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CASE NO.: Contempt Petition (civil)  110-111 of 2003

PETITIONER: Chander Pal Singh & Ors.                                         

RESPONDENT: Ajay Kumar Joshi & Anr.                                     

DATE OF JUDGMENT: 05/10/2005

BENCH: B.N.AGRAWAL & A.K. MATHUR

JUDGMENT: J U D G M E N T  

CONTEMPT PETITION ) NOs.110-111 OF 2003

IN

CIVIL APPEAL NOs.8467-8468 OF 1995 W I T H :

Contempt Petition ) Nos.490-491 of 2004 in  Civil Appeal Nos.8467-8468 of 1995

A.K. MATHUR, J.

               These Contempt Petitions have been filed by the  petitioners under Sections 2 & 12 of the Contempt of Courts Act,  1971 read with Article 129 of the Constitution of India.

               The grievance of the petitioners was that the respondents  have willfully disobeyed the judgment and orders  passed by this  Court on 20.3.2001 in Civil Appeal Nos.8467-8468 of 1995.  Therefore, contempt proceedings should be initiated against the  respondents.                 In order to decide these contempt petitions it would be  necessary to recapitulate some facts.  Civil Appeal Nos.8467-8468 of  1995 along with  Civil Appeal No.2167 of 2001 @ S.L.P.(c) No.15849  of 1993, Civil Appeal No.36 of 1994, Civil Appeal No.6075 of 1997  were disposed of by this Court by a common order dated 20.3.2001.   By that order this Court affirmed the order passed by the Division  Bench of Allahabad High Court that Kurk Amins appointed on  commission basis for recovery of outstanding dues of the co- operative societies hold civil post  and are  government servants.                 The grievance of the petitioners was that despite the  order passed by this Court the petitioners are not treated as  Government servants nor are they being treated at par with the  Amins of the Revenue Department and they are not paid the salary in  the scale prescribed for the Amins of the Revenue Department and  they are still working on commission basis.   Initially, a writ petition was filed by one Chandra Prakash  Pandey and others before the Allahabad High Court , Bench at  Lucknow. The grievance in that writ petition was that the writ  petitioners were appointed as Amins on commission basis and  they  are discharging the same duties as are being discharged by the  Amins in the Revenue Department, therefore, they should be treated  as holding civil posts & Government servants and they should be paid  same salary as are being paid to the Amins regularly appointed in the  Revenue Department. The writ petitioners were appointed  in the Co- operative Department by the Collectors for collection of dues of the

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Co-operative Societies & Banks.  This Writ Petition No.199 of 1991  was allowed by the learned Single Judge of the High Court.  Aggrieved against that order, an appeal was filed by the State of Uttar  Pradesh challenging the said order of the learned Single Judge.  The  said appeal was registered as Special Appeal No.15 of 1994.  The  writ petitioners i.e. Chandra Prakash Pandey and others also filed  Special Appeal No.39 of 1994 alleging that learned Single Judge has  not directed to fix them in  the pay scale of Amins appointed in the  Revenue Department & arrear of salary.  Both these appeals were  heard together and disposed of by the Division Bench,  by a common  order. The Division Bench (Brijesh Kumar & D.K. Seth, JJ)  of the  High Court in paragraph 21 of its order recorded as follows:         " It therefore, seems to us clear that the Kurk  Amins meant for realization of the dues of the  cooperative societies as appearing in the present  case, reveals some ingredients which bring the   post of Kurk Amins and the Sahayogis viz. the  petitioners maintained for realization of the dues of  the co-operative societies  as Government servant.  Therefore, we do not find any reason to differ from  the view taken by the learned trial court that the  petitioners have been holding civil posts. We  therefore decline to interfere with the judgment and  order appealed against."

While disposing  of Special Appeal No.39(SB) of 1994,  filed by  Chandra Prakash Pandey & Ors. it was observed as follows:

       " Now turning to Special Appeal No.39(SB) of  1994 we find that since the post  held by the  petitioners are civil post and that they are  government servants, therefore, their pay is to be  regulated by the existing pay scale according to  the rules applicable to the petitioners at par with  their counterparts in the Department. It is not for  the court to decide as to what scale of pay they are  entitled to. No such materials have also been  placed before us. In that view of the matter, we feel  it appropriate that so far as the pay scale and  arrears and other things relating to the petitioners  claim should be decided by the appropriate  authority in accordance with law. "

Aggrieved against this order, Special Leave Petition was filed by the  State of U.P. which came to be registered as aforesaid.  Another Special Leave Petition was filed against the order  passed by the Division Bench of the High Court of Allahabad in the  case of Uttar Pradesh Sahakari Sangharsh Karmachari Sangh. The  said Sangh filed writ petition before the High Court espousing the  cause of all the persons who were similarly situated.  They also filed  a writ petition before learned Single Judge of the High Court and the  same was disposed of by the learned Single Judge on the same lines  as in the aforesaid case.  Aggrieved against the order of the learned  Single Judge one Special Appeal was filed by the State of U.P.which  came to be registered as Special Appeal No.129 of 1996. This appeal  was disposed of by the Division Bench of the High Court on 4.4.1996  ( Brijesh Kumar, J & A.S.Gill,J).  In this Special Appeal the Division  Bench considered the matter and after dealing with all relevant  aspect of the matter observed as follows:                 " The Kurk Amins appointed on  commission basis, who are appointed by the  District Collector on account of their appointment  as such and the performance of duties are of  Government  Servants  irrespective of the fact of  manner of payment of their remuneration. Even

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otherwise on the principle of equal pay for equal  work as enshrined under Article 39-D of the  Constitution of India, they are entitled to same pay   and perks admissible to regularly appointed Kurk  Amins. The payment of remuneration to the Kurk  Amins on commission basis was in fact an  incentive for quick and more realization of  outstanding State dues. If the Kurk Amins on  regular basis are holder of civil post, there is no   reason to deny such status to Kurk Amins on  commission basis. We are of the considered view  that the Kurk Amins appointed on commission  basis are equally entitled to be regularized and  absorbed as Kurk Amins and paid salary and  allowance admissible to the post but subject to  availability of post.  The petitioners, who cannot be  absorbed on account of non-availability of posts   shall be kept in the  waiting list    and should be  allowed to continue as such on commission basis  till they are absorbed  in the regular cadre to Kurk  Amins and till they all are absorbed, fresh  recruitment be not made. "

Thereby, the Division Bench  affirmed the judgment of the  learned Single Judge. Aggrieved against this order the State of U.P.  filed Special Leave Petition.  All these appeals were clubbed together  and heard by this Court which ultimately affirmed  both the decisions  of the Division Bench of the High Court by order dated  20.3.2001.  Relevant portions of the order read as under :                                                                                   "  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."                 In this light now, we have to examine the matter whether   there  is any violation of order by the respondents or not. The  respondent \026 State of U.P. has filed a counter and submitted that no  violation of the order of this Court or that of the Division Bench of the  High Court was committed by the respondents. It was pointed out that  they have faithfully complied with the orders of this Court. It was  further pointed out that in compliance with this Court’s order  the  State Government has notified the Rules known as " The Uttar  Pradesh Co-operative Collection Fund and the Amins and other Staff  Service Rules, 2002"( hereinafter to be referred as the Rules).  Rule  2) of the said Rules says that the ’appointing authority’ is the District  Magistrate/ Collector.  The said Rule reads as under :

       " ) ’Appointing Authority’ means the District  Magistrate/ Collector in the case of Amin and Amin  on commission basis and the Deputy Registrar in  the case of Sahyogi."

Rule 2(d)  of the Rules which defines cadre of service reads as  under:         " (d) ’Cadre of service’ means Amins and  Sahyogies substantively appointed or deemed to  have been substantively appointed under these  rules or orders in force prior to the commencement  of these rules and shall not include Amin on

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commission basis." Chapter-III deals with recruitment and conditions of service of Amins  and other staff.  Part-I deals with status. Rule 4 says that the service  of Amins and Amins on Commission basis under these rules shall  comprise Group-"C"  and that of Sahyogi Group "D" services. Part-II  defines cadre. Rule 5 reads as under ; "  P A R T \026II                  Cadre.         5(1)  The strength of the service and of each  category of posts therein shall be such as may be  determined by the Registrar with the prior approval of the  State Government.         (2) The strength of the service and of each category  of posts therein shall until orders varying the same are  passed under sub-rule (1) be as given in the Schedule.                                                          SCHEDULE         Sl.No. Name of the post    No. of post     R  e  m  a   r    k          1.      Amin                  206          Three posts in each                                                     district however in                                                     district having less                                                     than three tehsils,                                                     two post in each                                                     district.

       2.      Sahyogi’s          90           The post falling                            of Amin                            vacant due to                                                      retirement or                                                      otherwise shall                                                     cease to exist.

       3.      Amin on                2689       The post falling                  Commission                 vacant due to                   Basis                              retirement or                                                      Otherwise shall                                                       Cease to exist.

       (3) The Appointing Authority may leave unfilled or  the Government may hold in abeyance vacant post  without thereby entitling any person to compensation or  the Government may create such additional permanent or  temporary posts as it may consider proper. "

Part III lays down the procedure for recruitment. Rule 6 of the Rules  reads as under :

               "Part \026III                 Recruitment.

6.      Recruitment to the various categories of posts  shall be made from the following sources:-

(1)     Amin: The vacancies of Amin shall be filled by  already serving Amins on salary basis and  remaining vacancies shall be filled from  amongst such Amins on commission basis who  have made satisfactory recovery during last five  years on the basis of seniority subject to the  rejection of the unfit and subject to their willing - ness.

(2)     Sahyogi: All the vacancies shall be filled by

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already serving Sahyogies on salary basis.

(3)     Amins on Commission  basis : All the vacancies  shall be filled by already serving Amins on  Commission basis."

Therefore, it was pointed out that by framing the Rules the  Government has recognized the Amins on Commission basis as  holding the civil posts and their method of recruitment has also been  prescribed as per Rule 6 of the Rules. The vacancies in the cadre of  Amins shall be first filled up from the Amins on salary basis & Amins  on commission basis who have made satisfactory recovery during the  last five years on the basis of seniority subject to the rejection of the  unfit and subject to their willingness. Therefore, it was submitted by  Mr.Ashok Desai, learned senior counsel  appearing for the State of  U.P. that  the State of U.P. has faithfully complied with the orders of  this Court and has made it  very clear that  the Amins will hold civil  posts and they will be Government servants & their services will be  regularized subject to availability of post in the service as per the  Rules of 2002.

               Mr.P.S.Mishra, learned senior counsel appearing for the  petitioners  strenuously urged that Amins on commission basis have  not been given a status of holder of civil post nor the salary of Amins  as is admissible to Admins in Revenue Deptt. Of Govt. of U.P.   Therefore, respondents are guilty of committing contempt of this  Court’s order.

               Mr. Desai, learned senior counsel drew our attention to  the above para reproduced from Division Bench judgment in  Special  Appeal No. 129/1996 of the Allahabad High Court which was affirmed  by this Court and submitted that the Division Bench has categorically  mentioned that the Amins shall be absorbed subject to the availability  of the posts and till they are absorbed they will be kept in the wait list  and allowed to continue as such on commission basis till they are  absorbed in the regular cadre  of Kurk Amins. Learned senior counsel  specifically invited our attention to the direction of the Division Bench  of the High Court at page 134 of the paper book  which reads as  under: " The petitioners, who cannot be absorbed on  account of non-availability of posts shall be kept in  the waiting list and should be allowed to continue  as such on commission basis till they are absorbed  in the regular cadre to Kurk Amins and till they are  absorbed, fresh recruitment be not made."

Learned senior counsel for the respondents further submitted that this  direction given by the Division Bench in the Special Appeal  No.129(SB) of 1996 has been affirmed by this Court. As already  mentioned above, this Court has  affirmed the view taken by the  Allahabad High Court that Amins on commission basis are holding  the civil posts and they are Government servants. This Court did not  change the direction given by the Division Bench of the High Court in  Special Appeal No.129 of 1996 and affirmed that direction. This Court  did not say that the Amins should be given same salary or that they  should be immediately absorbed. This Court affirmed the ratio laid  down by the Division Bench of the Allahabad High Court and at the  same time affirmed the order as already quoted above.  That means  the Amins will continue to be treated as Amins on commission basis  till they are regularly absorbed in the cadre of Amins. The Division  Bench further mandated that till all these Amins are absorbed, fresh  recruitment shall not be made. As per Rule 6 of the Rules, 2002  clearly mandated that  the vacancies of Amins shall be filled by  already serving Amins on commission basis who have made

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satisfactory recovery during the last five years on the basis of  seniority subject to the rejection of the unfit and subject to their  willingness and likewise Sahyogies shall be absorbed subject to  availability of vacancies. No fresh recruitment shall take place on the  post of Amins till all these Amins on commission basis are absorbed.  Therefore, in this view of the matter we are of opinion that the  respondents have not committed any violation of the order of this  Court or that of the Division Bench of the Allahabad High Court.

               Mr.P.S.Mishra, learned senior counsel for the petitioners  has also submitted that there is difference of pay between the Amins  in the Co-operative Department and that of the Amins of the Revenue  Department. Mr.Ashok Desai, learned senior counsel appearing for  the respondent State of U.P. submits that this anomaly will be  rectified and that the Amins in the Co-operative Department and the  Amins in the Revenue Department would be bracketed  in the same  pay scale. Mr.Desai has assured that the same will be notified and a  notification to this effect shall be issued by the State of U.P. shortly.  Therefore, the apprehension of Mr.Mishra was allayed by the  submission of Mr.Desai. We hope and trust that the statement of  Mr.Desai  shall be faithfully complied with by the State of U.P. by  suitably amending the pay scale  of the Amins in the Co-operative  Department by providing the same pay scale as is being paid to the  Amins of the Revenue Department.

               Before we part with the case, we may point out  one  bonafide  mistake which appears in definition  to Rule 2(d)  Cadre of  Service.   "Cadre of service" says that it shall not include "Amins on  commission basis". To this, Mr.Desai submitted that this is a bona  fide error because looking to the scheme of the Rules and the cadre  strength clearly contemplates that the cadre strength consists of the  Amins as well as the Amins on commission basis. Therefore, a  suitable amendment will be brought out in the definition of the cadre  of service. We hope and trust  that this amendment shall be brought  forth so as to bring these Rules in proper scheme.  

               In view of the discussions held above, we do not find any  merit in the  Contempt Petitions and the same are accordingly  dismissed.  No order as to costs.