Full Judgment Text
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REPORTABLE
I N THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No(s). 4519-4530 OF 2018
(Arising out of SLP (C) Nos. 33729-33740 of 2017)
SHAKTI PRASAD BHATT ETC.ETC. Appellant(s)
VERSUS
THE STATE OF UTTARAKHAND AND ORS.ETC. Respondent(s)
J U D G M E N T
Leave granted.
2. Application for Intervention/impleadment is allowed.
3. The order passed on 11.04.2017 by the Single Bench of the
High Court of Uttrakhand at Nainital in W.P. No.2372 of 2015
filed by Uttarakhand Sahakari Sangarh Kurk Amin Parishad, of
granting benefit of past services for the purpose of selection
grade, promotional scale and post-retiral benefits including
pension etc. from due date, has been set aside by the Division
Bench, the Single Bench has granted the following relief:
“Accordingly, the present petitions are disposed
of in terms of the judgment cited hereinabove. The
respondents are directed to grant the ACP to the
petitioners and to count the past services of the
petitioners for the purpose of selection grade,
promotional scale and postretiral benefits including
pension etc. from due date within a period of ten
weeks from today.”
Signature Not Verified
Digitally signed by
NEELAM GULATI
Date: 2018.05.10
17:09:35 IST
Reason:
4. The facts, in short, indicate that in the year 1978
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onwards pursuant to the scheme of UP Government Kurk Amins
were appointed for realising outstanding dues of the
cooperative societies. Their appointment, salary, service
conditions were governed under the scheme. The Government’s
earlier decision to pay them on salary basis was withdrawn and
they were asked to work on commission basis. Since Kurk Amins
did not agree to work on commission basis, their services were
dispensed with.
5. In the year 1980, the Kurk Amins filed a writ petition
before the High Court of Allahabad whose services were
terminated or who did not agree to be paid on commission
basis.
6. On 16.11.1985, the High Court of Allahabad quashed the
order of termination and granted relief by holding that Kurk
Amins were Government servants holding civil posts and hence
are entitled to be treated in the same way as others in the
services of Government of U.P.
7. In the year 1995 one Chandra Prakash Pandey filed a writ
petition seeking a direction to the State Government to place
him and others in the regular pay scale, which were being paid
to Kurk Amins of Revenue Department.
8. The Single Bench of the High Court allowed the prayer as
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contained in the writ petition. Against which, a Special
appeal was preferred before the Division Bench of the High
Court and the Division Bench on 5.5.1995 affirmed the judgment
passed by the Single Bench.
9. In the year 1996, the U.P. Sahakari Sangarsh Karamchari
Sangh filed another Writ Petition. The Division Bench of High
Court following the decision rendered in CMWP No.738 of 1980
held that the principle laid down in the aforesaid case also
applied to the case of Kurk Amins appointed on the commission
basis as they both stood on the same footing. The said
decision was challenged before this Court. This Court remitted
the matter for fresh consideration of the High Court.
10. The High Court vide judgment and order dated 22.3.1996
held that Kurk Amins appointed on commission basis were to be
treated at par with the Kurk Amins appointed on regular basis.
11. Against the above order Special appeal was preferred
before the High Court and the Division Bench on 4.4.1997
affirmed the said decision.
12. The decision of the Single Bench dated 22.3.1996 and the
Division Bench dated 4.4.1997 were questioned by filing an
appeal in this Court. This court decided the matter in State
of U.P. & Ors. vs. Chandra Prakash Pandey & Ors [2001(4) SCC
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78], of which relevant paragraphs are extracted below:
“4. Thereafter one Chandra Prakash Pandey and others, who
are respondents in Civil Appeal Nos. 846768 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.846768 of 1995.
8. 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.846768 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
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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.
9. Undisputedly, the decision of the Allahabad High Court that
the Kurk Amins, appointed on salary basis for realisation of
dues of cooperative 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.
16. 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.”
13. It is apparent that the Kurk Amins’ status was confirmed
by this Court with effect from 1985 as that of the government
servant.
14. The erstwhile State of U.P. was bifurcated and U.P. Re-
Organisation Act carved the State of Uttrakhand out with
effect from 9.11.2000. Many Kurk Amins including appellants
were allocated to the State of Uttrakhand and were absorbed in
the Government service of Uttrakhand. As uncertainty
prevailed, Kurk Amins filed writ application before the High
Court of Uttarakhand to seek relief with effect from
16.11.1985. Their case was that they should be governed by the
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decision rendered by this Court earlier in the matter. Single
Bench of Uttrakhand High Court allowed the writ petition vide
order dated 31.8.2006; against which writ appeal was filed by
the State of Uttrakhand was decided by the Division Bench on
14.9.2010, following is the operative portion of the order
passed by the Division Bench:
"5. The contentions of the State of Uttarakhand, as above,
may or may not be correct. We are, however, not in a position
to go into that aspect of the matter, in view of the law laid
down by the High Court at Allahabad, which law became the
law enforceable, in so far as, the State of Uttarakhand is
concerned, upon its creation. It was well within the
competence of the State of Uttarakhand to make such law in
order to avoid the law so made by the High Court at Allahabad,
which became applicable to the State of Uttarakhand, but the
fact remains that the State of Uttarakhand did not make any
such law, the fact that the Hon’ble Supreme court has declared
the status of cooperative Kurk Amins as that of Government
Servant, in confirmation of the law declared by the High Court
at Allahabad, is not in dispute. But for the creation of the State
of Uttarakhand, the members of the Petitioner, who were
working in the State of Uttar Pradesh before bifurcation of the
said State and continued to work in the bifurcated State of
Uttarakhand at the same place they were working before
bifurcation, would have had the advantage of the said
judgment of the Hon’ble Supreme Court, rendered in the case
of State of U.P. and Others vs. Chandra Prakash Pandey and
others. Only because the State was bifurcated, to which they
had no role to play, they would be deprived of such advantage
is not comprehensible to us. We, under those circumstances,
cannot deprive the members of the Petitioner of the benefit or
advantage of the said judgment, nor we can avoid to follow the
ratio of the said judgment.
7. We, accordingly conclude the matter and, as such, refuse to
interfere with the judgment and order under appeal, except the
effect that the consequential benefits which the members of
the petitioner can have pursuant to the said judgment and
order, will be from 9th November 2000 and not w.e.f. 16th
November 1985, as had been directed by the Judgment and
order under Appeal. The appeal is accordingly, disposed of.”
15. Thus, it is apparent that the Division Bench of the High
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Court had clearly opined that the benefit of Chandra Prakash
Pandey’s case ( Supra ) should not be denied to the appellants
as they sail on the same boat. However, in para 7 it was
observed by the Division Bench that they would be entitled to
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the consequential benefits with effect from 9 November 2000
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and not with effect from 16 November 1985.
16. That would not have meant that their earlier services
were to be wiped off; it was only with respect to monetary
liability not to be saddled upon the State of Uttrakhand with
respect to the period 1985 till the appointed date i.e.
9.11.2000.
17. A fresh Writ Petition was filed bearing W.P. No.2372 of
2015 by the State of Uttrakhand Sahakari Sangarh Kurk Amin
Parishad, the same was allowed in the light of the decision of
this court in Chandra Prakash Pandey’s case ( Supra ), the
operative portion of which has already been quoted in the
beginning.
18. The State filed an appeal against the said decision
before the High Court. The Division Bench of the High Court by
the impugned order dated 11.07.2018 reversed the decision. The
relevant portion of the order is extracted hereunder:
“29. The upshot of the above discussion is that the appeals
have to be allowed and the judgment of the learned Single
Judge is set aside and modified in the following way:
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The direction of the learned Single Judge in the impugned
judgment to count the past services of the petitioners for the
purposes of selection grade, promotional scale and post retiral
benefits including pension etc. from the due date will stand
clarified as meaning that the past services of the petitioners
for the purposes of selection grade, promotional scale and post
retiral benefits including pension will be counted form
09.11.2000 and not from any anterior period, as was the claim
of the petitioners.
30. We further clarify that the matter will be considered
for the purpose of counting the past services from 09.11.2000
for the purpose of selection grade and promotional scale and a
decision will be taken within a period of six weeks from the
date of production of a certified copy of this judgment.
31. As regards the grant of ACP in the writ petitions, where
ACP was claimed by the writ petitioners, as we have noted, we
direct that the appellants will consider the case of each of the
writ petitioners, who have raised such a claim in the writ
petitions for grant of ACP, and take a decision in accordance
with law within a period of six weeks from the date of
production of a certified copy of this judgment and the said
decision will be communicated to the writ petitioners. If the
writ petitioners are found ineligible, the reasons for the same
and the material relied on for denying the ACP will also be
indicated in the orders.”
19. In our considered opinion, once State has been
reorganised, the past service of Kurk Amins could not have
been wiped off and the benefit of the judgment rendered by
this Court as well as by the High Court of Allahabad was
clearly available to the said Kurk Amins whose services had
been allocated to the State of Uttrakhand. The services
rendered in the State of U.P. could not have been wiped off
for the purposes of grant of selection grade, promotion scale,
post retiral benefits including pension etc. as has been done
by the High Court. The judgment is not in accordance with law
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and just benefit has been taken away for no good reason and is
against the basic principles of service jurisprudence and
merely by the act of bifurcation of the State the incumbents
were not supposed to lose their services for the purpose of
pensionary and other benefits. Thus, the past services have
to be counted for all purposes and cannot be wiped off
including for the purpose of selection grade promotional
scale, post retiral benefits and pension. The appellants are
held entitled to all such relief as were granted to them by
the Single Bench. Let the benefit be extended to all the other
similarly situated incumbents also, they should not be dragged
to any further litigation.
20. Though the learned counsel appearing for the State of
Uttrakhand made serious attempt to salvage the situation but
he was not able to do so. As the action of the State of
Uttrakhand has been found to be wholly untenable, we impose
the cost quantified at Rs.1,00,000/-.
21. The order passed by the Division Bench is set aside. The
appeals are allowed.
................J.
(ARUN MISHRA)
................J.
(UDAY UMESH LALIT)
NEW DELHI;
APRIL 26, 2018
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ITEM NO.8 COURT NO.10 SECTION X
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Special Leave Petition (C) No(s). 33729-33740 of 2017
SHAKTI PRASAD BHATT ETC.ETC. Appellant(s)
VERSUS
THE STATE OF UTTARAKHAND AND ORS.ETC. Respondent(s)
(IA No.124561/2017-CONDONATION OF DELAY IN FILING and and IA
No.124564/2017-INTERVENTION/IMPLEADMENT )
Date : 26-04-2018 These matters were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE ARUN MISHRA
HON'BLE MR. JUSTICE UDAY UMESH LALIT
For Appellant(s) Mr. V. Shekhar, Sr. Adv.
Mr. Chander Shekhar Ashri, AOR
Mr. Shashank Shekhar, Adv.
Ms. Stuti Naina Karwal, Adv.
Mr. Prithviraj Singh, Adv.
For Respondent(s) Mr. Tanmaya Agarwal, Adv.
Mr. Jatinder Kumar Bhatia, AOR
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeals are allowed in terms of the signed order.
Pending application, if any, also stand disposed of.
(NEELAM GULATI) (JAGDISH CHANDER)
COURT MASTER (SH) BRANCH OFFICER
(SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE)