Jagmal Singh Vs. State of U.P. and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/470182
SubjectService
CourtAllahabad High Court
Decided OnMay-08-2009
JudgeSunil Ambwani, J.
Reported in2009(3)AWC2461
AppellantJagmal Singh
RespondentState of U.P. and ors.
DispositionPetition allowed
Excerpt:
- - as well as petitioners. they enjoy and exercise the power to arrest a person, who is a defaulter; can attach his property, which he can put to auction, like his counter part on regular basis.sunil ambwani, j.1. heard shri k.b. srivastava, learned counsel for the petitioner. learned standing counsel appears for the respondents. with the consent of parties the writ petition was finally heard on 2.4.2009.2. the petitioner was appointed as sahkari co-operative kurk amin on 28.7.1975 in the pay scale of rs. 200-320 for realization of outstanding dues of co-operative societies. on 28.2.1984 the district assistant registrar, co-operative societies, u. p. muzaffarnagar appointed him on the post of sahkari kurk amin at tehsil level in the office of additional district co-operative officer, sadar, muzaffarnagar in the pay scale of rs. 354-550. subsequently by an order dated 29.11.1990 issued by the additional registrar (banking) cooperative societies, u. p. lucknow, the deputy registrar, meerut was directed to appoint the petitioner as junior clerk from the post of kosthak lipik/sahkari kurk amin and accordingly the deputy registrar, cooperative societies, u. p. meerut region, meerut directed the district assistant registrar, co-operative societies, u. p. haridwar to appoint the petitioner on the post of junior clerk in the newly created district haridwar in the pay scale of rs. 950-1,500.3. the petitioner continued to work on substantive post of cooperative kurk amin without any break for 16 years and 17 days and thereafter as junior clerk (collections) at tehsil level w.e.f. 21.8.1991 and superannuated on 31.10.2006 at the age of 60 years after completing 31 years and 87 days of service in regular pay scale. the petitioner however has not been held entitled to payment of pension, inspite of the fact that the district assistant registrar, co-operative societies, u. p. muzaffarnagar has made a recommendation for grant of pension on the ground that the facilities of pension are provided to the cooperative kurk amin under the u. p. co-operative collections fund and amin and other employees service rules, 2002 (in short the rules of 2002) and that in similar cases the co-operative kurk amins have been provided with the right to receive pension.4. learned standing counsel has sought instructions in the matter and informs the court that the district magistrate had sought opinion of d.g.c. (civil), muzaffarnagar and was advised that since the petitioner was appointed by the district magistrate as a salaried amin and thereafter as cooperative kurk amin at tehsil level and was serving as a junior clerk at the time of retirement, the period of his service as co-operative kurk amins should be added for the purposes of award of pension. the treasury officer, muzaffarnagar has opined on 31.7.2007 that under rule 29 of rules of 2002, pension, gratuity and other retiral dues are provided to be paid to amins and his other companions and the employees of the concerned categories. it would be appropriate to treat the petitioner eligible for pension under rule 29 of the rules of 2002. the matter is still pending consideration in the state government.5. in the counter-affidavit of shri mohd. kaleem, additional district cooperative officer, muzaffarnagar, it is stated that the petitioner retired on 31.10.2006 as junior clerk of which the appointing authority is the district assistant registrar. his services were not regulated by the rules of 2002, as he was not an amin or associate amin under rule 29 of the rules of 2002 and is thus not entitled to pension.6. in chandra prakash pandey and ors. v. state of u.p. and ors. writ petition no. 7326 (s/s) of 2004 this court had held in its judgment dated 25.11.2008, that the kurk amins are to be treated as government servants and were entitled to all the benefits which are applicable to government servants including pension. earlier shri chandra prakash pandey and others filed a writ petition no. 199 of 1991 claiming declaration that they were government servants. the court held in its judgment dated 26.4.1993, that the kurk amins are entitled to be treated as government servants. they were also entitled to regular pay scale and other allowance. the special appeals no. 15 (s/b) of 1994 and 39 (s/b) of 1994 were filed by the state of u. p. as well as petitioners. all these appeals were heard and by a judgment dated 5.5.1995 the special appeals preferred by the state of u. p. was dismissed and the special appeals filed by the petitioners were allowed directing concerned authorities to decide the case of the petitioners in the light of observations made in the judgment and to pass appropriate orders on the representations and to take steps for implement the decision. in paragraph 23 of the judgment it was held that the petitioners working as kurk amins were holding civil posts and were government servant and therefore their pay should be regulated by the existing pay scales. it was however held that it is not for the court to decide as to what pay scale should be made applicable to the petitioners and therefore for that purpose the court held that the proper authority will decide about the pay scales, arrears and other things related to the petitioner's claims. pursuant to the judgment the district magistrate, faizabad had appointed petitioners in that writ petition as government servants on 23.10.2001 and that under the rules of 2002 the petitioners were granted pay scales of rs. 3,050-3,950. the judgments were confirmed by the apex court holding that the petitioners are government servants.7. in this case the petitioner was appointed as co-operative kurk amin on regular salary basis in the pay scales of rs. 200-320 on 28.7.1975. he was thereafter appointed as cooperative kurk amins on salary basis at tehsil level on 28.2.1984, and thereafter as collection clerk on 29.11.1990. the petitioner was thereafter appointed as junior clerk in the regular pay scale of rs. 950-1,500 by the district assistant registrar, co-operative societies, u. p. haridwar on 5.12.1990 in pursuance of the letters of the registrar, cooperative societies, u. p., dated december 5, 1990 and the deputy registrar, co-operative societies, u. p. meerut region, meerut dated august 3, 1991.8. the co-operative kurk amins are engaged for realization of government dues. they discharge same functions and duties as regularly appointed collection amins in the revenue department of the state.9. in state of u. p. and ors. v. chandra prakash pandey and ors. : (2001) 4 scc 78 : 2001 (2) awc 1399 (sc), arising out of the division bench judgment of this court referred to above, the supreme court held that the kurk amins appointed on commission basis for recovery of outstanding dues of the co-operative societies were members of service and government servants on the ground that co-operative kurk amins were appointed by the collectors and were being paid out of the cost recovered according to the provisions for the recovery of land revenue, and were also given the revised pay scale. they were performing the same duties and responsibilities as kurk amins of other department on salary basis. they enjoy and exercise the power to arrest a person, who is a defaulter; can attach his property, which he can put to auction, like his counter part on regular basis. a kurk amin on commission basis and on regular basis similarly follows the provisions of u. p. zamindari abolition and land reforms act, 1951 and u. p. land revenue act, 1901 in so far as the recovery of land revenue is concerned. once the district magistrate issues a recovery citation, both the sets of kurk amins in order to execute the recovery follow the same procedure and exercise the powers and they are under the control of one and same authority. both work in the same capacity under control of the state government and that their appointments and duties fully comply with the tests laid down by the supreme court in the decision of state of gujarat v. raman lal keshav lal soni : (1983) 2 scc 33, in which a constitution bench held that the panchayat service constituted under section 203 of the gujarat panchayats act, 1962 was a civil service of the state and the members of the service were government servants. it was found that the right of appointment; the right to terminate the employment; the right to take other disciplinary action ; the right to prescribe conditions of service ; the nature of duties performed by the employees ; the right to control the employees ; manner and method of work ; for issuing directions and the right to determine the source from which wages or salary are paid and a host of such circumstances, have to be considered to determine the exigency of the relationship of master and servant.10. the issue, as to whether a cooperative kurk amin is a government servant holding a civil post, is thus, no longer res-integra. this court and apex court have held that the cooperative kurk amins are government servants, the petitioner, appointed as co-operative kurk amin of the collectorate on the regular pay scale on 28.7.1975 ; working continuously thereafter in the capacities of the sahkari kurk amins, and junior clerk, continued to serve as a government servant throughout on regular basis from the date of his initial appointment on 28.7.1975 to the date he attained superannuation and retired at the age of 60 years as a member of service of whose service conditions are, regulated by the rules of 2002. he is thus entitled to club his entire services together for the purposes of retirement dues and pension.11. the writ petition is allowed with directions to respondents to allow the petitioner to complete the pension papers and thereafter to sanction the pension, gratuity, leave encashment, group insurance and all other service retiral benefits which are due to a government servant. the petitioner has retired on 31.10.2006. the delay in award of pension cannot be attributed to him at all. the petitioner as such is also entitled and shall be paid 8% interest per annum on the delayed payment of the retiral dues and the arrears of pension. if the petitioner completes and submits all the documents within one month, the respondents shall settle and sanction the pension papers both for payment of pension, and retiral dues within next three months.
Judgment:

Sunil Ambwani, J.

1. Heard Shri K.B. Srivastava, learned Counsel for the petitioner. Learned standing counsel appears for the respondents. With the consent of parties the writ petition was finally heard on 2.4.2009.

2. The petitioner was appointed as Sahkari Co-operative Kurk Amin on 28.7.1975 in the pay scale of Rs. 200-320 for realization of outstanding dues of co-operative societies. On 28.2.1984 the District Assistant Registrar, Co-operative Societies, U. P. Muzaffarnagar appointed him on the post of Sahkari Kurk Amin at Tehsil level in the office of Additional District Co-operative Officer, Sadar, Muzaffarnagar in the pay scale of Rs. 354-550. Subsequently by an order dated 29.11.1990 issued by the Additional Registrar (Banking) Cooperative Societies, U. P. Lucknow, the Deputy Registrar, Meerut was directed to appoint the petitioner as Junior Clerk from the post of Kosthak Lipik/Sahkari Kurk Amin and accordingly the Deputy Registrar, Cooperative Societies, U. P. Meerut Region, Meerut directed the District Assistant Registrar, Co-operative Societies, U. P. Haridwar to appoint the petitioner on the post of Junior Clerk in the newly created district Haridwar in the pay scale of Rs. 950-1,500.

3. The petitioner continued to work on substantive post of Cooperative Kurk Amin without any break for 16 years and 17 days and thereafter as Junior Clerk (Collections) at Tehsil level w.e.f. 21.8.1991 and superannuated on 31.10.2006 at the age of 60 years after completing 31 years and 87 days of service in regular pay scale. The petitioner however has not been held entitled to payment of pension, inspite of the fact that the District Assistant Registrar, Co-operative Societies, U. P. Muzaffarnagar has made a recommendation for grant of pension on the ground that the facilities of pension are provided to the Cooperative Kurk Amin under the U. P. Co-operative Collections Fund and Amin and Other Employees Service Rules, 2002 (in short the Rules of 2002) and that in similar cases the Co-operative Kurk Amins have been provided with the right to receive pension.

4. Learned standing counsel has sought instructions in the matter and informs the Court that the District Magistrate had sought opinion of D.G.C. (Civil), Muzaffarnagar and was advised that since the petitioner was appointed by the District Magistrate as a salaried Amin and thereafter as Cooperative Kurk Amin at Tehsil level and was serving as a Junior Clerk at the time of retirement, the period of his service as Co-operative Kurk Amins should be added for the purposes of award of pension. The Treasury Officer, Muzaffarnagar has opined on 31.7.2007 that under Rule 29 of Rules of 2002, pension, gratuity and other retiral dues are provided to be paid to Amins and his other companions and the employees of the concerned categories. It would be appropriate to treat the petitioner eligible for pension under Rule 29 of the Rules of 2002. The matter is still pending consideration in the State Government.

5. In the counter-affidavit of Shri Mohd. Kaleem, Additional District Cooperative Officer, Muzaffarnagar, it is stated that the petitioner retired on 31.10.2006 as Junior Clerk of which the appointing authority is the District Assistant Registrar. His services were not regulated by the Rules of 2002, as he was not an Amin or Associate Amin under Rule 29 of the Rules of 2002 and is thus not entitled to pension.

6. In Chandra Prakash Pandey and Ors. v. State of U.P. and Ors. Writ Petition No. 7326 (S/S) of 2004 this Court had held in its judgment dated 25.11.2008, that the Kurk Amins are to be treated as Government servants and were entitled to all the benefits which are applicable to Government servants including pension. Earlier Shri Chandra Prakash Pandey and others filed a Writ Petition No. 199 of 1991 claiming declaration that they were Government servants. The Court held in its judgment dated 26.4.1993, that the Kurk Amins are entitled to be treated as Government servants. They were also entitled to regular pay scale and other allowance. The Special Appeals No. 15 (S/B) of 1994 and 39 (S/B) of 1994 were filed by the State of U. P. as well as petitioners. All these appeals were heard and by a judgment dated 5.5.1995 the Special Appeals preferred by the State of U. P. was dismissed and the Special Appeals filed by the petitioners were allowed directing concerned authorities to decide the case of the petitioners in the light of observations made in the judgment and to pass appropriate orders on the representations and to take steps for implement the decision. In paragraph 23 of the judgment it was held that the petitioners working as Kurk Amins were holding civil posts and were Government servant and therefore their pay should be regulated by the existing pay scales. It was however held that it is not for the Court to decide as to what pay scale should be made applicable to the petitioners and therefore for that purpose the Court held that the proper authority will decide about the pay scales, arrears and other things related to the petitioner's claims. Pursuant to the judgment the District Magistrate, Faizabad had appointed petitioners in that writ petition as Government servants on 23.10.2001 and that under the Rules of 2002 the petitioners were granted pay scales of Rs. 3,050-3,950. The judgments were confirmed by the Apex Court holding that the petitioners are Government servants.

7. In this case the petitioner was appointed as Co-operative Kurk Amin on regular salary basis in the pay scales of Rs. 200-320 on 28.7.1975. He was thereafter appointed as Cooperative Kurk Amins on salary basis at Tehsil level on 28.2.1984, and thereafter as Collection Clerk on 29.11.1990. The petitioner was thereafter appointed as Junior Clerk in the regular pay scale of Rs. 950-1,500 by the District Assistant Registrar, Co-operative Societies, U. P. Haridwar on 5.12.1990 in pursuance of the letters of the Registrar, Cooperative Societies, U. P., dated December 5, 1990 and the Deputy Registrar, Co-operative Societies, U. P. Meerut Region, Meerut dated August 3, 1991.

8. The Co-operative Kurk Amins are engaged for realization of Government dues. They discharge same functions and duties as regularly appointed collection Amins in the revenue department of the State.

9. In State of U. P. and Ors. v. Chandra Prakash Pandey and Ors. : (2001) 4 SCC 78 : 2001 (2) AWC 1399 (SC), arising out of the Division Bench judgment of this Court referred to above, the Supreme Court held that the Kurk Amins appointed on commission basis for recovery of outstanding dues of the Co-operative Societies were members of service and Government servants on the ground that Co-operative Kurk Amins were appointed by the Collectors and were being paid out of the cost recovered according to the provisions for the recovery of land revenue, and were also given the revised pay scale. They were performing the same duties and responsibilities as Kurk Amins of other department on salary basis. They enjoy and exercise the power to arrest a person, who is a defaulter; can attach his property, which he can put to auction, like his counter part on regular basis. A Kurk Amin on commission basis and on regular basis similarly follows the provisions of U. P. Zamindari Abolition and Land Reforms Act, 1951 and U. P. Land Revenue Act, 1901 in so far as the recovery of land revenue is concerned. Once the District Magistrate issues a recovery citation, both the sets of Kurk Amins in order to execute the recovery follow the same procedure and exercise the powers and they are under the control of one and same authority. Both work in the same capacity under control of the State Government and that their appointments and duties fully comply with the tests laid down by the Supreme Court in the decision of State of Gujarat v. Raman Lal Keshav Lal Soni : (1983) 2 SCC 33, in which a Constitution Bench held that the panchayat service constituted under Section 203 of the Gujarat Panchayats Act, 1962 was a civil service of the State and the members of the service were Government servants. It was found that the right of appointment; the right to terminate the employment; the right to take other disciplinary action ; the right to prescribe conditions of service ; the nature of duties performed by the employees ; the right to control the employees ; manner and method of work ; for issuing directions and the right to determine the source from which wages or salary are paid and a host of such circumstances, have to be considered to determine the exigency of the relationship of master and servant.

10. The issue, as to whether a Cooperative Kurk Amin is a Government servant holding a civil post, is thus, no longer res-integra. This Court and Apex Court have held that the Cooperative Kurk Amins are Government servants, the petitioner, appointed as Co-operative Kurk Amin of the Collectorate on the regular pay scale on 28.7.1975 ; working continuously thereafter in the capacities of the Sahkari Kurk Amins, and Junior Clerk, continued to serve as a Government servant throughout on regular basis from the date of his initial appointment on 28.7.1975 to the date he attained superannuation and retired at the age of 60 years as a member of service of whose service conditions are, regulated by the Rules of 2002. He is thus entitled to club his entire services together for the purposes of retirement dues and pension.

11. The writ petition is allowed with directions to respondents to allow the petitioner to complete the pension papers and thereafter to sanction the pension, gratuity, leave encashment, group insurance and all other service retiral benefits which are due to a Government servant. The petitioner has retired on 31.10.2006. The delay in award of pension cannot be attributed to him at all. The petitioner as such is also entitled and shall be paid 8% interest per annum on the delayed payment of the retiral dues and the arrears of pension. If the petitioner completes and submits all the documents within one month, the respondents shall settle and sanction the pension papers both for payment of pension, and retiral dues within next three months.