Full Judgment Text
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CASE NO.:
Appeal (civil) 7318 of 2003
PETITIONER:
State of U.P. & Ors
RESPONDENT:
Ruk Mangal Singh Rathaur
DATE OF JUDGMENT: 28/11/2006
BENCH:
H.K. SEMA & P.K.BALASUBRAMANYAN
JUDGMENT:
J U D G M E N T
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-
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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
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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
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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
source\005\005\005whose 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
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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:-
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"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.