Holding

Kurk Amins appointed on commission basis are government servants holding civil posts, and the High Court's findings are correct.

Summary

The respondents, appointed as Kurk Amins on commission basis by District Magistrates/Collectors of Uttar Pradesh, were tasked with recovering outstanding dues of cooperative societies. The State of Uttar Pradesh contended that such Kurk Amins, being appointed under a scheme of the Registrar of Cooperative Societies, were not government servants and therefore not entitled to the regular scale of pay applicable to civil posts under Article 311 of the Constitution. The Allahabad High Court, in two separate judgments, held that Kurk Amins—whether appointed on salary or commission—were members of the service and government servants, entitled to regular pay. The State argued that the High Court's findings were erroneous and that the scheme should be examined, but no counter‑affidavit was filed. The Supreme Court examined the relevant precedents on the master‑servant relationship and the criteria for a civil post, found no infirmity in the High Court’s factual findings, and dismissed the appeal.

Issues considered

Whether Kurk Amins appointed on commission basis for recovery of cooperative society dues are government servants holding civil posts within the meaning of Article 311 of the Constitution.
Whether the High Court's finding that such Kurk Amins are government servants is infirm and liable to be set aside.

Legislation cited

Subjects

government servantcivil postArticle 311Kurk Amincommission basiscooperative societiesmaster‑servant relationshipemployment law

Judgment

A STATE OF U.P. AND ORS.
v. ~
CHANDRA PRAKASH PANDEY AND ORS.

MARCH 20, 2001

B [G.B. PATTANAIK ANDB.N. AGRAWAL, JJ.]

Sen7ice Lalv :

Kurk Amins-Appointment of-On commission-For recovery of out-
standing dues of co-operative societies-High Cow1 held such Kurk Amins as
c Government se1Vants entitled to regular scale ofpay-Earlier judgment declar-
ing KurkAmins as Government Servants not challenged by Government-Held,
there is no infi1mity in the judgment of the High Coult-Hence, no inteiference
called for.
't
The respondents were appointed as Kurk Amins on commission
D
basis by different District Magistrates/Collectors within the appellant-
State for realisation of outstanding dues of the various co-operative socie-
ties. Two different Benches of the High Court held that ihe respondents-
Kurk Amins were Government servants entitled to regular scale of pay.
Hence this appeal.
E -X
On behalf of the respondents it was contended that the earlier deci-
sions of the High Court declaring them as Government servants had
attained finality, as their correctness was not challenged by the appellant-
State.

F Dismissing the appeal, the Court

HELD : 1. The High Court after taking into consideration all rel·
evant factors as laid down by this court in the cases of Shri Kanak Chandra
IJutta, P.K. Rajamma and Raman Lal Kesbav Soni, has come to the
conclusion and recorded a finding of fact that Kurk Amins appointed on
""
G commission basis for recovery of out•tanding dues of the co-operative
societies were members of service and government servants. On behalf of
tlte State, it has not been challenged that the aforesaid statements of ,
facts in the two judgments are incorrect. There is no infirmity in the ~
judgments rendered by the High Court so as to be interfered with by this
H Court. [514-D-E; G]
506
t

STATE v. C.P. PANDE [AGRAWAL, J.] 507
State of Assam v. Shri Kanak Chandra Dutta, [1967] 1 SCR 679; A
Superintendent of Post Offices v. P.K. Rajamma, [1977] 3 SCR 678 and State
of Gujarat v. Raman Lal Keshav Soni, (1983) 2 SCC 33, referred to.

Venkata Swamy v. Superintendent of Post Offices, Affi (1957) Ori.112,
cited.
B
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 8467-68 of
1995.

From the Judgment and Order dated 5.5.95 of the Allahabad High
Court in S.A. Nos. 16(SB) and 39(SB) of 1994.

WITH c
Civil Appeal Nos. 2167 of 2001, 36/1994 and 6075 of 1997.

Rakesh Dwivedi, R.K. Jain, P.N. Mishra, R.C. Verma, RB. Misra, Mrs.
Niranjana Singh, K. Misra, (Vijay Hansaria,) for Mis. Jain Hansaria & Co.,
R.A. Mishra, P.K. Jain, C.S. Ashri, Manoj Saxena H.A. Raichura and Shakil D
Ahmed Syed for the appearing parties.

The Judgment of the Court was delivered by

B.N. AGRAWAL, J. Leave granted in SLP (C) No. 15849 of 1993.

The question involved in these appeals is whether Kurk Amins ap- E
pointed 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
F
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
G
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 H
508 SUPREME COURT REPORTS [2001] 2 S.C.R.

A 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 uot 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
B
Bench of the High Court on I 6.11.1985 whereby orders of te1mination of the
writ petitioners were quashed and it was held that they were Government
servants as such their services could not have been tenninated otherwise than
in accordance with the procedure prescribed under law.

C 111ereafter one Chandra Prakash Pandey and others, who are respond-
ents in Civil Appeal Nos. 8467-68 of 1995, filed a ·vrit 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 !6.11.1985 in CMWP No. 738/1980 referred to above ailowed the
D writ application and directed to pay salary and regular scale of pay to the
writ petitioners against which order Special Appeal was preferred by tl1e State
of Uttar Pradesh before the Division Dench whereas writ petitioner - Chandra
Prakash Pandey also preferred an appeal against the judgment of the ]earned
Single Judge as no direction was given for fixing their pay and granting
E arrears. Both the appeals were disposed of by judgment dated 5th May, 1995. -4
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 Kararochari Sangh
F 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 fo1 realising dues of the cooperative societies as was payable to Kurk l
Amins of Revenue Department. Some other organisations and individual Kmlc
Amins also filed separate writ applications and following the decision ren-
dered in CMWP No. 738/1980 on 16.11.1985, a Division Bench of the High
G
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
H same were placed for consideration before this Court on 16.1.1992 leave was
r

STATE v. C.P. PANDE [AGRAWAL, J.] 509
granted, appeals were allowed and the matter was remanded to the High Court A
for considering the question as to whether cases of Kurk Amins appointed
on commission basis cau 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, w1it applications, according
B
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 ap-
pointed on salary basis, but was of the opinion that the matter should be 11eard
by a larger bench. Against the said order, special appeal was preferred before c
the High Court and a Division Bench disposed of the same on 4.4.1997 by
allowing the appeal, setting aside that p01tion 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
al~o held civil posts like Kurk Amins appointed on seJary basis for realisation
D
of 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 E
commission 'oasis was also entitled to similar relief and the High Court by
order dated 14.1.1991 allowed the w1it 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.
F
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 G
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 H
510 SUPREME COURT REPORTS (2001] 2 S.C.R.
A · Goveminent 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
B
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
c 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 fortl1cr 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
D
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 uuder law for coming to a conclusion
E that the respondents were holding a civil post and they were Government
servant, hut the State has failed to challenge the said statements of facts, in
the judgments.

Undisputcdly, the decision of the Allahabad High Court that the Kurk
Amins, appointed on salary basis for realisation of dues of co-operative
F 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
G 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
H occasions. In the case of State ofAssam & Ors. v. Shri Kanak Chandra Dutta,
STATE v. C.P. PANDE [AGRAWAL, J.] 511
"' [1967] 1 SCR 679, a Constitution Bench of this Court was considering a case A
~ 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 de!-
egated powers of the Government and the State had the power and right to
B
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 c
follows:-

"Judged iu 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
1 to select and appoint a Mauzadar and the power to suspend and
dismiss him. He is a subordinate public servant w01king under the D
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 E
."Ii.
with the affairs of the State are attached, an office which falls vacant
on the death or removal of the incnmbent and which is filled up by
successive appointments. He is a responsible officer exercising <lei-
egated powers of Government. Mauzadars in the Assam Valley are
appointed Revenue Officers and ex-officio Assistant Settlement Of-
ficers. Originally, a Mauzadar may have been a revenue farmer and
F
an independent contractor. But having regard to the existing system
':1 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
G
does not draw a salary. But a post outside the regularly constituted
services need not necessarily carry "a definite rate of pay." The post
.r' 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. Bnt a post outside the
regularly constituted services may be a part-time employment. The H
512 SUPREME COURT REPORTS [2001] 2 S.C.R. ..
A 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-depart-
B mental 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
hoider of a civil post outside tl1e regularly constituted services is too
wide and cannot be supported." ~

(emphasis added)
c
In the case of Superintendent of Past Offices etc. etc. v. 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 ~
D 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 nnder 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.
E In the case of State of Gujarat & Anr. v. 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 Se1vice constituted
nnder 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
F after due consideration emm1erated the following indicias for deciding whether
a particular person is a member of civil se1vice of the State and a Government
servant in paragraph 27 which rnns 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
G hold a civil post nnder 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 1ight to appoint, the right to terminate , .~

H the employment, the right to take other disciplinary action, the right

..
•' I

STATE v. C.P. PANDE [AGRAWAL, J.] 513
r to prescribe the conditions of service, the nature of the duties A
perfonned 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
detennine 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
B
the State or not."
(emphasis added)

In the light of the foregoing discnssions, we consider these appeals. In
the impugned judgment under Civil Appeal Nos. 8467-68 of 1995, the C
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 D
given revised scale of pay having been perfonning 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 Hon'ble Supreme Court, as referred to herein-
before, and that the petitioners were working under the control and E
supervision of Assistant Registrar of Co-operative Society and are
perfonning public duties."

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 F
to the following conclusion:-

"It is not disputed that the appointing authority in case of both is the
Disttict MagistratdC011ector, the power lo lerminate 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 G
they exercise similar power. The Kurk Amin appointed on commis-
sion 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. H
514 SUPREME COURT REFORTS [2001] 2 S.C.R.
A Zamindari Abolition and Land Reforms Act, 1951 and U.P. Land
Revenue Act, 1901 in so far as the recovery of!and 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
B one and same authority. The Kurk Amin, be on conunission basis or
on regular basis, gets his salary from the Govenunent exchequer out
of 10 per cent collection charges realized as arrears of land revenue.
It is, thus, clear that both the sets of Kurk Arnins work in the same
capacity under the control of the State Govenunent and their appoint-
c ment and duties fully comply with the tests laid down by the Supreme
Court in the decision of State of Gujarat and Another v. 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
D 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 n1embers 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
E 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
F 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
G Court.

111e appeals are, accordingly, dismissed but there shall be no order as
to costs.

V.S.S. Appeals dismissed.