Allahabad High Court
Pradeshik Cooperative Dairy ... vs Rakesh Kumar Soni & 143 Others (Inre 6400 ... on 12 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 1488, 2019 (6) ALJ 737
Bench: Pankaj Kumar Jaiswal, Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Case :- SPECIAL APPEAL No. - 159 of 2016 Appellant :- Pradeshik Cooperative Dairy Federation,Thru.Chairman & Anr. Respondent :- Rakesh Kumar Soni & 143 Others (Inre 6400 S/S 2015) Counsel for Appellant :- Sudeep Seth Counsel for Respondent :- C.S.C.,Rakesh Kumar Nigam WITH Case :- SPECIAL APPEAL No. - 210 of 2016 Appellant :- Pradeshik Cooperative Dairy Federation Lko.And Anr. Respondent :- Dhruv Raj Maurya And Ors. 6343(S/S)2015 Counsel for Appellant :- Sudeep Seth Counsel for Respondent :- C.S.C.,Kush Singh,Nirbhay Kumar Singh,Rakesh Pathak,Vyas Narain Shukla WITH Case :- SPECIAL APPEAL No. - 211 of 2016 Appellant :- Pradeshik Cooperative Dairy Federation Lko.And Anr. Respondent :- Sashi Kant Trivedi And Ors. 7481(S/S)2015 Counsel for Appellant :- Sudeep Seth Counsel for Respondent :- C.S.C.,Alok Singh Chauhan,Atul,Rishabh Kapoor WITH Case :- SPECIAL APPEAL No. - 220 of 2016 Appellant :- Pradeshik Cooperative Dairy Federation Lko.& Anr.7200(S/S)15 Respondent :- Trimohan Pandey And Ors. Counsel for Appellant :- Sudeep Seth Counsel for Respondent :- C.S.C.,Rakesh Kumar Nigam WITH Case :- SPECIAL APPEAL No. - 224 of 2016 Appellant :- Pradeshik Cooperative Dairy Federation Lko.& Anr. Respondent :- Rajendra Prasad Mulasi & Ors. 6236(S/S)2015 In 527(Revpd)15 Counsel for Appellant :- Sudeep Seth Counsel for Respondent :- C.S.C.,Ashutosh Shukla,R.K.Nigam,Vinod Kumar Singh WITH Case :- SPECIAL APPEAL No. - 225 of 2016 Appellant :- Pradeshik Cooperative Dairy Federation Lko.& Anr. Respondent :- Sudhir Kumar Bajpai & Ors. 6997(S/S)2015 Counsel for Appellant :- Sudeep Seth Counsel for Respondent :- C.S.C.,Ashutosh Shukla,R.K.Nigam,Vinod Kumar Singh WITH Case :- SPECIAL APPEAL No. - 230 of 2016 Appellant :- Pradeshik Cooperative Dairy Federation Lko.And Anr. Respondent :- Vinod Kumar Dubey And Anr. 1769(S/S)2016 Counsel for Appellant :- Pankaj Patel Counsel for Respondent :- C.S.C.,Ashutosh Shukla,R.K.Nigam WITH Case :- SPECIAL APPEAL No. - 231 of 2016 Appellant :- Pradeshik Cooperative Dairy Federation Lko.And Anr. Respondent :- Ramakant Trivedi And Anr. 384(S/S)2016 Counsel for Appellant :- Pankaj Patel Counsel for Respondent :- C.S.C.,Ashutosh Shukla,Nirbhay Kumar Singh WITH Case :- SPECIAL APPEAL No. - 234 of 2016 Appellant :- Pradeshik Cooperative Dairy Federation Lko.And Anr. Respondent :- Gauri Shankar Tripathi & Ors. 2229(S/S)2016 Counsel for Appellant :- Pankaj Patel Counsel for Respondent :- C.S.C.,Ashutosh Shukla,Vinod Kumar Singh WITH Case :- SPECIAL APPEAL No. - 232 of 2016 Appellant :- Pradeshik Cooperative Dairy Federation Lko.And Anr. Respondent :- Rajeshwar Chaudhary & Anr. 294(S/S)2016 Counsel for Appellant :- Pankaj Patel Counsel for Respondent :- C.S.C.,Ashutosh Shukla WITH Case :- SPECIAL APPEAL No. - 235 of 2016 Appellant :- Pradeshik Cooperative Dairy Federation Lko.And Anr. Respondent :- Anil Kumar Shukla & Ors. 243(S/S)2016 Counsel for Appellant :- Pankaj Patel Counsel for Respondent :- C.S.C.,Ashutosh Shukla,R.K.Nigam,Vinod Kumar Singh Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Jaspreet Singh,J.
1. Heard Sri Sudeep Seth, learned Senior Advocate assisted by Sri Manoj Kumar, Advocate and Sri Pankaj Patel, Advocate, learned counsel for the appellants, Sri Vinod Kumar Singh, learned Senior Advocate, Sri Rakesh Kumar Nigam and Sri Atul, learned counsel for the respondents no. 1 to 143 and Sri Manish Mishra, learned Standing Counsel for the respondent no. 144.
2. These special appeals involve a common question of law and fact, hence, we proceed to decide the same by this common judgment with the consent of learned counsel for the parties.
3. The private respondents-writ petitioners, in all these appeals, are the employees of Pradeshik Cooperative Dairy Federation (hereinafter referred to as 'the PCDF') which is an Apex Cooperative Society, registered under the provisions of the U.P. Cooperative Societies Act, 1965 (in short 'the Act, 1965').
4. The respondents-writ petitioners were appointed in the year 1983-86 as class II and class IV employee under PCDF on the post of Field Supervisor, Lab Assistant, Account Assistants Sahayogi, Peon etc. After completing about more than 30 years of service were working on the same post without being granted any single promotion in their service career.
5. On 17.03.1994 PCDF adopted the Government Order dated 03.06.1989 for its employees. All the writ petitioners were granted selection grade on completion of 10 years satisfactory service between 1988-1998 and granted promotional pay scale on completion of 14 years of satisfactory service. Thereafter PCDF implemented the recommendation of fifth pay commission report as modified by the pay Committee of the State Government.
6. In 1989 State Government evolved a scheme of time scale benefits to remove stagnation to its employees and provided that when a person will complete 10 years satisfactory service on a post, then he will be granted selection grade and when he further completes 06 year more of satisfactory service and thus complete a total of 16 years service on a post then he will be provided promotional pay scale on personal basis. In 1995 it modified the qualifying years from 10 to 8 and from 16 to 14 years of service to 08 and 14 years service.
7. On 02.12.2000 a Government Order was issued for government servants prescribing a scheme for grant of selection grade, time scale, first promotional pay scale, second promotional pay scale etc. based on completion of a particular period of regular and satisfactory service. On 27.11.2006 the Board of Directors of the PCDF passed a resolution adopting the said Government order dated 02.12.2000 so as to extend the said benefits to its employees also. Under the aforesaid scheme, if a person has been working on the same post for a period of 8 years then he was entitled to get one additional increment as selection grade in his pay scale in which he was working. On completion of 14 years of regular and satisfactory service including 6 years in the selection grade he was entitled to the first promotional pay scale even though he may not have been actually promoted. On completion of 19 years regular and satisfactory service including 5 years in the first promotional pay scale he was entitled to one additional increment in the first promotional pay scale. On completion of 24 years of regular and satisfactory service, such a person was entitled to second promotional pay scale.
8. As per requirement of law the resolution dated 27.11.2006 was sent to the Registrar for its approval which was granted on 28.01.2009. As the PCDF and its units were facing financial crisis, therefore, matter was again referred to the Board of Directors which took a decision on 27.07.2007 re-affirming the benefits admissible under the scheme but restricting its implementation with effect from 27.07.2007 i.e. the arrears of due amount were not to be paid.
9. On 05.11.2007 the State Government directed PCDF that the financial benefit made admissible by the State Government to its employees would not be applicable automatically in PCDF and Milk Unions and the same should be made admissible keeping in view their financial condition and after prior approval of the State Government. This decision was not implemented by the PCDF and the matter was again sent to the Registrar on 28.01.2009, who approved the extension of the said benefit, however, with the condition that the same would be given effect from 27.07.2007 i.e. no arrears would be paid for the period prior to it.
10. Consequent to the aforesaid approval of Registrar, executive orders were issued by the Managing Director on 31.01.2009, in terms of aforesaid approval for extending the benefit accordingly. The writ petitioners, who had already completed the requisite period of 19 years and 24 years regular and satisfactory service but the benefits of pay scale were not given to them.
11. Some of the similarly situated employees of the PCDF filed Writ Petition No. 7486 (SS) of 2013 based on the aforesaid decision of the Registrar dated 28.01.2009 and other resolutions and orders of the PCDF, which was disposed of vide order dated 12.12.2013 with the direction to the Managing Director of the PCDF to examine the grievance of the writ petitioners and to pass appropriate orders on the same in accordance with law and to ensure payment of current salary in pursuance of the decision dated 31.01.2009 and payment of arrears in phased manner. The relevant part of the order dated 12.12.2013 reads as under:
"In view of the above, the Managing Director, Pradeshik Co-op. Dairy Federation Ltd, Lucknow is hereby directed to examine the grievance of the petitioners and pass appropriate orders on the same in accordance with law. He will also ensure that the petitioners be given at least current salary in pursuance of the decision dated 31.01.2009 (Annexure no. 10 to this writ petition). As far as arrears is concerned, the same may be paid to the petitioners in phased manner."
12. Against the aforesaid decision Special Appeal (Defective) No. 255 of 2014 was filed by the PCDF which was dismissed vide order dated 02.08.2014 with the following observations:-
"We have gone through the impugned judgment. The learned Single Judge has recorded findings of fact on the basis of cogent material on records, which, in our view, are sound reasons for disposing of the writ petition. Therefore, it cannot be said that the findings recorded by the learned Single Judge are perverse or contrary to the material on record. It is settled law that the findings of fact cannot be upset unless perversity is shown.
Learned Counsel for the appellants has failed to show any perversity in the impugned judgment and order passed by the learned Single Judge.
Accordingly, the special appeal is dismissed."
13. Against the said judgment of the Division Bench, Special Leave Petition (C) CC No (s) 10783 of 2015 was filed by the PCDF and (the official appellants) which was dismissed vide order dated 10.07.2015.
14. Being aggrieved a Review Petition was filed by the PCDF for reviewing the judgment and order dated 10.07.2015, which also came to be dismissed by the Apex Court on 15.09.2015 with the following observations:-
"We have perused the Review Petition and record of the Special Leave Petition and are convinced that the order of which review has been sought does not suffer from any error apparent warranting its reconsideration.
The Review Petition is, accordingly, dismissed."
15. Thereafter, Writ Petition No. 6263 (SS) of 2015 was filed before this Court. As the issues had already been decided in the earlier round of proceedings which had attained finality upto the Supreme Court, therefore, the said writ petition was disposed of vide order dated 28.10.2015 which reads as under:-
"Heard learned counsel for the parties.
The petitioners, one of whom has retired from services, are claiming one additional pay scale on completion of 19 years and time scale/promotion on completion of 24 years of services in terms of Government Order dated 02.12.2000 and the order of the opposite party 3 dated 31.01.2009 in the light of the judgment and order dated 12.12.2013 passed by this Court in Writ Petition No. 7486(SS) of 2013 which is said to be affirmed by the Hon'ble Supreme Court in Leave Petition (C) No. 10783 of 2015 vide order dated 10.07.2015.
Be that as it may, without adjudicating the claims of the petitioners on merits, the writ petition is disposed of with liberty to the petitioners to file a detailed representation before the opposite party no. 3-Managing Director, Pradeshik Coop. Dairy Federation, 29, Park Road Lucknow raising their grievance as has been raised in this writ petition within a period of two weeks from today. In such an eventuality, the opposite party no. 3 shall look into the matter to ascertain the factual position with regard to the petitioners and their entitlement to the relief claimed keeping in mind the judgment of this Court dated 12.12.2013 passed in Writ Petition No. 7486(SS) of 2013 including its applicability to the petitioners and shall take a considered decision within a period of next two months. The decision so taken shall be communicated to the petitioners forthwith.
If the petitioners are found eligible and entitled for the relief claimed then they shall be provided the relief without unnecessary delay.
This exercise shall be done without prejudice to the rights of the petitioners for applying for V.R.S. subject to the conditions of V.R.S. With the aforesaid observations, the writ petition is finally disposed of."
16. Being aggrieved, the PCDF had filed a review petition being Review Petition (Defective) No. 527 of 2015 seeking review of the aforesaid order dated 28.10.2015 which was decided on 09.12.2015.
17. As the benefits of first and second promotional pay-scale, after completion of 19 years and 24 years regular and satisfactory service were not given to the writ petitioners, who are class III and class IV employees, they filed the writ petition relying upon the decision of the Board of Directors, the Registrar and the Managing Director in support of their claim and prayed for grant of additional increment to them.
18. The prayer of grant of additional benefit was opposed by the appellants on the ground that the provisions contained in Regulation 33 of the U.P. Co-operative Dairy Federation Employees Service Regulations, 2010 (hereinafter referred to as 'the Regulations, 2010') could not be brought to the notice of the Court in the earlier proceedings. The PCDF and its units were facing grave financial crisis and were not in a position to pay such a huge amount to its employees. It has had to take loan from the State Government for running the units, though, not for payment of salaries to its employee. It is also stated that after dismissal of special leave petition and with the highly deteriorated financial condition of the PCDF and Milk Unions, the Interim Managing Committee of PCDF took decisions on 15.05.2015, 24.09.2015, 07.10.2015 and 19.12.2015 of the VRS scheme for officers and employees, determination of staff strength, merger of Milk Unions etc. Out of 1224 category of class III and class IV employees, 1089 applied for VRS and 634 were found eligible and were approved for granting VRS and 590 of class III and Class IV employees were retained in the PCDF.
19. As per counter affidavit their stand is that the PCDF and Milk Unions being body corporate, are governed by the Act, Rules and Byelaws, which is a complete code in itself. The services of the writ petitioners were governed by the U.P. Co-operative Societies Employees Service Regulations, 1975 (hereinafter referrerd to as 'the Regulations, 1975') and with effect from 08.11.2010 same are governed by the U.P. Co-operative Dairy Federation Employees Service Regulations, 2010 (hereinafter referred to as 'the Regulations, 2010'). The employees and officers were entitled for enhancement of pay scale subject to the provision in the budget, requirements of business, financial capacity of or resources available to the Society to bear the cost and any resolution to be passed by the Committee of Management for expansion of staff or enhancement of pay scale ought to indicate reasons and financial capacity of or resources available to the Society to bear the cost.
20. In the Regulations, 1975 there was no provision for time scale of pay and promotional pay scale as distinctively provided in Regulation 33 of the Regulations, 2010, hence the time scale and promotional pay scale Government Orders issued by the State Government were neither applicable nor admissible to the employees of the PCDF under the Regulations, 1975. The time scale and promotional pay scale on completion of 19 and 24 years of service is admissible to the employees of PCDF and Milk Unions subject to the PCDF/Milk Unions being financially able to bear the additional expenditure, under Regulation 33 of the Regulations, 2010. The Regulations, 2010 are almost identical to the Regulations, 1975 and as per Regulations 3 and 10 of the Regulations, 1975 and the proviso appended to Regulations 33 of the Regulations, 2010 to grant of financial benefit to the employees would be subject to the financial capacity or resources available to the Society to bear the expenditure.
21. One of the contention was that once the Regulations, 2010 came into force with effect from 08.11.2010 i.e. the date of its publication in Government Gazette then it was not open for the writ petitioners to claim any benefit under the Government order dated 02.12.2000 nor under the decisions of the Board of Directors and the Registrar taken prior to 08.11.2010. The earlier decisions of this Court and the Supreme Court were rendered per-incurrium as the provisions contained in Regulation 33 of the Regulations, 2010 was not taken into consideration and prayed for dismissal of the writ petition.
22. The stand of the private respondents-writ petitioners, who are class III and class IV employees of PCDF before the learned Writ Court was that similar benefit was granted to class I and class II employees and they pleaded this fact in paragraph no. 21 of the writ petition, which has not been disputed by the Department as is evident from paragraph no. 13 counter affidavit. The issue has travelled upto Apex Court and same has attained finality. The appellants are bound to follow the orders passed by the learned Writ Court in the earlier round of litigation.
23. Learned Writ Court, after appreciating the arguments of learned counsel for the parties, allowed the writ petition in terms of judgment and order dated 12.12.2013 passed in Writ Petition No. 7486 (SS) of 2013 and Review Petition Defective No. 527 of 2015. The relevant part of the order dated 09.12.2015 read as under:
"As far as the petitioners are concerned they have relied upon the decision of the Board of Directors, the Registrar and the Managing Director in support of their claim for grant of one additional increment in the first promotional pay scale on completion of 19 years of regular and satisfactory service and also for grant of second promotional pay scale on completion of 24 years of regular and satisfactory service.
Sri Lalit Shukla, learned counsel learned counsel has opposed the writ petitions and prays for reviewing the aforesaid order dated 28.10.2015 on the ground that the provisions contained in Regulation 33 of the U.P. Co-operative Dairy Federation Employees Service Regulations, 2010 (hereinafter referred to as 'the Regulations, 2010') could not be brought to the notice of the Court in the earlier proceedings whether it be Writ Petition No.7486 (SS) of 2013 or Writ Petition No. 6236 (SS) of 2015. 'The PCDF' and its units were facing grave financial crisis and were not in a position to pay such a huge amount to its employees. It has had to take loans from the State Government for running the units, though, not for payment of salaries to its employee. The contention was that once 'the Regulations, 2010' came into force with effect from 08.11.2010 i.e. the date of its publication in Government Gazette then it was not open for the petitioner to claim any benefit under the Government order dated 02.12.2000 nor under the decisions of the Board of Directors and the Registrar taken prior to 08.11.2010. The earlier decisions of this Court and the Surpeme Court were rendered per-incurrium as the provisions contained in Regulation 33 of 'the Regulations, 2010' was not taken into consideration. In this regard he relied upon the case of Municipal Corporation of Delhi vs. Gurnam Kaur reported in (1989) 1 SCC 101, Ram Chandra vs. State of U.P. and others reported in 2001 (3) HVD 223, Central Board of Dawoodi Bohra Community and another vs. State of Maharashtra and another reported in (2005) 2 SCC 673 and Delhi Administration (Now NCT of Delhi) vs. Manohar Lal reported in (2002) 7 SCC 222. He also contended that payment has to be made by 'the PCDF' / Milk Unions, as the case may be, as was ordered by the Registrar vide order dated 29.01.2010 A pointed query was put to the learned counsel for the 'the PCDF' as to whether any of the petitioners before the Court including petitioners of Writ Petition 6236 (SS) of 2015 had completed requisite 19 and 24 years of regular and satisfactory service after 08.11.2010, Sri Shukla very fairly and candidly submitted that it was not so. All of them completed the said period of service prior to 08.11.2010.
Regulation 33 of the Regulations 2010 reads as under:-
"On approval of Milk Commissioner/Registrar, the employee of P.C.D.F. and Milk Unions shall be allowed one increment selection grade on satisfactory completion of 8 years service, first promotional pay scale on satisfactory completion of 14 years service, one increment as selection grade on satisfactory completion of 19 years and second next pay scale on satisfactory completion of 24 years of service.
Provided that the said benefits shall be payable to employees when the federation/Milk Union is financially able to bear the additional expenditure. "
As already stated earlier, the Regulations 2010 came into force on 08.11.2010. The Government order dated 02.12.2000, the resolution of the Board of Directors of 'the PCDF' dated 27.11.2006, its approval by the Registrar dated 28.01.2009, the subsequent decision of the Board of Directors dated 27.07.2007 its approval by the Registrar Cooperative Societies dated 28.09.2009, issuance of consequential orders by the Managing Director on 31.01.2009 and also the completion of requisite 19 years and 24 years of regular and satisfactory service by the petitioners, all this had taken place prior to 08.11.2010. The rights of the petitioner under the Government order dated 02.12.2000, as adopted by 'the PCDF' on 27.12.2006, accrued and crystallized in their favour much prior to 08.11.2010, therefore, their entitlement and enforcement of their rights has to be considered in the light of factual and legal position as existing prior to 08.11.2010. By no stretch of imagination 'the Regulations, 2010' can be made applicable to the case of the petitioners. There is nothing in these Regulations to show that they have been given retrospective effect. In fact in Regulation (1)(3) of 'the Regulations, 2010' it has clearly been stated that these regulations shall come into force from the date of publication in the gazette. Indisputably, the publication has been made on 08.11.2010. In view of this, reliance placed by the opposite parties-applicants seeking review, on the basis of the said Regulations 2010 to defeat the claim of the petitioners, is misconceived and the same is rejected.
Though, the question of application of Regulation 33 looses its significance in view of consideration made hereinabove, however, to give a quietus to the matter it is put on record and also proved from the record that a specific plea was raised by 'the PCDF' and its official before the Division Bench in the Special Appeal (Defective) No. 255 of 2014 with respect to Regulation 33 of 'the Regulations, 2010'. Likewise a specific plea was raised in the Special Leave Petition before the Supreme Court but the same also did not find favour, a review application before the Supreme Court specifically raising the aforesaid plea had been filed stating the Supreme Court had failed to consider the provisions contained in Regulation 33 of 'the Regulations, 2010'. While dismissing the Special Leave Petition on 10.07.2015 the Supreme Court after considering the same, dismissed the review petition vide its order dated 15.09.2015 which has already been quoted hereinabove and a perusal of the same leaves no room for doubt that the Supreme Court did consider the said plea even though the Regulation may not have been referred specifically in the order. Obviously the said plea was not accepted in the earlier proceedings as the rights of litigants had accrued prior to 08.11.2010 i.e. the date of coming into force the Regulation 33 of 'the Regulations, 2010', therefore, the contention that the said plea was not considered in the earlier proceedings is rejected. Even otherwise for the reasons stated hereinabove as Regulation 33 of 'the Regulations, 2010' is not applicable to the case of the petitioner which relates to a period prior to 08.11.2010, reliance placed thereon and the judgments cited by the learned counsel for 'the PCDF' on the issue of per-incurrium is misconceived, the plea raised in this regard is rejected.
It is also not in dispute that the resolution of the Board of Directors, approval of the Registrar and the letter of the Managing Director dated 31.01.2009 have not been cancelled, rescinded or nullified by any authority or Court. In these circumstances there appears to be no reason whatsoever for the opposite parties not to fix the pay of the petitioners in the light of the decision already taken keeping in mind the judgment of this Court dated 12.12.2013 in Writ Petition No. 7486 (SS) of 2013 which has been upheld by the Supreme Court. The petitioners herein being similarly situated cannot be treated differently.
No other plea was raised by the counsel for either of the parties.
For the reasons aforesaid the writ petition nos. Service Single No. - 6997 of 2015, Service Single No. - 6236 of 2015, Service Single No. - 6400 of 2015 and Service Single No. -6343 of 2015 stand allowed in terms of the judgment dated 12.12.2013 passed in Writ Petition No. 7486 (SS) of 2013 and the Review Petition Defective No. - 527 of 2015 stands dismissed as there is no valid ground for reviewing the judgment dated 28.10.2015 passed in Writ Petition No. 6263 (SS) of 2015.The actions consequential to the aforesaid shall be taken by the opposite parties 2 and 3 within a period of three months from the date a certified copy of this order is produced before them.
24. The PCDF challenged the aforesaid judgment and order by filing these special appeals under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 on the ground that as per Regulation 3, 10, 23, 37 and Chapter IV of the Regulations, 1975 as well as Regulation 4, 12, 25, 33, 35 and Chapter IV of the Regulations, 2010, the employees are entitled for enhancement of pay scale and even retention in service subject to the provision in the budget, requirements of business, financial capacity of or resources available to the Society to bear the cost and any resolution to be passed by the Committee of Management for expansion of staff or enhancement of pay scale ought to indicate reasons and financial capacity of or resources available to the Society to bear the cost.
25. After arguing further the learned Senior Counsel submitted that the dismissal of special leave petition in limine by the Apex Court does not mean that the reasoning of judgment of this Court against which special leave petition has been filed before the Apex Court stands affirmed or the judgment and order impugned merges with such order of the Apex Court on dismissal of writ petition. He also submitted that the learned Single Judge failed to consider and appreciate that the proviso appended to Regulation 3 and 10 of the Regulations, 1975 and the Regulation 33 of the Regulations, 2010 having statutory force has overriding effect upon administrative orders. Placing reliance on the decision of Apex Court in the case of Gaudiya Mission Vs. Shobha Bose and another, reported in (2008) 17 SCC 714 (Paragraph no. 24), State of Maharashtra Vs. Digambar, reported in (1995) 4 SCC 683 (Paragraphs no. 16 and 17), State of Karnataka and others Vs. G. Halappa and others, reported in (2002) 4 SCC 662 (Paragraph nos. 8 and 9), Col. B.J. Akkara (Retd.) Vs. Government of India and others, reported in (2006) 11 SCC 709 (Paragraph no. 26), Haryana State Electricity Board and another Vs. Rajbir Singh and others, reported in (2010) 15 SCC 649 (Paragraph nos. 1,2,3,5,9 and 10) and Fuljit Kaur Vs. State fo Pubjab and others, reported in (2010) 11 SCC 455, learned Senior Advocate has submitted that the judgment and order passed in writ petition in the earlier proceedings in the case of Rajeev Kala are per incuriam and sub silentio as the Regulations, 1975 and the Regulations 2010 have not been considered and prayed that these special appeal filed by the Department be allowed.
26. Per contra, Sri Rakesh Kumar Nigam, learned counsel for the respondents/employees has submitted that they have not been given any single promotion since their entry in the service and are still working on class III and class IV posts upon which they were initially appointed and are stagnated in their service career since about 30 years and even thereafter the PCDF is denying their salary in time and pay scale even after allowing the said benefits vide resolution dated 27.07.2009 and 28.01.2009. The services of all the employees are throughout satisfactory. There is no ground to interfere with the decision of the Writ Court. The law on the issue has travelled up to Supreme Court in the case of Rajeev Kala (Supra) and the Department is bound to pay time scale benefits to its class III and IV employees. He submitted that they are getting salary of 4th pay commission and thereafter recommendations of 5th, 6th and 7th pay commission were not implemented to the employees of PCDF. The benefits of time bound pay scale have been granted to class I and class II officers of PCDF, therefore, financial constrains cannot be pleaded as an excuse for not paying salaries and time scale benefits and prayed for dismissal of all these special appeals.
27. We have heard the learned counsel for the parties at length and have gone through the pleadings, the annexures filed by both the side and orders passed in the earlier proceedings and the judgments cited by the counsel appearing on either side.
28. PCDF is the Apex level Cooperative Society as provided under Section 2 (a-4) of U.P. Cooperative Societies Act, 1965 (hereinafter after called as 'the Act, 1965') and has been declared 'Federation' under Section 123 of the Act, 1965. The State Government has about 98% share capital under the PCDF.
29. The claim of the writ petitioners has been made a supportive principle on the basis of resolution passed from time to time and was very similar to the claim, which was decided in the case before us in the case of Rajeev Kala (Supra). In the present bunch of special appeals, the private respondents/employees are claiming same benefits which were granted to the similarly situated employees of PCDF.
30. The first contention of the appellants is in respect of Regulation 3 of U.P. Cooperative Societies Employees' Service Regulation, 1975 (in short ''the Regulation, 1975') to the effect that there is no provision of time scale benefit at the stage of 19 years and 24 years in the Regulation, 1975 and further Board of Directors in its resolution did not indicate reasons and financial capacity to bear the burden. The Regulation 3 of the Regulation, 1975 find place in Chapter-II captioned as- Strength of Staff, Recruitment, Appointment, Probation, Confirmation and Retirement. The Regulation 3 of the Regulation, 1975 provides as under :-
3. Strength of staff.- (i) Subject to the provision in its budget and the requirements of its business, a co-operative society shall maintain one or more categories of employees as may be necessary.
(ii) Expansion of staff or enhancement of pay scale, if necessary, may be made by the society only: -
(a) where a resolution to this effect has been passed with previous notice by the committee of management indicating reasons and financial capacity of or resources available to the society to bear the cost; and
(b) in case the society is enjoying any State id under provisions of Chapter VI of the Act, or has outside borrowings, prior approval of the Registrar has also been obtained:
Provided that in the case of defaulter society no approval shall be accorded by the Registrar without consulting the chief central society of the co-operative society concerned.
31. A perusal of the aforesaid makes it clear that the Regulation 3(i) provides that society can maintain one or more categories of employees and the Regulation 3 (ii) provides the expansion of staff or enhancement of pay scale. For instance if a post is in pay scale of Rs. 3000-5000/- and the authorities wants to enhance it to Rs. 4000-6000/-, then Regulation 3 of the Regulation, 1975 will be applicable. Whereas in the time scale benefits, the pay scale of the post is not enhanced, it remains the same and since a person has not been promoted for a number of years, hence to remove the stagnation, he is provided either one increment or promotional pay scale and thus Regulation 3 of the Regulation, 1975 is not applicable in the present facts and circumstances of the case.
32. The provisions regarding time scale benefits have been evolved by the various pronouncement of the Apex Court wherein Hon'ble Supreme Court has held that the person is recruited not just for a job but for a whole career-one must therefore be given opportunity to advance. There can not be any modern management much less any career planning, manpower, development etc. which is not related to a system of promotion. The Apex Court in the matter of State of Tripura and others V.S. K.K. Roy, reported in (2004) 9 SCC 65 has given direction to State to formulate assured career promotion scheme and has held that respondent in the case is at least entitled to grant of two higher grades, one upon the expiry of the period of 12 years from the date on joining of the service and the other upon expiry of 24 years of service.
33. On the basis of pronouncements of the Apex Court from time to time, the 4th and 5th Pay Commission while making recommendations for revision of pay scales also made recommendations for time scale benefits, which were considered by the Pay Committee constituted by the State Government and on the basis of the recommendations of the Pay Committee, State Government issued Government Orders dated 03.06.1989 and 02.12.2000 for providing time scale benefits to it is employees to remove the stagnation although no such provisions exist in the service rules pertaining to the State Government and by Government Order dated 02.12.2000 time scale benefits was provided to the State Government employees and in the PCDF, it was provided by the decision of the Board of Director after approval granted by the Registrar to its employees. The time scale benefits adopted by the PCDF was part of the 5th Pay Commission report as considered by the Pay Committee of the State Government and since PCDF has implemented the recommendation of 5th pay commission as modified by the Pay Committee, the PCDF cannot take ground that in the service rules there is no provision for the same.
34. Under Regulation 27 of the Regulation, 1975 there is provision for promotion and a number of Class II and Class I officer have been promoted and their pay scale has become higher but no resolution as stated in Regulation 3 of the Regulation, 1975 has been passed because in the matter of promotion, Regulation 3 of the Regulation, 1975 is not applicable and the time scale benefits relates to promotion matter. It has also come on record that the pay scale of Class I and Class II officers have been upgraded but in that case even the matter was not placed before the Board of Director nor the financial burden was considered and only by an administrative order after approval of Register, the pay scale were made higher and Regulation 3 of the Regulation, 1975 was given a go by whereas in the case of respondents, when the Regulation 3 of the Regulation, 1975 is not applicable, the appellants are applying the same on account of malafide intention just to not grant time scale benefit to their Class III and Class IV employees.
35. The contention of the appellant in respect of financial burden is nothing but just denial of grant of time scale benefit to Class III and Class IV employees. When the benefits of time scale was implemented, the PCDF was in profit in the financial year 2007-08 and 2008-09. The appellants have filed balance sheet by mixing the balance sheets of Dugdha Sangh whereas Dugdha Sangh has no concern. Not only this, they have shown cumulative loss coming from several years plus their liability towards the State Government. When the appellant can bear the burden by providing extraordinary financial benefits to Class I and Class II officers, which are not covered under the service Rules, then how they can deny the legitimate benefits to Class III and Class IV employees. Thus the respondents are entitled for their own rights and reference of Class I and Class II officers is only for the purpose of showing that the appellants have enhanced their financial burden by upgrading the pay scale of Class I and Class II officers.
36. The appellants for the first time in the special appeal have stated that in pursuance of the order dated 26.11.2012 up-gradation was granted to only two officers which is incorrect. There are hundreds of Officers and up-gradation was for all officers and all got the benefits of the same. In the earlier round of litigation, no such averments were made by the appellant although they have raised a number of other grounds in special appeal and in the SLP as well as in review petition and even in the counter affidavit filed by the appellants in writ petition but no such averments was there and for the first time they have justified their stand being taken for the same. They extended the benefits to all Class I and Class II officers and not Class III and Class IV employees.
37. The appellants, for the first time, have come up with an order dated 05.11.2007 to the effect that financial benefits shall be given keeping in view the financial condition and after the approval of the State Government. In PCDF the Managing Director holds the post of Registrar as well as Principal Secretary. The resolution of the Board of Directors was passed on 27.11.2007 upon which Managing Director had taken approval from Registrar which was granted on 28.01.2009 and then the Managing Director passed order dated 31.01.2009 and during all this period the order dated 05.11.2007 was not there because the Managing Director was himself the Principal Secretary in the State Government and he should have known the order dated 05.11.2007 and this order, for the first time, is filed in the special appeal. The State Government under the Act, Rules or Regulation or under any Government Order has no power to pass such order for an apex level cooperative society nor has power of approval of the resolution of the Committee of Management.
38. The Regulation, 2010 has been framed by the State Government under Section 121 of U.P. Cooperative Societies Act under which there is no power to State Government to frame the service regulation of a Cooperative Society and validity of the said regulation is under challenge in writ petition no. 2152 of 2014 (Smt. Pawan Tripathi Vs. State of U.P. and others) on the ground of legislative incompetence of the State Government to frame the regulation.
39. Sri Sudeep Seth, learned Senior Advocate for the appellants has submitted that SLP and review petition filed before the Supreme Court have been dismissed in limine, which does not mean that reasoning of the of the High Court stands affirmed or the judgment of the High Court merges with the order of the Apex Court on dismissal of SLP. It simply means that the Hon'ble Apex Court did not consider the case worth examining for the reasons, which may be other than merit of the case. The order rejecting SLP at threshold without detailed reasons does not constitute any declaration of law or a binding precedent.
40. So far as the applicability of the judgment and order dated 12.12.2013 passed in writ petition no. 7486 of 2013 is concerned, the said judgment has reached finality as the Special Leave Petition and review petition filed against the same in the Supreme Court have been dismissed and Hon'ble Supreme Court has considered all the points raised in the SLP as well as in review petition and the Supreme Court, while dismissing the review petition, has specifically held that the Court has perused the record of the SLP as well as of review petition and is convinced that there is no error apparent which need reconsideration of the order passed in SLP. The private respondents are similarly situated class III and class IV employees, are entitled for the same benefit of pay scale.
41. The order impugned dated 09.12.2015 was passed by the learned Single Judge and the Managing Director, who holds the post of Registrar/Milk Commissioner also, in order to deny the benefit of the judgment by its subordinate officer, General Manager got referred the matter to himself in the capacity of Registrar and the General Manager vide letter dated 06.04.2016 sought Margdarshan for compliance of the orders passed by this Court and on the next day, i.e., 07.04.2016 the Registrar passed a detailed order of several pages and stayed the order of Managing Director dated 31.01.2009 for 30 days and asked for reconsideration of its order dated 31.01.2009. The order has lost its efficacy as the stay was only for 30 days, which period has expired and the Managing Director has not reconsidered the order dated 31.01.2009 and the Register has also not proceeded further in the mater. Thus, the said ground will not help the PCDF in any way for the benefit to their class III and class IV employees nor same will come in the way for compliance of the order passed by the learned writ court.
42. For the abovementioned, we are of the view that there is hardly any ground to interfere with the judgment of learned writ court. It has been found that the claim of the respondents is fully justified by the facts on record. We are, thus, of the opinion that the private respondents (writ petitioners) are entitled for grant of time scale benefits upon expiry of period and service as prescribed in the circular.
43. Thus, we do not find any merit in the present appeals. The impugned judgment and order dated 09.12.2015 in special appeal no. 159 of 2016 and special appeal no. 210 of 2016, impugned judgment and order dated 05.01.2016 in special appeal no. 211 of 2016, impugned judgment and order dated 18.12.2015 in special appeal no. 220 of 2016, impugned judgment and order dated 28.10.2015 in special appeal no. 224 of 2016, impugned judgment and order dated 09.12.2015 in special appeal no. 225 of 2016, impugned judgment and order dated 29.01.2016 in special appeal no. 230 of 2016, impugned judgment and order dated 11.01.2016 in special appeal no. 231 of 2016, impugned judgment and order dated 03.02.2016 in special appeal no. 234 of 2016, impugned judgment and order dated 08.01.2016 in special appeal no. 232 of 2016 and impugned judgment and order dated 08.01.2016 in special appeal no. 235 of 2016 are hereby confirmed.
44. All the above appeals are dismissed. No order as to costs.
(Jaspreet Singh, J.) (Pankaj Kumar Jaiswal, J.) Order Date :- 12.09.2019 Ashish