Andhra HC (Pre-Telangana)
Government Of Andhra Pradesh vs A.P. State Co-Operative Societies ... on 20 January, 2004
Equivalent citations: 2004(2)ALD273, 2004(1)ALT593
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy, K.C. Bhanu
JUDGMENT B. Sudershan Reddy, J.
1. These matters being interlined are disposed of together by a common judgment.
W.A. Nos. 32 and 413 of 2003
2. These writ appeals are preferred against the judgment rendered by a learned Single Judge of this Court in WP.No.3706 of 2002, dated 11-9-2002, since reported in A.P. State Co-operative Societies, Secretaries and Employees Union v. Government of Andhra Pradesh, , whereunder the learned Judge allowed the said writ petition filed by the A.P. State Co-operative Societies Secretaries and Employees Union and accordingly declared that the appellants herein have no right to recover the salaries paid to the members of the petitioner-Union pursuant to the Memo dated 14-10-1991 till 16-10-2001.
3. In order to consider whether the judgment under appeal suffers from any infirmity requiring our interference, the relevant facts may have to be noticed :
4. For the sake of convenience, we shall refer to the parties as arrayed in the writ petition.
5. The writ petitioner-Union represents the Paid Secretaries working in different Primary Agricultural Co-operative Societies (PACS) in the State of Andhra Pradesh.
The present writ petitions has been filed with a prayer:
"...... .the High Court will be pleased to issue an appropriate writ, order or direction, especially one in the nature of writ of mandamus directing the respondents not to apply in any manner the provisions of the Andhra Pradesh Co-operative Societies (Second Amendment) Act, 2001 (22/2001) to actions already taken prior to the amendment Act and completed by 25-4-2001 as the Act has no retrospective effect and not to take any coercive steps by way of recoveries or refixation of salaries and pass such other order or orders as are deemed fit and proper in the circumstances of the case."
6. During the year 1973, the Registrar of Co-operative Societies in exercise of the powers under Section 116-A of the Andhra Pradesh Co-operative Societies Act, 1964 (for short 'the Act') has constituted a common cadre in respect of the Paid Secretaries working in the PACS with a view to provide qualified Secretaries to the said Societies. It is the case of the writ petitioner-Union that under the "half-a-million job" programme of the Central Government, about 2000 Secretaries were appointed in the year 1973 on a consolidated pay of Rs. 150/- per month. All the existing Societies were reorganized in the year 1977 under the viability programme and about 15000 existing Societies were scaled down to 6562 Societies. After introduction of 'Single Window Scheme' the existing 6562 PACS were reduced to 4562 viable Societies in the year 1987.
7. The Andhra Pradesh State Legislature by way of amendment to the Act introduced Section 116-AA by which the common cadre for all categories of employees other than those specified in Section 116-A of the Act, constituted before the commencement of the Andhra Pradesh Co-operative Societies (Amendment) Act, 1985 and existing at such commencement, were abolished. The Registrar was accordingly empowered to allot, subject to such rules as may be made in that behalf, the employees included in the cadre so abolished to Primary Agricultural Cooperative Societies.
8. The constitutional validity of Section 116-AA of the Act has been challenged in WP No. 15506 of 1989 and this Court by its order dated 10-10-1991 having upheld the constitutional validity of the said provisions directed the State Government to evolve a scheme for providing a suitable post in case of retrenchment of any of those petitioners who challenged the constitutional validity after they are allotted to various PACS.
9. It is unnecessary to notice the details relating to the settlement between the writ petitioner-Union and the State Government resulting in issuance of Memo No. 5661/Coop.III/2/91-l, dated 14-10-1991 whereunder the Government inter alia agreed, in principle, to revise the pay scales of Paid Secretaries so as to bring them on par with the Supervisor-V Cadre of the District Co-operative Central Banks together with Dearness Allowance and other allowances with effect from 1-1-1991 to be paid by the concerned PACS as per the norms prescribed by the Registrar. It has been decided to abolish the Cadre fund and to collect the dues, if any, and to create a Corpus Fund by raising resources to enable prompt payment of salaries particularly by the financially weak and vulnerable societies. Mutual transfers of Paid Secretaries were accordingly permitted.
10. Within a very short span of time, the Commissioner for Co-operation and Registrar of Co-operative Societies vide proceedings dated 14-2-1992 issued appropriate directions to all the concerned to await further instructions in respect of implementation of the decision of the Government contained in the said Memo dated 14-10-1991 on the ground that the Government have been working out the modalities to create a Corpus Fund to meet the financial requirements in the process of implementation of the said Memo.
11. The writ petitioner-Union challenged the validity of the said proceedings dated 14-2-1992 in WP No. 16558 of 1992 and Batch. A Division Bench of this Court by its order dated 13-8-1996 disposed of the said batch of writ petitions directing the State Government to constitute a Committee to consider the issue relating to pay scales of Paid Secretaries and their allotment to PACS after taking into consideration the views of the representatives of the A.P. State Co-operative Bank, District Cooperative Central Banks, Primary Agricultural Co-operative Societies as well as the members of the writ petitioner-Union in accordance with the provisions of the Act and the rules made thereunder, within six months from the date of receipt of the order.
12. The members of the writ petitioner-Union at all points of time insisted that the posts of Paid Secretaries held by them are equivalent to the posts of category-V Supervisors in the District Co-operative Central Banks. This assertion of the members of the writ petitioner-Union is obviously based upon the Government Memo dated 14-10-1991 referred to hereinabove.
13. The Registrar of Co-operative Societies by proceedings dated 18-6-1997 introduced the revision of pay scales so far as the employees working in the District Co-operative Central Banks in the State of Andhra Pradesh are concerned with effect from 1-4-1996 under the settlement dated 16-6-1997 purported to have been entered into with the employees of the District Co-operative Central Banks. The scales were accordingly revised by the District Co-operative Central Banks in the State under the permission granted by the Registrar of Co-operative Societies. However, the said benefit was not extended so far as the Paid Secretaries are concerned. The Registrar by the proceedings dated 25-9-1997 directed all the District Co-operative Officers to recover, from the salaries of the members of the petitioner-Union, the amounts, which were earlier paid to them on par with category-V Supervisors of the District Co-operative Central Banks.
14. The case of the State is that the posts held by the members of the writ petitioner-Union as Paid Secretaries in various PACS are not equivalent to the posts of Supervisors of District Co-operative Central Banks. The pay scales of the employees of the District Co-operative Central Banks were approved by the competent authority in exercise of the power vested under Section 116-C of the Act.
The sum and substance of the case of the State is that unless the pay scales of Paid Secretaries of PACS are approved by the competent authority as per Section 116-C of the Act and unless such a decision has been taken by the Registrar fixing the pay scales, no such pay scales can be drawn by them from the concerned Societies equating themselves on par with category-V Supervisors of District Co-operative Central Banks.
15. Be it as it may, in pursuance of the order of this Court in W.P. No. 16558 of 1992 and Batch, dated 13-8-1996 the Government constituted a Committee of Officials vide G.O. Ms. No. 1338. dated 23-12-1996 to study the whole issue and make recommendations after ascertaining the views of all the concerned. The Committee submitted its report to the Government. The Government having examined the report of the Committee of the Officials referred the matter to the Cabinet Sub-Committee constituted for further examination of the issue. The Cabinet Sub-Committee made its recommendations. The Government having regard to the magnitude and the complexity of the problem referred the matter for further examination to another Cabinet Sub-Committee constituted by the Government vide G.O. Ms. No. 71. Agriculture and Cooperation Department, dated 25-3-2000 to go into the general working of Co-operatives and suggest measures to make the Cooperatives viable, self-reliant, effective and accountable to members. The Cabinet Sub-Committee having studied the issue and having made in depth analysis of the problem formulated its recommendations and submitted a comprehensive report to the Government. The Government having taken all the relevant factors into consideration including various reports issued G.O. Ms. No. 314, Agriculture and Co-operation (Co-op.III) Departmerit, dated 26-12-2000 ultimately cancelling the Memo dated 14-10-1991 earlier issued by the Government and referred to hereinabove. The said G.O., issued by the Government is self-explanatory.
16. The Government having taken all the relevant facts including various orders passed by this Court from time to time at the instance of the writ petitioner-Union and having taken into account the unbearable burden that may be imposed upon the Primary Agricultural Co-operative Credit Societies on account of fixing pay scales of the Paid Secretaries and considering the resources available with the Societies and all other relevant factors including the interest of the employees came to the conclusion that the matter should be left to the Societies to exercise their power under Section 116-C of the Act for the purpose of fixation of pay scales of Paid Secretaries. The Government thus decided that the matter of fixing up of strength of the establishment, staffing pattern and scales of pay and othr allowances of employees should be left to be decided by the PACS with the prior approval of the Registrar of Societies as laid down under the provisions of Section 116-C of the Act and the rules made thereunder.
17. The writ petitioner-Union filed W.P. No. 21488 of 2000 and Batch challenging the validity of said G.O. Ms. No. 314, dated 26-12-2000. The operation of the said G.O. was kept under suspension under the interim order dated 3-1-2001 passed by a learned Single Judge of this Court, against which W.A. Nos. 424 and 425 of 2001 were filed by the State. A Division Bench of this Court disposed of the said writ appeals as well as writ petitions vide its judgment dated 16th October, 2001 upholding the validity of the said G.O. The Special Leave Petitions filed against the Judgment in the said writ appeals were rejected by the Supreme Court.
18. In A.P. State Co-operative Societies, Secretaries and Employees Association, Nizamabad v. State of A.P., (DB), the constitutional validity of Section 116-AA as well as Section 116-C of the Act had fallen for consideration. This Court speaking through S.B. Sinha, CJ (as he then was) observed:
"The conditions of service of different persons working under different Co-operative Societies may vary. Each Co-operative Society is entitled to lay down its own service conditions. The only statutory requirement is that same must be approved by the Registrar of Co-operative Societies in terms of Rule 72 of the A.P. Co-operative Societies Rules. Only because, there is a possibility of different Co-operative Societies fixing different remunerations for their Paid Secretaries in terms of Section 116-AA, it would not attract Article 14 of the Constitution. Each Co-operative Society must fix its staffing pattern and also fix the remuneration payable to employees in such a manner so that the provisions of Section 116-C are not violated. The employees of each Co-operative Society would form a different class and in that view of the matter in our opinion, even no discrimination can be alleged, nor Article 14 of the Constitution would be violated thereby...... We therefore, are of the opinion that no case has been made out for holding that the provisions of Sections 116-AA and 116-C of the Act are unconstitutional."
19. The writ petitioner-Union once again filed W.P. No. 28473 of 1997 challenging the constitutional validity of Section 116-C as amended by Amendment Act 22 of 2001. In the said writ petition they have prayed to issue a writ of mandamus declaring the action of the authorities in not applying the revision of pay scales with effect from 1-4-1996 on par with the Category-V Supervisors of the District Co-operative Central Banks and applying the earlier scales of pay to the members of the petitioner union as arbitrary, illegal, unjust and against the principles of natural justice. A Division Bench of this Court, to which one of us is a member (B.Sudershan Reddy, J), dismissed the said writ petition by its order dated 12-7-2002, as reported in A.P. State Co-operative Societies Secretaries and Employees Union v. Government of A.P., (DB), upholding the constitutional validity of Section 116-C as well as Section 116-AA of the Act. This Court held that the said provisions cannot be said to be irrational, nor they can be characterised as discriminatory in their nature. The Court accordingly declared that the members of the writ petitioner-Union are not entitled for pay sacles/revised pay scales on par with category-V Supervisors in the District Cooperative Central Banks and they cannot equate themselves with any other employees including Category-V Supervisors of the District Co-operative Central Banks. The Paid Secretaries are the employees of the concerned society and the society with the prior approval of the Registrar is empowered and entitled to fix the staffing pattern, qualifications, pay scales and other allowances for its employees subject to the condition that the expenditure towards pay and allowances of the employees shall not exceed two per cent of the working capital or thirty per cent of the gross profit, in terms of actuals in a year, whichever is less.
20. The present writ petition has been filed with a prayer, which we have already noticed, on the basis that the respondents were taking steps to reopen the entire issue and to recover the excess amount of salary drawn by the Paid Secretaries under the Memo dated 14-10-1991. It was inter alia contended before the learned Single Judge as well as before us that Act 22 of 2001 making amendments to Section 116-C of the Act has no retrospective effect and, therefore, the respondents cannot be permitted to apply the said provision in order to recover the salaries already paid to the Paid Secretaries working in various societies in the State of Andhra Pradesh.
21. We must confess that in spite of our best efforts we were unable to discern any specific cause of action for filing the present writ petition. The averments made in the affidavit filed in support of the writ petition are totally vague and indefinite. Some of the averments made are even unintelligible. The prayer made itself is somewhat unintelligible. The writ petitioner-Union seeks some sort of a general declaration prohibiting the respondents-authorities from taking action under Section 116-C of the Act.
22. The learned Additional Advocates General, Sri D. Prakash Reddy and Sri Ramesh Ranganathan, contended that the judgment of the learned Single Judge runs counter to both the Division Bench Judgments referred to hereinabove. They have contended that the members of the writ petitioner-Union have drawn amounts for which they were not entitled under the interim orders granted by this Court and since the main writ petitions themselves were dismissed, the Societies concerned would certainly be entitled to take steps for recovery of the amounts drawn in excess of the entitlement from the members of the writ petitioner-Union.
23. Sri S.Ramachandra Rao, learned Senior Counsel appearing on behalf of the writ petitioner-Union, contended that the members of the writ petitioner-Union were paid salaries on par with Category-V employees of District Co-operative Central Banks under Memo dated 14-10-1991, which remained in force until the Government issued G.O. Ms. No. 314, dated 26-12-2000 cancelling the said Memo dated 14-10-1991 and such payments made cannot be recovered as it were made under a lawful order of the Government. It was also contended that the Paid Secretaries would become employees of the Societies concerned only after proper allotment is made. Irrespective of the merits and legality of pay scales, the payments made in pursuance of the orders of this Court, cannot be recovered since the drawal of such pay scales and amounts by the members of the writ petitioner-Union was not on account of any fraud or misrepresentation made by them. Reliance has been placed upon the decisions of the Supreme Court in Stale of Haryana v. Haryana Civil Secretariat Personal Staff Association, and Shramik Uttarsh Sabha v. Raymond Woolen Mills Ltd., , in this regard.
24. A Division Bench of this Court in W.A. Nos. 424 and 425 of 2001 and W.P. Nos. 21488 of 2000 and Batch in clear and categorical terms held that the Primary Agricultural Co-operative Societies being the pay-masters to the Paid Secretaries are not the parties to the Memorandum of Understanding reached between the writ petitioner-Union and the Government resulting in issuance of Memo dated 14-10-1991. They had not been given an opportunity of being heard. "Such a purported understanding - whether termed as an agreement or not, was ex facie not enforceable against the District Co-operative Central Banks and Primary Agricultural Co-operative Societies." The Division Bench further took the view that the Primary Agricultural Co-operative Societies and District Co-operative Central Banks are autonomous body corporate under the Act. In terms of the provisions of the Act, the State Government has no right to enter into any Memorandum of Understanding with the Paid Secretaries of PACS. The Division Bench having noted that the State Government does not bear the grant-in-aid to the Co-operative Societies towards the salaries of the paid Secretaries held that it could not have entered into such an understanding and agreement dated 14-10-1991 without any financial commitment by the State resulting in burden on the Societies and that too without any notice to them. It is for the Co-operative Societies to fix the service conditions including the pay scales of the employees and the Government has no power to fix the same. This Court further observed:
"The history of litigation, in the instant case, shows that payments to the Paid Secretaries at par with Supervisor Category-V of District Co-operative Central Bank, as also the revised pay scales, were being made only pursuant to the orders of this Court and not by reason of any policy decision, except the said purported understanding dated 14-10-1991. The writ petitioners, therefore, cannot be heard to say that there would be violation of principles of natural justice if they are deprived from the said benefit."
25. The Division Bench further found that the said agreement dated 14-10-1991 was void and inoperative so far as the Cooperative Societies are concerned. The Division Bench accordingly upheld G.O. Ms. No. 314, dated 26-12-2000 whereunder the Memo dated 14-10-1991 has been cancelled. The whole of the claim of the writ petitioner-Union is based upon the Memo dated 14-10-1991 which remained in operation for a brief period since the same has been kept in abeyance by the Commissioner for Cooperation and Registrar of Co-operative Societies by proceedings dated 14-2-1992. Thereafter, the members of the writ petitioner-Union, if at all, derived the benefit under the said Memo in view of the interim orders granted by this Court from time to time. In none of the decisions, this Court expressly upheld the validity of the Government Memo dated 14-10-1991. The members of the writ petitioner-Union have fixed their salaries for themselves under the Memo dated 14-10-1991, which was ultimately cancelled by the Government in G.O. Ms. No. 314, dated 26-12-2000, which has been upheld by this Court in the manner referred to hereinabove.
26. We have already noticed that this Court in more than one decision upheld the constitutional validity of Section 116-AA as well as Section 116-C of the Act. Even prior to the amendment of Section 116-C on 25-4-2001, the said Section as per Act 21 of 1985, which came into effect from 22-4-1985, provided that a society shall have the power to fix the staffing pattern, qualifications, pay scales and other allowances for its employees with prior approval of the Registrar of Co-operative Societies and the scales of pay as so approved by the Registrar of Co-operative Societies are required to be implemented.
27. It is thus clear that the very basis on which the members of the writ petitioner-Union assert their claim itself has been declared void and inoperative while upholding the G.O. Ms. No. 314, dated 26-12-2000 issued by the Government cancelling the Memo dated 14-10-1991. Thus, we find that there is no legal basis for fixation of pay scales of Paid Secretaries on par with Category-V Supervisors of District Cooperative Central Banks. The fact remains that no PACS fixed the staffing pattern, pay scales and allowances payable to the Paid Secretaries so far. The Societies are now duty bound to implement the provisions of Section 116-C of the Act as amended and accordingly fix the pay scales and such fixation has a direct nexus to the financial viability of the Society concerned.
28. Section 116-C of the Act commands that the power to fix the staffing pattern, qualifications, pay scales and other allowances for its employees with the prior approval of the Registrar of Co-operative Societies itself is subject to the condition that the expenditure towards pay and allowances of the employees shall not exceed two per cent of the working capital or thirty per cent of the gross profit, in terms of actuals in a year whichever is less. Each society is an autonomous institution and is entitled to fix the pay and allowances of its employees with the prior approval of the Registrar of the Co-operative Societies. Such fixation, obviously, depends upon the financial resources and the funds at its command. Neither the Government nor the Registrar has any power to fix the pay and allowances of any employee working in the Co-operative Societies including that of the Paid Secretaries. Even the Co-operative Society cannot fix the pay and allowances in such a manner whereby expenditure towards the pay and allowances exceeds two per cent of the working capital or thirty per cent of the gross profit, in terms of actuals in a year whichever is less.
29. Even prior to the incorporation of Section 116-C of the Act in the year 1985, the Government had no power to fix the pay and allowances of any employee working in the Co-operative Societies. It is under those circumstances, the Memo under which the directions have been issued fixing the pay and allowances of Paid Secretaries on par with Category-V employees of the District Co-operative Central Banks was held to be void and inoperative.
30. In our considered opinion, there are not only no legal impediments for fixing the pay and allowances of employees by the Society concerned, but the Society is also duty bound and under legal obligation to fix the pay and allowances in terms of Section 116-C of the Act. No other course is permissible.
31. The writ petitioner-Union, in the instant writ petition, does not challenge any particular order directing the recovery of any specified amount as such from any of its members. No doubt, during the course of hearing of the writ appeals, certain proceedings of the Divisional/ District Cooperative Officers are shown wherein certain recoveries are directed to be made on the ground that the concerned Paid Secretary had drawn salaries over and above the entitlement. Most of them appear to have come into existence after filing of the writ petition. The fact remains that the validity of those orders was never put in issue.
32. Sri S. Ramachandra Rao, learned Senior Counsel appearing on behalf of the writ petitioner-Union, however, drawn our attention to the proceedings dated 2-1-2002 issued by the Registrar of Co-operative Societies directing the District Co-operative Officer, Kakinada, East Godavari District to take appropriate action keeping in view the High Court's Orders in W.A.Nos.424 and 425 of 2001 and W.A. No. 464 of 2001 etc. In the said proceedings, it is inter alia pointed out that every PACS should adopt the pay scales under Section 116-C of the Act with the prior approval of the Registrar of Co-operative Societies from the date of the orders of this Court in W.A. Nos. 424 and 425 of 2001 i.e., from 16-10-2001.'
33. Another proceedings dated 10-8-2002 issued by the Commissioner and Registrar of Co-operative Societies is also placed before us whereunder the Registrar directed the Managing Committees of PACS to fix up the staffing pattern and pay scales of their employees and other allowances in accordance with Section 116-C of the Act and submit the proposals for approval within 45 days from the date of receipt of the said proceedings. In turn, circulars appear to have been issued by the District Cooperative Officers directing the PACS to implement the directions of the Registrar. We fail to appreciate as to how those directions issued by the Registrar of Cooperative Societies suffer from any legal infirmity. The directions issued are only to the effect to implement the statutory provisions, which the Societies are bound to implement even in the absence of such directions issued by the Registrar of Co-operative Societies. The Registrar in purported exercise of power under Section 4(2) of the Act issued such directions in the interest of PACS and to ensure the smooth functioning of the societies in the matter of staffing pattern and pay scales for their employees. The directions issued are perfectly in order, legal and valid. Those proceedings do not give rise to any cause for filing the present writ petition.
34. In view of the decision of this Court declaring the Memo dated 14-10-1991 void and inoperative, upon which the whole claim of the members of the writ petitioner-Union is rested, there is no alternative except to implement the decision of this Court and recover the emoluments drawn by the Paid Secretaries in excess of their lawful entitlement towards pay and allowances. What is the excess amount drawn, if any, by each of the employees, depends upon the fixation of pay and other allowances by the Society concerned in respect of each of the Paid Secretaries/ employees in accordance with the Scheme formulated under Section 116-C of the Act and the rules framed thereunder. The members of the writ petitioner-Union are not entitled to resist the recovery proceedings for the reason that they have drawn the emoluments under the interim orders granted by this Court from time to time even after the Government Memo dated 14-10-1991 was kept in abeyance by the Registrar of Co-operative Societies vide orders dated 14-2-1992. Those interim orders granted by this Court have got themselves merged into the final orders whereunder no relief as such has been granted by this Court conferring any right upon the Paid Secretaries/employees of PACS to draw any particular emolument or pay scale as such.
35. This legitimate exercise to be undertaken by each of the PACS is sought to be interdicted at the instance of the writ petitioner-Union at every stage by resorting to filing writ petitions. Any amount of confusion is sought to be created by the writ petitioner-Union virtually preventing the authorities as well as the societies from implementing the mandatory statutory provisions contained in Sections 116-AA and 116-C of the Act. This Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot issue any writ of mandamus prohibiting the authorities concerned from giving effect to the statutory provisions and their implementation. Any such mandamus from this Court would -be destructive of rule of law, as it would amount to compelling the respondents-authorities not to obey the law.
36. The question whether the provisions in Section 116-C of the Act are prospective or retrospective in nature does not arise for consideration in this case. It is absolutely unnecessary to go into that aspect of the matter for the reason that even before the amendment of Section 116-C by Amendment Act 22 of 2001 on 25-4-2001, the Society had always the power to fix the staffing pattern, qualifications, pay scales and other allowances for its employees with the prior approval of the Registrar of Co-operative Societies. The present pay scales and allowances that are being drawn by the members of the writ petitioner-Union were not fixed by the society concerned after abolition of common cadre, nor the pay scales and allowances were fixed under any statutory provision, but were fixed and drawn by themselves under the Memo dated 14-10-1991 which has been declared void and inoperative.
37. In our considered opinion, none of the proceedings, which were shown to us during the course of hearing of the writ appeals, though not impugned, suffer from any illegality. All the authorities including the PACS are bound to implement the statutory provisions and accordingly fix the pay and allowances and other emoluments payable to its employees in accordance with Section 116-C of the Act. The societies are entitled to fix the salary, emoluments and other allowances of its employees in accordance with law even for the period before incorporation of Section 116-C and its subsequent amendment by Amendment Act 22 of 2001. The emoluments, pay scales and allowances that are to be fixed in respect of each of the employees by each of the societies may depend upon variety of facts and circumstances so far as they relate to the period prior to Section 116-C of the Act coming into operation with effect from 22-4-1985 is concerned, and so far as such fixation after 22-4-1985 is concerned the same is to be in accordance with the mandatory requirement under Section 116-C of the Act. Unless this exercise is undertaken and completed the question of recoveries as such does not arise. The quantum of amounts to be recovered from each one of the employees of the Society concerned depends upon such fixation of pay scales, emoluments and other allowances. It shall always be open to an aggrieved employee to raise a dispute about the quantum of the amount if any, sought to be recovered from such employee. Each of the proceedings proposing to recover the amount, if any, from each of the employees, is required to contain the complete details as to how the amounts sought to be recovered are arrived at.
38. It is unfortunate that the members of the writ petitioner-Union by indulging in chronic and vexatious litigation have created a situation virtually disabling the authorities concerned to proceed in the matter, which had ultimately resulted in extinction of various Societies. We find it not necessary to recall the earlier observations made by more than one Division Bench of this Court in the judgments referred to hereinabove that the Societies are not employment generating units, but have been formed for the welfare of its members. Each one of them is an autonomous body and entitled to function in accordance with its bye-laws subject to the provisions I of the Act. It is equally unfortunate that the State Government in its anxiety to cajole the members of the Union went on entering into settlements and agreements without any notice and approval of the Societies concerned involving them with extra financial burden. It is the Government Memo dated 14-10-1991, which had given rise to this avoidable, prolonged and vexatious litigation.
39. The next question that falls for consideration is whether the employer has no power to recover the excess amount drawn by its employees ?
40. It was contended that the payments made earlier towards agreed remmeration cannot be recovered for any reason whatsoever.
41. The observations made by the Supreme Court in Shyam Babu Verma v. Union of India, , cannot be torn out of the context, but are required to be understood in the background leading to such observations, wherein the Court observed that "it shall only be just and proper not to recover any excess amount which has already been paid to them." The said observations do not support the contention that the excess amount drawn towards pay and other allowances without any authority of law can never be recovered. In that case, there was a serious dispute with regard to the entitlement of the petitioners therein to the pay scale of Rs. 330-480 in terms of the recommendations of the Third Pay Commission.The Court found that the petitioners therein received the scale of Rs. 330-560 since 1973though they were not entitled but due to no fault of theirs. In the instant case, the PACS beingthe employer never fixed any pay scale and subsequently reduced the scales on its own. The attempt is to fix the pay scale now for the first time and recover the amounts, if any, found to be due drawn by the employees in excess of the pay scales for which they are legitimately entitled to.
42. Likewise, the observations made by the Supreme Court in P. Tulsi Das and Ors. v. Government of A.P. and Ors. 2002 (7) Supreme 524, do not lend any support to the proposition sought to be canvassed by the learned Senior Counsel appearing on behalf of the writ petitioner-Union. In the said decision, Sections 2 and 3 of Andhra Pradesh Educational Service Untrained Teachers (Regulations of Services and Fixation of Pay) Act, 1991 were struck down as violative of Articles 14 and 16 of the Constitution of India as those provisions were brought into force with retrospective effect to take away the vested rights of the appellants therein. In the instant case, no vested right of the members of the writ petitioner-Union is sought to be taken away.
43. Similarly, the decision in Haryana Civil Secretariat Personal Staff Association (supra) does not render any assistance to the proposition sought to be canvassed by the learned Senior Counsel for the writ petitioner-Union. The Supreme Court having found that the High Court committed an error in allowing the writ petition and directing the authorities to grant the scale of Rs. 2000-3500 to the Personal Assistants of the State Civil Secretariat with effect from 1-1-1986, however, observed that if any of the Personal Assistant serving in the Haryana State Civil Secretariat has/ have received any additional emolument in pursuance of the judgment of the High Court, such amount will not be recovered from him/them. Those observations were made having regard to the fact that there was a possibility of some of the writ petitioners therein to have received the additional emoluments pursuant to the final judgment of the High Court. In the case on hand, there is no judgment under which the members of the writ petitioner-Union have drawn any particular pay scale, allowances and other emoluments.
44. For the aforesaid reasons, we find it difficult to sustain the judgment under appeal. The same is accordingly set aside.
45. The writ appeals are allowed subject to the observations made hereinabove. No order as to costs.
WP No. 8522 of 200346. For the very same reasons recorded in WA Nos. 32 and 413 of 2003 supra, the writ petition fails and shall accordingly stand dismissed. No order as to costs.