STATE OF U.P. & ORS. versus VIRENDRA KUMAR & ORS. on 25 November 2022

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SUPREME COURT REPORTS

[2022] 14 S.C.R.

STATE OF U.P. & ORS.

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VIRENDRA KUMAR & ORS.

(Civil Appeal Nos.6622-6623 of 2022)

BNOVEMBER 25, 2022

[SANJAY KISHAN KAUL, ABHAY S. OKA AND VIKRAM NATH, JJ.]

Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 –s.3, 7, 8, 15, 92, 94(2)(nn) and 95(1)(f) – On 10.02.2020, a BenchCof two judges made reference to a larger Bench to reconsider thePreetam Singh’s case – The core issue on which the reference ismade to a larger Bench is whether the act of determining serviceconditions of the employees and officers of the Board is one of thestatutory functions of the Board – Held: The power to determineDthe conditions of service of officers and servants of the Board vestswith the Board and, said power can be exercised only by framingregulations under clause (f) of sub-section (1) of section 95 – Clause(nn) of sub-section (2) of section 94 confers power of the StateGovernment to frame Rules in respect of any matter for whichregulations can be framed by the Board – The decision of the SupremeECourt in Preetam Singh’s case is upheld with a modification thatState Government can always exercise the powers under clause (nn)of sub-section (1) Section 94 of the 1965 Act for determining theconditions of service of the officers (other than the HousingCommissioner) and employees of the Board – If such power isFexercised, those provisions of the Regulations framed under clause(f) of sub-section (1) of Section 95 which are repugnant to the Rules,shall be void – U.P. State Control Over Public Corporations Act,1975 – s.2.

Disposing of the appeals, the Court

GHELD:1. Sub-section (1) of Section 8 of Uttar Pradesh AvasEvam Vikas Parishad Adhiniyam, 1965does not provide that theState Government shall have the power to determine theconditions of service of officers and employees of the Board. Thepower to control the appointment and the power to put restrictionsare distinct and different from the power to determine the serviceH

conditions of the officers and servants of the Board. The controlof the State Government and the power to impose restrictions asprovided in sub-section (1) of Section 8 will extend to the creationof posts of officers and servants of the Board. The control can beexercised by directing the creation of different categories of posts.The control can be also exercised by determining the number ofposts of different categories. In this context, Sections 94 and 95of the 1965 Act are also relevant. Under sub-section (1) of Section94, the State Government retains the general Rule making powerof framing Rules for carrying out the purposes of the Act. Withoutprejudice to the generality of the power under sub-section (1),sub-section (2) of Section 95 lays down the topics and subjectson which Rule-making power can be exercised. One of the specificpowers conferred by clause (b) of sub-section (2) of Section 94on the State Government, is of framing Rules for laying downconditions of service of the Housing Commissioner. Thus, clause(nn) of sub-section (2) of Section 94 confers power on the StateGovernment to frame Rules in respect of any matter for whichregulations can be framed by the Board . Clause (f) of sub-section(1) of Section 95 specifically empowers the Board to frameRegulations governing conditions of service of officers andservants of the Board. Under clause (b) of sub-section (2) ofSection 94, the State Government has a power to determine theconditions of service of the Housing Commissioner. Thus, theLegislature has specifically incorporated in Section 7 that theState Government shall have the power to determine theconditions of service of the Housing Commissioner. However,such a provision is conspicuously absent in Section 8 dealing withthe appointment of servants and officers of the Board. The reasonis that the power to determine the service conditions of the otherofficers and servants has been conferred on the Board which canbe exercised by making Regulations. [Para 26][659-C-G; 660-B-H; 661-A-B]

2. In view of sub-section (2) of Section 95 read with clause(nn) of sub-section (2) of Section 94, Regulations, if any, framedby the Board for determining the conditions of services of itsofficers and servants are always subject to the Rules which maybe framed by the State Government by exercising the powerunder clause (nn) of sub-section (1) of Section 94. Whenever ABC

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Athere is any inconsistency between the Regulations framed underclause (f) of sub-section (1) of Section 95 and the Rules framedunder clause (nn) of subsection (1) of Section 94, the Rules willprevail and to that extent, the provisions of the Regulations whichare repugnant to the Rules shall be void. To put it differently, thepower to determine the conditions of service of the officersB(except the Housing Commissioner) and servants of the Boardvests in the Board, and the said power can be exercised only byframing Regulations under clause (f) of sub-section (1) of Section95. So long as Rules are not framed by the State Governmentunder clause (nn) of subsection (1) of Section 95 for overridingCthe provisions of the Regulations framed by the Board forprescribing the service conditions, the provisions of Regulationsshall always govern the field. Except for the exercise of the Rulemaking power under clause (nn) of sub-section (1) of Section 94,there is no specific power conferred under the 1965 Act, or forthat matter under the 1975 Act, on the State Government to nullifyDor to override the conditions of service of its officers and servantsdetermined by the Board by the Regulations framed in theexercise of powers under clause (f) of sub-section (1) of Section95. [Para 27][661-C-F]

3. This Court concurred with the view taken by this CourtEin Preetam Singh’s caseand answered as follows:

Q.1 Whether the judgment of this Court in Preetam Singh’scase laying down that conditions of service of officers andemployees do not constitute the functions of the U.P. Avas EvamVikas Parishad lays down the correct law more so when theFjudgment does not refer to provisions of Sections 8, 92,94(2)(nn)of the 1965 Act ?

A: The decision lays down the correct proposition of law.

Q.2 Whether the view expressed in Preetam Singh’sGjudgment 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 functionsof the Board referred to in other provisions of Act, Rules and H

Regulations as has been expressly provided in Section 15(1) byuse of the expression “subject to the provisions of this Act andthe Rules and Regulations” shall also be functions of the Boardwhich induces service conditions of officers and employees asper Section 95(1)(f) of the 1965 Act.

A: The first part of the question is answered in theaffirmative. The functions of the Board are as specified in Section15 and other relevant sections in Chapter III of the 1965 Act.The second part is answered in the negative.

Q.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 theprovisions of the 1965 Act and 1975 Act and all other enablingpowers with the State Government?

A: Answered in affirmative. But the State Government canalways frame Rules in the exercise of powers under clause (nn)of sub-section (1) of Section 94 of the 1965 Act for determiningthe conditions of service of the servants and officers of the Board.Whenever there is any inconsistency between Regulations framedunder clause (f) of sub-section (1) of Section 95 and the Rulesframed under clause (nn) of sub-section (1) of Section 94, theRules will prevail and to that extent, the provisions of theRegulations which are repugnant to the Rules shall be void. [Para34][668-A-H]

4. This Court concluded as under :

4. This Court concluded as under :

(i) This Court upheld the decision of this Court in PreetamSingh’s case with a modification that the State Government canalways exercise the powers under clause (nn) of sub-section (1)Section 94 of the 1965 Act for determining the conditions ofservice of the officers (other than the Housing Commissioner)and employees of the Board. If such power is exercised, thoseprovisions of the Regulations framed under clause (f) ofsub-section (1) of Section 95 which are repugnant to the Rules,shall be void;

(ii) All the officers and employees of the Board who havenot received the benefit of the old scheme till 07[th ]September A

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A2012 and have retired on or after 1[st ]January 2006 shall be entitledto benefit of the new pension scheme as per the notification dated19[th] May 2009 issued by the Board provided they are otherwiseeligible. However, the officers and employees appointed on orafter 1[st] April 2005 will be governed by the newly definedContributory Pension Rules notified by the State Government;B

(iii) Those officers and employees of the Board who haveretired on or after 1[st] January 2006 and who have not receivedbenefits under the old scheme till date shall be entitled to interestas directed by this Court in paragraph 21 of the decision in PreetamSingh’s case. Even those officers and employees who are entitledCto benefit of the new pension scheme in terms of the notificationdated 19[th] May 2009 and who have taken benefits under the oldscheme pursuant to the interim order dated 07[th] September 2012,will be entitled to interest on differential amounts, as directed interms of paragraph 21 of the decision of this Court in PreetamDSingh’s case;

(iv) Those officers and employees of the Board who haveaccepted the benefit under the old scheme before 7[th ]September2012 after giving an undertaking in terms of the Office Orderdated 16[th] January 2004 shall not be entitled to the benefit of theEnew pension scheme made applicable as per the notification dated19[th] May 2009;

(v) While calculating the pension amount payable to thosewho are entitled to the new pension scheme in terms of thenotification dated 19[th] May 2009, the benefit of notional payFfixation in terms of the revised pay structure with effect from 1[st]January 2006 shall be provided; and

(vi) All the officers and employees of the Board who areentitled to benefit of the revised pay structure in terms of theGovernment Order dated 14[th] January 2010 shall be providedGthe said benefit within a period of three months from today, if notprovided earlier. While extending the said benefit, their pay shallbe notionally determined as per the revised pay structure witheffect from 1[st] January 2006. However, they shall not be entitledto arrears of salary as per the revised pay structure from 1[st]January 2006 till 14[th] January 2010. However, in the cases of the H

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employees and officers who have already received the arrears,no recovery proceedings shall be initiated against them. [Para45][677-D-H; 678-A-G]

State of Uttar Pradesh v. Preetam Singh & Ors. (2014)15 SCC 774 : [2014] 10 SCR 910; D.S. Nakara & Ors.v. Union of India (1983) 1 SCC 305 : [1983] 2 SCR165 V. Sukumaran v. State of Kerala & Anr. (2020) (8)SCC 106 : [2020] 6 SCR 991; A.R. Antulay v. RamdasSriniwas Nayak & Anr. (1984) 2 SCC 500 : [1984] 2SCR 914;Dhananjaya Reddy etc. v. State of Karnataka(2001) 4 SCC 9 : [2001] 2 SCR 399;Gujarat UrjaVikas Nigam Ltd. v. Essar Power Ltd. (2008) 4 SCC755 : [2008] 4 SCR 822;DLF Qutab Enclave ComplexEducational Charitable Trust v. State of Haryana (2003)5 SCC 622 : [2003] 2 SCR 1; Commercial Tax Officer,Rajasthan v. Binani Cements Ltd. & Anr. (2014) 8 SCC319 : [2014] 3 SCR 1;Harwindra Kumar v. ChiefEngineer, Karmik & Ors. (2005) 13 SCC 300 : [2005]5 Suppl. SCR 317; Institute of Chartered Accountantsof India v. Price Waterhouse & Anr.(1997) 6 SCC 312: [1997] 2 Suppl. SCR 267; State of Rajasthan & Anr.v. Prem Raj (1997) 10 SCC 317 : [1997] 2 SCR 60;Nazir Ahmed v. The King Emperor (1936) SCC OnLinePC 41 – referred to.

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Case Law Reference

A[1997] 2 Suppl. SCR 267referred toPara 21[1997] 2 SCR 60referred toPara 22

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.6622-6623 of 2022.

From the Judgment and Order dated 16.03.2018 of the High CourtBof Judicature at Allahabad, Lucknow Bench in Writ Petition No.12645(S/B) of 2016 and Writ Petition No.10355 (S/B) of 2017.

With

Civil Appeal Nos.6626 And 6627 of 2022.

Ms. Aishwarya Bhati, ASG, P. N. Misra, Vishwajit Singh, V. K.CShukla, Jitendra Mohan Sharma, Nidhesh Gupta, Sr. Advs., AbhishekKumar Singh, Pankaj Singh, Ms. Ridhima Singh, Ms. Pallavi Baghel,Ms. Anamika Yadav, Ms. B. L. N. Shivani, Nithin Choudary Pavuluri,Rajeev Kumar Dubey, Kamlendra Mishra, Mrs. SwarupamaChaturvedi,Sourabh Jain, P. K. Jain, Abhinav Kr. Shrivastav, AmritDPradhan, S. P. Singh Rathore, P. K. Goswami, Sanpreet Singh Ajmani,Nikhil Majithia, Ms. Japneet Kaur, Ms. Vriti Gujral, Advs. for theappearing parties.

The Judgment of the Court was delivered by ABHAY S. OKA, J.

E1. On 10[th] February 2020, for the reasons recorded, a Bench oftwo Hon’ble judges of this Court came to the conclusion that the viewtaken by this Court in the case of State of Uttar Pradesh v. PreetamSingh & Ors.[1 ](Preetam Singh’s case)needs reconsideration. UnderSection 3 of the Uttar Pradesh Avas Evam Vikas ParishadAdhiniyam,1965 (for short ‘the 1965 Act’), Uttar Pradesh Avas EvamVikas ParishadF(for short ‘the Board’) was established. The basic object of theestablishment of the Board was of framing and executing housing andimprovement schemes in the State of Uttar Pradesh. The core issue onwhich the reference is made to a larger Bench is whether the act ofdetermining service conditions of the employees and officers of the BoardGis one of the statutory functions of the Board.

FACTUAL ASPECTS

2. On 21[st] February 1995, the Board resolved to extend thepensionary benefits to its employees by replacing the existing ContributoryPension Scheme (for short ‘the old pension scheme’) with a pension/H1 2014 (15) SCC 774

family pension/gratuity scheme (for short ‘the new pension scheme’).On 16[th] May 1996, the State Government accorded its consent to thenew pension scheme subject to the condition that the Board will not beentitled to seek any financial assistance for the implementation of thenew pension scheme.

3. By a Resolution dated 5[th] November 1997, the Board approvedthe new pension scheme. The new pension scheme was based on thepension scheme of the State Government applicable to civil servants.On 26[th] November 1997, State Government passed an order staying theimplementation of the new pension scheme. It appears that the StateGovernment appointed a committee of experts to examine the newpension scheme of the Board. After considering the report of thecommittee of experts, the State Government vide order dated 14[th]September 1999 vacated the stay granted earlier by imposing a conditionthat the scheme shall be funded from the contribution to provident fundmade by the Board and that neither the State Government nor the Boardshall incur financial liability by implementing the new pension scheme.

4. Preetam Singh and others who were the employees of theBoard, filed a writ petition in Allahabad High Court. The prayer in thepetition was initially confined to the challenge to the Government Orderdated 14[th] September 1999. During the pendency of the said petition, on7[th] May 2003, the State Government reiterated its earlier stand of grantingno objection to the new pension scheme subject to the condition that nofinancial assistance shall be provided to the Board for implementing thesaid scheme. On 16[th] January 2004, the Board by an office order gavean option to its employees of either opting for the new pension schemeor continuing with the old pension scheme. In terms of the option givenby the Board, according to the case of the State Government, 582employees opted for the old pension scheme by filing necessaryundertakings. On 13[th] September 2005, the State Government issued anorder keeping its communication dated 7[th] May 2003 in abeyance on theground that it was preparing comprehensive guidelines regarding thepayment of pension to the employees of Public Sector Enterprises. By acommunication dated 12[th] July 2007, the State Government purported towithdraw the approval granted earlier to the new pension scheme of theBoard. The writ petition filed by Preetam Singh and others wasamended and a challenge to the orders dated 13[th] September 2005 and12[th] July 2007 was incorporated in the petition. During the pendency of A

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Athe petition filed by Preetam Singh and others, the State Governmentissued an office memorandum dated 8[th] December 2008 for applying arevised pension, gratuity/family pension, and commutation scheme witheffect from 1[st] January 2006 for the benefit of its employees. The saidmemorandum was issued in terms of the recommendations of the U.P

Pay Committee, 2008. However, the employees of local bodies and publicBenterprises were specifically excluded from the applicability of the saidoffice memorandum. Another office memorandum was issued on 8[th]December 2008 by the State Government for providing revised pensionarybenefits to those Government servants who had retired before 1[st] January2006. This order was made applicable to the employees of Public SectorCEnterprises who were already getting pension prior to 1[st] January 2006.A Division Bench of Allahabad High Court by the judgment and orderdated 16[th] January 2009 allowed the writ petition filed by Preetam Singh& others. The High Court quashed the orders dated 13[th] September2005 and 12[th] July 2007 to the extent to which they related to the Board.A writ of mandamus was issued directing the Board to implement theDnew pension scheme in terms of its Regulations framed on 5[th] November1997.

5. In view of the decision of the High Court, a notification dated19[th] May 2009 was issued by the Board in the exercise of powers underclause (f) of sub-section (1) of Section 95 of the 1965 Act. The notificationErecorded that the Board had decided to implement the new pensionscheme as admissible to the officers and employees of the StateGovernment in terms of the Rules and Regulations set out in the saidnotification. The Board directed that the new pension scheme shall comeinto force and will apply to those officers who retired on or after 1[st]FJanuary 1996. However, it was stated that the Newly DefinedContributory Pension Rules of the State Government will be applicableto those employees of the Board who have joined the employment on orafter 1[st] April 2005. The notification also provided that the orders issuedfrom time to time by the State Government with respect to pension/family pension/ gratuity shall be applicable to the officers and employeesGof the Board.

6. The decision of the High Court was challenged by the StateGovernment before this Court in which the decision of this Court inPreetam Singh’s case[1] was rendered. It was observed in paragraph21 of the final judgment of this Court that the interim order dated 7[th]

August 2012 passed by this Court had the effect of staying the notificationdated 19[th] May 2009. By the interim order of this Court dated 7[th]September 2012, the employees of the Board were permitted to claimbenefits under the old pension scheme. However, it was observed thatthe interim order will not come in the way of the said employees agitatingtheir claim and also supporting the relief granted by the High Court.

7. One of the main contentions canvassed by the State of UttarPradesh before this Court in Preetam Singh’s case[1 ]was based onprovisions of sub-section (1) of Section 2 of the U.P. State Control OverPublic Corporations Act, 1975 (for short ‘the 1975 Act’). Section 2(1) ofthe 1975 Act provides that every statutory body established or constitutedunder any Uttar Pradesh Act shall in the discharge of its functions beguided by such directions on questions of policies as may be issued to itby the State Government notwithstanding that no such power has beenexpressly conferred by the statute establishing such a statutory body onthe State Government. The contention of the State Government wasthat the orders issued on 13[th] September 2005 and 12[th] July 2007 mustbe deemed to have been issued in the exercise of powers under Section2(1) of the 1975 Act.

8. While deciding Preetam Singh’s case[1] on 24[th] September2014, this Court referred to Section 15 of the 1965 Act which exhaustivelyincorporates the functions of the Board. This Court came to the conclusionthat fixing conditions of service of its employees does not constitute afunction of the Board. Therefore, this Court held that the StateGovernment had no power to issue the directions contained in its ordersdated 13[th] September 2005 and 12[th] July 2007. This Court also held thatclause (f) of sub-section (1) of Section 95 of the 1965 Act vests a powerin the Board to make Regulations for determining conditions of serviceof its officers and servants. It was held that the new pension schemehas been framed by the Board in the exercise of power under clause (f)of sub-section (1) of Section 95. While dismissing the Special LeavePetition filed by the State Government, this Court referred to thenotification dated 19[th] May 2009 of the Board issued in the exercise ofpower under clause (f) of sub-section (1) of Section 95 of the 1965 Act.This Court while dismissing the appeal preferred by the State Governmentdirected that all the eligible employees of the Board will be governed bythe said notification dated 19[th] May 2009. This Court directed the Boardto release pensionary benefits to retired employees governed by the AB

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Anotification dated 19[th] May 2009 within a period of three months.Paragraph 21 of the decision containing the directions issued by thisCourt is reproduced below:-

“21. It is also necessary for us to determine the consequence ofthe State of Uttar Pradesh, having approached this Court, to assailBthe impugned judgment dated 16-1-2009 [Preetam Singh v. Stateof U.P., 2009 SCC OnLine All 33 : (2009) 2 All LJ 702] . ThisCourt having entertained the petition filed by the appellant,passed interim directions on 7-8-2012 [State ofU.P. v. Preetam Singh, IA No. 7 in Civil Appeal No. 6307 of2010, order dated 7-8-2012 (SC), wherein it wasCdirected:”Taken on board. There shall be stay of the orderpassed in Writ Petition No. 1433 of 2011 dated 24-7-2012.IA No. 7 is disposed of. Registry is directed to list IA No. 4on 27-8-2012, if it is in order.”] , which had the effect ofstaying the implementation of the directions issued by theDHigh Court, namely, of staying the implementation of theNotification dated 19-5-2009. As a result, the employeesgoverned by the Notification dated 19-5-2009, were paid theirretiral dues under the Contributory Provident Fund Scheme. Sincewe have now affirmed the impugned judgment of the High Court,dated 16-1-2009 [Preetam Singh v. State of U.P., 2009 SCCEOnLine All 33 : (2009) 2 All LJ 702] , it is apparent that all theeligible employees of the Vikas Parishad will be governed by theNotification dated 19-5-2009. They will therefore be entitled tothe pensionary benefits from the date of their retirement.Undoubtedly, they have been denied the said retiralFbenefits, consequent upon the interim orders passed bythis Court, at the behest of the State of Uttar Pradesh. Inthe above view of the matter, we direct the Vikas Parishadto release the pensionary benefits to the retired employeesgoverned by the Notification dated 19-5-2009, within threemonths from today. While determining the pensionaryGbenefits payable to the eligible retired employees up to date,if it is found that any of the retired employees is entitled tofinancial dues in excess of those already paid under theContributory Provident Fund Scheme, the said employee(s)will be paid interest on the said amount @ 9% p.a. TheHburden of the aforesaid interest component on the differential H

amount 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.”

9. On 16[th] October 2009, the State Government issued an ordersanctioning revised pay structure, pay band, and grade pay to differentcategories of employees working in public enterprises/ corporations. Therevised pay structure was incorporated in the annexure to the said order.The Government Order stated that necessary action shall be taken bythe public enterprises/ corporations in consultation with the PublicEnterprises Department/ Finance Department. It is also provided in theGovernment Order that the execution of the Government Order shall bemade only after a proposal to that effect is approved by the Board ofDirectors of the Public Sector Enterprises. On 30[th] November 2009, theHousing Commissioner of the Board addressed a letter to the StateGovernment for communicating the proposal of the Board to apply therevised pay structure to its employees. In response, on 14[th] January2010, the State Government issued a communication permitting the Boardto grant the revised pay structure according to the recommendations ofthe 7[th] Report of the U.P Pay Committee, 2008 to its employees. TheState Government permitted the Board to grant the revised pay structureto its employees as provided in the aforesaid Government Order dated16[th] October 2009. The said order was issued on the basis of therecommendations of the Empowered Committee. However, it was statedin that communication that the benefit shall be calculated on a notionalbasis with effect from 1[st] January 2006 in the pay band and grade pay asper the table annexed to the Government Order dated 16[th] October 2009.It provided that the actual benefit shall be provided with immediate effecti.e. from 14[th] January 2010. In short, the employees of the Board werenot entitled to arrears of pay as per the revised pay structure with effectfrom 1[st] January 2006. They were entitled to revised pay scales only ona notional basis from 1[st] January 2006 and to the actual benefits onlyfrom 14[th] January 2010. Based on the said communication, an OfficeOrder was issued by the Board on 23[rd] January 2010 for giving effect tothe communication dated 14[th] January 2010. In fact, another GovernmentOrder was issued on 15[th] September 2011 stating that in terms of theorder dated 14[th] January 2010, pay scales of the employees of the Board A

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Awill be notionally revised with effect from 1[st] January 2006 but the actualbenefits shall be extended only from 14[th] January 2010. The saidGovernment Order reiterates that the employees of the Board will notbe entitled to benefit of the revised pay structure for the period of 1[st]January 2006 to 13[th] January 2010.

B10. The State Government issued another order dated 05[th] May2015 to the Board communicating the decision of the Hon’ble Governorto grant pensionary benefits to the employees of the Board in terms ofthe new pension scheme with retrospective effect from 1[st] January 2006.The decision of the State Government, inter alia, provided that theemployees who were employed on or before 31[st] March 2005 and whoChad not retired till date shall be granted pension. It further provided thatthe employees who had already retired and had taken benefits under theold pension scheme will not be entitled to get a pension under the newpension scheme. The Government directed that the employees of theBoard who have been employed on or after 1[st] April 2005 will not beDentitled to grant of pension. In terms of the Government Order of 05[th]May 2015, the Board issued Office Order dated 13[th] May 2015.

11. There were two sets of writ petitions filed before the AllahabadHigh Court. The first one was Writ Petition No.12645 of 2016 filed bycertain employees of the Board. The following prayers were made inEthe petition :

“(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.1.1.2006.F

(ii) to issue a writ, order or direction in the nature of Mandamuscommanding the respondents to apply the provisions of theGovernment Order No.1508 dated 8.12.2008 on the officers ofthe Parishad, while suitably reading down the restrictive provisionsGabout its non-application on the employees of the U.P. Awas EvamVikas Parishad in view of the Pension Regulations dated 19.5.2009read with judgment and order of the Hon’ble Apex Court dated23.9.2014.

(iii) to issue a writ, order or direction in the nature of mandamuscommanding the respondents to re-determine/re-fix the salary of H

the petitioners in terms of Sixth Pay Commission Recommendationw.e.f. 1.1.2006 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 8.12.2008,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 8.12.2008.

(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 lac, 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.”

Writ Petition No.10355 of 2017 was filed by another set ofemployees of the Board for challenging the order dated 05[th] May 2015passed by the State Government and the consequential order dated 13[th]May 2015 passed by the Board.

12. By the impugned judgment, the aforesaid two petitions weredisposed of. While disposing of the petitions, in paragraph 41, the followingdirections were issued :

“41. Accordingly, both the 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 o.126345 (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 mandamusis issued to the respondents to grant benefit of arrears ofsalary payable to the employees of Parishad w.e.f. 1.1.2006to 13.01.2010 and to fix their pension/ family pension andalso release gratuity in accordance with the provisions of AB

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AU.P. Avas Evam Vikas Parishad Regulations notified on 19[th]May, 2009, and in the light of the orders of the Hon’bleSupreme Court in Civil Appeal No.6307 of 2010 from thedate of their entitlement alongwith interest @ 9% perannum within a period of two months from the date ofproduction of certified copy of this order, failing which theBpetitioners shall be entitled and paid interest at the rate of12% per annum.”

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THE ORDER OF REFERENCE TO A LARGER BENCH

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13. Now, we come to the order dated 10[th] February 2020 passedby this Court. A Bench of two Hon’ble Judges of this Court prima faciefound that the functions of the Board contemplated under Section 15 ofthe 1965 Act were wide enough even to cover the act of fixing serviceconditions of its employees. In paragraph 43, this Court framed threeDquestions for consideration of a larger Bench. Paragraph 43 of the saidorder reads thus:

“43. Due to the above reasons we are of the view that with regardto three aspects i.e. (1), (2) and (3) as 42 noted above, the judgmentin Preetam Singh’s case needs reconsideration. We formulateEfollowing questions 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 judgmentFdoes 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 BoardGlays 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 service H

conditions of officers and employees as per Section 95(1)(f) ofthe 1965 Act.

(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?

SUBMISSIONS OF THE STATE GOVERNMENT ANDTHE BOARD

14. Ms. Aishwarya Bhati, the learned Additional Solicitor Generalappearing for the State Government urged that the statutory functionsof the Board include the function of fixing terms and conditions of theemployment of its employees. She placed reliance on Section 92 of the1965 Act which confers a power on the State Government to issuedirections to the Board for carrying out the purposes of the 1965 Act.She urged that it is the duty of the Board to comply with the directionsissued by the State Government. It was further submitted that apartfrom Section 2(1) of the 1975 Act, there was sufficient power vesting inthe State Government under Section 8 of the Section 1965 Act to controland put restrictions on the powers of the Board to appoint officers andemployees. The learned ASG invited our attention to the notificationdated 19[th] May 2009 by which the Board applied the new pension schemeto the employees who retired on or after 1[st] January 1996. She pointedout that in the said notification, it is specifically directed that the orderswith respect to pension/family pension/gratuity issued by the StateGovernment from time to time shall also be applicable to the officersand employees of the Board. She pointed out that the said notificationwas never challenged. She would, therefore, submit that the directionsof the State Government impugned by the private respondents cannotbe faulted. After inviting our attention to the interim order dated 7[th]September 2012 passed by this Court, the learned ASG submitted thatthose who have unconditionally opted for the old pension scheme priorto 7[th] September 2012 have no subsisting right to claim the pension interms of the new pension scheme. She submitted that the employeesare not entitled to salary as per the revised pay structure for the periodbetween 1[st] January 2006 to 13[th] January 2010 as per the binding directionsof the State Government. The learned senior counsel representing theBoard also made similar submissions.

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ATHE SUBMISSIONS OF THE PRIVATE RESPONDENTS

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ATHE SUBMISSIONS OF THE PRIVATE RESPONDENTS

15. The learned counsel appearing for the respondents in CivilAppeal Nos.6624 and 6625 of 2022 also made legal submissions. Wemay note here that while reserving the judgment on 15[th] September 2022,we had detagged the said appeals. Nevertheless, we are also consideringBthe submissions made by the respondents in the detagged appeals asregards the three questions of law that are required to be decided. Thesubmission of the learned counsel is that as several employees werefacing financial hardships after their retirement, they had no option butto give the undertakings to accept the old pension scheme and not optfor the new pension scheme. Considering this situation, this Court by anCinterim order passed in Preetam Singh’s case[1]had directed that evenif employees have taken benefit of the old pension scheme by giving anundertaking, they will be entitled to the benefit of the new pension schemein terms of the notification dated 19[th] May 2009. The learned counselinvited our attention to the subsequent order dated 5[th] May 2015 passedDby the State Government by which the benefit of the new pension schemewas denied to those who opted to join the employment of the Board onor after 1[st] April 2005. His submission is that this direction is discriminatorywhich creates two classes of pensioners without any rational basis. Herelied upon a decision of this Court in the case of D.S. Nakara & Ors.v. Union of India[2] as well as another decision in the case of V.ESukumaran v. State of Kerala & Anr.[3]. He would, therefore, submitthat reconsideration of the view taken in Preetam Singh’s case[1] is notat all warranted.

16. Shri Nidhesh Gupta, the learned senior counsel stated that herepresents only those respondents who had never opted for the old pensionFscheme and had not received any amount under the old scheme. Hesubmitted that under clause (f) of sub-section (1) of Section 95 of the1965 Act, the Board has a power to make Regulations providing forconditions of service of officers and servants of the Board. Inviting ourattention to sub-section (2) of Section 95 of the 1965 Act, Shri GuptaGwould submit that only when any Regulation framed by the Board isrepugnant to the Rules framed by the State in the exercise of powersunder Section 94, the Rules will prevail. He submitted that admittedlythe State Government has not exercised the Rule making power under 2 1983 (1) SCC 305H3 2020 (8) SCC 106

Section 94. He urged that under clause (nn) of sub-section (2) of Section94, the State Government has a power to frame Rules concerning anymatter for which Regulations can be framed under Section 95. Hesubmitted that it is well settled that when an enactment requires that acertain thing should be done in a certain way, the thing must be done inthat way or not at all. He relied upon various decisions in this behalf, viz.,A.R. Antulay v. Ramdas Sriniwas Nayak & Anr.[4]; DhananjayaReddy etc. v. State of Karnataka[5]; and Gujarat Urja Vikas NigamLtd. v. Essar Power Ltd.[6].

17. Inviting our attention to Section 2(1) of the 1975 Act, hesubmitted that the power conferred by the said provision on the StateGovernment to issue directions is a general power. This power is confinedto issuing directions on questions of policies. He submitted that the saidpower can be exercised in relation to the discharge of functions of theBoard. He urged that Section 15 of Chapter III of the 1965 Act laysdown the functions of the Board. He pointed out that Chapter III requiresthe Board to frame various schemes. He urged that none of the clauses(a) to (p) of Section 15 lays down that the appointment of employeesand fixing their service conditions is a function of the Board under the1965 Act. He urged that in the exercise of power under Section 2(1) ofthe 1975 Act, directions cannot be issued regarding the service conditionsof officers and employees of the Board.

18. By referring to Section 7 of the 1965 Act, he submitted thatsub-section (2) thereof clearly provides that the conditions of service ofthe Housing Commissioner shall be such as may be prescribed. Relyingupon the definition of the word ‘prescribed’ in clause (n) of Section 2, hesubmitted that the conditions of service of the Housing Commissionerhave to be prescribed by the State Government by exercising the Rulemaking power. However, Section 8 which provides for the appointmentof officers and servants of the Board does not contain such a provision.He submitted that the special or general orders of the State Governmentcontemplated by sub-section (1) of Section 8 can be issued only regardingthe mode and manner of appointment of the officers and servants of theBoard and the same have nothing to do with service conditions. Thepower of the State Government to issue general or special orders is onlyfor the purpose of imposing control and restrictions on the appointment 4 (1984) 2 SCC 500

5 (2001) 4 SCC 9

6 (2008) 4 SCC 755

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Aof the officers and servants of the Board. Therefore, sub-section (1) ofSection 8 cannot be construed to mean that by issuing general or specialorders, the State Government can determine the conditions of service ofthe officers and servants of the Board. He submitted that as two differentexpressions have been used in Sections 7 and 8 of the 1965 Act, differentmeanings will have to be assigned to the said different expressions. OnBthis issue, he relied upon a decision of this Court in the case of DLFQutab Enclave Complex Educational Charitable Trust v. State ofHaryana[7].

19. He urged that the power under sub-section (2) of Section 92can be exercised by the State Government by issuing directions that areCnecessary for carrying out the purposes of the 1965 Act. He submittedthat in any event, in the present case, statutory Regulations have beenframed by the Board dealing with the grant of pensionary benefits.

20. He submitted that the power to issue directions under Section2(1) of the 1975 Act is a general power and the power under Sections 8Dand 92 of the 1965 Act is a specific or special power. Relying upon adecision of this Court in the case of Commercial Tax Officer, Rajasthanv. Binani Cements Ltd. & Anr.[8], he urged that the specific provisionsunder the 1965 Act will prevail over the general provision under Section2(1) of the 1975 Act.

21. He relied upon a decision of this Court in the case of HarwindraEKumar v. Chief Engineer, Karmik & Ors.[9]. He submitted thatexecutive order cannot override the exercise of power made by theBoard by framing Regulations concerning the new Pension Scheme. Hesubmitted that if the submission of the State Government that by issuingexecutive orders it can override the provisions of the Regulations framedFunder Section 95 of the 1965 Act is accepted, the entire scheme ofSections 94 and 95 of the 1965 Act will be rendered completely redundant.Relying upon a decision of this Court in the case of Institute ofChartered Accountants of India v. Price Waterhouse & Anr.[10], hewould submit that such an interpretation cannot be accepted.

G22. He pointed out that if the pension is not granted on the basis ofrevised pay scales, the very purpose of the grant of pension will bedefeated. He submitted that employees cannot be divided into two 7 (2003) 5 SCC 622

8 (2014) 8 SCC 3199 (2005) 13 SCC 300H10 (1997) 6 SCC 312

classes – one of those who retired pre-1996 and others of who retiredpost-1996. He submitted that there was no justification for the Bureauof Public Enterprises for writing a letter dated 14[th] January 2010 conferringthe benefit of the revised pension not from 1[st] January 2006 but from14[th] January 2010. He submitted that no explanation has been offeredeither before the High Court or this Court for fixing the date of 14[th]January 2010. He relied upon a decision of this Court in the case ofState of Rajasthan & Anr. v. Prem Raj[11].

23. He pointed out that the benefit of the revised pension wasgiven by the State Government to the employees of U.P PowerCorporation with effect from 1[st] January 2006. To the employees of U.PJal Nigam, the benefit of the revised pension was given only from 12[th]April 2010. The employees of Jal Nigam filed a writ petition before theHigh Court which was allowed by holding that the employees were entitledto get the benefit of the revised pension from 1[st] January 2006. The saiddecision has become final as a Special Leave Petition filed by the StateGovernment against the said order has been dismissed on 20[th] May 2022.He submitted that the Board has adequate resources to bear the burdenof payment of revised pension from 1[st] January 2006. His submission isthat the law laid down by this Court in the case of Preetam Singh’scase[1] does not call for any reconsideration at all.

CONSIDERATION OF THE QUESTIONS FRAMED

24. The three questions framed under Order dated 10[th] February2020 are inter-connected. For deciding these three questions, we willhave to decide the core issues whether the functions of the Board areconfined to those which are set out in Section 15 of the 1965 Act andwhether the appointment of officers and employees of the Board andthe determination of their conditions of service constitute the functionsof the Board. Another question that will have to be addressed is asregards the power, if any, of the State Government to issue directions tothe Board concerning the determination of the conditions of service ofits officers and servants.

POWER TO DETERMINE THE CONDITIONS OFSERVICE OF THE OFFICERS AND SERVANTS OF THEBOARD

25. We have perused the provisions of the 1965 Act. Chapter IIthereof has the heading, “Establishment and conduct of business of the11 (1997) 10 SCC 317

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ABoard”. Chapter II consists of Sections 3 to 14. Section 3 provides forthe constitution of the Board. Section 7 provides for the appointment ofa Housing Commissioner. Section 7 reads thus :

“7. Provisions relating to Housing Commissioner.-(1) Thereshall be a Housing Commissioner appointed by the StateBGovernment for the purposes of this Act.

(2) The conditions of service of the Housing Commissionershall be such as may be prescribed. He shall be remuneratedfrom the Board’s fund.

(3) The State Government may, if it is of opinion that specialCcircumstances so require, appoint the Housing Commissioner tobe the Adhyaksh in addition to his own duties.

(4) The State Government may also appoint the HousingCommissioner as an authority under any other law for the timebeing in force.”

D

Section 8 deals with “Appointment of Officers and Servants”.Section 8 reads thus :

“8. Appointment of officers and servants.-(1) Subject to suchEcontrol and restrictions as may from time to time beimposed by the State Government, by special or generalorders, the Board may appoint such officers and servantsas it considers necessary for the efficient performance ofits functions.

F(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.”

G

As provided in sub-section (1) of Section 7, the HousingCommissioner has to be appointed by the State Government. Sub-section(2) of Section 7 provides that the conditions of service of the HousingCommissioner must be prescribed by the Rules. Rule-making powerunder Section 94 vests with the State Government. Clause (b) of sub-section (2) of Section 94 empowers the State Government to frameH

Rules determining the conditions of service of the Housing Commissioner.The obvious reason for conferring the power to determine serviceconditions of the Housing Commissioner on the State Government appearsto be that the State Government is the appointing authority.

26. In contrast, sub-section (1) of Section 8 provides that subjectto control and restrictions imposed from time to time by the StateGovernment by special or general orders, the Board may appoint suchofficers and servants as it considers necessary for the efficientperformance of its functions. There is a marked distinction between thelanguage used by sub-section (2) of Section 7 and sub-section (1) ofSection 8 though both provisions deal with the power to appoint officersof the Board. Thus, two different expressions or terminologies havebeen used in Sections 7 and 8. Therefore, the legislature intended toconvey different meanings. Sub-section (1) of Section 8 does not providethat the State Government shall have the power to determine the conditionsof service of officers and employees of the Board. The power to controlthe appointment and the power to put restrictions are distinct and differentfrom the power to determine the service conditions of the officers andservants of the Board. The control of the State Government and thepower to impose restrictions as provided in sub-section (1) of Section 8will extend to the creation of posts of officers and servants of the Board.The control can be exercised by directing the creation of differentcategories of posts. The control can be also exercised by determiningthe number of posts of different categories. In this context, Sections 94and 95 of the 1965 Act are also relevant. Under sub-section (1) of Section94, the State Government retains the general Rule making power offraming Rules for carrying out the purposes of the Act. Without prejudiceto the generality of the power under sub-section (1), sub-section (2) ofSection 95 lays down the topics and subjects on which Rule-makingpower can be exercised. One of the specific powers conferred by clause(b) of sub-section (2) of Section 94 on the State Government, as pointedout earlier, is of framing Rules for laying down conditions of service ofthe Housing Commissioner. Clause (nn) of sub-section (2) of Section 94reads thus :

“94. Power to make Rules.- (1) … … … …

(2) In particular and without prejudice to the generality of theforegoing power, such rules may provide for- … … … …

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A… … … …

(nn) any matter for which regulation may be made by the Boardunder Section 95; … … … …”

BThus, clause (nn) of sub-section (2) of Section 94 confers poweron the State Government to frame Rules in respect of any matter forwhich regulations can be framed by the Board. Section 95 which confersthe powers on the Board to frame Regulations reads thus :

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

(a) ……………………………………………………;

(b) ……………………………………………………;

(c) ……………………………………………………;

D(d)……………………………………………………;

(e) the duties of officers and servants of the Board; (f)the conditions of service of officers and servants ofthe Board; (g)…………………………………………………….; E

(h) …………………………………………………….;

(i) …………………………………………………….;

(j) …………………………………………………….;

F(k)……………………………………………………;

(l) ……………………………………………………;

(m) ……………………………………………………;

(n) any other matter which is to be or may be provided for byGregulations under this Act or the rules.”

Clause (f) of sub-section (1) of Section 95 specifically empowersthe Board to frame Regulations governing conditions of service of officersand servants of the Board. Under clause (b) of sub-section (2) of SectionH94, the State Government has a power to determine the conditions of

service of the Housing Commissioner. Thus, the Legislature hasspecifically incorporated in Section 7 that the State Government shallhave the power to determine the conditions of service of the HousingCommissioner. However, such a provision is conspicuously absent inSection 8 dealing with the appointment of servants and officers of theBoard. The reason is that the power to determine the service conditionsof the other officers and servants has been conferred on the Boardwhich can be exercised by making Regulations.

27. In view of sub-section (2) of Section 95 read with clause (nn)of sub-section (2) of Section 94, Regulations, if any, framed by the Boardfor determining the conditions of services of its officers and servantsare always subject to the Rules which may be framed by the StateGovernment by exercising the power under clause (nn) of sub-section(1) of Section 94. Whenever there is any inconsistency between theRegulations framed under clause (f) of sub-section (1) of Section 95and the Rules framed under clause (nn) of sub-section (1) of Section 94,the Rules will prevail and to that extent, the provisions of the Regulationswhich are repugnant to the Rules shall be void. To put it differently, thepower to determine the conditions of service of the officers (except theHousing Commissioner) and servants of the Board vests in the Board,and the said power can be exercised only by framing Regulations underclause (f) of sub-section (1) of Section 95. So long as Rules are notframed by the State Government under clause (nn) of sub-section (1) ofSection 95 for overriding the provisions of the Regulations framed bythe Board for prescribing the service conditions, the provisions ofRegulations shall always govern the field. Except for the exercise of theRule making power under clause (nn) of sub-section (1) of Section 94,there is no specific power conferred under the 1965 Act, or for thatmatter under the 1975 Act, on the State Government to nullify or tooverride the conditions of service of its officers and servants determinedby the Board by the Regulations framed in the exercise of powers underclause (f) of sub-section (1) of Section 95.

FUNCTIONS OF THE BOARD

28. Now coming to the issue of the functions of the Board, wemay note that Chapter III of the 1965 Act has the heading “Functionsand Powers of the Board”. As noted earlier, specific provisions regardingthe appointment of the Housing Commissioner, officers and servants ofthe Board find a place in Chapter II and not in Chapter III. As specifically AB

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Aprovided in clause (1) of Section 8, the Board is empowered to appointsuch officers and servants as it considers necessary for the efficientperformance of its functions. This is one factor that suggests that theappointment of officers and servants is not a function of the Board buttheir appointments are required to be made for the efficient performanceof its functions.B

29. Chapter III dealing with “Functions and Powers of the Board”comprises of Sections 15 to 49. Section 15 has the heading “Functionsof the Board” which reads thus :

“15. Functions of the Board.-(1) Subject to the provisions ofCthis Act and the rules and regulations, the functions of the Boardshall be- (a)to frame and execute housing and improvement schemesand other projects; (b)to plan and co-ordinate various housing activities in theDState and to ensure expeditious and efficientimplementation of housing and improvement schemesin the State;

(c) to provide technical advice for and scrutinise variousprojects under housing and improvement schemesEsponsored or assisted by Central Government or theState Government; (d)to assume management of such immovable propertiesbelonging to the State Government as may be transferredor entrusted to it for this purpose; F

(e) to maintain, use, allot, lease, or otherwise transfer plots,buildings and other properties of the Board or of theState Government placed under the control andmanagement of the Board; (f)to organise and run workshops and stores for theGmanufacture and stock-piling of building materials; (g)on such terms and conditions as may be agreed uponbetween the Board and the State Government, to declarehouses constructed by it in execution of any scheme tobe houses subject to the U.P. Industrial Housing Act,H1955 (U.P. Act No.XXIII of 1955); STATE OF U.P. & ORS. v. VIRENDRA KUMAR & ORS.[ABHAY S. OKA, J.]

(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 areasdeveloped by it; (k)to acquire movable and immovable properties for any ofthe purposes before mentioned;

(l) to raise loans from the market, to obtain grants and loansfrom the State Government, the Central Government,local authorities and other public corporations, and togive grants and loans to local authorities, other publiccorporations, housing co-operative societies and otherpersons for any of the purposes before mentioned; (m)to make investigation, examination or survey of anyproperty or contribute towards the cost of any suchinvestigation, examination or survey made by any localauthority or the State Government; (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, Board may undertake, where it deems necessary, anyof 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,and departments of the Central Government and the StateGovernment;

(c) to supply and sell building materials; (d)to co-ordinate, simplify and standardise the productionof building materials and to encourage and organise the A

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prefabrication and mass production of structuralcomponents; (e)with a view to facilitating the movement of the populationin and around any city, municipality, town area or notifiedarea to establish, maintain and operate any transportBservice; to construct, widen strengthen or otherwiseimprove roads and bridges and to give financial help toothers for such purposes; (f)to do all such other acts and things as may be necessaryfor the discharge of the functions before mentioned.”

C

As the appointments of officers and servants of the Board aredealt with by Sections 7 and 8 in Chapter II, the same do not find a placein the functions of the Board set out either in Section 15 or in any otherSection in Chapter III. There are provisions incorporated in Chapter IIIdealing with various schemes and the powers of the Board which canDbe exercised for the implementing the schemes.

30. Chapter V of the 1965 Act provides for the Board of acquiringand disposing of land for the purposes of the Act. Under Section 59, theBoard is empowered to issue debentures. Under Section 58(3), the Boardis entitled to raise loans for the purposes of the Act. Obviously, acquiringEand selling the property, issuing debentures, and raising loans cannot bethe functions of the Board. These powers have been conferred by ChapterV to enable the Board to effectively discharge its functions and to exerciseits powers specified in Chapter III. The nature of the functions of astatutory body like the Board will always depend on the object ofestablishing such a body. The appointment of officers and servants needsFto be made for the efficient performance of the specific functions of theBoard. The exercise of power to appoint servants and officers of theBoard and determination of their service conditions cannot constitutethe functions of the Board. The powers under Chapter V and the powerof appointing officers and servants under Sections 7 and 8 of Chapter IIGneed to be exercised for ensuring proper discharge of the functions ofthe Board as well as for the exercise of the powers set out in ChapterIII. We are, therefore, of the considered view that the appointment ofofficers and servants and determination of their service conditions cannotconstitute functions of the Board.

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POWER OF THE STATE GOVERNMENT TO ISSUEDIRECTIONS TO THE BOARD REGARDING THEDETERMINATION OF THE SERVICE CONDITIONS OFTHE BOARD

31. Section 92 which provides for Control of the State Governmentover the Board is a part of Chapter X under the heading “ExternalControl”. Section 92 reads thus :

“92. Control of the State Government over the Board andother local authorities.-(1) The Board shall- (a) submit to the State Government such reports and returns insuch forms and at such intervals as may be prescribed; (b) furnish to the State Government such documents, returns,statements, estimates or other information regarding any matterunder the control of the Board as may be directed by the StateGovernment.

(2) The State Government may give the Board suchdirections as in its opinion are necessary or expedient forcarrying out the purposes of this Act, and it shall thereuponbe the duty of the Board to comply with such directions.

(3) Without prejudice to other provisions of this Act, andnotwithstanding anything contained in any other law for the timebeing in force, the State Government may give any local authoritysuch directions as in its opinion are necessary or expedient forenabling the Board to carry out the purposes of this Act; andthereupon it shall be the duty of the local authority to comply withsuch directions.”

The power under sub-section (2) of section 92 is to be exercisedfor issuing directions for carrying out the purposes of the 1965 Act. Theissue is whether the State Government can exercise the power undersub-section (2) of Section 92 to override statutory Regulations framedby the Board in the exercise of powers under clause (f) of sub-section(1) of Section 95. If the State Government desires to override or nullifysuch Regulations, there is a specific provision under the said Act of 1965which enables the State Government to do so. On a conjoint reading ofclause (nn) of sub-section (1) of Section 94 and sub-section (2) of Section A

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A95, the State Government has the power to frame Rules determining theservice conditions of the officers and servants of the Board and oncethe Rules are framed by the State Government in this behalf, the provisionsof the Regulations framed by the Board will apply only to the extent towhich they are not repugnant to the Rules. Service conditions willnecessarily include salary, perquisites, allowances, retirement benefitsBsuch as pension, etc. The Regulations framed by the Board under clause(f) of sub-section (2) of Section 95 have a force of law. On a plainreading of sub-section (2) of Section 92, by no stretch of the imagination,by issuing directions, the State Government can nullify the statutoryRegulations framed under Section 95. More so, when the 1965 Act itselfCspecifically enables the State Government to nullify the Regulations byexercising the Rule making power. As the scheme of the 1965 Actspecifically provides that Regulations framed under Section 94 can beoverridden by framing Rules in accordance with clause (nn) of sub-section (1) of Section 94, the act of overriding the Regulations must bedone only by framing the Rules and not in any other manner. This viewDis supported by a series of decisions of this Court taking a consistentview that where an enactment requires to do a certain thing in a certainway, the thing must be done in that way and in no other manner. Thereare several decisions taking that view ending with the decision of thisCourt in the case of Gujarat Urja Vikas Nigam[6]. However, the locusEclassicus on this point is the well-known decision of the Privy Council inthe case of Nazir Ahmed v. The King Emperor[12]. It was held byPrivy Council that “where a power is given to do certain things in a certain way, thethings must be done in that way and not at all. Other methods ofFperformance are certainly forbidden”.

The upshot of the aforesaid discussion is that the State Governmenthas no power to issue directions under sub-section (2) of Section 92 tonullify or override the Regulations framed by the Board in the exerciseof powers under clause (f) of sub-section (1) of Section 95.

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32. Another argument of the State Government is based on sub-section (1) of Section 15 which opens with an expression “subject to theprovisions of this Act and the rules and regulations”. By use of the saidexpression, the exercise of the power to frame Regulations fordetermining the conditions of service of officers and servants does notH12 1936 SCC OnLine PC 41

become a function of the Board. The meaning of the opening part ofsub-section (1) of Section 15 is that the functions of the Board must bedischarged subject to the constraints of the Rules and Regulations framedunder the 1965 Act.

33. Next limb of the argument of the State Government is basedon Section 2(1) of 1975 Act. Section 2(1) reads thus :

“2. (1)Power to issue directions to statutory bodies.-Everystatutory body (by whatever name called), established orconstituted under any Uttar Pradesh Act, excepting Universitiesgoverned by the Uttar Pradesh State Universities Act, 1973, asre-enacted and amended by the Uttar Pradesh University (re-enactment and Amendment Act), 1974, shall, in the dischargeof its functions, be guided by such directions on questionsof policies, as may be given to it by the State Government,notwithstanding that no such power has expressly beenconferred on the State Government under the lawestablishing or constituting such statutory body.”

On a plain reading of the aforesaid provision, the power to issuedirections vested in the State Government can be exercised only forissuing directions confined to questions of policies. The directions canbe issued confined to policies concerning the discharge of the functionsof the Statutory Body. The directions issued by the State Governmenton the questions of policies guide every statutory body in the dischargeof its functions. For the reasons we have already recorded while dealingwith sub-section (2) of Section 92 of the 1965 Act, even the powerunder Section 2(1) of the 1975 Act cannot be invoked to nullify thestatutory Regulations framed by the Board which have a force of law.That can be done only by exercising the Rule making power under clause(nn) of sub-section (1) of Section 94 of the 1965 Act. The power underSection 2(1) of the 1975 Act is the general power that must yield to thespecial powers conferred by the 1965 Act. The power under sub-section(1) of Section 2 is different and distinct from the power to frame statutoryRules.

CONCLUSIONS ON THE THREE QUESTIONS

34. The aforesaid discussion is sufficient to answer the threequestions framed. Subject to what we have held above, we concur with A

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Athe view taken by this Court in Preetam Singh’s case[1]. Our answersto the three questions are as under :

Q.1 Whether the judgment of this Court in Preetam Singh’scase laying down that conditions of service of officers andemployees do not constitute the functions of the U.P. Avas EvamBVikas Parishad lays down the correct law more so when thejudgment does not refer to provisions of Sections 8, 92, 94(2)(nn)ofthe 1965 Act ?

A: The decision lays down the correct proposition of law.

Q.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 theexpression “subject to the provisions of this Act and the Rulesand Regulations” shall also be functions of the Board which inducesservice conditions of officers and employees as per Section95(1)(f) of the 1965 Act.

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A: The first part of the question is answered in the affirmative.The functions of the Board are as specified in Section 15 andother relevant sections in Chapter III of the 1965 Act. The secondpart is answered in the negative.

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Q.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?

F

A: Answered in affirmative. But the State Government can alwaysframe Rules in the exercise of powers under clause (nn) of sub-section (1) of Section 94 of the 1965 Act for determining theconditions of service of the servants and officers of the Board.Whenever there is any inconsistency between Regulations framedunder clause (f) of sub-section (1) of Section 95 and the Rulesframed under clause (nn) of sub-section (1) of Section 94, theRules will prevail and to that extent, the provisions of theRegulations which are repugnant to the Rules shall be void.

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CONSIDERATION OF THE ANCILLARY ISSUESCONCERNING THE RELIEFS GRANTED UNDER THEIMPUGNED JUDGMENT

35. After having decided the questions, we are of the view thatCivil Appeals can be decided in terms of our findings instead of sendingthem back to the Bench of two Hon’ble Judges.

PENSION

36. Now, we proceed to deal with the ancillary issues. Now comingto the new pension scheme, an Office Order was issued on 16[th] January2004 by the Board recording that a proposal for framing a scheme ofpension was under consideration. The Office Order dated 16[th] January2004 provided that those employees who were not interested in optingfor the new pension scheme must file an affidavit on stamp paper ofRs.10/-. In the said affidavit, it must be clearly and specifically assertedthat the beneficiary was not interested in the new pension scheme andthe entire amount deposited by him as his share along with Board’sshare should be paid to the beneficiary. It was also provided that theaffidavit must state that in the future, the beneficiary will not claimpensionary benefits before any authority or the Court. According to thestand taken by the State Government, total of 582 employees/officersopted for the old scheme by filing affidavits/undertakings. The StateGovernment has placed on record a copy of the affidavit of respondentno.1 – Virendra Kumar in one of the appeals. It is not disputed that allthe affidavits of the employees who decided not to opt for the newpension scheme are in the same format. In the affidavit, it wasincorporated that the employee was not interested at all in the pensionscheme and he was interested in taking payments under the old scheme.It is specifically stated that he will not make any claim in respect of thenew pension scheme.

37. After the State Government accorded its approval, on 05[th]November 1997 the Board passed a Resolution approving the new pensionScheme. The High Court while allowing the petitions filed by PreetamSingh and others, directed the Board to implement the new pensionscheme in terms of its decision dated 05[th] November 1997. High Courtallowed the petition on 16[th] January 2009. For giving effect to the decision,on 19[th] May 2009, the Board issued a notification recording that in theexercise of the powers under clauses (f) and (n) of sub-section (1) of A

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ASection 95 of the 1965 Act, it has decided that the pension scheme andgratuity admissible to the officers and servants of the State Governmentshall be admissible to the employees of the Board. The relevant part ofthe said notification reads thus :

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Now therefore, the U.P. Avas Evam Vikas Parishad, in exerciseof the power under clause (f)(i) & (n) of sub-section (1) of Section95 of U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 (U.P. Act1 of 1966) has decided that the Pension/Family Pension andGratuity admissible to the officers and employees of StateCGovernment, which is governed by the following rules, schemesand Government orders shall also be admissible (excluding Pensioncommutation) to the officer and employees of the U.P. Avas EvamVikas Parishad :

The orders with respect to the Pension/Family Pension/Gratuity issued time to time by the State Govt. shall alsobe applicable to the officers and employees of U.P. AvasEvam Vikas Parishad.

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It has also been decided by the Parishad that General ProvidentFunds Rules, 1985, shall be applicable to the officer and employeesof U.P. Avas Evam Vikas Parishad instead of ContributoryProvident Fund (CPF) Regulations, 1973.

In GPF Rules and Govt. Rules/Orders issued in this regard,‘Govt.’ means the ‘U.P. Avas Evam Vikas Parishad’, ‘AccountantGeneral’ means ‘finance Controller of U.P. Avas Evam VikasParishad’ & ‘Head of Department’ means ‘HousingCommissioner’.

The State Government shall not provide any financial assistancefor the implementation of the said Pension Scheme.

Contents of the notification shall come into force w.e.f.January 1, 1996 and such officers and employees of AvasEvam Vikas Parishad who have retired on or after the saiddate shall be benefited with the said decision.

Newly defined Contributory Pension Rules notified bythe State Government shall be applicable to thoseemployees who have joined Parishad services on April 01,2005 or onwards.”

Thus, the new pension scheme was retrospectively brought intoforce from 1[st] January 1996 and was made applicable to the employeesand officers of the Board who retired on or after that date. It is alsorecorded therein that the newly defined Contributory Pension Rulesnotified by the State Government shall be applicable to those employeesof the Board who have joined the employment from 1[st] April 2005onwards. Thus, the applicability of the new pension scheme was confinedto the officers and employees who retired on or after 1[st] January 1996.The officers and employees appointed on or after 1[st] April 2005 wereexcluded from the applicability of the new pension scheme. We mustnote here that the notification dated 19[th] May 2009 has become final andin none of the petitions which are the subject matter of these appeals,the same was challenged. In fact, in Writ Petition No.10355 of 2017,there was a prayer to issue a mandamus to implement the notification.Moreover, in paragraph 21 of the decision of this Court in PreetamSingh’s case[1],this Court issued a mandate to act upon the saidnotification. The notification dated 19[th] May 2009 specifically states that A

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Athe orders with respect to the pension/ family pension/ gratuity issuedfrom time to time by the State Government shall be applicable to theofficers and servants of the Board. Thus, only those employees of theBoard who have retired on or after 1[st] January 2006 will be entitled tothe benefit of the new pension scheme and those who are appointed onor after 1[st] April 2005 will be governed by another set of Rules asBmentioned in the notification dated 19[th] May 2009.

38. In the Special Leave Petition filed by the State Governmentagainst the judgment of the Allahabad High Court in the case of PreetamSingh and others, an interim order was passed by this Court on 7[th] August2012 which had the effect of staying the judgment of the High Court andCthe notification dated 19[th] May 2009. The further interim order dated 7[th]September 2012 recorded that if the employees of the Board, who haveretired from service, claim Contributory Provident Fund and other retiralbenefits (as per the old scheme), the Board shall pass appropriate ordersgranting the benefit under the old scheme. However, it was clarified thatDthe said interim order will not come in the way of the respondents beforethis Court agitating their claim and supporting the reliefs granted by theAllahabad High Court. Paragraph 21 of the judgment records that bythe interim order, the notification dated 19[th] May 2009 was stayed, andtherefore, no one could get pension under the new scheme. Therefore,the interim order was passed which enabled the employees who had notEreceived benefits either under the old scheme or the new pension scheme,to take benefits under the old scheme. This interim order was made asno one could get the benefit of the old scheme as a result of the staygranted to the notification dated 19[th] May 2009. The interim order dated7[th] September was thus applicable only to those employees who had notFtaken benefits under the old scheme till 7[th] September 2012. Obviously,those officers and employees of the Board who opted for the old schemeby filing affidavits in terms of the Office Order dated 16[th] January 2004and received the benefits under the old scheme before the interim orderdated 07[th] September 2012 was passed, are disentitled to claim pension under the new pension scheme. Those officers and employees of theGBoard who opted to take benefits under the old scheme after 07[th]September 2012 will be entitled to benefit of the direction issued by thisCourt in paragraph 21 of the decision in Preetam Singh’s case[1] regardingthe payment of pension under the new pension scheme and the paymentof interest on the differential amount.H

39. The State Government issued two Office Memoranda on 08[th]December 2008. The first was regarding the revision of pension/ gratuity/family pension and commutation with effect from 1[st] January 2006 onthe basis of recommendations of the U.P. Pay Committee, 2008. Thesaid order specifically recorded that it will not apply to local bodies andpublic enterprises. The second Office Memorandum dated 08[th] December2008 was issued for applying revision of pension and family pension inrespect of the employees who have retired prior to 1[st] January 2006.Obviously, the second Office Memorandum is not relevant as the newpension scheme of the Board was made applicable to those who retiredon or after 1[st] January 2006 as provided in the notification dated 19[th]May 2009. The first Office Memorandum dated 08[th] December 2008which excluded the officers and employees of the Board was challengedbelatedly for the first time in 2016 in Writ Petition No.126445 of 2016.We may note here that the Board’s notification dated 19[th] May 2009was issued in the exercise of Regulation making power under clause (f)of sub-section (1) of Section 95 of the 1965 Act which provided thatorders issued by the State Government from time to time with respect topension/ family pension/ gratuity shall be applicable to the officers andemployees of the Board. No part of the regulations framed by the Boardon 19[th] May 2009 was ever challenged. Therefore, the officers andemployees of the Board who were the beneficiaries under the notificationdated 19[th] May 2009 were bound by the first Memorandum dated 08[th]December 2008 and the orders passed from time to time by the StateGovernment with regard to pension and family pension. Moreover, revisedpension was granted to the State Government employees as therecommendations of U.P Pay Committee, 2008 were made applicableto them. The said recommendations were applied to the employees ofthe Board on 14[th] January 2010. We may note here that the AllahabadHigh Court, by the impugned judgment, has not set aside or modified theOffice Memorandum dated 08[th] December 2008.

40. On 16[th] October 2009, the State Government issued an ordermaking applicable revised pay structure in terms of the report of the 7[th]U.P. Pay Committee, 2008 to the public enterprises and corporationssubject to the terms and conditions incorporated therein. The Board, bya letter dated 30[th] November 2009, informed the State Government ofits decision to apply the revised pay structure. It was sought to be arguedby some of the respondents that the order dated 14[th] January 2010 relatesto pension. In fact, it only deals with the applicability of the revised pay ABCD

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Astructure to the employees and officers of the Board. By the order dated14[th] January 2010, the State Government communicated its decision toallow the Board to apply the revised pay structure on a notional basiswith effect from 1[st] January 2006 in the pay band and grade pay in therevised pay structure as per the table enclosed to the Government Orderdated 16[th] October 2009. The said order recorded that the benefit of payBstructure shall be granted with immediate effect to the officers andemployees of the Board by calculating the benefit on a notional basiswith effect from 1[st] January 2006. The Office Order was issued by theBoard on 23[rd] January 2010 for implementation of the aforesaid orderdated 14[th] January 2010. The meaning of the order dated 16[th] JanuaryC2010 was that the actual benefit of the revised pay structure will beavailable immediately from that date by calculating the pay on a notionalbasis in terms of the revised pay structure with effect from 1[st] January2006. In other words, the order dated 14[th] January 2010 made it clearthat the officers and employees of the Board will not be entitled to revisedpay from 1[st] January 2006 till 14[th] January 2010 and that they will get theDbenefit of revised pay only from 14[th] January 2010. But, while calculatingthe revised pay with effect from 14[th] January 2010, the benefit of therevised pay structure was to be notionally provided from 1[st] January2006. Thus, the pay fixation as of 14[th] January 2010 must be made bynotionally granting the benefit of the new pay structure with effect fromE1[st] January 2006. The communication dated 15[th] January 2011 of theState Government addressed to the Housing Commissioner of the Boardrecords that the officers and employees of the Board will not be entitledto arrears of revised pay for the period from 1[st] January 2006 to 13[th]January 2010. None of these orders of 16[th] October 2009, 14[th] January2010, and 15[th] January 2011 were concerning pension. These ordersFdeal only with the grant of a revised pay structure. But, the computationof pension has to be made on the basis of the applicable pay structure.Hence, those who retired on or after 1[st] January 2006 and those whowere entitled to benefit of the new pension scheme under the notificationdated 19[th] May 2009 will be benefitted from the revised pay structure toGthe extent that their pension will have to be calculated on the basis ofrevision of pay structure on notional basis from 1[st] January 2006.

41. On 05[th] May 2015, the State Government issued another orderregarding pensionary benefits to the officers and employees of the Boardin terms of which Office Order dated 13[th] May 2015 was issued. TheHgist of the said order dated 05[th] May 2015 is as under :

(i) Such staff of U.P. Avas and Vikas Parishad whoserecruitment was done on or before 31 March 2005 andwho have not retired till date, will be entitled to pension;

(ii) Such staff of U.P. Avas and Vikas Parishad who had retiredand had taken all the benefits under the C.P.F. Schemeafter getting retired, will not be entitled to pension;

(iii) Such staff of U.P. State Avas and Vikas Parishad whoserecruitment was done on or after 1[st] April 2005 will not beentitled get the pension; and

(iv) In the light of the order of this Court in Preetam Singh’scase, the 9% interest is not payable to any retired staff inC.P.F. Scheme. In future, if the question of paying interestto any staff member arises, then the Board will bear thesaid expense by itself and no claim can be made from thegovernment.

The directions in the above terms were incorporated in theconsequential order issued by the Board on 13[th] May 2015. Notificationdated 19[th] May 2009 issued by the Board clearly provides that all theofficers and employees who retired on or after 1[st] January 2006 will beentitled to benefit of the new pension scheme but those who wereemployed on or after 1[st] April 2005 will be entitled to benefits under thenewly defined Contributory Pension Rules of the State Government. Tothat extent, clause (i) of the Government Order dated 5[th] May 2015 willrequire modification. Even clause (ii) will require clarification in termsof this Judgment. Those officers and employees who have already takenbenefit of the old scheme before 07[th] September 2012 by givingundertakings will not get the benefit of the new pension scheme butthose who have taken the benefit of the old scheme after the date of theinterim order dated 7[th] September 2012 will be entitled to take benefit ofthe new pension scheme. Clause (iii) of the order means that in view ofthe notification dated 19[th] May 2009, those who are appointed on orafter 1[st] April 2005 will not get the benefit of the new pension schemeunder the said notification. As regards clause (iv), interest will be payablein terms of the decision of this Court in Preetam Singh’s case[1], only tothose employees and officers who had not taken benefit of the old schemebefore the interim order dated 07[th] September 2012 was passed by thisCourt. Interest in terms of the decision of this Court will be payable ondifferential amounts, to those who have taken benefits under the old A

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Ascheme after 07[th] September 2012. To the above extent, the directionsof this Court issued in Preetam Singh’s case[1] will have to be clarified.ARREARS OF PAY IN TERMS OF REVISED PAYSTRUCTURE

42. Now, the other issue which survives is whether the officersBand employees are entitled to arrears of pay as per the revised paystructure for the period between 1[st] January 2006 to 13[th] January 2010.The impugned judgment proceeds on the footing that the order of theState Government directing that the officers and employees of the Boardwill get the benefit of the new pay structure notionally from 1[st] January2006 and actually from 14[th] January 2010 is issued in the exercise ofCpower under Section 2(1) of 1975 Act and Section 92(2) of the 1965Act. Therefore, the High Court held that the State Government couldnot have issued the said direction regarding the determination of conditionsof service as the determination of the conditions of service was not afunction of the Board.D43. As far as the applicability of the pay structure to the employeesand officers of the Board is concerned, there is no material placed onrecord to show that the Regulation making power under Section 95 wasat all exercised by the Board regarding applying revised pay structureapplicable to the State Government employees to its own employees. Allthat the Board did was to implement the order of the State GovernmentEdated 14[th] January 2010 by granting a revised pay structure to itsemployees. The said order is based on the order of the State Governmentissued on 16[th] October 2009 by which a decision was taken to apply therevised pay structure applicable to the State Government employees tothe employees of public sector enterprises on the terms and conditionsFincorporated therein. As noted earlier, by exercising the Rule makingpower under clause (nn) of sub-section 2 of Section 94 of the 1965 Act,the State Government could have always determined the pay scales ofthe officers and employees of the Board. If it is held that the StateGovernment had no power to issue the orders dated 16[th] October 2009and 14[th] January 2010, the employees of the Board will not get the benefitGof the revised pay structure made applicable to the Governmentemployees as the Board has not framed the Regulations under clause(f) of sub-section (1) of Section 95 of the 1965 Act providing for thegrant of revised pay structure to the employees. Surprisingly, in paragraph22 of the impugned judgment, the High Court has held that the ordersHdated 16[th] October 2009 and 14[th] January 2010 would have no applicability in the matter of laying down the conditions of service of the employeesof the Board. If this finding is upheld, the employees of the Board will becompletely deprived of the benefit of the revised pay structure as thereis no Regulation made by the Board operating in the field. Hence, theemployees of the Board will be entitled to the revised pay structure interms of the said orders as clarified by the further order dated 15[th]September 2011.

44. The grant of arrears from 1[st] January 2006 till 14[th] January2010 will involve huge financial implications for the Board. Financialconstraint is a valid ground for denying arrears as per the revised paystructure. The decision to provide the benefit of a higher pay structureto the officers and employees of the Board was taken by the StateGovernment subject to the condition of not paying arrears for the periodbetween 1[st] January 2006 and 14[th] January 2010. Therefore, we cannotapprove the direction issued by the High Court under the impugnedjudgment to pay arrears of wages as per the new pay structure for theperiod from 1[st] January 2006 to 14[th] January 2010.

45. Hence, our conclusions are as under :

45. Hence, our conclusions are as under :

(i) We uphold the decision of this Court in Preetam Singh’scase[1] with a modification that the State Government canalways exercise the powers under clause (nn) of sub-section(1) Section 94 of the 1965 Act for determining the conditionsof service of the officers (other than the HousingCommissioner) and employees of the Board. If such poweris exercised, those provisions of the Regulations framedunder clause (f) of sub-section (1) of Section 95 which arerepugnant to the Rules, shall be void;

(ii) All the officers and employees of the Board who have notreceived the benefit of the old scheme till 07[th] September2012 and have retired on or after 1[st] January 2006 shall beentitled to benefit of the new pension scheme as per thenotification dated 19[th] May 2009 issued by the Boardprovided they are otherwise eligible. However, the officersand employees appointed on or after 1[st] April 2005 will begoverned by the newly defined Contributory Pension Rulesnotified by the State Government;

(iii) Those officers and employees of the Board who have retiredon or after 1[st] January 2006 and who have not received A

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678SUPREME COURT REPORTS

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Abenefits under the old scheme till date shall be entitled tointerest as directed by this Court in paragraph 21 of thedecision in Preetam Singh’s case[1]. Even those officersand employees who are entitled to benefit of the new pensionscheme in terms of the notification dated 19[th] May 2009and who have taken benefits under the old scheme pursuantBto the interim order dated 07[th] September 2012, will beentitled to interest on differential amounts, as directed interms of paragraph 21 of the decision of this Court inPreetam Singh’s case[1];

(iv) Those officers and employees of the Board who haveCaccepted the benefit under the old scheme before 7[th]September 2012 after giving an undertaking in terms of theOffice Order dated 16[th] January 2004 shall not be entitledto the benefit of the new pension scheme made applicableas per the notification dated 19[th] May 2009; D(v)While calculating the pension amount payable to those whoare entitled to the new pension scheme in terms of thenotification dated 19[th] May 2009, the benefit of notionalpay fixation in terms of the revised pay structure with effectfrom 1[st] January 2006 shall be provided; and

(vi) All the officers and employees of the Board who are entitledEto benefit of the revised pay structure in terms of theGovernment Order dated 14[th] January 2010 shall be providedthe said benefit within a period of three months from today,if not provided earlier. While extending the said benefit,their pay shall be notionally determined as per the revisedFpay structure with effect from 1[st] January 2006. However,they shall not be entitled to arrears of salary as per therevised pay structure from 1[st] January 2006 till 14[th] January2010. However, in the cases of the employees and officerswho have already received the arrears, no recoveryproceedings shall be initiated against them.G

The impugned judgment and order stands modified in terms of theabove conclusions. The civil appeals are disposed of accordingly withno order as to costs.

Ankit Gyan

Appeals disposed of.

(Assisted by : Aarsh Choudhary, LCRA)

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