Full Judgment Text
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CASE NO.:
Appeal (civil) 8467-68 of 1995
PETITIONER:
STATE OF U.P. & ORS.
Vs.
RESPONDENT:
CHANDRA PRAKASH PANDEY & ORS.
DATE OF JUDGMENT: 20/03/2001
BENCH:
G.B. Pattanaik & B.N. Agrawal
JUDGMENT:
WITHL...I...T.......T.......T.......T.......T.......T.......T..J
CIVIL APPEAL NO. OF 2001(Arising out of SLP (Civil)
No.15849/1993), C.A. No.36/1994, C.A. No.6075/1997.
J U D G M E N T
B.N. AGRAWAL,J.
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
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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
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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
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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
the case of State of Assam & Ors. Vs. Shri Kanak Chandra
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.
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(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.
Vs. Raman Lal Keshav Lal Soni & Ors., (1983) 2 SCC 33,
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.
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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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