STATE OF U.P. AND ORS.versusRUK MANGAL SINGH RATHAUR

                                                                                       ~·····




A                            STATE OF U.P. AND ORS.
                                       v.
                          RUK MANG AL SINGH RA THAUR

                                 NOVEMBER 28, 2006

B                [H.K. SEMA AND P.K. BALASUBRAMANYAN, JJ.]


           Service Law:

           Co-operative Federation Authority (Business) Regulations, 1976:
c
            Regulation 17-Co-operative Supervisor-Promoted as Co-operative
     Inspector Grade-JI-Claim for reckoning service rendered as Co-operative
     Supervisor for pensionary benefits as Government servant-Held, co-operative
     supervisor is under the control of Co-operative Federation Authority-There
D    is no provision in the Regulations to provide pensionary benefits to its
     empldyees-Tribunal and High Court erred in directing to add the period of
     service rendered as co-operative Supervisor for reckoning pensionary benefits
     of retired co-operative Inspector Grade-II-Subordinate Co-operative Service
     Rules, 1979.

E           Respondents in the present appeals were appointed as Cooperative
     Supervisors, which was a non-government post, and promoted to the post of
     Co-operative Inspector Grade II. On their retirement from the post of Co-
     operative Inspector Grade-II, they filed petitions before the Tribunal claiming
     that the period of their service rendered as Co-operative Supervisor be
F    reckoned for the purpose of computing pensionary benefits as Government
     servants. The Tribunal allowed their claim. Since the High Court in the writ
     petitions filed by the State Government declined to interfere, the Government
     filed the present appeals.

           Allowing the appeals, the Court
G
            HELD: 1.1. Under the Co-operative Federation Authority (Business)
      Regulations 1976, the post of Co-operative Supervisor has been brought under
    · the control of Co-operative Federation Authority. There is no provision in the
    ·{Regulations providing pension or pensionary benefits to its employees.
      Therefore, the Tribunal and the High Court clearly erred in law and in facts
H                                         746
              STATEOFU.P. v. RUKMANGALSINGHRATHAUR                          747

in directing the period they served as Co-operative Supervisors to be added         A
for reckoning the pensionary benefits of retired Co-operative Inspectors Grade
II. (754-C-DI

       1.2. 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       B
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. There is no doubt
that the post of Co-operative Supervisor was completely kept out of the purview     C
of the government department. (753-E-Gl

      1.3. This apart, the relevant provisions of Part III of the Rules which
deal with the recruitment, to the post of Group II from two sources, namely,
by direct recruitment through the Commission and by promotion through the
Commission, also. clarified the intendment of the legislature that the D
employees can come to the government service only through the procedure
established by the Rules and Regulations. Besides even on basis of the Office
Circular dated 1.7.1989 issued by the Government ofU.P. on the admissibility
ofpensionary benefits on superannuation of temporary government employees,
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 E
dated 1.7.1989. The impugned orders of the High Court as well as the orders
of the Tribunal are set aside. 1753-H; 754-C, E; 755-CI

     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7318 of2003.

      From the Final Judgment and Order dated 20-11-2001 of the High Court          F
of Judicature at Allahabad, Lucknow Bench, Lucknow in W.P. No. 2108 (SS)
19%.

                                       WITH

      C.A. Nos. 7350, 7320, 7321, 7322, 7323, 7324, 7325, 7326, 7327, 7328, G
7329, 7330, 7331, 7332, 7333, 7334, 7335, 7336, 7337, 7338- 7339, 7342, 7343-
7349, 7351, 7352 of2003, C.A. No. 5243 of2006 (arising out ofSLP (Civil) No.
21480 of2002 and C.A. No. 5242 of2006 (arising out of SLP (civil) No. 22787
of 2002 and W.P. (Civil) No. 647 of2002.
                                                                                    H
    748                    SUPREME COURT REPORTS (2006] SUPP. 9 S.C.R.

A         Dr. R.G. Padia, Shobha Dikshit, Vivek Singh, Javed M. Rao, Shahid Ali
    Rao, MusharrafChawdhry, Kamlendra Mishra, Ravi Prakash Mehrotra, Ashok
    K. Srivastava, T. Mahipal, Naresh Kaushik, Lalitha Kaushik, B.S. Mehthalia,
    Arnita Kalka!, Chetan Gupta, Anish Dhingra, Rameshwar Prasad Goyal, Anoop
    Kr. Srivastava, Pradeep Misra, Shakil Ahmed Syed, Girdhar G. Upadhyay,
    Vinita G. Upadhyay, Syed Ali Ahmed, Syed Tanweer Ahmad, Shabana Saifi,
B   R.D. Upadhyay, lrshad Ahmad, Sunil Kumar Singh, Aarohi Bhalla, Sujata
    Kurdukar, Ramesh Chandra Mishra, Or. Meera Agrawal, T.N. Singh, Anuvrat
    Shanna; K. Sarada Devi, J.M. Bari, Gourav Kumar Agrawal and R.N. Upadhaya
    for the appearing parties.

C         The Judgment of the Court was delivered by

          H.K SEMA, J. Delay condoned in S.L.P. (Civil) No. 22787 of2002.

          Leave granted in both the Special Leave Petitions.

          This bunch of appeals involve common questions of fact and law and
D   as such they are being disposed of by this common judgment.

          We have heard Dr.R.G. Padia, learned senior counsel, Mrs. Shobha
    Oikshit, learned senior counsel, Mr. Naresh Kaushik, Mr. Shakil Ahmed Syed,
    Mr. Ramesh Chandra Mishra, Mr. Girdhar G. Upadhyay, Mr. Rameshwar Prasad
E   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
F   Supervisor, which is a non-government post on 1.02.1.959. 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-
G   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.J 994 allowed the claim and directed that the period from
H   1.2.1959 to 31.7.1989 be reckoned towards the respondent's total length of
      STATE OF U.P. v. RUK MANGAL SINGH RATHAUR [H.K. SEMA, J.] 749

service for the purpose of determining family pension and gratuity. The A
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 B
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 C
and retired on 31.7.1994.

       Respondent in C.A.No.7334 of2003 was holding the post of Co-operative
Supervisor. He was promoted to the post of Co-operative Inspector Grade II
on 7. l l.l 978 and retired on 31.1.l 989.

     Respondent in C.A.No. 7350 of 2003 was appointed as Co-operative D
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     E
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 l .2. l 956. He was promoted to the post of Co-operative Inspector
Grade II on l.2. l 964. He retired on 30-6-1989.

      Respondent in C.A.No. 7323 of 2003 was appointed as Co-operative
                                                                                   F
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 G
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.
                                                                                   H
    750                    SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A        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. l 963. He retired on 3 l. 7. l 983.

         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
B   Grade II on 25.11.1988. He retired on 31.1.1994.

         Respondent in C.A.No. 73 31 of 2003 was appointed as Co-operative
    Supervisor on 2.1.1958. He was promoted to the post of Co-operative Inspe~tor
    Grade II on 29.5.1976. He retired on 31.7.1993.

C        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. l 997.

         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
D   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 3 l. 7. l 986.

E        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
F   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.
G
          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
H   Supervisor on 2.5.1958. He was promoted to the post of Co-operative Inspector
     STATE OF U.P. v. RUK MANG AL SINGH RA THA UR [H.K. SEMA, J.] 751

Grade II on 25.5.1985 and retired on 31.7.1991.                                  A
      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 B
been decided by this Court on 31.1.2006 in Civil Appeal Nos. 7340-7341 of 2003
with Civil Appeal Nos. 7315-7316 of2003, 7317 /2003 and 7319 of 2003 titled
State of UP. & Ors. v. 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 C
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    D
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    E
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       F
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 G
l.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 H
    752                    SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A   (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
B   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.

c         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-
D   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.
E
         Regulation 72 in Chapter 5 of the Regulations deals with the Provident
    Fund. Clauses I, 2 and 3 of the Regulation 72 reads:-

           (l)   The authority in respect of the members of the employees will
                 establish a Contributory Provident Fund Account in which all the
F                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
G                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
H
     ST ATE OF U.P. v. RUK MANGAL SINGH RATHAUR [H.K. SEMA, J.]            753
            accordance with rule 204 of the regulations and will get the          A
            interest accrued thereon under the provision of rule 3:02 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      B
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.                                 C
     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 Wo*ers" means the Group III Workers
under the employment of the community d~velopment department in the State D
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, the Co-operative Supervisor E
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 F
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 G
kept out of the purview of the government department.

      This apart, Part llI 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:-                   H
    754                    SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A         Inspector Group II

           (a)   by direct recruitment through the Commission;
           (b)   by promotion through the Commission from amongst permanent
                 Inspectors. Group III and such pennanent Cooperative Supervisors
                 and Village Level Workers who have passed Intermediate
B                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.

C   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
D   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.

E          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
F   stipulated time and who are not entitled for pensionary benefits for non-
    con firmation 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:-

G          "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 I 0 years superannuate after attaining
H
      STATEOFU.P. v. RUKMANGALSINGHRATHAUR[H.K. SEMA,J.]                    755
        the age of retirement or for doing further service on furnishing the       A
        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        B
        being temporary employee permission has been granted for taking
        voluntary retirement after completing the services of 20 years or
                                 I
        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 JO C
years as Inspector Grade II with effect from l .6.1989 so as to avail the benefit
of the Government Circular dated l.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.

RP.                                         Appeals allowed; W.P. dismissed.