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CASE NO.: Appeal (civil)  7318 of 2003

PETITIONER: State of U.P. & Ors

RESPONDENT: Ruk Mangal Singh Rathaur

DATE OF JUDGMENT: 28/11/2006

BENCH: H.K. SEMA & P.K.BALASUBRAMANYAN

JUDGMENT: J U D G M E N T 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.No. 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,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-

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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

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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

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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\005\005\005whose 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.           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

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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  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:-

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"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.