STATE OF U.P. & ORS. versus VIRENDRA KUMAR & ORS. on 10 February 2020

[2020] 2 S.C.R. 699

STATE OF U.P. & ORS.

v.

VIRENDRA KUMAR & ORS.

(Special Leave Petition (C) Nos. 4802-4803 of 2019)

FEBRUARY 10, 2020

[ASHOK BHUSHAN AND M.R. SHAH, JJ.]

Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 –ss.8, 15, 92, 94(2)(nn), 95(1)(f), 95(2) – Appellant decided toimplement 6[th] Pay Commission Report w.e.f. 01.01.2006 and issuedorder dated 08.12.2008 – Said order excluded its applicability tothe employees of local bodies and public enterprises – Regulationframed by U.P. Awas Evam Vikas Parishad (the Board) regardingpension/family pension & gratuity scheme – Appellant issued orderapproving pay band, grade pay etc. in the revised pay structure tothe Board’s employees – Another order clarified that arrears ofrevised pay from 01.01.2006 to 13.01.2010 shall not be admissibleto them – Appellant issued letter dated 05.05.2015 regardingpensionary benefits to Board’s employees in compliance of orderpassed by Supreme Court in Preetam Singh’s case – Board issuedconsequential order dated 05.05.2015 – Writ petitions filed interalia for quashing order dated 05.05.2015 – Allowed vide order dated16.03.2018 inter alia holding that Government Order dated08.12.2008 would apply in its entirety to the Board’s employees –In another writ petition, mandamus was issued inter alia to grantbenefit of arrears of salary payable to Board’s employees from01.01.2006 to 13.01.2010 – Special Appeal dismissed on 26.11.2018– Present SLPs filed against orders dtd. 16.03.2018 and 26.11.2018– Submissions made only on the question as to whether judgment inPreetam Singh’s case reported as [2014] 10 SCR 910 requiresreference to larger Bench or not – Held: Main issue considered inPreetam Singh’s case was as to whether the State Govt. hasjurisdiction to issue direction for non-implementing pension/familypension & gratuity scheme on the employees of the Board – It washeld that it is open to the State Govt. to issue directions on questionof policy to all the Public Corporations in State of U.P but only inrespect of questions of policy having a nexus to the “discharge of

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Aits functions” – It was also held that Board’s functions are relatableonly to the functions stipulated in s.15 and that “the conditions ofservice of employees do not constitute the functions of the VikasParishad” – s.15 does not include conditions of the service of theemployees as one of Board’s functions but s.15(1) begins with words“subject to the provisions of this Act and the rules and regulations”B– Preetam Singh did not consider other provisions of ss.8, 92,95(1)(f) and the expression “subject to the provisions of the Act,rules and regulations” which was expression of extreme importanceand intended to amplify and add other functions to the Board asprovided in the Act, rules and regulations – s.95 (Power to makeCregulations) has to be read in functions of the Board as contemplatedby s.15 – Bench in Preetam Singh erred in laying down thatconditions of service of the employees do not constitute the functionsof the Vikas Parishad– It cannot be said that State Govt. had nojurisdiction to issue directions regarding service conditions of theemployees – State can exercise its jurisdiction u/Art.162 to issueDexecutive orders regulating the conditions of service of the officersand servants employed in the affairs of the State – Judgment inPreetam Singh needs reconsideration – Questions formulated – Tobe considered by larger Bench – U.P. State Control Over PublicCorporation Act, 1975 – Constitution of India – Art.162; VIIthESchedule- Entry 41 List 5.

Directing the papers of the present cases to be placedbefore the Hon’ble Chief Justice for constituting a larger Bench,the CourtFHELD: 1.1 Chapter III of the Uttar Pradesh Avas EvamVikas Parishad Adhiniyam, 1965 deals with the functions andpowers of the Board. Section 15 does not include conditions ofthe service of the employees as one of the functions of the Boardbut Section 15(1) begins with words “subject to the provisions ofthis Act and the rules and regulations”, thus, functions of theGBoard as enumerated in Section 15 are subject to the provisionsof 1965 Act. Thus, functions of the Board as enumerated in Section15 are not exhaustive and have to be read along with functions ofthe Board as per other provisions of the Act, rules and regulations.Section 8 of the Act is an appropriate illustration for the presentpurpose. Section 8 provides for appointment of officers andH

servants. Section 8 indicates that appointment of officers andservants is also one of the functions of the Board. SupposingBoard does not appoint any officer and servant can it carry outfunctions as entrusted by the Act on it, answer is obviously no.Thus, appointment of officers and servants is one of the functionsof the Board and when power of appointment is given, power oflaying down the conditions of service is implicit in it. In casewhere there are no rules or regulations for laying down termsand conditions of officers and employees of the Board, the Boardcan regulate the terms and conditions even by the executiveorders. In Preetam Singh’s case attention of this Court was notdrawn on the expression “subject to the provisions of the Act,rules and regulations” which was expression of extremeimportance and clearly intended to amplify and add other functionsto the Board as provided in the Act, rules and regulations.Provisions of Section 8(2) of 1965 Act indicates that the Boardwith the previous approval of the State Government appoint aservant of the Central or the State Government or of a localauthority or any of the posts under it on such terms and conditionsas may be agreed upon. Thus, in case of appointment underSection 8(2) terms and conditions of appointment has to be laiddown although with the agreement as agreed upon. Section 8(2)is clearly indicative that terms and conditions of the appointmentare not alien to the functions of the Board. Section 15(1) beginswith the words “subject to the provisions of this Act and the rulesand regulations”, thus, when Section 95(1)(f) provides makingregulations by the Board for providing the conditions of officersand servants of the Board, making regulations on the abovesubject is also a function of the Board. Section 95, thus, has to beread in functions of the Board as contemplated by Section 15.The function contemplated by regulations has also to be addedwhich is simple and plain meaning of the provision. The Benchdeciding Preetam Sigh’s case did not refer to Section 8, Section95(1)(f) and without adverting to the relevant provisions whichclearly indicate that conditions of service of the employees isalso a function of the Board, the Bench deciding Preetam Singh’scase fell in error in holding that conditions of service do notconstitute functions of the Board which opinion is not as per theprovisions of the 1965 Act. Thus, the opinion expressed by the AB

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ABench in Preetam Singh’s case is without referring to Section 8,Section 95(1)(f). [Paras 29-32][720-C-E, G-H; 721-A-H; 722-A-B]

1.2 Section 92 deals with control of the State Governmentover the Board and other local authorities. Section 92(2) has itsBoperation for carrying out the purpose of this Act. The words“purpose of this Act” are vide enough which encompass in itselfthe appointment of officers and staff of the Board. Hence, theState Government can as well issue directions under Section 95(2)regarding appointment of officers and servants. Section 92 hasalso not been considered in Preetam Singh’s case. The Bench inCPreetam Singh’s judgment in laying down that conditions of serviceof the employees do not constitute the functions of the VikasParishad erred, it having not considered other provisions ofSections 8, 92, 95(1)(f) and the expression subject to theprovisions of this Act, rules and regulations as occurring in SectionD15(1). In event the functions of the Board includes conditions ofthe service of the employees of the Board the State Governmentshall have jurisdiction under 1975 Act as well under 1965 Act toissue directions to the Board with regard to appointment of officersand servants of the Board, the control and restrictions by theState Government are expressly provided in Section 8(1) whenEthe appointment of officers and servants by the Board is expresslysubject to control and restrictions as may from time to time beimposed by the State Government, it cannot be said that the StateGovernment had no jurisdiction to issue directions regardingservice conditions of the employees. The State Government hasFbeen given express rule making power with regard to all subjectwhere regulations may be made by the Board under Section 95.[Paras 33-35][722-B-H]

1.3 By virtue of Section 95(2) rules by the State hasoverriding effect. Section 95(2) is also indicative that there is noGlack of jurisdiction in the State regarding service conditions ofthe officers and the servants of the Board. The State Legislaturehave legislative competence under Entry 41 List 5 of the VIIthSchedule of the Constitution, it has also the executive power toissue orders by virtue of Article 162 of the Constitution. The H

State, thus, can exercise its jurisdiction under Article 162 to issueexecutive orders regulating the conditions of service of theofficers and servants employed in the affairs of the State. Theregulations dated 19.05.2005 regarding pension/family pensionand gratuity scheme which have been relied in the PreetamSingh’s case itself contemplates that pension/family pension andgratuity scheme as admissible to officers and servants of theGovernment shall also apply to Board. When the Regulations2009 itself contemplates issuance of Government order regulatingpension/family pension and gratuity which was to be madeapplicable to the officers and servants of the Board, it does notappeal to reason that the State Government has no power to issueorders pertaining to pension/family pension and gratuity. [Paras36, 37 and 42][723-D-F; 725-A-D]

1.5 The judgment in Preetam Singh’s case needsreconsideration. Questions to be considered by a larger Bench:

(1) Whether the judgment of Supreme Court in PreetamSingh’s case laying down that conditions of service of officersand employees do not constitute the functions of the U.P. AvasEvam Vikas Parishad lays down the correct law more so whenthe judgment does not refer to provisions of Sections 8, 92,94(2)(nn) of the 1965 Act?

(2) Whether the view expressed in Preetam Singh’sjudgment that functions of the U.P. Avas Evam Vikas Parishadare only the specific functions enumerated in Section 15 of 1965Act which does not include the service conditions of employeesof the Board lays down the correct law? Whereas the functions ofthe Board referred to in other provisions of Act, Rules andRegulations as has been expressly provided in Section 15(1) byuse of expression “subject to the provisions of this Act and theRules and Regulations” shall also be functions of the Board whichinduces service conditions of officers and employees as perSection 95(1)(f) of the 1965 Act.

(3) Whether the State Government had no jurisdiction toissue directions regarding service conditions of officers andemployees of the U.P. Avas Evam Vikas Parishad under the AB

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Aprovisions of the 1965 Act and 1975 Act and all other enablingpowers with the State Government? [Para 43][725 D-H; 726-A]

Rai Sahib Ram Jawaya Kapur and Others v. The Stateof Punjab AIR 1955 SC 549 : [1955] SCR 225 –followed.

BA.B. Krishna and Others v. State of Karnataka andOthers (1998) 3 SCC 495 : [1998] 1 SCR 157 – reliedon.

State of U.P v. Preetam Singh (2014) 15 SCC 774 :[2014] 10 SCR 910 – referred to.C

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CIVIL APPELLATE JURISDICTION: Special Leave Petition(Civil) Nos. 4802-4803 of 2019.

From the Judgment and Order dated 16.03.2018 of the High Courtof Judicature at Allahabad (Lucknow Bench) in Writ Petition Nos. 12645E(S/B) of 2016 and 10355 (S/B) of 2017.

With

Special Leave Petition (C) Nos. 4815, 4804, 373, 386 of 2019.

Raghvendra Singh, Ms. Aishwarya Bhati, Sr. Advs., VishwajitFSingh, Pankaj Singh, Ms. Ridhima Singh, Ms. Vijaya Singh, SushmitChauhan, Vignesh Singh, Mrs. Swarupama Chaturvedi, Ms. PreetikaDwivedi, Ms. Sukriti Bhatnagar, Rajeev Kumar Dubey, Abhishek SinghTomar, A. Mishra, Kamlendra Mishra, Nikhil Majithia, P. K. Jain, SaurabhJain, P.K. Goswami, S.P. Singh Rathore, Ashok K. Sharma, Uday PrakashYadav, Ms. Anuradha Soni Verma, Shryansh Aggarwal, Rajesh Goyal,GH. Arjun, Mehul Sharma, Sarvjeet Kumar, Lalit Chaudhary, GulshanBabbar, Advs. for the appearing parties.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J.

1. We have heard Shri Raghvendra Singh, learned Advocate-General of State of U.P. for State of U.P. Shri Nikhil Majithia, learnedcounsel has appeared for respondent Nos.1 to 4. Shri P.K. Jain, learnedcounsel has also appeared for respondents.

2. Learned counsel for the parties have addressed theirsubmissions only on the question as to whether judgment of this Court inState of U.P. vs. Preetam Singh, (2014)15 SCC 774, requiresreference to a larger Bench or not.

3. Before we consider the submissions of respective parties, it isnecessary to notice the subject matter of the dispute which was decidedby this Court in Preetam Singh’s case (supra). We also need to noticethe facts and issues which have arisen in these Special Leave Petitions.

Preetam Singh’s case

4. The State Legislature passed an Act to provide for theestablishment, incorporation and functioning of a housing and developmentboard in Uttar Pradesh, namely, the Uttar Pradesh Avas Evam VikasParishad Adhiniyam, 1965. (hereinafter referred to as the “1965 Act”).Section 3 provides that the State Government shall by notification in theGazette establish a Board to be called the Uttar Pradesh Avas EvamVikas Parishad (hereinafter referred to as “the Board or Parishad”).The Board was contemplated to be a body corporate.

5. The Board in the year 1973 has framed Regulations for providingcontributory provident fund to its employees. On 21.02.1995, the Boardproposed a pension/family pension and gratuity scheme in place of thecontributory provident fund scheme for its employees. The StateGovernment sent a reply to the proposal on 16.05.1996 that the StateGovernment has no objection in implementing the pension/family pensionand gratuity scheme for its employees, however, it will not extend anyfinancial assistance to the Board for the scheme. The Board on 05.11.1997framed Regulations under Section 95 of the Act, 1965 for pension/familypension and gratuity for its employees in place of earlier contributoryprovident fund scheme. The State Government vide letter dated A

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A26.11.1997 directed for staying the implementation of pension scheme.The State vide letter dated 26.11.1997 directed for staying theimplementation of pension scheme.

6. The State issued an order dated 14.04.1999 for implementationof pension/family pension and gratuity scheme in place of contributoryBprovident fund scheme in Board with several conditions enumeratedtherein. On 13.09.2005 the State Government again issued an orderintimating the Board that it has been decided to stay the StateGovernment’s earlier order dated 07.05.2003 which was issued forimplementation of the pension/family pension and gratuity scheme inplace of contributory provident fund scheme in the Board. Again onC12.07.2007, another order was passed to the effect that there is no needto apply pension/provident fund scheme to those personnel of the Publicenterprises/Corporations who are covered by Employees Provident Fund& Miscellaneous Provisions Act, 1952 of the Central Government and/or those to whom different Contributory Provident Fund Schemes areDalready applicable. The Writ Petition No.582(S/B) of 2000 (PreetamSingh and others vs. State of U.P. and others) was filed in the HighCourt of Judicature at Allahabad, Lucknow Bench challenging orderdated 14.09.1999, 13.09.2005 and 12.07.2007. The writ petition wascontested by the State of U.P. The High Court vide its judgment16.01.2009 allowed the writ petition by the following order:E“For the foregoing reasons, the writ petition succeeds and is herebyallowed. The impugned orders dated 13.09.2005 copy of which isAnnexure – 14 and the order dated 12.07.2007, copy of which isAnnexure – 18 on the record, are hereby quashed, so far as theyrelate to U.P. Evam Avas Vikas Parishad. A writ in the nature ofFmandamus is issued directing the U.P. Avas Evam Vikas Parishadto implement its pension/family pension and gratuity scheme inaccordance with its regulations framed on 05.11.1997.

Under the circumstances, there shall be no order as to costs.”G7. Aggrieved against the judgment dated 16.01.2009 of the HighCourt the State of U.P. filed an SLP (C.A.No. 6307 of 2010- State ofUttar Pradesh vs. Preetam Singh and others). This Court on 07.08.2012stayed the order of the High Court but ultimately the civil appeal wasdismissed by this Court on 23.09.2014 which judgment is reported in(2014) 15 SCC 774. This Court held that conditions of service of theH

employees do not constitute functions of the Board and as such theState has no jurisdiction to issue directions dated 13.09.2005 and12.07.2007 regarding pension/family pension and gratuity scheme. ThisCourt also noticed the Regulations framed by the Board under Section95(1)(f), namely, pension/family pension and gratuity scheme dated19.05.2009. This Court while dismissing the writ petition directed theBoard to release the pensionary benefits to the retired employeesgoverned by the notification dated 19.05.2009, within three months. Itwas further held that in event any of the retired employees is entitled tofinancial dues in excess of those already paid under the ContributoryProvident Fund Scheme, the said employee(s) will be paid interest onthe said amount @ 9% p.a.

8. The State of U.P. by order dated 13.05.2015 issued directionsto extend the pensionary benefits to the employees of the Board incompliance of the judgment of this Court dated 23.09.2014 in PreetamSingh’s case (supra) under certain conditions mentioned therein.

-Civil Appeal No.48024803 of 2019 (State of U.P. & othersvs. Virendra Kumar & others etc.etc.)

9. On the basis of recommendations of the U.P. Pay Committee2008, the State Government decided to implement 6[th] Pay CommissionReport w.e.f. 01.01.2006. The State Government issued an order No.General-3-1508/X-2008-308-97 dated 08.12.2008 on the subject: “TheRevision of Pension, Gratuity/Family Pension and commutation of retired/dead personals with effect from 01.01.2006 on the basis of therecommendations of the U.P. Pay Committee 2008.” The Governmentorder in the last of paragraph 2 directed:

“But the aforesaid orders shall not be applicable to the judges ofthe Hon’ble High Court, Chairman and Members of the U.P. PublicService Commission, Teachers and Staff of added no GovernmentSchools, Employees of Local bodies and public enterprises.”

10. Thus, the above Government order excluded the applicabilityof the said order to the employees of local bodies and public enterprises.Another Government order No.General-3-1515/X-2008-308-97 dated08.12.2008 was also issued for employees who had retired prior to01.01.2006. The said order was also not made applicable to local bodiesand public enterprises. On 19.05.2009 the Regulation was framed bythe Board, namely, U.P. Avas Evam Vikas Parishad Employees Pension/

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AFamily Pension and Gratuity Regulation. By the Government order dated16.10.2009, the State Government sanctioned revised pay structure, payband and grade pay and other allowances to the employees of differentcategories of Public Enterprises/Corporations in accordance with thedecision taken on the recommendations of the Report as submitted by7[th] U.P. Pay Committee 2008.

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11. On 14.01.2010, the State Government has issued an orderapproving the pay band and grade pay and other allowances in the revisedpay structure to the employees of Board, according to the decision takenon the recommendations of 7[th] U.P. Pay Committee 2008 to theemployees of Public Sector/Corporations. In consequences to theCGovernment order dated 14.01.2010, the Housing Commissioner issuedthe consequential order dated 23.01.2010. In the subsequent Governmentorder dated 15.09.2011 it was clarified that arrears of revised pay forthe period from 01.01.2006 to 13.01.2010 shall not be admissible to theBoard employees. The State Government issued another letter datedD05.05.2015 regarding pensionary benefits to the employees of the Board in compliance of the order dated 23.09.2014 passed by this Court inPreetam Singh’s case. The Board issued a consequential order dated05.05.2015. The Writ Petition No.12645(S/S) of 2016 (Chandra Pal Singhand others vs. State of U.P. and others) filed by the retired Junior Engineersand retired Class I and II Officers of the Board. Writ Petition No.10355(S/

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“PRAYER

WHEREFORE, it is most respectfully prayed that thisHon’ble Court may graciously be pleased: - F

i. to issue a writ, order or direction in the nature of Mandamuscommanding the respondents to re-determine the salary of thepetitioners till their retirement and thereafter their pensionarybenefits on the basis of Sixth Pay Commission Recommendationw.e.f. 01.01.2006.

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ii. to issue a writ, order or direction in nature of Mandamuscommanding the respondents to apply the provisions of theGovernment Order No.1508 dated 08.12.2008 on the officers ofthe Parishad, while suitably reading down the restrictive provisions H

about its non-application on the employees of U.P. Awas EvamVikas Parishad in view of the Pension Regulations dated15.05.2009 read with judgment and order of the Hon’ble ApexCourt dated 23.09.2014.

iii. to issue a writ, order or direction in the nature of Mandamuscommanding the respondents to re-determine/re-fix the salary ofthe petitioners in terms of Sixth Pay Commission Recommendationw.e.f. 01.01.2006 till their retirement and thereafter re-determinetheir pensionary benefits as per revised last pay drawn and payarrears of salary and revised pensionary benefits from the date oftheir retirement till date, in accordance with G.O. dated 08.12.2008,after deducting the amounts already paid towards pensionarybenefits of the petitioners, within a period of 2 months.

iv. to issue a writ, order or direction in the nature of Mandamuscommanding the respondents to grant the benefit of maximumgratuity of Rs.10 lac to the petitioners as per Government Orderdated 08.12.2008.

v. to issue a writ, order or direction in the nature of Mandamuscommanding the respondents to pay arrears of salary & pensionarybenefits calculated in terms of the Sixth Pay CommissionRecommendation, including enhanced gratuity of Rs.10 lacs, alongwith payment of interest at the prevailing Bank rates, within aperiod of 2 months.

vi. to issue an ad-interim mandamus to the respondent authoritiesto pay the current pension of the petitioners in terms of Sixth PayCommission Recommendation.

vii. to pass such other order of direction, which this Hon’ble courtdeems fit and proper in the circumstances of the case.

viii. to allow the writ petition with costs in favour of the petitioners.”

12. In Writ Petition (S/B)No. 10355 of 2017 (Virendra Kumarand others vs. State of U.P. and others) following prayers have beenmade:

“PRAYER

Wherefore, it is most respectfully prayed that this Hon’ble Courtmay graciously be pleased to :

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A(a) issue a writ of Certiorari or a writ, order or direction in the natureof Certiorari quashing the impugned order dated 05.05.2015 passedby the State Govt., and the consequential order dated 13.05.2015passed by the Housing Commissioner, Parishad as contained inAnnexure No.1 and 2 to the writ petition.B(b) Issue a writ of mandamus or a writ, order or direction in the natureof mandamus commanding the respondents not to give effect tothe impugned order dated 05.05.2015 passed by the State Govt.,and the consequential order dated 13.05.2015 passed by theHousing Commissioner, parishad as contained in Annexure No.1and 2 to the writ petition.C(c) issue a writ of mandamus or a writ, order or direction in the natureof mandamus commanding the respondents to implement theFamily Pension and gratuity Scheme in accordance with thenotification dated 19.05.2009 issued by the Awas Evam VikasParishad contained in Annexure No.5 to the writ petition and toDgive the benefit thereof to the petitioners in deference to thejudgment and order dated 23.09.2014 passed by the Hon’ble ApexCourt in Civil Appeal no.6307 of 2010.

(d) issue any other appropriate writ, order or direction which thisHon’ble court may deem just and necessary in the circumstancesEof the case may also be passed; and (e) allow the writ petition with costs.”

13. Both the writ petitions were contested by the State of U.P.The Division Bench of the High Court vide its judgment dated 16.03.2018Fallowed both the writ petitions. The Division Bench took the view thatthe Government Order No.1058 dated 08.12.2008 would apply in itsentirety to the employees of the Parishad by virtue of statutoryRegulations, dated 19.05.2009. The Division Bench held that theexclusionary part under the Government Order dated 08.12.2008 insofaras it exempts its applicability upon the employees of Public EnterprisesGand local bodies, would have to be read down and held to be inapplicable,so far as employees of the public corporations are concerned. It heldthat the employees of the Parishad would have to be treated at par withthe employees of the State Government and the Government ordersissued for the employees of Government Corporations etc. by bureau ofPublic Enterprises would have no applicability. Both the writ petitionsH

were allowed, operative portion is contained in paragraph 41 which is tothe following effect:

“41. Accordingly, both writ petitions are allowed and theimpugned orders dated 05.05.2015 and 13.05.2015 contained inAnnexure No.1 and 2 to the Writ Petition No.12645(S/B) of 2017are quashed to the extent they are contrary to the judgment passedby the Hon’ble Apex Court in the case of State of U.P. vs. PreetamSingh and others, Civil Appeal No.6307 of 2010. A mandamus isissued to the respondents to grant benefit of arrears of salarypayable to the employees of Parishad w.e.f. 1.1.2006 to13.01.2010, and to fix their pension/family pension and also releasegratuity in accordance with the provisions of U.P. Avas EvamVikas Parishad Regulations dated 19[th] May, 2009, and in the lightof the orders of the Hon’ble Supreme Court in Civil AppealNo.6307 of 2010 from the date of their entitlement alongwithinterest @ 9% per annum within a period of two months from thedate of production of certified copy of this order, failing which thepetitioners shall be entitled and paid interest at the rate of 12%per annum.”

14. These SLPs have been filed challenging the Division Benchjudgment dated 16.03.2018. Apart from State of U.P., U.P. Avas EvamVikas Parishad has also filed SLP(C)Nos.4804 and 4815 of 2019. OtherSLPs, SLP(C)No.386 of 2019 (State of U.P. and Shivashray Rai andothers) and SLP(C)No.373 of 2019 (U.P. Avas Evam Vikas Parishadand another vs. Shivashray Rai and others) have been filed against thejudgment dated 26.11.2018 passed by the Division Bench of the AllahabadHigh, Lucknow Bench in Special Appeal No.610 of 2018.

15. Special Appeal No.610 of 2018 was filed by the State of U.P.challenging the judgment of learned Single Judge dated 16.08.2017 passedin Writ Petition No.9033(S/S) of 2016. Writ petition was filed by theemployees of the U.P. Awas Evam Vikas Parishad seeking direction inthe nature of mandamus commanding the respondents to re-determinethe salary of the petitioners till their retirement and thereafter theirpensionary benefits on the basis of 6[th] Pay CommissionRecommendations w.e.f. 01.01.2006. A mandamus was sought to applythe provisions of the Government Order No.1508 dated 08.12.2008 onthe employers and officers of the Parishad while suitably reading downthe restrictive provisions about its application on the employees of the A

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ABoard. The writ petition was allowed by the learned Single Judge. Amandamus was issued to the respondents to grant benefit of arrears ofsalary payable to the employees of the Board w.e.f. 01.01.2006 to13.01.2010, and to fix their pension/family pension, and also releasegratuity in accordance with the provisions of Regulations dated19.05.2009. Special Appeal filed against the said judgment has beenBdismissed by the Division Bench on 26.11.2018.

16. The issues raised in these SLPs filed against the judgmentdated 26.11.2018 are almost similar as have been raised in SLP filedagainst the Division Bench judgment dated 16.03.2018.

C17. The facts of the Preetam Singh’s case as noticed aboveindicate that the main issue which came to be considered by this Courtin Preetam Singh’s case was as to whether the State Government hasany jurisdiction to issue direction for non-implementing pension/familypension and gratuity scheme on the employees of the Board. The HighCourt in writ petition of Preetam Singh’s case has set aside the ordersDof the State Government. The orders of the State Government dated13.09.2005 and 12.07.2007 were quashed and mandamus was issueddirecting the Board to implement its pension/family pension and gratuityscheme in accordance with its Regulations framed on 05.11.1997. ThisCourt in Preetam Singh’s case dismissed the appeal of the State ofEU.P. affirming the judgment of the High Court, the effect of whichjudgment is that pension/family pension and gratuity scheme as framedby the Board is to be implemented. One of the submissions which wasraised in Preetam Singh’s case on behalf of the State of U.P. is thatState Government had jurisdiction to issue direction as contained in theGovernment order dated 13.09.2005 and 12.07.2007 to the Parishad toFnot to implement pension/family pension and gratuity scheme whichdirection could have been issued under a statutory provision, namely,Uttar Pradesh State Control Over Public Corporation Act, 1975. Theprovision of Section 2 of the aforesaid Act has been noticed in paragraph13 of the judgment in Preetam Singh’s case. Paragraph 13 of theGjudgment is as follows:

“13. In raising a challenge to the impugned judgmentrendered by the High Court on 16-1-2009[1], it was the vehementcontention of the learned counsel for the State of Uttar Pradesh,that the scheme could not have been formulated, and given effectHto in the absence of an express approval by the State Government.

Insofar as the instant contention is concerned, the learned counselfor the appellant placed reliance on the Uttar Pradesh State ControlOver Public Corporation Act, 1975. Our pointed attention wasinvited to Section 2(1) thereof, which is being extracted hereunder:

“2. (1) Power to issue directions to statutory bodies.—Every statutory body (by whatever name called), establishedor constituted under any Uttar Pradesh Act, exceptingUniversities governed by the Uttar Pradesh State UniversitiesAct, 1973 as re-enacted and amended by the Uttar PradeshUniversity (Re-enactment and Amendment) Act, 1974, shall, inthe discharge of its functions, be guided by such directionson questions of policies, as may be given to it by the StateGovernment, notwithstanding that no such power hasexpressly been conferred on the State Government under thelaw establishing or constituting such statutory body.”

(emphasis supplied)

Based on the aforesaid provisions, it was the submission of thelearned counsel for the appellant, that the State of Uttar Pradesh,through its Communications dated 13-9-2005 and 12-7-2007, mustbe deemed to have issued directions to the Vikas Parishad,restraining it from implementing the Pension/Family Pension andGratuity Scheme. The aforesaid directions, according to thelearned counsel, were binding on the Vikas Parishad.”

18. This Court in Preetam Singh held that it is open to the StateGovernment to issue directions on question of policy to all the PublicCorporations in the State of Uttar Pradesh but the directions could onlybe issued in respect of questions of policy having a nexus to the “dischargeof its functions”. This Court held that functions of the Board are relatableonly to the functions stipulated in Section 15 of the 1965 Act. Paragraphs14 to 16 are as follows:

“14. We have given our thoughtful consideration to the firstcontention advanced at the hands of the learned counsel for theappellant. There can be no doubt that it is open to the StateGovernment to issue directions on questions of policy to all thePublic Corporations in the State of Uttar Pradesh, in furtheranceof the mandate contained in Section 2(1) of the 1975 Act. It wouldhowever be pertinent to mention that the above directions could A

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be issued only in respect of questions of policy having a nexus tothe “discharge of its functions”. Insofar as the Vikas Parishad isconcerned, we are of the view that the functions of the VikasParishad are relatable only to the functions stipulated in Section15 of the 1965 Act.

B15. Section 15 aforementioned is being reproduced hereunder:

“15. Functions of the Board.—(1) Subject to the provisions ofthis Act and the rules and regulations, the functions of the Boardshall be—

(a) to frame and execute housing and improvement schemesand other projects; C

(b) to plan and coordinate various housing activities in theState and to ensure expeditious and efficient implementation ofhousing and improvement schemes in the State;

(c) to provide technical advice for and scrutinise variousprojects under housing and improvement schemes sponsored orassisted by Central Government or the State Government; D

(d) to assume management of such immovable propertiesbelonging to the State Government as may be transferred orentrusted to it for this purpose; E

(e) to maintain, use, allot, lease, or otherwise transfer plots,buildings and other properties of the Board or of the StateGovernment placed under the control and management of theBoard; (f) to organise and run workshops and stores for themanufacture and stockpiling of building materials; F

(g) on such terms and conditions as may be agreed uponbetween the Board and the State Government, to declare housesconstructed by it in execution of any scheme to be houses subjectto the U.P. Industrial Housing Act, 1955 (U.P. Act 23 of 1955); G

(h) to regulate building operations;

(i) to improve and clear slums;

(j) to provide roads, electricity, sanitation, water-supply andother civic amenities and essential services in areas developed by H

it;

(k) to acquire movable and immovable properties for anyof the purposes before mentioned;

(l) to raise loans from the market, to obtain grants and loansfrom the State Government, the Central Government, local authorityand other public corporations, and to give grants and loans to localauthorities, other public corporations, housing cooperative societiesand other persons for any of the purposes before mentioned; (m) to make investigation, examination or survey of anyproperty or contribute towards the cost of any such investigation,examination or survey made by any local authority or the StateGovernment; (n) to levy betterment fees; (o) to fulfil any other obligation imposed by or under thisAct or any other law for the time being in force; and

(p) to do all such other acts and things as may be necessaryfor the discharge of the functions before mentioned.

(2) Subject to the provisions of this Act and the rules andregulations, the Board may undertake, where it deems necessary,any of the following functions, namely—

(a) to promote research for the purpose of expediting theconstruction of and reducing the cost of buildings; (b) to execute works in the State on behalf of publicinstitutions, local authorities and other public corporations, anddepartments of the Central Government and the State Government;

(c) to supply and sell building materials; (d) to coordinate, simplify and standardise the productionsof building materials and to encourage and organise theprefabrication and mass reduction of structural components; (e) with a view to facilitating the movement of the populationin and around any city, municipality, town area or notified area, toestablish, maintain and operate any transport service, to construct,widen, strengthen or otherwise improve roads and bridges and togive financial help to others for such purposes; A

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(f) to do all such other acts and things as may be necessaryfor the discharge of the functions before mentioned.”

16. In our view, the State of Uttar Pradesh, had the right toissue directions only in respect of the functions assigned to theVikas Parishad under Section 15 of the 1965 Act. The conditionsof service of employees, in our considered view, do not constitutethe functions of the Vikas Parishad, and as such, we are satisfiedthat the directions contemplated under Section 2(1) of the 1975Act, do not extend to the directions issued by the State of UttarPradesh in the impugned Orders dated 13-9-2005 and 12-7-2007.We therefore find no merit in the first contention advanced by thelearned counsel for the appellant.”

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19. In paragraph 16 of the judgment as extracted above this Courtheld that “the conditions of service of employees, in our considered view,do not constitute the functions of the Vikas Parishad”. This Court alsoconsidered Sections 93 and 95 of the 1965 Act. This Court held that theDVikas Parishad is vested with the right to make regulations, so as toextend to its employees a scheme in the nature of pension/family pensionand gratuity scheme. Ultimate directions were issued in paragraph 21 tothe following effect:

“21. It is also necessary for us to determine the consequenceof the State of Uttar Pradesh, having approached this Court, toassail the impugned judgment dated 16-1-2009. This Court havingentertained the petition filed by the appellant, passed interimdirections on 7-8-2012, which had the effect of staying theimplementation of the directions issued by the High Court, namely,of staying the implementation of the Notification dated 19-5-2009.As a result, the employees governed by the Notification dated 19-5-2009, were paid their retiral dues under the ContributoryProvident Fund Scheme. Since we have now affirmed theimpugned judgment of the High Court, dated 16-1-2009, it isapparent that all the eligible employees of the Vikas Parishad willbe governed by the Notification dated 19-5-2009. They willtherefore be entitled to the pensionary benefits from the date oftheir retirement. Undoubtedly, they have been denied the saidretiral benefits, consequent upon the interim orders passed by thisCourt, at the behest of the State of Uttar Pradesh. In the aboveview of the matter, we direct the Vikas Parishad to release the E

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pensionary benefits to the retired employees governed by theNotification dated 19-5-2009, within three months from today.While determining the pensionary benefits payable to the eligibleretired employees up to date, if it is found that any of the retiredemployees is entitled to financial dues in excess of those alreadypaid under the Contributory Provident Fund Scheme, the saidemployee(s) will be paid interest on the said amount @ 9% p.a.The burden of the aforesaid interest component on the differentialamount will be discharged by the Vikas Parishad in the firstinstance. The same shall, however, be recovered from the Stateof Uttar Pradesh, who is solely responsible for the interest orderedto be paid to the employees concerned.”

20. Learned Advocate-General submitted that the view asexpressed by this Court in paragraph 16 that conditions of serviceemployees do not constitute the functions of the Vikas Parishad anddirections issued on 13.09.2005 and 12.07.2007 could not have beenissued by the State Government are the views expressed by this Courtwithout considering the relevant statutory provisions of 1965 Act. UnderSection 8 of 1965 Act, the Board may appoint officers and servants ofthe Board subject to such control and restrictions as may from time totime be imposed by the State Government, by special or general orders.Thus, the appointments are to be made under the control of the StateGovernment which clearly indicate that State can issue special or generalorders with regard to appointments which can very well include conditionsof service of the employees to be appointed. He submits that Section 92of the Act occurring in Chapter X provides for control of StateGovernment on Board and other local authority. It is further submittedthat Section 94(2)(nn) empowers the State to make rules on any matterfor which regulation may be made by the Board under Section 95. Thus,the State Government had power to make rules when the Board canmake regulation with regard conditions of service of the officers andservants of the Board, the power has clearly been conceded to StateGovernment to make rules with regard to conditions of service of officersand servants of the Board. It is submitted that in Preetam Singh’scase the attention of the Bench is not invited to Sections 8, 92 and94(2)(nn) nor the aforesaid provisions have been considered in thejudgment and had the Court adverted to the aforesaid provisions it couldnot have held that conditions of service of the employees do not constitutethe functions of the Vikas Parishad. He further submits that Entry 41 of A

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AList II of the VIIth Schedule of the Constitution empowers the StateLegislature to frame law on public services and State has also executivepower on all subjects where it has legislative power, thus, the State canexercise its executive power with regard to public services which includeservice conditions of the employees.

B21. He further submits that functions of the Board as contemplatedunder Section 15 are vide enough and there are other functions entrustedto the Board in the provisions of the Act and when the Board isempowered to make regulations it is also one of its functions. It issubmitted that the view expressed in the Preetam Singh’s case inparagraph 16 is per incuriam as it has been expressed withoutCconsidering relevant statutory provisions of Section 1965 Act as noticedabove. It is further submitted that the direction issued by the StateGovernment would prevail over Pension Regulations framed by the Boardon 19.05.2009.

22. It is further submitted that the State while implementing 6[th]DPay Commission’s Report had implemented with regard to the employeesof Board by giving actual benefits w.e.f. 21.01.2010. He submits thatthe State Government has ample jurisdiction to issue directions with regardto the service conditions of the employees, officers of the Board andcontrary view in Preetam Singh’s case needs to be re-considered.E

23. Shri Nikhil Majithia learned counsel appearing for therespondents submits that the question as to whether the State Governmenthas power to issue directions to Parishad with regard to the serviceconditions of its employees has been correctly answered by this Court inPreetam Singh’s case. He submits that there is no error in the judgmentFof this Court requiring any reconsideration. It is submitted that none ofthe conditions for making reference to a larger Bench is satisfied in thefacts of the present case. Mere non-consideration of any statutoryprovision is no ground to refer the question to a larger Bench. The centralquestion in the Preetam Singh’s case was that powers of the State toissue directions with regard to service conditions of the employees ofGthe Board which has been discussed elaborately and answered. Non-consideration of a limb of argument which could have been raised beforethe Court and has not been raised and decided is not a ground for makingreference. Referring to Section 92 of the Act he submits that directionunder Section 92 shall relate to functions of the Board as enumerated in H

Section 15 which does not include any direction pertaining to conditionsof service of officers and servants of the Board. In Civil Appeal ofPreetam Singh the State in its pleading has referred to Section 94(2)(nn)of 1965 Act. It is further submitted that issue of validity and legality ofGovernment Orders dated 13.09.2005 and 12.07.2007 attained finalityby the order of this Court in Preetam Singh’s case judgment and theirvalidity cannot be gone into in these proceedings. This Court is notexercising any review jurisdiction as far as Preetam Singh’s casejudgment is concerned and therefore the question of determining thevalidity and legality of the Government Orders dated 13.09.2005 and12.07.2007 is not available to this Court in the present proceedings.

24. Shri P.K. Jain, learned counsel appearing for the respondentssubmitted that the State has the right to issue directions only in respectof the functions assigned to the Board under Section 15 of the 1965 Actand the conditions of service of the employees do not constitute thefunctions of the Vikas Parishad. He submits that all the respondentshave retired long ago but their pensions have not yet been paid causinggreat prejudice to them. The State has the right to issue directions onlyto the Vikas Parishad under Section 15 of the 1965 Act. The conditionsof service of the employees do not constitute the functions of the VikasParishad.

25. We have considered the submissions of the parties and perusedthe records.

26. This Court in the judgment in Preetam Singh after consideringthe provisions of U.P. State Control Over Public Corporation Act, 1975and some provisions of the 1965 Act laid down following:

(1) The conditions of service of the employees do not constitutethe functions of the Vikas Parishad.

(2) The State Government can issue directions on question ofpolicy only with regard to the specified functions ascontemplated by Section 15 of the 1965 Act.

(3) The conditions of the service of employees not beingfunctions of Board under Section 15 of the Act, the StateGovernment has no jurisdiction to issue directions regardingpension/family pension and gratuity of the employees ofthe Parishad.

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27. It has been submitted by the learned Advocate-General thatthe above proposition does not lay down the correct law. The Benchhearing Preetam Singh’s case has not considered other relevantprovisions of the 1965 Act and has fell in error in holding that the conditionsof service of the employees is neither the function of the Parishad northe function of the State Government.

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28. In Preetam Singh’s case, this Court has extracted Section15 of the 1965 Act and held that the conditions of the service of theemployees is not the function of the Parishad. We may first consider asto whether the above view taken in the Preetam Singh’s case is corrector not.

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29. Chapter III of the 1965 Act deals with the functions and powersof the Board. It is true that Section 15 does not include conditions of theservice of the employees as one of the functions of the Board but Section15(1) begins with words “subject to the provisions of this Act and therules and regulations”, thus, functions of the Board as enumerated inDSection 15 are subject to the provisions of 1965 Act. Thus, functions ofthe Board as enumerated in Section 15 are not exhaustive and have tobe read along with functions of the Board as per other provisions of theAct, rules and regulations. Section 8 of the Act is an appropriate illustrationfor the present purpose. Section 8 provides for appointment of officersEand servants. Section 8 of the Act is as follows:

“8. Appointment of officers and servants.- (1)Subject to suchcontrol and restrictions as may from time to time be imposed bythe State Government, by special or general orders, the Boardmay appoint such officers and servants as it considers. necessaryFfor the efficient performance of its functions.

(2) The Board may, with the previous approval of the StateGovernment, appoint a servant of the Central or the StateGovernment or of a local authority on any of the posts under it onsuch terms and conditions as may be agreed upon.”

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G30. Section 8 as extracted above indicates that appointment ofofficers and servants is also one of the functions of the Board. SupposingBoard does not appoint any officer and servant can it carry out functionsas entrusted by the Act on it, answer is obviously no. Thus, appointmentof officers and servants is one of the functions of the Board and whenpower of appointment is given, power of laying down the conditions ofH

service is implicit in it. In case where there are no rules or regulationsfor laying down terms and conditions of officers and employees of theBoard, the Board can regulate the terms and conditions even by theexecutive orders. In Preetam Singh’s case attention of this Court wasnot drawn on the expression “subject to the provisions of the Act,rules and regulations” which was expression of extreme importanceand clearly intended to amplify and add other functions to the Board asprovided in the Act, rules and regulations. Provisions of Section 8(2) of1965 Act indicates that the Board with the previous approval of theState Government appoint a servant of the Central or the StateGovernment or of a local authority or any of the posts under it on suchterms and conditions as may be agreed upon.

31. Thus, in case of appointment under Section 8(2) terms andconditions of appointment has to be laid down although with the agreementas agreed upon. Section 8(2) is clearly indicative that terms and conditionsof the appointment are not alien to the functions of the Board. Section95(1) which empowers the Board to frame regulations is as follows:

“Power to make regulations.- (1) The Board may, bynotification in the Gazette, make regulations providing for –

(a) ………………………

………………………

(f) the conditions of service of officers and servants of the Board; (g)……………………

……………………”

32. As noted above Section 15(1) begins with the words “subjectto the provisions of this Act and the rules and regulations”, thus, whenSection 95(1)(f) provides making regulations by the Board for providingthe conditions of officers and servants of the Board, making regulationson the above subject is also a function of the Board. Section 95, thus,has to be read in functions of the Board as contemplated by Section 15.The function contemplated by regulations has also to be added which issimple and plain meaning of the provision. The Bench deciding PreetamSigh’s case did not refer to Section 8, Section 95(1)(f) and withoutadverting to the relevant provisions which clearly indicate that conditions A

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Aof service of the employees is also a function of the Board, the Benchdeciding Preetam Singh’s case fell in error in holding that conditions ofservice do not constitute functions of the Board which opinion is not asper the provisions of the 1965 Act. Thus, the above opinion expressedby the Bench in Preetam Singh’s case is without referring to Section8, Section 95(1)(f).B

33. We may also refer to Section 92 which deals with control ofthe State Government over the Board and other local authorities. Section92(2) is relevant for the present case. Section 92 of the Act has also notbeen referred. It was contended before us that the directions of theState Government pertaining to service conditions of employees are notCcontemplated by Section 92(2). Section 92(2) has its operation for carryingout the purpose of this Act. The words “purpose of this Act” are videenough which encompass in itself the appointment of officers and staffof the Board. Hence, the State Government can as well issue directionsunder Section 95(2) regarding appointment of officers and servants.DSection 92 has also not been considered in Preetam Singh’s case.

34. In view of the above, we are of the considered opinion thatthe Bench in Preetam Singh’s judgment in laying down that conditionsof service of the employees do not constitute the functions of the VikasParishad erred, it having not considered other provisions of Sections 8,E92, 95(1)(f) and the expression subject to the provisions of this Act, rulesand regulations as occurring in Section 15(1).

35. In event the functions of the Board includes conditions of theservice of the employees of the Board the State Government shall havejurisdiction under 1975 Act as well under 1965 Act to issue directions toFthe Board with regard to appointment of officers and servants of theBoard, the control and restrictions by the State Government are expresslyprovided in Section 8(1) when the appointment of officers and servantsby the Board is expressly subject to control and restrictions as may fromtime to time be imposed by the State Government, it cannot be said thatthe State Government had no jurisdiction to issue directions regardingGservice conditions of the employees. The State Government has beengiven express rule making power with regard to all subject whereregulations may be made by the Board under Section 95. Section 94(1)and (2)(nn) provides as follows:

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“94. Power to make Rules.- (1) The State Governmentmay, by notification in the Gazette, make rules for carrying outthe purposes of this Act.

(2) In particular and without prejudice to the generality ofthe foregoing power, such rules may provide for –

(a) …………

…………

(nn) any matter for which regulation may be made by theBoard under Section 95;

…………………”

36. As noted above, the Board has power to frame regulationsregarding conditions of service of officers and servants of the Board,the State Government shall have power to make rules on the abovesubject. Further, by virtue of Section 95(2) rules by the State has overridingeffect. Section 95(2) is as follows:

“Section 95(2) If any regulation is repugnant to any rulethan the rule whether made before or after the regulation shallprevail and the regulation shall to the extent of the repugnancy bevoid.”

37. The above section is also indicative that there is no lack ofjurisdiction in the State regarding service conditions of the officers andthe servants of the Board. The State Legislature have legislativecompetence under Entry 41 List 5 of the VIIth Schedule of theConstitution, it has also the executive power to issue orders by virtue ofArticle 162 of the Constitution. The State, thus, can exercise its jurisdictionunder Article 162 to issue executive orders regulating the conditions ofservice of the officers and servants employed in the affairs of the State.

38. A Constitution Bench of this Court in Rai Sahib Ram JawayaKapur and others vs. The State of Punjab, AIR 1955 SC 549, hadoccasion to examine Article 162 of the Constitution. Following was laiddown in paragraph 7:

“(7)………Article 162, with which we are directlyconcerned in this case, lays down :

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A“Subject to the provisions of this Constitution, the executive powerof a State shall extend to the matters with respect to which theLegislature of the State has power to make laws :

Provided that in any matter with respect to which theLegislature of a State and Parliament have power to make laws,Bthe executive power of the State shall be subject to, and limitedby, the executive power expressly conferred by this Constitutionor by any law made by Parliament upon the Union or authoritiesthereof.”

Thus under this article the executive authority of the StateCis executive in respect to matters enumerated in List II of SeventhSchedule………”

39. The Constitution Bench further held that executive functioncomprises both the determination of the policy as well as carrying it intoexecution. In paragraph 13 the Constitution Bench laid down:

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“(13) The limits within which the executive Government canfunction under the Indian Constitution can be ascertained withoutmuch difficulty by reference to the form of the executive whichour Constitution has set up. Our Constitution, though federal in itsstructure, is modelled on the British Parliamentary system whereEthe executive is deemed to have the primary responsibility for theformulation of governmental policy and its transmission into lawthough the condition precedent to the exercise of this responsibilityis its retaining the confidence of the legislative branch of the State.

The executive function comprises both the determinationFof the policy as well as carrying it into execution. This evidentlyincludes the initiation of legislation, the maintenance of order, thepromotion of social and economic welfare, the direction of foreignpolicy, in fact the carrying on or supervision of the generaladministration of the State.”

40. This Court in A.B. Krishna and others vs. State ofGKarnataka and others, (1998) 3 SCC 495, had laid down that it isthe primarily the legislature, namely, Parliament or the State LegislatureAssembly, in whom power to make law regulating the recruitment andconditions of service of persons appointed to public services and posts,in connection with the affairs of the Union or the State, is vested.

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41. When the power to make law regulating the recruitment andconditions of service of persons is vested in the State Legislature it hasample jurisdiction to exercise executive power by issuing orders underArticle 162.

42. The regulations dated 19.05.2005 regarding pension/familypension and gratuity scheme which have been relied in the PreetamSingh’s case itself contemplates that pension/family pension and gratuityscheme as admissible to officers and servants of the Government shallalso apply to Board. The regulations clearly mention that the Governmentorders shall also be admissible to the officers and employees of theBoard and at serial No.5 following was included “all orders of financialdepartment of U.P. as relief to pension/family pension and gratuity”.When the Regulations 2009 itself contemplates issuance of Governmentorder regulating pension/family pension and gratuity which was to bemade applicable to the officers and servants of the Board, it does notappeal to reason that the State Government has no power to issue orderspertaining to pension/family pension and gratuity.

43. Due to the above reasons we are of the view that with regardto three aspects i.e. (1), (2) and (3) as noted above, the judgment inPreetam Singh’s case needs reconsideration. We formulate followingquestions to be considered by a larger Bench:

(1) Whether the judgment of this Court in Preetam Singh’s caselaying down that conditions of service of officers and employeesdo not constitute the functions of the U.P. Avas Evam VikasParishad lays down the correct law more so when the judgmentdoes not refer to provisions of Sections 8, 92, 94(2)(nn)of the1965 Act ?

(2) Whether the view expressed in Preetam Singh’s judgmentthat functions of the U.P. Avas Evam Vikas Parishad are only thespecific functions enumerated in Section 15 of 1965 Act whichdoes not include the service conditions of employees of the Boardlays down the correct law ? Whereas the functions of the Boardreferred to in other provisions of Act, Rules and Regulations ashas been expressly provided in Section 15(1) by use of expression“subject to the provisions of this Act and the Rules and Regulations”shall also be functions of the Board which induces serviceconditions of officers and employees as per Section 95(1)(f) ofthe 1965 Act.

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726SUPREME COURT REPORTS

A(3) Whether the State Government had no jurisdiction to issuedirections regarding service conditions of officers and employeesof the U.P. Avas Evam Vikas Parishad under the provisions ofthe 1965 Act and 1975 Act and all other enabling powers with theState Government ?

B44. Let the papers of these cases be placed before the Hon’blethe Chief Justice for constituting a larger Bench. We also request theHon’ble Chief Justice to constitute the larger Bench on an earlier datelooking into the fact that issues which are to be answered in the presentSLPs are the issues pertaining to mostly retired employees whose paymentof arrears of pension/family pension and gratuity are involved.

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Divya Pandey

Referred to larger Bench.

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