Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 – ss.8, 15, 92, 94(2)(nn), 95(1)(f), 95(2) – Appellant decided to implement 6th Pay Commission Report w.e.f. 01.01.2006 and issued order dated 08.12.2008 – Said order excluded its applicability to the employees of local bodies and public enterprises – Regulation framed by U.P. Awas Evam Vikas Parishad (the Board) regarding pension/family pension & gratuity scheme – Appellant issued order approving pay band, grade pay etc. in the revised pay structure to the Board’s employees – Another order clarified that arrears of revised pay from 01.01.2006 to 13.01.2010 shall not be admissible to them – Appellant issued letter dated 05.05.2015 regarding pensionary benefits to Board’s employees in compliance of order passed by Supreme Court in Preetam Singh’s case – Board issued consequential order dated 05.05.2015 – Writ petitions filed inter alia for quashing order dated 05.05.2015 – Allowed vide order dated 16.03.2018 inter alia holding that Government Order dated 08.12.2008 would apply in its entirety to the Board’s employees – In another writ petition, mandamus was issued inter alia to grant benefit of arrears of salary payable to Board’s employees from 01.01.2006 to 13.01.2010 – Special Appeal dismissed on 26.11.2018 – Present SLPs filed against orders dtd. 16.03.2018 and 26.11.2018 – Submissions made only on the question as to whether judgment in Preetam Singh’s case reported as [2014] 10 SCR 910 requires reference to larger Bench or not – Held: Main issue considered in Preetam Singh’s case was as to whether the State Govt. has jurisdiction to issue direction for non-implementing pension/family pension & gratuity scheme on the employees of the Board – It was held that it is open to the State Govt. to issue directions on question of policy to all the Public Corporations in State of U.P but only in respect of questions of policy having a nexus to the “discharge of its functions” – It was also held that Board’s functions are relatable only to the functions stipulated in s.15 and that “the conditions of service of employees do not constitute the functions of the Vikas Parishad” – s.15 does not include conditions of the service of the employees as one of Board’s functions but s.15(1) begins with words “subject to the provisions of this Act and the rules and regulations” – Preetam Singh did not consider other provisions of ss.8, 92, 95(1)(f) and the expression “subject to the provisions of the Act, rules and regulations” which was expression of extreme importance and intended to amplify and add other functions to the Board as provided in the Act, rules and regulations – s.95 (Power to make regulations) has to be read in functions of the Board as contemplated by s.15 – Bench in Preetam Singh erred in laying down that conditions of service of the employees do not constitute the functions of the Vikas Parishad– It cannot be said that State Govt. had no jurisdiction to issue directions regarding service conditions of the employees – State can exercise its jurisdiction u/Art.162 to issue executive orders regulating the conditions of service of the officers and servants employed in the affairs of the State – Judgment in Preetam Singh needs reconsideration – Questions formulated – To be considered by larger Bench – U.P. State Control Over Public Corporation Act, 1975 – Constitution of India – Art.162; VIIth Schedule- Entry 41 List 5.
Directing the papers of the present cases to be placed before the Hon’ble Chief Justice for constituting a larger Bench, the Court
HELD: 1.1 Chapter III of the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 deals with the functions and powers of the Board. Section 15 does not include conditions of the service of the employees as one of the functions of the Board but Section 15(1) begins with words “subject to the provisions of this Act and the rules and regulations”, thus, functions of the Board as enumerated in Section 15 are subject to the provisions of 1965 Act. Thus, functions of the Board as enumerated in Section
15 are not exhaustive and have to be read along with functions of the Board as per other provisions of the Act, rules and regulations. Section 8 of the Act is an appropriate illustration for the present purpose. Section 8 provides for appointment of officers and servants. Section 8 indicates that appointment of officers and servants is also one of the functions of the Board. Supposing Board does not appoint any officer and servant can it carry out functions as entrusted by the Act on it, answer is obviously no. Thus, appointment of officers and servants is one of the functions of the Board and when power of appointment is given, power of laying down the conditions of service is implicit in it. In case where there are no rules or regulations for laying down terms and conditions of officers and employees of the Board, the Board can regulate the terms and conditions even by the executive orders. In Preetam Singh’s case attention of this Court was not drawn on the expression “subject to the provisions of the Act, rules and regulations” which was expression of extreme importance and clearly intended to amplify and add other functions to the Board as provided in the Act, rules and regulations. Provisions of Section 8(2) of 1965 Act indicates that the Board with the previous approval of the State Government appoint a servant of the Central or the State Government or of a local authority or any of the posts under it on such terms and conditions as may be agreed upon. Thus, in case of appointment under Section 8(2) terms and conditions of appointment has to be laid down although with the agreement as agreed upon. Section 8(2) is clearly indicative that terms and conditions of the appointment are not alien to the functions of the Board. Section 15(1) begins with the words “subject to the provisions of this Act and the rules and regulations”, thus, when Section 95(1)(f) provides making regulations by the Board for providing the conditions of officers and servants of the Board, making regulations on the above subject is also a function of the Board. Section 95, thus, has to be read in functions of the Board as contemplated by Section 15. The function contemplated by regulations has also to be added which is simple and plain meaning of the provision. The Bench deciding Preetam Sigh’s case did not refer to Section 8, Section 95(1)(f) and without adverting to the relevant provisions which clearly indicate that conditions of service of the employees is also a function of the Board, the Bench deciding Preetam Singh’s case fell in error in holding that conditions of service do not constitute functions of the Board which opinion is not as per the provisions of the 1965 Act. Thus, the opinion expressed by the Bench in Preetam Singh’s case is without referring to Section 8, Section 95(1)(f). [Paras 29-32][720-C-E, G-H; 721-A-H; 722-AB]
1.2 Section 92 deals with control of the State Government over the Board and other local authorities. Section 92(2) has its operation for carrying out the purpose of this Act. The words “purpose of this Act” are vide enough which encompass in itself the appointment of officers and staff of the Board. Hence, the State Government can as well issue directions under Section 95(2) regarding appointment of officers and servants. Section 92 has also not been considered in Preetam Singh’s case. The Bench in Preetam Singh’s judgment in laying down that conditions of service of the employees do not constitute the functions of the Vikas Parishad erred, it having not considered other provisions of Sections 8, 92, 95(1)(f) and the expression subject to the provisions of this Act, rules and regulations as occurring in Section 15(1). In event the functions of the Board includes conditions of the service of the employees of the Board the State Government shall have jurisdiction under 1975 Act as well under 1965 Act to issue directions to the Board with regard to appointment of officers and servants of the Board, the control and restrictions by the State Government are expressly provided in Section 8(1) when the appointment of officers and servants by the Board is expressly subject to control and restrictions as may from time to time be imposed by the State Government, it cannot be said that the State Government had no jurisdiction to issue directions regarding service conditions of the employees. The State Government has been given express rule making power with regard to all subject where regulations may be made by the Board under Section 95. [Paras 33-35][722-B-H]
1.3 By virtue of Section 95(2) rules by the State has overriding effect. Section 95(2) is also indicative that there is no lack of jurisdiction in the State regarding service conditions of the officers and the servants of the Board. The State Legislature have legislative competence under Entry 41 List 5 of the VIIth Schedule of the Constitution, it has also the executive power to issue orders by virtue of Article 162 of the Constitution. The State, thus, can exercise its jurisdiction under Article 162 to issue executive orders regulating the conditions of service of the officers and servants employed in the affairs of the State. The regulations dated 19.05.2005 regarding pension/family pension and gratuity scheme which have been relied in the Preetam Singh’s case itself contemplates that pension/family pension and gratuity scheme as admissible to officers and servants of the Government shall also apply to Board. When the Regulations 2009 itself contemplates issuance of Government order regulating pension/family pension and gratuity which was to be made applicable to the officers and servants of the Board, it does not appeal to reason that the State Government has no power to issue orders pertaining to pension/family pension and gratuity. [Paras 36, 37 and 42][723-D-F; 725-A-D]
1.5 The judgment in Preetam Singh’s case needs reconsideration. Questions to be considered by a larger Bench:
(1) Whether the judgment of Supreme Court in Preetam Singh’s case laying down that conditions of service of officers and employees do not constitute the functions of the U.P. Avas Evam Vikas Parishad lays down the correct law more so when the judgment does not refer to provisions of Sections 8, 92, 94(2)(nn) of the 1965 Act?
(2) Whether the view expressed in Preetam Singh’s judgment that functions of the U.P. Avas Evam Vikas Parishad are only the specific functions enumerated in Section 15 of 1965 Act which does not include the service conditions of employees of the Board lays down the correct law? Whereas the functions of the Board referred to in other provisions of Act, Rules and Regulations as has been expressly provided in Section 15(1) by use of expression “subject to the provisions of this Act and the Rules and Regulations” shall also be functions of the Board which induces service conditions of officers and employees as per Section 95(1)(f) of the 1965 Act.
(3) Whether the State Government had no jurisdiction to issue directions regarding service conditions of officers and employees of the U.P. Avas Evam Vikas Parishad under the provisions of the 1965 Act and 1975 Act and all other enabling powers with the State Government? [Para 43][725 D-H; 726-A] Rai Sahib Ram Jawaya Kapur and Others v. The State of Punjab AIR 1955 SC 549 : [1955] SCR 225 –
followed.
A.B. Krishna and Others v. State of Karnataka and Others (1998) 3 SCC 495 : [1998] 1 SCR 157 – relied on.
State of U.P v. Preetam Singh (2014) 15 SCC 774 : [2014] 10 SCR 910 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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