STATE OF U P Vs. PARMANAND SRIVASTAVA

JUDGEMENT

(1.) RESPONDENTS-appellants, aggrieved by the order dated 12th April, 2004 passed by a learned Single Judge in Writ Petition No. 27986 of 2000, have preferred this Appeal under Rule 5, Chapter VIII of the High Court Rules, whereby the order declining to grant pension and gratuity and fixation of pay has been quashed. Shorn of unnecessary details, facts giving rise to the present Appeal are that writ petitioner-respondent (hereinafter referred to as the petitioner) was appointed as a Co-operative Supervisor on 5th May, 1946 in U.P. Co-operative Provincial Co-operative Union Ltd, Lucknow. Rule 5 of the Subordinate Co-operative Service Rules, 1979 (hereinafter referred to as the ''Rules') interalia provides for source of recruitment of Inspector Group-I and Inspector Group-II. In the present case, we are concerned the recruitment to Inspector Group-II. According to Rule 3(g) of the Rules, Inspector Group-II includes the posts of Assistant Development Officer. Petitioner being a Co-operative Supervisor was considered for recruitment as Inspector Group-II and by order dated 30th August, 1979 he was promoted as Assistant Development Officer. He took the charge of the Office on 22nd April, 1980. By order dated 20th June, 1985 his pay as a Co-operative Supervisor was fixed at Rs.575/- w.e.f. 1st February, 1980. Petitioner retired as Assistant Development Officer on 31st January, 1985 and his pay as Assistant Development Officer was fixed at Rs.560/- by order dated 3rd July, 1986. He represented his case before the respondents-appellants herein for re-fixation of his pay and also for grant of pension and gratuity, but when nothing was done he approached this Court. By order dated 7th April, 1999 this Court directed the appellants to dispose of the representation. In the light of the aforesaid order petitioner's claim for fixation of pay and payment of pension and gratuity has been refused by order dated 1st March, 2000. Petitioner filed the writ petition interalia praying for quashing of the aforesaid order dated 1st March, 2000 by which the claim of the petitioner for fixation of pay and payment of pension and gratuity has been refused. Further prayer made by him was to quash the order dated 3rd July, 1986 by which his pay was fixed at Rs.560/- on the post of Assistant Development Officer. It was contended before the learned Judge that at the time of promotion as Assistant Development Officer, petitioner was drawing pay at Rs.575/- and as such on promotion to the post of Assistant Development Officer, same ought not to have been reduced to Rs.560/-. It was pointed out that in view of the Rule 22-B of the Financial Hand Book (Vol. 2 part II to IV), he was entitled to at least one increment of Rs.15/- over the pay he was drawing as a Co-operative Supervisor. This submission found favour with the learned Judge and in this connection it has been observed as follows:- "A bare perusal of the aforesaid Rule makes it explicit that when a person is promoted to a higher post and which carries greater responsibilities, his pay should be fixed at the stage next above from the pay he was drawing on his last post. It is not denied that the petitioner was drawing his last pay at Rs.575/- and as such his pay could not be reduced to Rs.560/- and he would be entitled at least to one increment of Rs.15/-. Thus, the petitioner's pay ought to have been fixed at Rs.590/- on his promotion. However, Learned Standing Counsel, relying upon in paragraph 8 of the counter affidavit, has urged that in view of Government orders dated 13.7.1979 and 3.4.1981, the petitioner was not entitled to the benefit of Rule 22-B. Neither the Government orders have been produced nor the same has been annexed with the counter affidavit or the relevant clause quoted. Thus, in my view the argument of the learned counsel for the petitioner has to be accepted." It was also contended before the learned Judge that the services rendered by the petitioner as Co- operative Supervisor prior to his promotion to the post of Assistant Development Officer is fit to be counted for the purpose of pensionary benefits. This submission has also been accepted by the learned Judge and a direction was given to the respondents-appellants herein to fix the pay of the petitioner and to pay him his pension and other retiral benefits taking into consideration the services rendered as a Co- operative Supervisor from 5th May, 1946 to 22nd April, 1980. Dr. Y.K. Srivastava appearing on behalf of the appellants submits that reliance on Rule 22-B of the Financial Hand Book (Vol. 2 part II to IV) while directing for fixing the salary of the petitioner at Rs.590/- is absolutely misconceived. The relevant portion of Rule 22-B of the Financial Hand Book (Vol. 2 part II to IV) is quoted below:- "22-B. (1) Notwithstanding anything contained in these rules, where a Government servant holding a post in substantive, temporary or officiating capacity is promoted or appointed either in a substantive, temporary or officiating capacity to another post carrying duties and responsibilities of greater importance than those attached to the post held by him, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the pay arrived at by notionally increasing his pay in respect of the lower post by one increment at the stage at which such pay has accrued:" (underlining ours) Despite revision of the cause list, nobody has appeared to represent the respondent. From a plain reading of the aforesaid provision, it is evident that the benefit of pay protection under the aforesaid Rule shall be available to a Government servant holding the post in substantive, temporary or officiating capacity who is appointed on another post carrying duties and responsibilities of greater importance than those attached to the post held by him. In such case his initial pay in the time-scale of higher post shall be fixed at the next stage. Here in the present case, the petitioner before his promotion as Assistant Development Officer was holding the post of the Co-operative Supervisor. Post of Co- operative Supervisor is not a Government post and as such the petitioner was not holding the post of a Government servant while being promoted as an Assistant Development Officer. In that view of the matter, the provision of Rule 22-B of the Financial Hand Book (Vol. 2 part II to IV) did not govern the case of the petitioner. As regards taking into consideration the services rendered by the petitioner as Co-operative Supervisor from 5th May, 1946 to 22nd April, 1980 for pension and other retiral benefits, Dr. Srivastava contends that the petitioner rendered the said services not as a Government servant and as such the service rendered as Co-operative Supervisor is not fit to be counted for pension and other retiral benefits. In support of this contention he has placed reliance upon the judgment of the Supreme Court in the case of State of U.P. and Ors. Vs. Ruk Mangal Singh Rathaur (2006) 13 SCC 662. Our attention has been drawn to the following paragraph from the said judgment:- ".....The above provisions also clarified the intendment of the legislature that they can come to the government service only through the procedure established by the Rules and Regulations, as government servants. In other words, they are being treated as government servants when they are recruited according to the procedure provided in (a) and (b) of Part III of the Rules. We have already noticed that in the Co-operative regulations there is no provision for pensionary benefits. We have also noticed that Co-operative Supervisors were under the control of the Co-operative Federation Authority. Therefore, the Tribunal and the High Court clearly erred in law and in facts in directing the period they served as Co-operative Supervisors to be added for reckoning the pensionary benefits of retired Co- operative Inspector Grade II." (underlining ours) We find substance in the submission of Dr. Srivastava and the decision relied on squarely covers the case. Petitioner was a Co-operative Supervisor in U.P. Co-operative Provincial Co-operative Union Ltd. He was not a Government servant before promotion as Assistant Development Officer and as such service rendered by him as Co-operative Supervisor is not fit to be counted for pensionary benefits. We are of the opinion that the learned Judge while passing the impugned order has committed error, which calls for interference in this Appeal. In the result, the Appeal is allowed, the impugned order of the learned Judge is set aside and the writ petition filed by the petitioner stands dismissed but without any order as to costs.