SHAKTI PRASAD BHATT ETC. ETC. versus THE STATE OF UTTARAKHAND AND ORS. ETC. on 26 April 2018

J U D G M E N T

1. Leave granted.F

2. Application for Intervention/impleadment is allowed.

3. The order passed on 11.04.2017 by the Single Bench of theHigh Court of Uttrakhand at Nainital in W.P. No.2372 of 2015 filed byUttarakhand Sahakari Sangarh Kurk Amin Parishad, of granting benefit of past services for the purpose of selection grade, promotional scaleGand post-retiral benefits including pension etc. from due date, has beenset aside by the Division Bench, the Single Bench has granted thefollowing relief:

“Accordingly, the present petitions are disposed of in terms ofthe judgment cited hereinabove. The respondents are directed to H

grant the ACP to the petitioners and to count the past services ofthe petitioners for the purpose of selection grade, promotional scaleand post-retiral benefits including pension etc. from due date withina period of ten weeks from today.”

4. The facts, in short, indicate that in the year 1978 onwardspursuant to the scheme of UP Government Kurk Amins were appointedfor realising outstanding dues of the cooperative societies. Theirappointment, salary, service conditions were governed under the scheme.The Government’s earlier decision to pay them on salary basis waswithdrawn and they were asked to work on commission basis. SinceKurk Amins did not agree to work on commission basis, their serviceswere dispensed with.

5. In the year 1980, the Kurk Amins filed a writ petition beforethe High Court of Allahabad whose services were terminated or whodid not agree to be paid on commission basis.

6. On 16.11.1985, the High Court of Allahabad quashed the orderof termination and granted relief by holding that Kurk Amins wereGovernment servants holding civil posts and hence are entitled to betreated in the same way as others in the services of Government of U.P.

7. In the year 1995 one Chandra Prakash Pandey filed a writpetition seeking a direction to the State Government to place him andothers in the regular pay scale, which were being paid to Kurk Amins ofRevenue Department.

8. The Single Bench of the High Court allowed the prayer ascontained in the writ petition. Against which, a Special appeal waspreferred before the Division Bench of the High Court and the DivisionBench on 5.5.1995 affirmed the judgment passed by the Single Bench.

9. In the year 1996, the U.P. Sahakari Sangarsh Karamchari Sanghfiled another Writ Petition. The Division Bench of High Court followingthe decision rendered in CMWP No.738 of 1980 held that the principlelaid down in the aforesaid case also applied to the case of Kurk Aminsappointed on the commission basis as they both stood on the same footing.The said decision was challenged before this Court. This Court remittedthe matter for fresh consideration of the High Court.

10. The High Court vide judgment and order dated 22.3.1996 heldthat Kurk Amins appointed on commission basis were to be treated atpar with the Kurk Amins appointed on regular basis.

A

B

C

D

E

F

G

H

A11. Against the above order Special appeal was preferred beforethe High Court and the Division Bench on 4.4.1997 affirmed the saiddecision.

12. The decision of the Single Bench dated 22.3.1996 and theDivision Bench dated 4.4.1997 were questioned by filing an appeal inBthis Court. This court decided the matter in State of U.P. & Ors. vs.Chandra Prakash Pandey & Ors [2001(4) SCC 78], of which relevant paragraphs are extracted below:

“4. Thereafter one Chandra Prakash Pandey and others, who arerespondents in Civil Appeal Nos. 8467-68 of 1995, filed a writapplication before the High Court for a direction to the State topay regular scale to them as was payable to Kurk Amins of theRevenue Department. The learned Single Judge of the High Courtfollowing the judgment rendered by the Division Bench on16.11.1985 in CMWP No. 738/1980 referred to above allowedthe writ application and directed to pay salary and regular scaleof pay to the writ petitioners against which order Special Appealwas preferred by the State of Uttar Pradesh before the DivisionBench whereas writ petitioner Chandra Prakash Pandey alsopreferred an appeal against the judgment of the learned SingleJudge as no direction was given for fixing their pay and grantingarrears. Both the appeals were disposed of by judgment dated5th May 1995. The appeal preferred by the State was dismissedand the appeal preferred by the writ petitioner was allowed whichgave rise to Civil Appeal Nos.8467-68 of 1995.

C

D

E

8. In all these appeals preferred by the State of Uttar Pradesh,Mr. Rakesh Dwivedi, learned senior counsel appearing on behalfFof the State, has assailed the judgments on the ground that KurkAmins appointed for realisation of outstanding dues of cooperativesocieties could not have been treated to be Government servantsand the High Court was not justified in holding that they held civilposts under the State of Uttar Pradesh as the Kurk Amins wereGappointed under a scheme framed by the Registrar of CooperativeSocieties for recovery of outstanding dues of the cooperativesocieties. On the other hand, Mr. R.K. Jain, learned senior counselappearing on behalf of the respondents, submitted that neither inCivil Appeal Nos.8467-68 of 1995 nor in Civil Appeal No. 6075 of1997 in which separate detailed judgments have been rendered H

H

by the High Court, any counter affidavit was filed on behalf of theState before the High Court inasmuch as even after remand ofthe matter by this Court no affidavit in opposition was filed onbehalf of the State. It has been further submitted that the so-called scheme, which is the basis of submission of the State beforethis Court, was not brought on the record either before the HighCourt or before this Court and the same has been produced duringthe course of argument as such it should not be taken intoconsideration. It has been further submitted that for deciding thequestion as to whether there was relationship of master and servantbetween the Kurk Amins appointed for realisation of outstandingdues of cooperative societies and the State, there would be hostof circumstances which have to be considered for determiningthe same and such a question whether a person or class of personsis servant of the State, which is a question of fact, has been decidedin the present case by the High Court after considering the variousingredients which are required under law for coming to aconclusion that the respondents were holding a civil post and theywere Government servant, but the State has failed to challengethe said statements of facts, in the judgments.

9. Undisputedly, the decision of the Allahabad High Court that theKurk Amins, appointed on salary basis for realisation of dues ofco-operative societies, held civil posts and became Governmentservant has attained finality as its correctness has not beenchallenged by the State of Uttar Pradesh by bringing the matterto this Court, rather the same got approval of this Court whileremanding the matter to the High Court for considering the questionwhether cases of Kurk Amins appointed on commission basisstand on the same footing as that of Kurk Amins appointed onsalary basis in whose cases it was declared that they held civilposts and would be entitled to the same salary as is payable toKurk Amins of Revenue Department.

16. In view of the foregoing discussions, we do not find any infirmityin the judgments rendered by the High Court so as to be interferedwith by this Court.”

13. It is apparent that the Kurk Amins’ status was confirmed bythis Court with effect from 1985 as that of the government servant.

AB

C

D

E

F

G

A

A14. The erstwhile State of U.P. was bifurcated and U.P. Re-Organisation Act carved the State of Uttrakhand out with effect from9.11.2000. Many Kurk Amins including appellants were allocated to theState of Uttrakhand and were absorbed in the Government service ofUttrakhand. As uncertainty prevailed, Kurk Amins filed writ applicationbefore the High Court of Uttarakhand to seek relief with effect fromB16.11.1985. Their case was that they should be governed by the decisionrendered by this Court earlier in the matter. Single Bench of UttrakhandHigh Court allowed the writ petition vide order dated 31.8.2006; againstwhich writ appeal was filed by the State of Uttrakhand was decided bythe Division Bench on 14.9.2010, following is the operative portion of Cthe order passed by the Division Bench:

Cthe order passed by the Division Bench:

“5. The contentions of the State of Uttarakhand, as above, mayor may not be correct. We are, however, not in a position to gointo that aspect of the matter, in view of the law laid down by theHigh Court at Allahabad, which law became the law enforceable,in so far as, the State of Uttarakhand is concerned, upon itscreation. It was well within the competence of the State ofUttarakhand to make such law in order to avoid the law so madeby the High Court at Allahabad, which became applicable to theState of Uttarakhand, but the fact remains that the State ofUttarakhand did not make any such law, the fact that the Hon’bleSupreme court has declared the status of cooperative Kurk Aminsas that of Government Servant, in confirmation of the law declaredby the High Court at Allahabad, is not in dispute. But for thecreation of the State of Uttarakhand, the members of the Petitioner,who were working in the State of Uttar Pradesh before bifurcationof the said State and continued to work in the bifurcated State ofUttarakhand at the same place they were working beforebifurcation, would have had the advantage of the said judgmentof the Hon’ble Supreme Court, rendered in the case of State ofU.P. and Others vs. Chandra Prakash Pandey and others. Onlybecause the State was bifurcated, to which they had no role toplay, they would be deprived of such advantage is notcomprehensible to us. We, under those circumstances, cannotdeprive the members of the Petitioner of the benefit or advantageof the said judgment, nor we can avoid to follow the ratio of thesaid judgment.

D

E

F

G

SHAKTI PRASAD BHATT ETC. ETC. v. THE STATE OFUTTARAKHAND AND ORS. ETC.

7. We, accordingly conclude the matter and, as such, refuse tointerfere with the judgment and order under appeal, except theeffect that the consequential benefits which the members of thepetitioner can have pursuant to the said judgment and order, willbe from 9th November 2000 and not w.e.f. 16th November 1985,as had been directed by the Judgment and order under Appeal.

The appeal is accordingly, disposed of.”

15. Thus, it is apparent that the Division Bench of the High Courthad clearly opined that the benefit of Chandra Prakash Pandey’s case(Supra) should not be denied to the appellants as they sail on the sameboat. However, in para 7 it was observed by the Division Bench thatthey would be entitled to the consequential benefits with effect from 9[th]November 2000 and not with effect from 16[th] November 1985.

16. That would not have meant that their earlier services were tobe wiped off; it was only with respect to monetary liability not to besaddled upon the State of Uttrakhand with respect to the period 1985 tillthe appointed date i.e. 9.11.2000.

17. A fresh Writ Petition was filed bearing W.P. No.2372 of 2015by the State of Uttrakhand Sahakari Sangarh Kurk Amin Parishad, thesame was allowed in the light of the decision of this court in ChandraPrakash Pandey’s case(Supra), the operative portion of which hasalready been quoted in the beginning.

18. The State filed an appeal against the said decision before theHigh Court. The Division Bench of the High Court by the impugnedorder dated 11.07.2018 reversed the decision. The relevant portion ofthe order is extracted hereunder:

“29. The upshot of the above discussion is that the appeals haveto be allowed and the judgment of the learned Single Judge is setaside and modified in the following way:

The direction of the learned Single Judge in the impugned judgmentto count the past services of the petitioners for the purposes ofselection grade, promotional scale and post retiral benefits includingpension etc. from the due date will stand clarified as meaning thatthe past services of the petitioners for the purposes of selectiongrade, promotional scale and post retiral benefits including pensionwill be counted form 09.11.2000 and not from any anterior period,as was the claim of the petitioners.

30. We further clarify that the matter will be considered for thepurpose of counting the past services from 09.11.2000 for the AB

C

D

E

F

G

H

Apurpose of selection grade and promotional scale and a decisionwill be taken within a period of six weeks from the date ofproduction of a certified copy of this judgment.

31. As regards the grant of ACP in the writ petitions, where ACPwas claimed by the writ petitioners, as we have noted, we directBthat the appellants will consider the case of each of the writpetitioners, who have raised such a claim in the writ petitions forgrant of ACP, and take a decision in accordance with law withina period of six weeks from the date of production of a certifiedcopy of this judgment and the said decision will be communicatedto the writ petitioners. If the writ petitioners are found ineligible,Cthe reasons for the same and the material relied on for denyingthe ACP will also be indicated in the orders.”

19. In our considered opinion, once State has been reorganised,the past service of Kurk Amins could not have been wiped off and thebenefit of the judgment rendered by this Court as well as by the HighDCourt of Allahabad was clearly available to the said Kurk Amins whoseservices had been allocated to the State of Uttrakhand. The servicesrendered in the State of U.P. could not have been wiped off for thepurposes of grant of selection grade, promotion scale, post retiral benefitsincluding pension etc. as has been done by the High Court. The judgmentis not in accordance with law and just benefit has been taken away forEno good reason and is against the basic principles of service jurisprudenceand merely by the act of bifurcation of the State the incumbents werenot supposed to lose their services for the purpose of pensionary andother benefits. Thus, the past services have to be counted for all purposesand cannot be wiped off including for the purpose of selection gradeFpromotional scale, post retiral benefits and pension. The appellants areheld entitled to all such relief as were granted to them by the SingleBench. Let the benefit be extended to all the other similarly situatedincumbents also, they should not be dragged to any further litigation.

20. Though the learned counsel appearing for the State ofGUttrakhand made serious attempt to salvage the situation but he was notable to do so. As the action of the State of Uttrakhand has been found tobe wholly untenable, we impose the cost quantified at Rs.1,00,000/-.21. The order passed by the Division Bench is set aside. Theappeals are allowed.HDevika Gujral Appeals allowed.