Allahabad High Court
Devendra Prasad Srivastava And 9 Others vs State Of U.P. And 9 Others on 9 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 1435, (2019) 11 ADJ 216 (ALL)
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Court No. - 2 Case :- WRIT - A No. - 12175 of 2018 Petitioner :- Devendra Prasad Srivastava And 9 Others Respondent :- State Of U.P. And 9 Others Counsel for Petitioner :- Tarun Agrawal,Vinayak Mithal Counsel for Respondent :- C.S.C.,Rajesh Kumar Yadav,Suresh C. Dwivedi Hon'ble Suneet Kumar,J.
Heard Sri Tarun Agrawal, Sri Vinayak Mithal, learned counsels for the petitioner, Sri Suresh C. Dwivedi, learned counsel for the second to tenth respondent, Sri Anuruddh Charan Mishra, learned Additional Chief Standing Counsel and Sri Jagdish Singh Bundela, learned Standing Counsel for the first respondent.
The State Agricultural Produce Markets Board (for short ''the Board'), a body corporate having perpetual succession and a common seal and may sue or be sued by the said name and acquire, hold and dispose of property and enter into contracts. The Board for all purposes is deemed to be a local authority. It came into existence, consequent upon the promulgation of the Uttar Pradesh Krishi Utpadan Mandi Act, 1964 (for short ''Act 1964'). The employees of the Board and the Committees (Mandi Samiti) were members of a Contributory Provident Fund Scheme (for short ''CPF Scheme'). The Board desired to grant all the employees better retiral benefits, consequently, a proposal was made by the Board in its 86th meeting vide resolution dated 23 April 1999 to extend pensionary benefits to the employees, in lieu of the existing CPF Scheme w.e.f. 1 January 1999.
Pursuant thereof, the Board reminded the State Government on 31 May 1999, requesting to expedite the proposal for grant of Pension/Gratuity Scheme to its employees. The State Government vide communication dated 11 February 2000, addressed to the Director of the Board, in principle, granted approval with certain conditions, including, that necessary amendments accordingly be carried out in the Service Regulations, thereafter, submit the Regulations to the Government with the approval of the Board. The Board, consequently, in its 91st meeting, vide resolution dated 18 January 2001, enhanced the contribution of its employees to the CPF Scheme from 8.33% to 10% w.e.f. 1 January 1999. The increased contribution was with a view to fund the pension scheme which was made effective from 1 January 1999. The employees of the Board, thereafter, have been contributing the enhanced amount to the CPF Scheme.
The matter, however, was kept pending by the State Government and w.e.f. 1 April 2005, the State Government adopted the National Pension System (for short ''NPS'). The existing Pension/Gratuity Scheme was done away with from the notified date. The Government vide communication dated 25 May 2005, addressed to the Director of the Board, sought opinion of the Board as to whether the NPS could be made applicable to all the employees of the Board irrespective of their date of appointment. The Board informed the State Government vide communication dated 1 August 2005 that the employees have unanimously refused to accept NPS scheme. The Board in its 143rd meeting dated 24 September 2012, yet again resolved to extend the benefits of Pension/Gratuity Scheme to its employees at par with the employees of other Corporations/Development Authorities. Accordingly, the Board constituted a Committee on 10 October 2012 to study the proposal and give its recommendations. Pursuant thereof, the Committee recommended framing of Regulations for grant of pension on the lines prevalent in the other Corporations/Development Authorities. The Board in exercise of powers under Section 25-A and 26-X of Act, 1964, framed the U.P. Krishi Utpadan Mandi Samiti (Centralized) Retirement Benefit Regulations, 2013 (for short ''Regulations, 2013'). The Regulation was remitted to the State Government for approval/information. The State Government vide communication dated 5 December 2013 sought certain clarifications which was duly replied by the Board and again vide communication dated 10 October 2014 Government sought the opinion of the Board with regard to the applicability of NPS to all the employees in view of Government Order dated 28 March 2005. In response, the Board vide communication dated 17 November 2014 pointed out that NPS cannot be made applicable uniformly, the employees who were recruited/appointed prior to 1 April 2005 from a separate class. NPS is applicable upon those employees who were recruited/appointed on or after 1 April 2005 or have not put in ten years qualifying service on the said date. The Board again reiterated that the State Government to approve the Regulations, 2013. The State Government, however, by the impugned order dated 8 January 2016, extended NPS Scheme to all the employees of the Board irrespective of their date of appointment/recruitment. The Board again vide communication dated 18 April 2016 pointed out that NPS Scheme cannot be made applicable to the employees who were appointed/recruited prior to 1 April 2005. The Board again requested the Government to approve the Pension/Gratuity Scheme framed vide Regulations, 2013, which was pending with the Government.
Aggrieved by the conduct of the State Government a writ petition came to be filed by the employees being Writ Petition No. 67292 of 2015, which came to be disposed of on 10 January 2018, directing the State Government to take a final decision in the matter. Pursuant thereof, the State Government vide order dated 16 February 2018 rejected the representation of the petitioners reiterating its earlier order that the all the employees of the Board, irrespective of their date of appointment, would be entitled to NPS. The Board in compliance issued letter dated 19 March 2018 succumbing to the stand of the State Government.
The petitioners are retired employees of the Board/Committees (Centralized Service), they came to be appointed prior to 1 April 2005, by the instant writ petition they are assailing the orders dated 8 January 2016 and 16 February 2018 passed by the State Government and the consequential order dated 19 March 2018 passed by the Board, uniformly applying NPS Scheme to all the employees. A further prayer has been sought to direct the State Government to accord approval to the Regulations, 2013, implementing Pension/Gratuity Scheme framed by the Board.
Learned counsel appearing for the petitioners submits that the Board has been conferred powers under Section 26-F to appoint officers and servants as it considers necessary for efficient performance of its function on such terms and conditions as may be provided for in the Regulations made by the Board. Section 26-X confers powers upon the Board to make Regulations with the previous approval of the State Government for the administration of the affairs of the Board. The Regulations provide for the salaries, allowances and other conditions of service of the officers and other employees of the Board, and of officers referred to in sub-section (2) of Section 23.
The Board in exercise of its powers under Section 26-X framed the U.P. Agricultural Produce Markets Committee (Centralized) Service Regulations, 1984. Regulation 47 provides for retirement benefits, but pension was not admissible to the employees (Centralized Service). The employees were to contribute to the provident fund. The Board, however, in 1999 resolved to provide Pension/Gratuity Scheme in lieu of CPF Scheme to its employees w.e.f. 1 January 1999, which came to be accepted and approved, in principle, by the State Government on 11 February 2000, thereafter, the Board in exercise of power conferred under Section 26-X framed Regulations, 2013, providing the benefit of Pension/Gratuity Scheme to its employees who came to be appointed/recruited after 1 January 1999 and before 1 April 2005. NPS Scheme was made applicable upon the employees of the Board who were recruited/appointed on or after 1 April 2005, subject to ten years qualifying service.
In this back drop, it is urged by the learned counsel for the petitioner that it was not open to the State Government to have declined the employees of the Board the Pension/Gratuity Scheme sought to be implemented by framing Regulations, 2013. The impugned order imposing NPS scheme on all employees uniformly is arbitrary without jurisdiction and in violation of the Government Order dated 28 March 2005. The Government Order clearly stipulates that the NPS scheme would be applicable on employees who came to be appointed/recruited on or after the cut of date provided therein i.e. 1 April 2005. The Pension/Gratuity Scheme would, however, continue to apply to the employees recruited/appointed prior to that date.
It is further urged that the Board is an autonomous body and is not funded by the State Government, revenue is generated by the Board to finance its activities under Act, 1964. The salary, allowance and other conditions of service of employees are governed by the Regulations framed by the Board from time to time in exercise of powers under Section 26-X. The Pension/Gratuity Scheme sought to be made applicable to the employees is to be funded and financed by the Board from its own resources, therefore, it is urged that it is not open to the State Government to impose upon the employees of the Board a pension scheme i.e. NPS ignoring Regulations, 2013. The Government had clarified in February 2000 while approving the proposed Pension Scheme that the Government would not fund the Pension/Gratuity Scheme and declined to take any liability/burden upon itself to fund the pension of the employees of the Board.
It is further urged that the determination and funding of salary/pension of the employees of the Board falls exclusively within the powers of the Board and would not fall within the ambit of ''question of policy'. The Board is bound by the directions on question of policy as may be given to it by the State Government in exercise of its power under Section 26-M and not on conditions of service. It is further urged that the reasons assigned for declining the Pension/Gratuity Scheme to the employees appointed prior to 1 April 2005, is not a ''question of policy', rather, a statutory obligation cast upon the Board to determine the service conditions of its employees, including pension, in exercise of powers under Section 26-X. The Government lacks the power to withhold the Regulations, 2013, seeking to implement the Pension/Gratuity Scheme which came to be approved by the Government in February 2000 itself. Pursuant thereof, the Board proceeded by enhancing deduction to the CPF Scheme to fund the pension scheme and thereafter framed the Regulations implementing the Pension/Gratuity Scheme on the direction of the State Government. It is submitted that no further approval/permission is required from the State Government.
Learned counsel appearing for the respondent-Board submits that the Board has resolved to provide Pension/Gratuity Scheme to its employees, to be funded from its own resources, accordingly, the contribution to the CPF Scheme was enhanced from 8.33% to 10% w.e.f. 1 January 1999, the employees, thereafter, have been contributing the amount since then. The corpus to fund the Pension Scheme is more than sufficient. It is not in dispute that the Board went ahead with the scheme after receiving approval of the State Government way back on 11 February 2000. The Board, and not the Government, has been conferred powers under Act, 1964 to determine the service conditions of its employees. He further submits that the direction issued by the State Government, otherwise, cannot be disobeyed by the Board, but the Board still is awaiting the formal permission from the State Government with regard to the pending Regulations, 2013, implementing the Pension Scheme.
Learned Standing Counsel appearing for the State respondent submits that the factual matrix inter se parties is not in dispute, the Board did resolve in 1999 to provide to its employees Pension/Gratuity Scheme, accordingly, the contribution to the CPF was enhanced. The State Government, in principle, granted approval to the Pension/Gratuity Scheme, however, it is urged that since pension was not admissible to the employees of the Board in view of Regulation 47 of Service Regulation 1984, therefore, after enforcement of NPS scheme w.e.f. 1 April 2005, the State Government had taken a conscious decision to implement the NPS scheme upon all the employees of the Board irrespective of their date of appointment. Learned counsel further submits that the impugned order is not arbitrary or illegal as the scheme (NPS) applicable on the date of passing of the impugned order has been made uniformly applicable to all the employees of the Board. He, however, admits that the Regulations, 2013 is still pending with the State Government and no specific decision thereon has been taken, however, it is submitted that in view of the impugned order, it tantamounts that the State Government has disapproved the Regulations, 2013.
Rival submissions fall for consideration.
The question that arises for determination is as to whether the State Government was justified in law in rejecting the Pension/Gratuity Scheme made by the Board for its employees in lieu of CPF Scheme.
The facts, inter se, parties are not in dispute. The scheme of the Act, 1964, provides for the constitution of a Board, the employees of the Board/Mandi Samiti constitute the Centralized Service. The service conditions of the employees is required to be made by the Board by framing Regulations in exercise of its powers conferred under Section 26-X, which inter alia, includes pension.
In exercise of its powers, Regulation 1984 came to be framed by the Board providing CPF Scheme to its employees which was subsequently sought to be modified/amended conferring Pension/Gratuity Scheme to its employees w.e.f. 1 January 1999. The proposal came to be accepted and approved by the State Government on 11 February 2000. The State Government categorically stated while approving the proposal that it would not finance the pension scheme nor would the Government be responsible to provide the funds, accordingly, the State Government directed the Board to frame/amend the Regulations. Pursuant thereof, Regulations, 2013 came to be made, inter alia, providing Pension/Gratuity Scheme to the employees who came to be appointed on or after 1 January 1999 but before 1 April 2005. The new NPS scheme was made applicable to the employees recruited/appointed on or after the said date in terms of the Government Order. Accordingly, Regulation 47 of Regulation 1984, to that extent came to be modified by the proposed Regulations, 2013. The State Government by the impugned order has instead imposed the NPS scheme upon all the employees of the Board irrespective of the cut of date provided in the Government Order dated 28 March 2005. In other words, the State Government rejected the Pension/Gratuity Scheme framed by the Board and approved the NPS scheme.
In the aforesaid backdrop the issue that falls for consideration is as to whether the State Government in exercise of its powers under Act, 1964, can compel the Board to accept a Pension Scheme other than that proposed by the Board by framing the Regulations.
It would be apposite to scan the provisions of Act, 1964, in order to trace the source of power of the Board and the State Government.
Chapter V of Act, 1964 provides for External Control. Section 26-A provides for establishment of the Board by the State Government on notification in the Gazette. The power to appoint the officers and servants, including, framing of Regulations to determine their conditions of service has been conferred upon the Board under Chapter IV of Act, 1964. Section 26-F is extracted:
26-F. Appointment of Officers and Servants.-(1) The Board may appoint such officers and servants as it considers necessary for efficient performance of its functions on such terms and conditions as may be provided for in regulations made by the Board.
The constitution of the Centralized Service and conditions of employment of members of the cadre is provided under Section 23A and 25A which can be implemented by framing Regulations. The provisions reads thus:
23.A. Constitution of Centralised service and transfer of employees- (1) Notwithstanding anything contained in any other provision of this Act, the Board may constitute cadres of Secretaries and such other officers common to all Committees as it may deem fit to appoint under sub-section (2) of Section 23.
[25-A. Terms and conditions of employment of officers and servants of Committees.- Subject to rules made in this behalf under this Act, the terms and conditions of employment of the members of a cadre constituted under Section 23-A and matters relating to discipline, control and punishment including dismissal and removal of such, officers shall be governed by such regulations as may be made by the Board.] The Board has been vested with exclusive powers to frame Regulations under Section 26-X, inter alia, with regard to the conditions of service of its employees, but with the previous approval of the State Government. Regulation 26-X is extracted:
26-X. Regulations.-(1) The Board may, with the previous approval of the State Government make regulations, not inconsistent with this Act, and rules made thereunder, for the administration of the affairs of the Board.
(2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matter, namely-
(a) ..............
(b) the powers and duties of the officers and other employees of the Board;
(c) the salaries and allowances and other conditions of service of officers and other employees of the Board and of officers referred to in sub-section (2) of Section 23;
(3) Until any regulations are made by the Board under sub-section (1), any regulations which may be so made by it may be made by the State Government, and any regulations so made may be altered or rescinded by the Board, in exercise of its power under sub-section (1) The powers and function of the Board is spelled out in Section 26-L which reads thus:
26-L. Powers and functions of the Board.- (1) The Board shall, subject to the provisions of this Act, have the following functions and shall have power to do anything which may be necessary or expedient for carrying out those functions-
(i) superintendence and control over the working of the Market Committees and other affairs thereof including programmes undertaken by such Committees for the1 [construction of new Market yards and development of existing Markets and Market areas];
(ii) giving such direction to Committees in general or any Committee in particular with a view to ensure efficiency thereof;
(iii) any other function entrusted to it by this Act;
(iv) such other functions as may be entrusted to the Board by the State Government by notification in the Gazette.
(2) Without prejudice to the generality of the foregoing provision, such power shall include the power-
(i) to approve proposals of the new sites selected by the Committee for the development of Markets;
(ii) to supervise and guide the Committees in the preparation of site-plans and estimates of construction programmes undertaken by the Committee;
(iii) to execute all works chargeable to the Board's fund;
(iv) to maintain accounts in such forms as may be prescribed and get the same audited in such manner as may be laid down in regulations of the Board;
(v) to publish annually at the close of the year, its progress report, balance-sheet, and statement of assets and liabilities and send copies to each member of the Board as well as to the Chairman of all Market Committees;
(vi) to make necessary arrangements for propaganda publicity on matters related to regulated marketing of agricultural produce;
(vii) to provide facilities for the training of officers and servants of the Market Committees;
(viii) to prepare and adopt budget for the ensuring year;
(ix) to make subventions2 [and loans] to Market Committees for the purposes of this Act on such terms and conditions as the Board may determine;
(x) to do such other things as may be of general interest to Market Committees or considered necessary for the efficient functioning of the Board as may be specified from time to time by the State Government.
The State Government thus, has been conferred power to entrust the Board such other function by notification in the Gazette [Sub-Section (1)(iv)]. Further, the State Government may specify to the Board from time to time to do such other things as may be of general interest of the Market Committees or considered necessary for efficient functioning of the Board [Sub-Section 2(x)]. On plain reading of Section 26-L, condition of service of the employees of the Board is not a function of the Board. In other words, the State Government lacks power and authority to reject the Pension Scheme (condition of service) sought to be implemented by the Board by making the Regulations, 2013, in exercise of its powers conferred under Section 26-X. The conferment of pension by the Board to its employees is a service condition which the Board is free to provide by making/amending the Regulations. The only rider cast upon the Board under Section 26-X is that it has to take prior approval of the State Government.
The funding of the activities of the Board and the Market Committees in discharge of their duties/functions has been provided under Section 19 and Section 26-P which includes, utilization of the fund to meet the expenses towards salary of its officers and servants, including pension. Section 19 and 26-P is extracted:
19. Market Committee Fund and its utilisation-(1) There shall be established for each Committee, a fund to be called ''Market Committee Fund' to which shall be credited all moneys received by it including all loans raised by it, and advances and grants made to it.
(2) All expenditure incurred by the Committee in carrying out the purposes of this Act, shall be defrayed out of the said fund, and the surplus, if any, shall be invested in such manner as may be prescribed.
(3) Without prejudice to the generality of the provisions contained in Section 16, the Committee may utilise its funds for payment of all or any of the following -
(i).........
(ii) salaries, pensions and allowances including allowances for leave, gratuities, compassionate allowance, medical aid and contribution towards provident fund and pensions of the officers and servants employed by or for it;
26-P. Board's Fund.-(1) The Board shall have its own fund, which shall be deemed to be a local fund and to which shall be credited all moneys received by or on behalf of the Board, except the moneys required to be credited in the Uttar Pradesh State Marketing Development Fund under Section 26-PP.
2........................
(i) Payment of salary, leave allowance, gratuity, other allowances, loans and advances and provident fund to the officers and servants employed by the Board and pension and other contribution to the Government servants on deputation;
On conjoint reading of the provision of the Act, 1964, extracted, hereinabove, it is explicit and unabmiguous that the Board has been vested with powers to make and regulate the conditions of service of its employees, including, pension. The salary and retiral dues is to be funded by the Board from its own resources. The Regulations made by the Board would override the Regulations, if any, framed by the State Government in that regard (sub-Section (3) of Section 26-X). The Board upon approval of the State Government of its proposal/resolution to provide Pension Scheme, in lieu of CPF Scheme, acted thereon by enhancing the contribution of its employees to the CPF Scheme. The Board, thereafter, framed Regulations, 2013, as directed by the State. The condition of taking previous approval stipulated in Section 26-X was complied by the Board. Nothing more was required to be done at the level of the Board except to comply the conditions imposed by the State Government in the approval order. The State Government was not justified, nor it was within its jurisdiction to have rejected outright the Pension/Gratuity Scheme sought to be made applicable to the employees of the Board. Such a power is not vested in the State Government under the provisions of Act, 1964.
The import of the expression ''previous approval' mandated in Section 26-X requires to be understood in the context the expression is used in the provision. The matter fell for consideration by a Constitution Bench, the Supreme Court observed as follows in N. Raghavendra Rao v. Deputy Commissioner, South Kanara, Mangalore3 :
"The expression 'previous approval' would include a general approval to the variation in the conditions of service within certain limits, indicated by the Union Government. It has to be remembered that Article 309 the Constitution gives, subject to the provisions of the Constitution, full powers to a State Government to make rules. The proviso to Section 115(7) limits that power, but that limitation is removable by the Central Government by giving its previous approval.... The broad purpose underlying the proviso to Section 115(7) of the Act was to ensure that the conditions of service should not be changed except with the prior approval of the Central Government. In other words, before embarking on varying the conditions of service, the State Governments should obtain the concurrence of the Central Government." (Para 4) (Refer: State of Mysore and another v. R. Basappa and others4) In Life Insurance Corporation of India vs. Escorts Limited and others,5 Supreme Court referred to the decision of this Court in Shakir Husain v. Chandoo Lal6, to explain ''permission' and ''approval' para-62 is extracted:
"We do not propose to refer to any dictionary to find out the meaning of the word 'permission', whether the word is comprehensive enough to include subsequent permission. We will only refer to what Sir Shah Sulaiman, CJ. said in Shakir Hussain v. Chandoo Lal Ordinarily the difference between approval and permission is that in the first the act holds good until disapproved, while in the other case, it does not become effective until permission is obtained. But permission subsequently obtained may all the same validate the previous act."
The Court observed that the word 'prior" or "previous" may be implied if the contextual situation or the object and design of the legislation demands it. The Court declined interpreting 'permission' to mean 'permission', previous or subsequent, and there was no justification for limiting the expression 'permission' to 'previous permission'.
In U.P. Avas Evam Vikas Parishad and another Vs. Friends Coop. Housing Society Ltd. and another7, Supreme Court held that the expressions "prior approval" and "approval" are two different connotations and if the statute does not mention "prior approval" what is material would be only "approval".
Similarly, in Director of Education and others Vs. Gajadhar Prasad Verma8, it was held that in the absence of "prior approval", would not have an effect with regard to the creation of the post, therefore, the State is not obliged to reimburse the salary to the management of the incumbent appointed on the post without "prior approval" of the Director or the competent authority under the Act.
Learned Standing counsel has placed heavy reliance on the communication dated 11 February 2000, to emphasis that the State Government had granted approval ''in principle' and that would not satisfy the condition ''previous approval' mandated in Section 26-X. The submission taken on face value appears to be attractive, but on close analysis it lacks merit. The expression ''previous approval' has to be read in the context it is used in the statutory provision. The only requirement mandated in Section 26-X is that before embarking upon to make the Regulations, the Board is bound to take approval of the State Government. No further permission thereafter is required to be taken by Board from the State Government before implementing the Regulations. On perusal of the communication dated 11 February 2000, it is explicitly evident that the State Government in essence or substance had approved the proposed Pension Scheme ''in principle'. The State Government had further directed the Board to frame/amend the Regulations to that effect, this would tantamount to ''previous approval' of the State Government contemplated under Section 26-X. The expression ''in principle' approval used in the communication is only to convey to the Board that the approval is subject to certain conditions stipulated in the communication dated 11 February 2000. The conditions, inter alia, include, that the State Government would not bear the expenses nor fund the pension scheme; separate fund (Trust) would have to be earmarked by the Board to fund the pension scheme and finally, the Board was directed to make the Regulations to that effect to implement the Scheme. The Board on the conditional approval of the State Government framed Regulations, 2013, incorporating the conditions stipulated in the communication dated 11 February 2000. The State Government under Section 26-X was not required to give further approval/permission with regard to the implementation of the Regulations, but was to satisfy itself that the Regulations, 2013, framed by the Board incorporated the conditions stipulated by the State Government in the communication granting approval. Further, to ensure that the Regulation framed by the Board did not violate any provisions of Act, 1964.
The expression ''in principle' approval would include a general approval to the proposal seeking to implement the Pension/Gratuity Scheme within certain limits, indicated by the State Government. But the limitation is removal by the State Government by giving previous approval.
Approval ''in principle' would mean that the concerned authority (State Government) has agreed to the proposal without getting into the details of other required statutory/legal compliances. If something is possible ''in principle' there is no reason why it should not happen, even though it has not happened before.
The communication dated 11 February 2000 is extracted:
**izs"kd ds'ko nsfljktq lfpo] mRrj izns'k] 'kkluA lsok esa] funs'kd] e.Mh ifj"kn] mRrj izns'k] y[kuÅA d`f"k vuqHkkx&5 @ y[kuÅ fnukad%& 11-02-2000 fo"k;%& e.Mh ifj"kn ,oa e.Mh lfefr;ksa ds deZpkfj;ksa ds fy;s lh0ih0,Q0 ;kstuk ds v/khu isa'ku dh lqfo/kk iznku fd;k tkukA egksn;] mi;qZDr fo"k;d vkids i= la[;k& ifj"kn&ys[kk@isa'ku@99&721 fnukad 31 ebZ] 1999 ds lUnHkZ esa eq>s ;g dgus dk funsZ'k gqvk gSA fd isa'ku ;kstuk ds laca/k esa e.Mh ifj"kn }kjk miyC/k djk;s x;s izLrko ij lE;d fopkjksijkUr 'kklu }kjk e.Mh ifj"kn ,oa e.Mh lfefr;ksa ds deZpkfj;ksa dks isa'ku lqfo/kk vuqeU; fd;s tkus gsrq fuEu 'krksaZ ,oa izkfo/kkuksa ds vUrZxr fl)kUrr% Lohd`fr iznku dj nh x;h gS%& 1- mDr ;kstuk ykxw djus ds iwoZ dsUnz ljdkj ds Je eU=ky; ds bEIykbt izksohMsaV Q.M ds fu;eksa dk v/;;u dj mlds vuqlkj dk;Zokgh fd;s tkus ij fopkj fd;k tk;sxkA rFkk fu;eksa ds vUrxZr deZpkfj;ksa ls isa'ku ;kstuk xzg.k djus vFkok u xzg.k djus ds fodYi ij Li"V lgefr yh tk;sxhA blds fy, Je foHkkx ls ijke'kZ izkIr dj ;kstuk rS;kj djus dh dk;Zokgh dh tk;sxhA 2- isa'ku ;kstuk dk fdz;kUo;u jkT; ljdkj ds deZpkfj;ksa dks fn;s tkus okyh isa'ku O;oLFkk ls fHkUu gksxhA rFkk bldks lh0ih0,Q0 ij vk/kkfjr vyx VªLV ds :i esa lapkfyr fd;k tk;sxkA isa'ku ;kstuk isa'ku Q.M dh fLFkfr ij gh vk/kkfjr gksxhA rFkk bl en esa tek dh x;h /kujkf'k dks fdlh vU; en esa [kpZ ugha fd;k tk ldsxkA 3- bl ;kstuk ds fy;s lh0ih0,Q0 Q.M esa 'kklu }kjk ;k e.Mh ifj"kn }kjk dksbZ /kujkf'k ns; ugha gksxhA ;fn fdlh le; fdUgh dkj.kksa ls isa'ku gsrq Q.M dh /kujkf'k vuqiyC/k gksus ds dkj.k isa'ku ;kstuk cUn gks tkrh gS rks bld fy;s 'kklu ;k e.Mh ifj"kn dk dksbZ mRrjnkf;Ro ugha gksxkA 4- Q.M dk lapkyu VªLV ,oa FkMZ ikVhZ isa'ku Q.M eSustj ds lkFk dh x;h O;oLFkk ds vuqlkj lHkh vkfFkZd ,oa foRrh; igyqvksa dks ns[krs gq;s vius iw.kZ mRrjnkf;Ro ij dh tk;sxhA Q.M ds VªLV esa 'krksZa dk vuqikyu djus gsrq e.Mh ifj"kn esa rSukr foRr fu;a=d dk mRrjnkf;Ro gksxk vkSj VªLV esa mPp Lrj ds vf/kdkfj;ksa dks lnL; ukfer fd;k tk;sxkA ftlls fd VªLV lqpk: :i ls lapkfyr gks ldsA 5- pwWfd e.Mh ifj"kn ,oa e.Mh lfefr;ksa dh lsok fu;ekofy;ksa esa deZpkfj;ksa dks isa'ku dh lqfo/kk vuqeU; u fd;s tkus dh O;oLFkk gS] bl fy;s bu lsok fu;ekofy;ksa esa bl vk'k; dk la'kks/ku Hkh fd;k tkuk gksxkA blds fy;s lE;d izLrko funs'kd] e.Mh ifj"kn miyC/k djk;saxsA d`i;k rnuqlkj vko';d dk;Zokgh lqfuf'pr djkus dk d"V djsA Hkonh;] g0 v0 ¼ds'ko nsfljkt½ lfpoA** [From, Keshav Desiraju Secretary, Government of Uttar Pradesh To, The Director, Mandi Parishad, Government of Uttar Pradesh, Lucknow.
Krishi Anubhag-5 /Lucknow: Date:- 11.02.2000 Subject: Extending pension facility to the employees of the Mandi Parishad and Mandi Samitis under the CPF Scheme.
Sir, With regard to your letter no. - Parishad-Lekha/Pension/99-721 dated May 31st, 1999 on the afore-mentioned subject, I am directed to say that after due consideration of the proposal made available by Mandi Parishad for grant of the pension facility to the employees of Mandi Parishad and Mandi Samiti, approval in principle has been accorded by the government with the following terms and conditions: -
1. Before the implementation of the aforesaid scheme, the rules of the Employees Provident Fund shall be studied and action shall be taken accordingly, and as per rules, consent of the employees in clear terms shall be taken for opting the pension scheme or not opting it. For this purpose, the process to prepare the scheme shall be initiated after consultation with labour department.
2. The pension scheme, in respect of implementation, shall be different from the pension scheme of the state government employees, and it shall be operated as a separate trust based on the CPF. The pension scheme is based only on the status of the fund, and the amount deposited under this head shall not be spent for any other head.
3. No amount shall be payable in the C.P.F. fund for this scheme by the Government or the Mandi Parishad. If the pension scheme comes to be discontinued at any point of time due to unavailability of amount in the pension fund, the Government or Mandi Parishad shall not be responsible for the same.
4. The fund shall be regulated with with absolute liabilities, keeping in view all financial and economical aspects as per arrangements made with the Trust and the Third Party Pension Fund Manager. For complying with terms and conditions of the trust of the Fund, the Finance Controller shall be responsible and high level officers shall be nominated as members to run the Trust in a smooth manner.
5. In the service rules of the Mandi Parishad and Mandi Samitis, since there is a provision of pension facility not to be admissible to its employees, amendment in this respect shall have to be effected in these service rules. For this purpose a proposal shall be made available by the Director, Mandi Parishad.
Necessary action may please be ensured accordingly.
Sincerely yours Signature illegible (Keshav Desiraj) Secretary] (English translation by the Court) On perusal of the communication, in particular the opening paragraph read with para (5) and the last sentence it is evident that the State Government approved the proposal of the Board in essence/ or substance to implement the Pension Scheme. Further, directed the Board to amend the Regulations incorporating the Scheme and proceed accordingly. The condition of service, including, pension could be made either by amending the existing Regulations or by framing separate Regulation, for which the State Government had given green signal to the Board by approving the Pension Scheme.
In the counter affidavit, it is not the case of the State respondents that previous approval was not granted to the Board approving the Pension Scheme, rather the State admits in para 15 and 16 that the Board acted upon after previous approval of the State Government. Para 15 and 16 of the counter affidavit reads thus:
"15. That the contents of paragraphs 29 and 30 of the writ petition need no reply being matter of record. However, it is submitted that the State Government vide letter dated 11.2.2000 granted in principle approval of the resolution of the board for providing pensionary benefits to the employees.
16. That the contents of paragraphs 31, 32 and 33 of the writ petition need no reply being matter of record. It is submitted that vide letter of the State Government dated 11.2.2000, the Director, Raj Krishi Utpadan Mandi, was directed to made available proposal in respect of amendment in service Rules and in reply thereto the Director, Mandi Parishad send proposal dated 6.9.2000 with recommendation to grant pensionary benefits to the officers and employees of Mandi Parishad/ Mandi Samiti as available to the Government Employees of State of U.P."
In Union of India and others Versus Harananda and others, 2019 SCC Online SC 126, the short question posed for consideration before the Supreme Court was, whether in the facts and circumstances of the case, the High Court has committed any error in treating and/or considering the Office Memorandum (OM) dated 8 May 2003 of the Department of Personnel and Training (Cadre Review Division) [for short ''DoPT'], Government of India as ''in principle' decision for constitution of the Railway Protection Force (for short ''RPF') as an Organized Group "A" Central Service. The Court rejected the contention of the appellants that the OM cannot be said to be ''in principle' approval granted by the DoPT to constitute the RPF as an Organized Group "A" Central Service. Merely because the ''in principle' decision was conditional and was to be placed before the Cadre Review Committee, it cannot be said that the ''in principle' decision contained in the OM was subject to further approval and/or no ''in principle' decision was taken.
In the given facts of the instant case, it is admitted by the respondent State that ''in principle' approval to the Pension Scheme was granted. In view, thereof, and on reading Section 26-X, the Board was not required to take further approval. The State Government only had to ensure that the board while framing the Regulations implementing the Pension Scheme had complied the condition stipulated by the State Government in the approval order and that the Regulations was in consonance with the provisions of Act, 1964.
The mandatory requirement of Section 26-X to frame Regulations to implement the Pension Scheme stood complied. No further approval/permission was required from the State Government under the Act, 1964. The impugned order passed by the State Government does not state that any of the conditions stipulated in the communication dated 11 February 2000 was flouted by the Board while framing Regulations, 2013. The contention of the learned Standing Counsel lacks merit, accordingly, unacceptable.
It is further urged on behalf of the State that Regulation 47 of Regulations, 1984, would be an impediment in the implementation of the Pension/Gratuity Scheme sought to be implemented by the Board. Regulation 47 clearly stipulates that the employees of the Board are not entitled to pension but to Contributory Provident Fund. Though this is not a reason assigned in the impugned order. However, the contention lacks merit. Regulations, 1984, is distinct from Regulations, 2013. Regulations, 1984 would apply to the employees that came to be appointed on or before 1 January 1999, whereas, the Regulations, 2013 would apply to the employees appointed on and after 1 January 1999 and before 1 April 2005. Both the Regulations operate in different fields and cater to separate class of employees insofar entitled to distinct and different retiral Schemes, therefore, Regulation 47 would not be an impediment in implementing the Pension Scheme. The contention is untenable, accordingly, rejected.
A similar challenge came to be raised by the employees of the U.P. Avas Evam Vikas Parishad (for short the ''Parishad') in State of Uttar Pradesh versus Preetam Singh and others9, assailing the order of the State Government disapproving the Pension/Gratuity Scheme sought to be implemented by the Parishad. The Parishad a corporate body created under the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 (for short '' the Act'), a proposal was made, to extend pensionery benefits to the employees of the Parishad, in place of the existing Contributory Provident Fund (CPF) Scheme. The Parishad upon conditional approval from the State Government proceeded to implement the Pension/Gratuity Scheme in lieu of the existing CPF Scheme. The State Government in the approval order clarified that the State Government would not bear the expenses nor the pension fund should create any financial liability on the State Government.
All of a sudden, the State Government withdrew its approval altogether. The denial of the permission by the State Government was assailed by the employees of the Parishad before the High Court. Writ petition came to be allowed. The order issued by the State Government was expressly quashed. A writ in the nature of mandamus was issued to the Parishad requiring it to implement the Pension/Gratuity Scheme. Pursuant thereof, the Parishad implemented the Pension/Gratuity Scheme by issuing a notification. The Scheme was expressly extended to such employees of the Parishad, who were in service on 1 January 1996. The Pension/Gratuity Scheme in terms of the notification, would be applicable only till the introduction of the newly defined Contributory Fund Rules (NPS) framed by the State Government and was not applicable to the employees of the Parishad who had entered its service on or after 1 April 2005.
The State Government raising challenge to the impugned judgment of the High Court took a plea that the Scheme could not have been formulated, and given effect to in absence of an express approval from the State Government. Reliance was placed on Section 2 of the Uttar Pradesh State Control Over Public Corporations Act, 1975, which, inter alia, provided that every statutory body (by whatever name called), established or constituted under any Uttar Pradesh Act, excepting Universities governed by the Uttar Pradesh State Universities Act, 1973, shall, in the discharge of its functions, be guided by such directions on ''question of policy', as may be given to it by the State Government, notwithstanding that no such power has expressly been conferred on the State Government under the law establishing or constituting such statutory body.
The Supreme Court upon examining of the provisions of Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965, opined as follows:
"14..................There can be no doubt that it is open to the State Government to issue directions of questions of policy to all Public Corporations in the State of Uttar Pradesh, in furtherance of the mandate contained in Section 2(1) of the 1975 Act. It would however be pertinent to mention that the above directions could be issued only in respect of questions of policy having a nexus to the "discharge of its functions". Insofar as the Vikas Parishad is concerned, we are of the view that the functions of the Vikas parishad are relatable only to the functions stipulated in Section 15 of the 1965 Act."
Upon perusal of the Section 15 of the Act, stipulating the functions of the Board, the Court held that the ''conditions of service' of employees do not constitute the functions of the Parishad.
"16.....................The conditions of service of employees, in our considered view, do not constitute the functions of the Vikas Parishad, and as such, we are satisfied that the directions contemplated under Section 2(1) of the 1975 Act, do not extend to the directions issued by the State of Uttar Pradesh in the impugned orders dated 13.9.2005 and 12.7.2007. We therefore find no merit in the first contention advanced by the learned counsel for the appellant."
Thereafter, the Court considered as to whether the Parishad was competent to frame Regulations, whereby, it could extend the Pension/Gratuity Scheme to its employees in lieu of CPF Scheme. Section 95 of the Act conferred power upon the Parishad to make Regulations, inter alia, with regard to the conditions of services of its officers and servants. The Court in para 18 held as follows:
"18...........A perusal of clause (f) of Section 95(1), with clause (I) of Section 95(1) would reveal, that the Vikas Parishad is vested with the right to make regulations, so as to extend to its employees a scheme in the nature of Pension/Family Pension and Gratuity Scheme i.e., a scheme similar to the one framed by the Vikas Parishad on 19.5.2009."
In the facts of the case in hand upon examining the provisions of Act, 1964, extracted in the earlier part of this order, it is clear that the Board is vested with absolute power, though, with the ''previous approval' of the State Government to make Regulations governing the conditions of service of its employees, including, pension. The Government in the instant case had granted conditional approval on 11 February 2000 approving the proposal of the Board, fundamentally and in substance accepting the proposal in principle. Thereafter, the Board proceeded to frame the Regulations on the directions/approval of the State Government. It was, within the exclusive domain and power of the Board to frame Regulations governing the service conditions of its employees. Since the mandatory requirement contemplated under Section 26-X of taking previous approval of the State Government before making the Regulations was complied, in the circumstances, it was not open for the State Government to have indirectly, and not expressly, rejected the Regulations framing the Pension/Gratuity Scheme, which was beyond its authority and jurisdiction to have entered into the domain of framing and implementing ''condition of service' by thrusting upon the employees NPS Scheme which was not proposed by the Board.
The State Government has been conferred power under Section 26-M of Act, 1964 to issue directions on ''question of policy' in the discharge of its functions and not with regard to conditions of service. Section 26-M reads thus:
"26-M. Directions on question of policy.-(1) In the discharge of its functions, the Board shall be guided by such directions on question of policy, as may be given to it by the State Government."
The conditions of service would not fall within the ''functions' of the Board as has been held in Preetam Singh (supra). The directions, if any, that could have been issued by the State Government was only in respect to question of policy having nexus to the ''discharge of its functions'. The impugned decision of the State Government rejecting the Pension/Gratuity Scheme would not fall within the ambit of ''question of policy' in the discharge of its function conferred on the Board for enforcement of the provision of the Act, 1964, as is explicit from the reading of Section 26-M. Rather, it was within the exclusive jurisdiction and authority of the Board to frame Regulations governing conditions of service, including, pension. The only rider being the previous approval of the State Government which was duly obtained. The reasons assigned in the impugned order also does not inspire confidence in rejecting the Pension Scheme on the ground that since pension was not admissible to the employees of the Board earlier, therefore, there is no occasion for the Board to provide Pension/Gratuity Scheme to all its employees after the new NPS scheme was implemented w.e.f. 1 April 2005. Further, the State Government has not raised any objection with regard to the financial implication while implementing the proposed Pension Scheme or the ability and financial capacity of the Board to fund the Pension/Gratuity Scheme of its employees from its own resources while granting prior approval. It is not the case of the State Government that the mandate of Section 26-X was not complied by the Board. The reasons assigned in the impugned order is manifestly arbitrary and beyond the scope, power and authority conferred upon the State Government under Act, 1964. The State Government has not assigned any plausible valid reasons, including, non compliance of the conditions set forth by it, while rejecting the Pension Scheme. Rather, the proposed Pension Scheme was accepted by the Government and accorded approval in February 2000, much before the NPS scheme was floated. The State Government, therefore, has exceeded its authority and jurisdiction while passing the impugned order rejecting the Pension/Gratuity Scheme/Regulations, 2013.
I have perused the Government Order dated 28 March 2005 with the assistance of the learned counsel for the parties. The Government Order categorically provides that the new NPS scheme shall be applicable to the employees who came to be appointed/recruited on or after 1 April 2005 and the Pension/Gratuity Scheme prevalent prior to the said date would continue to be applicable upon the employees appointed earlier.
The relevant portion of the Notification issued by the Finance Department, Government of Uttar Pradesh, is extracted hereinbelow:
"The State Government, in consideration of its long term fiscal interest and following broadly the pattern adopted by the Central Government, has approved the following proposal of introducing a new defined contribution pension system in place of the existing defined benefit pension scheme, for new entrants to the service of the State Government and of all State controlled autonomous institutions and State - aided private educational institutions where the existing pension scheme is patterned on the scheme for Government employees and is funded by the consolidated fund of the State Government:-
(i) From 1st of April, 2005, the new defined contribution pension system would mandatorily apply to all new recruits to the service of the State Government and of all State controlled autonomous / State aided private educational institutions referred to above. However, employees covered by the existing pension scheme whose service would be of less than ten years on 1st April, 2005 may also voluntarily opt for the new pension system in place of the existing pension scheme.
(ii)xxxxxxxxx
(iii)xxxxxxxx
(iv)xxxxxxxx
(v)xxxxxxxxx The Board while framing the Regulations, 2013 had categorically provided that the Pension Scheme would apply to the employees who entered service on 1 January 1999 but before 1 April 2005, which is in consonance with the Government Order. The State Government lacked authority in imposing service condition against the resolution of the Board. The impugned order, further, violates the Government Order dated 28 March 2005 imposing uniform application of the NPS scheme to all the employees irrespective of their date of appointment/recruitment. The State Government would have been justified in not accepting that part of the Regulations had the Board ignored the Government Order and conferred the Pension/Gratuity Scheme to all its employees, bypassing the cut of date implementing the new NPS Scheme. The State Government in the same breath and on the same reasoning is unjustified in taking a stand directing the Board to implement a Scheme which is violative of its own Government Order made applicable to all autonomous institutions.
No illegality, infirmity or jurisdictional error has been pointed out by the learned Standing Counsel in the Regulations, 2013, despite repeated opportunity.
Having due regard to the facts and circumstances of the case and the provisions of Act, 1964, the impugned order 8 January 2016 and 16 February 2018 passed by the State Government and the consequential order dated 19 March 2018 passed by t he Board, is set aside and quashed. The Board is directed to implement the Pension/Gratuity Scheme in terms of Regulations, 2013, within eight weeks from the date of filing of certified copy of this order.
The writ petition is allowed.
No cost.
Order Date :- 09.09.2019 K.K. Maurya