SHAKTI PRASAD BHATT ETC. ETC.versusTHE STATE OF UTTARAKHAND AND ORS. ETC.

272                      [2018]REPORTS
               SUPREME COURT    4 S.C.R. 272               [2018] 4 S.C.R.


A                    SHAKTI PRASAD BHATT ETC. ETC.
                                        v.
              THE STATE OF UTTARAKHAND AND ORS. ETC.
                      (Civil Appeal Nos. 4519-4530 of 2018)
                                 APRIL 26, 2018
B
             [ARUN MISHRA AND UDAY UMESH LALIT, JJ.]
             Service Law – Claim to count past services for the purpose of
      selection grade, promotional scale and post retiral benefits including
      pension – Post of Kurk Amins – It was held by High Court of
      Allahabad on 16.11.1985 in a case that Kurk Amins were government
C     servants holding civil posts and were entitled to be treated in the
      same way as others in the services of Government of U.P. – This
      view was confirmed in another judgment of High Court wherein it
      was held that Kurk Amins appointed on commission basis stood on
      the same footing as Kurk Amins appointed on regular basis – The
D     said order was upheld by Supreme court in Chandra Prakash case
      – Thus, Kurk Amins’ status was confirmed by Supreme Court with
      effect from 1985 as that of the government servant – With effect
      from 9.11.2000, the erstwhile State of U.P. was bifurcated and U.P.
      Re-Organisation Act carved out the State of Uttarakhand – Many
      Kurk Amins including appellants were allocated to the State of
E     Uttarakhand and were absorbed in the Government service of
      Uttarakhand – The benefit of the judgment rendered by Supreme
      Court as well as by the High Court of Allahabad was clearly
      available to the Kurk Amins whose services had been allocated to
      the State of Uttarakhand and their past service could not have been
F     wiped off for the purposes of grant of selection grade, promotion
      scale, post retiral benefits including pension etc. as was done by
      the High Court – The impugned judgment whereby the claim of
      appellant was denied was not in accordance with law and was
      against the basic principles of service jurisprudence as merely by
      the act of bifurcation of the State the incumbents would not lose
G     their services for the purpose of pension and other benefits – The
      appellants are held entitled to all such relief – Cost of Rs.1 lac
      imposed on State of Uttarakhand – U.P. Reorganization Act – Costs.
             Allowing the appeals, the Court
             HELD: 1. It is apparent that the Kurk Amins’ status was
H     confirmed by this Court with effect from 1985 as that of the
                                       272
    SHAKTI PRASAD BHATT ETC. ETC. v. THE STATE OF                     273
            UTTARAKHAND AND ORS. ETC.

government servant. The erstwhile State of U.P. was bifurcated        A
and U.P. Re-Organisation Act carved the State of Uttarakhand
out with effect from 9.11.2000. Many Kurk Amins including
appellants were allocated to the State of Uttarakhand and were
absorbed in the Government service of Uttarakhand. As
uncertainty prevailed, Kurk Amins filed writ application before
                                                                      B
the High Court of Uttarakhand to seek relief with effect from
16.11.1985. Their case was that they should be governed by the
decision rendered by this Court earlier in the matter. Single
Bench of Uttarakhand High Court allowed the writ petition vide
order dated 31.8.2006; against which writ appeal was filed by the
State of Uttarakhand was decided by the Division Bench on             C
14.9.2010.[Paras 13, 14][277-H; 278-A-C]
      2. The Division Bench of the High Court had clearly opined
that the benefit of Chandra Prakash Pandey’s case should not be
denied to the appellants as they sail on the same boat. However,
in para 7 it was observed by the Division Bench that they would       D
be entitled to the consequential benefits with effect from 9th
November 2000 and not with effect from 16th November 1985.
That would not have meant that their earlier services were to be
wiped off; it was only with respect to monetary liability not to be
saddled upon the State of Uttarakhand with respect to the period
1985 till the appointed date i.e. 9.11.2000. [Paras 15, 16][279-B-    E
D]
      3. Once State has been reorganised, the past service of
Kurk Amins could not have been wiped off and the benefit of the
judgment rendered by this Court as well as by the High Court of
Allahabad was clearly available to the said Kurk Amins whose          F
services had been allocated to the State of Uttarakhand. The
services rendered in the State of U.P. could not have been wiped
off for the purposes of grant of selection grade, promotion scale,
post retiral benefits including pension etc. as has been done by
the High Court. The judgment is not in accordance with law and
                                                                      G
just benefit has been taken away for no good reason and is against
the basic principles of service jurisprudence and merely by the
act of bifurcation of the State the incumbents were not supposed
to lose their services for the purpose of pensionary and other
benefits. Thus, the past services have to be counted for all
purposes and cannot be wiped off including for the purpose of         H
274            SUPREME COURT REPORTS                         [2018] 4 S.C.R.


A     selection grade promotional scale, post retiral benefits and
      pension. The appellants are held entitled to all such relief as were
      granted to them by the Single Bench. Let the benefit be extended
      to all the other similarly situated incumbents also, they should
      not be dragged to any further litigation. [Para 19][280-D-G]
B          4. As the action of the State of Uttarakhand was found to
      be wholly untenable, cost quantified at Rs.1,00,000/- is imposed.
      [Para 20][280-G]
            State of U.P. & Ors. v. Chandra Prakash Pandey &
            Ors (2001) 4 SCC 78 : [2001] 2 SCR 506 – relied on
C                               Case Law Reference
              [2001] 2 SCR 506         relied on                Para 12
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4519-
      4530 of 2018.
            From the Judgment and Order dated 11.07.2017 of the High Court
D
      of Uttarakhand at Nainital in Special Appeal Nos. 305, 314, 316, 319,
      321, 322, 323, 324, 325, 326, 327, 328 of 2017.
            V. Shekhar, Sr. Adv., Chander Shekhar Ashri, Shashank Shekhar,
      Ms. Stuti Naina Karwal, Prithviraj Singh, Advs. for the Appellant.
E          Tanmaya Agarwal, Jatinder Kumar Bhatia, Advs. for the
      Respondents.
            The following Judgment of the Court was delivered:
                                JUDGMENT
            1. Leave granted.
F
            2. Application for Intervention/impleadment is allowed.
             3. The order passed on 11.04.2017 by the Single Bench of the
      High Court of Uttrakhand at Nainital in W.P. No.2372 of 2015 filed by
      Uttarakhand Sahakari Sangarh Kurk Amin Parishad, of granting benefit
      of past services for the purpose of selection grade, promotional scale
G     and post-retiral benefits including pension etc. from due date, has been
      set aside by the Division Bench, the Single Bench has granted the
      following relief:
              “Accordingly, the present petitions are disposed of in terms of
            the judgment cited hereinabove. The respondents are directed to
H
    SHAKTI PRASAD BHATT ETC. ETC. v. THE STATE OF                             275
            UTTARAKHAND AND ORS. ETC.

      grant the ACP to the petitioners and to count the past services of      A
      the petitioners for the purpose of selection grade, promotional scale
      and post-retiral benefits including pension etc. from due date within
      a period of ten weeks from today.”
      4. The facts, in short, indicate that in the year 1978 onwards
pursuant to the scheme of UP Government Kurk Amins were appointed             B
for realising outstanding dues of the cooperative societies. Their
appointment, salary, service conditions were governed under the scheme.
The Government’s earlier decision to pay them on salary basis was
withdrawn and they were asked to work on commission basis. Since
Kurk Amins did not agree to work on commission basis, their services
were dispensed with.                                                          C
      5. In the year 1980, the Kurk Amins filed a writ petition before
the High Court of Allahabad whose services were terminated or who
did not agree to be paid on commission basis.
       6. On 16.11.1985, the High Court of Allahabad quashed the order
of termination and granted relief by holding that Kurk Amins were             D
Government servants holding civil posts and hence are entitled to be
treated in the same way as others in the services of Government of U.P.
       7. In the year 1995 one Chandra Prakash Pandey filed a writ
petition seeking a direction to the State Government to place him and
others in the regular pay scale, which were being paid to Kurk Amins of       E
Revenue Department.
      8. The Single Bench of the High Court allowed the prayer as
contained in the writ petition. Against which, a Special appeal was
preferred before the Division Bench of the High Court and the Division
Bench on 5.5.1995 affirmed the judgment passed by the Single Bench.           F
       9. In the year 1996, the U.P. Sahakari Sangarsh Karamchari Sangh
filed another Writ Petition. The Division Bench of High Court following
the decision rendered in CMWP No.738 of 1980 held that the principle
laid down in the aforesaid case also applied to the case of Kurk Amins
appointed on the commission basis as they both stood on the same footing.     G
The said decision was challenged before this Court. This Court remitted
the matter for fresh consideration of the High Court.
      10. The High Court vide judgment and order dated 22.3.1996 held
that Kurk Amins appointed on commission basis were to be treated at
par with the Kurk Amins appointed on regular basis.
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276            SUPREME COURT REPORTS                          [2018] 4 S.C.R.


A            11. Against the above order Special appeal was preferred before
      the High Court and the Division Bench on 4.4.1997 affirmed the said
      decision.
            12. The decision of the Single Bench dated 22.3.1996 and the
      Division Bench dated 4.4.1997 were questioned by filing an appeal in
B     this Court. This court decided the matter in State of U.P. & Ors. vs.
      Chandra Prakash Pandey & Ors [2001(4) SCC 78], of which relevant
      paragraphs are extracted below:
            “4. Thereafter one Chandra Prakash Pandey and others, who are
            respondents in Civil Appeal Nos. 8467-68 of 1995, filed a writ
C           application before the High Court for a direction to the State to
            pay regular scale to them as was payable to Kurk Amins of the
            Revenue Department. The learned Single Judge of the High Court
            following the judgment rendered by the Division Bench on
            16.11.1985 in CMWP No. 738/1980 referred to above allowed
            the writ application and directed to pay salary and regular scale
D           of pay to the writ petitioners against which order Special Appeal
            was preferred by the State of Uttar Pradesh before the Division
            Bench whereas writ petitioner Chandra Prakash Pandey also
            preferred an appeal against the judgment of the learned Single
            Judge as no direction was given for fixing their pay and granting
E           arrears. Both the appeals were disposed of by judgment dated
            5th May 1995. The appeal preferred by the State was dismissed
            and the appeal preferred by the writ petitioner was allowed which
            gave rise to Civil Appeal Nos.8467-68 of 1995.
            8. In all these appeals preferred by the State of Uttar Pradesh,
            Mr. Rakesh Dwivedi, learned senior counsel appearing on behalf
F           of the State, has assailed the judgments on the ground that Kurk
            Amins appointed for realisation of outstanding dues of cooperative
            societies could not have been treated to be Government servants
            and the High Court was not justified in holding that they held civil
            posts under the State of Uttar Pradesh as the Kurk Amins were
G           appointed under a scheme framed by the Registrar of Cooperative
            Societies for recovery of outstanding dues of the cooperative
            societies. On the other hand, Mr. R.K. Jain, learned senior counsel
            appearing on behalf of the respondents, submitted that neither in
            Civil Appeal Nos.8467-68 of 1995 nor in Civil Appeal No. 6075 of
            1997 in which separate detailed judgments have been rendered
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    SHAKTI PRASAD BHATT ETC. ETC. v. THE STATE OF                              277
            UTTARAKHAND AND ORS. ETC.

      by the High Court, any counter affidavit was filed on behalf of the      A
      State before the High Court inasmuch as even after remand of
      the matter by this Court no affidavit in opposition was filed on
      behalf of the State. It has been further submitted that the so-
      called scheme, which is the basis of submission of the State before
      this Court, was not brought on the record either before the High
                                                                               B
      Court or before this Court and the same has been produced during
      the course of argument as such it should not be taken into
      consideration. It has been further submitted that for deciding the
      question as to whether there was relationship of master and servant
      between the Kurk Amins appointed for realisation of outstanding
      dues of cooperative societies and the State, there would be host         C
      of circumstances which have to be considered for determining
      the same and such a question whether a person or class of persons
      is servant of the State, which is a question of fact, has been decided
      in the present case by the High Court after considering the various
      ingredients which are required under law for coming to a
                                                                               D
      conclusion that the respondents were holding a civil post and they
      were Government servant, but the State has failed to challenge
      the said statements of facts, in the judgments.
      9. Undisputedly, the decision of the Allahabad High Court that the
      Kurk Amins, appointed on salary basis for realisation of dues of
      co-operative societies, held civil posts and became Government           E
      servant has attained finality as its correctness has not been
      challenged by the State of Uttar Pradesh by bringing the matter
      to this Court, rather the same got approval of this Court while
      remanding the matter to the High Court for considering the question
      whether cases of Kurk Amins appointed on commission basis                F
      stand on the same footing as that of Kurk Amins appointed on
      salary basis in whose cases it was declared that they held civil
      posts and would be entitled to the same salary as is payable to
      Kurk Amins of Revenue Department.
      16. In view of the foregoing discussions, we do not find any infirmity
      in the judgments rendered by the High Court so as to be interfered       G
      with by this Court.”
      13. It is apparent that the Kurk Amins’ status was confirmed by
this Court with effect from 1985 as that of the government servant.

                                                                               H
278            SUPREME COURT REPORTS                           [2018] 4 S.C.R.


A            14. The erstwhile State of U.P. was bifurcated and U.P. Re-
      Organisation Act carved the State of Uttrakhand out with effect from
      9.11.2000. Many Kurk Amins including appellants were allocated to the
      State of Uttrakhand and were absorbed in the Government service of
      Uttrakhand. As uncertainty prevailed, Kurk Amins filed writ application
      before the High Court of Uttarakhand to seek relief with effect from
B
      16.11.1985. Their case was that they should be governed by the decision
      rendered by this Court earlier in the matter. Single Bench of Uttrakhand
      High Court allowed the writ petition vide order dated 31.8.2006; against
      which writ appeal was filed by the State of Uttrakhand was decided by
      the Division Bench on 14.9.2010, following is the operative portion of
C     the order passed by the Division Bench:
             “5. The contentions of the State of Uttarakhand, as above, may
             or may not be correct. We are, however, not in a position to go
             into that aspect of the matter, in view of the law laid down by the
             High Court at Allahabad, which law became the law enforceable,
             in so far as, the State of Uttarakhand is concerned, upon its
D
             creation. It was well within the competence of the State of
             Uttarakhand to make such law in order to avoid the law so made
             by the High Court at Allahabad, which became applicable to the
             State of Uttarakhand, but the fact remains that the State of
             Uttarakhand did not make any such law, the fact that the Hon’ble
E            Supreme court has declared the status of cooperative Kurk Amins
             as that of Government Servant, in confirmation of the law declared
             by the High Court at Allahabad, is not in dispute. But for the
             creation of the State of Uttarakhand, the members of the Petitioner,
             who were working in the State of Uttar Pradesh before bifurcation
             of the said State and continued to work in the bifurcated State of
F
             Uttarakhand at the same place they were working before
             bifurcation, would have had the advantage of the said judgment
             of the Hon’ble Supreme Court, rendered in the case of State of
             U.P. and Others vs. Chandra Prakash Pandey and others. Only
             because the State was bifurcated, to which they had no role to
G            play, they would be deprived of such advantage is not
             comprehensible to us. We, under those circumstances, cannot
             deprive the members of the Petitioner of the benefit or advantage
             of the said judgment, nor we can avoid to follow the ratio of the
             said judgment.
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    SHAKTI PRASAD BHATT ETC. ETC. v. THE STATE OF                              279
            UTTARAKHAND AND ORS. ETC.

      7. We, accordingly conclude the matter and, as such, refuse to           A
      interfere with the judgment and order under appeal, except the
      effect that the consequential benefits which the members of the
      petitioner can have pursuant to the said judgment and order, will
      be from 9th November 2000 and not w.e.f. 16th November 1985,
      as had been directed by the Judgment and order under Appeal.
                                                                               B
      The appeal is accordingly, disposed of.”
      15. Thus, it is apparent that the Division Bench of the High Court
had clearly opined that the benefit of Chandra Prakash Pandey’s case
(Supra) should not be denied to the appellants as they sail on the same
boat. However, in para 7 it was observed by the Division Bench that
they would be entitled to the consequential benefits with effect from 9 th     C
November 2000 and not with effect from 16th November 1985.
      16. That would not have meant that their earlier services were to
be wiped off; it was only with respect to monetary liability not to be
saddled upon the State of Uttrakhand with respect to the period 1985 till
the appointed date i.e. 9.11.2000.                                             D
      17. A fresh Writ Petition was filed bearing W.P. No.2372 of 2015
by the State of Uttrakhand Sahakari Sangarh Kurk Amin Parishad, the
same was allowed in the light of the decision of this court in Chandra
Prakash Pandey’s case (Supra), the operative portion of which has
already been quoted in the beginning.
      18. The State filed an appeal against the said decision before the       E
High Court. The Division Bench of the High Court by the impugned
order dated 11.07.2018 reversed the decision. The relevant portion of
the order is extracted hereunder:
      “29. The upshot of the above discussion is that the appeals have
      to be allowed and the judgment of the learned Single Judge is set        F
      aside and modified in the following way:
      The direction of the learned Single Judge in the impugned judgment
      to count the past services of the petitioners for the purposes of
      selection grade, promotional scale and post retiral benefits including
      pension etc. from the due date will stand clarified as meaning that
                                                                               G
      the past services of the petitioners for the purposes of selection
      grade, promotional scale and post retiral benefits including pension
      will be counted form 09.11.2000 and not from any anterior period,
      as was the claim of the petitioners.
      30. We further clarify that the matter will be considered for the
      purpose of counting the past services from 09.11.2000 for the            H
280              SUPREME COURT REPORTS                           [2018] 4 S.C.R.


A            purpose of selection grade and promotional scale and a decision
             will be taken within a period of six weeks from the date of
             production of a certified copy of this judgment.
             31. As regards the grant of ACP in the writ petitions, where ACP
             was claimed by the writ petitioners, as we have noted, we direct
B            that the appellants will consider the case of each of the writ
             petitioners, who have raised such a claim in the writ petitions for
             grant of ACP, and take a decision in accordance with law within
             a period of six weeks from the date of production of a certified
             copy of this judgment and the said decision will be communicated
             to the writ petitioners. If the writ petitioners are found ineligible,
C            the reasons for the same and the material relied on for denying
             the ACP will also be indicated in the orders.”
             19. In our considered opinion, once State has been reorganised,
      the past service of Kurk Amins could not have been wiped off and the
      benefit of the judgment rendered by this Court as well as by the High
D     Court of Allahabad was clearly available to the said Kurk Amins whose
      services had been allocated to the State of Uttrakhand. The services
      rendered in the State of U.P. could not have been wiped off for the
      purposes of grant of selection grade, promotion scale, post retiral benefits
      including pension etc. as has been done by the High Court. The judgment
      is not in accordance with law and just benefit has been taken away for
E
      no good reason and is against the basic principles of service jurisprudence
      and merely by the act of bifurcation of the State the incumbents were
      not supposed to lose their services for the purpose of pensionary and
      other benefits. Thus, the past services have to be counted for all purposes
      and cannot be wiped off including for the purpose of selection grade
F     promotional scale, post retiral benefits and pension. The appellants are
      held entitled to all such relief as were granted to them by the Single
      Bench. Let the benefit be extended to all the other similarly situated
      incumbents also, they should not be dragged to any further litigation.
             20. Though the learned counsel appearing for the State of
G     Uttrakhand made serious attempt to salvage the situation but he was not
      able to do so. As the action of the State of Uttrakhand has been found to
      be wholly untenable, we impose the cost quantified at Rs.1,00,000/-.
             21. The order passed by the Division Bench is set aside. The
      appeals are allowed.
      Devika Gujral                                                  Appeals allowed.
H