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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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