services of 20 years or attaining the age of 45
years." The aforesaid Circular was made operative with effect from
1.6.1989. Even on the basis of this Circular none of the respondents served for
a period of 10 years as Inspector Grade II with effect from 1.6.1989 so as to
avail the benefit of the Government Circular dated 1.7.1989.
The
impugned orders of the High Court as well as the orders of the Tribunal are set
aside. O.As and Writ Petitions filed by the respondents are dismissed.
I.A.Nos.17,
4, 5, 18 and 19 are allowed.
The
net result is that all civil appeals are allowed.
Writ
Petition (civil) No.647 of 2002 is dismissed. No costs.
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