SUPREME COURT OF INDIA
State of Uttar Pradesh and Others
Vs
Ruk Mangal Singh Rathaur
Appeal (Civil) 7318 of 2003 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.Nos. 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 and P. K. Balasubramanyan, JJ)
28.11.2006
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 source whose 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, 1950.
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 Of India, 1950,
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.