State of U.P. & Ors. vs Virendra Kumar & Ors.

HELD:1. Sub-section (1) of Section 8 of Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 does not provide that the State Government shall have the power to determine the conditions of service of officers and employees of the Board. The power to control the appointment and the power to put restrictions are distinct and different from the power to determine the service conditions of the officers and servants of the Board. The control of the State Government and the power to impose restrictions as provided in sub-section (1) of Section 8 will extend to the creation of posts of officers and servants of the Board. The control can be exercised by directing the creation of different categories of posts. The control can be also exercised by determining the number of posts of different categories. In this context, Sections 94 and 95 of the 1965 Act are also relevant. Under sub-section (1) of Section 94, the State Government retains the general Rule making power of framing Rules for carrying out the purposes of the Act. Without prejudice to the generality of the power under sub-section (1), sub-section (2) of Section 95 lays down the topics and subjects on which Rule-making power can be exercised. One of the specific powers conferred by clause (b) of sub-section (2) of Section 94 on the State Government, is of framing Rules for laying down conditions of service of the Housing Commissioner. Thus, clause

(nn) of sub-section (2) of Section 94 confers power on the State Government to frame Rules in respect of any matter for which regulations can be framed by the Board . Clause (f) of sub-section

(1) of Section 95 specifically empowers the Board to frame Regulations governing conditions of service of officers and servants of the Board. Under clause (b) of sub-section (2) of Section 94, the State Government has a power to determine the conditions of service of the Housing Commissioner. Thus, the Legislature has specifically incorporated in Section 7 that the State Government shall have the power to determine the conditions of service of the Housing Commissioner. However, such a provision is conspicuously absent in Section 8 dealing with the appointment of servants and officers of the Board. The reason is that the power to determine the service conditions of the other officers and servants has been conferred on the Board which can be exercised by making Regulations. [Para 26][659-C-G; 660-BH; 661-A-B]

2. In view of sub-section (2) of Section 95 read with clause

(nn) of sub-section (2) of Section 94, Regulations, if any, framed by the Board for determining the conditions of services of its officers and servants are always subject to the Rules which may be framed by the State Government by exercising the power under clause (nn) of sub-section (1) of Section 94. Whenever there is any inconsistency between the Regulations framed under clause (f) of sub-section (1) of Section 95 and the Rules framed under clause (nn) of subsection (1) of Section 94, the Rules will prevail and to that extent, the provisions of the Regulations which are repugnant to the Rules shall be void. To put it differently, the power to determine the conditions of service of the officers (except the Housing Commissioner) and servants of the Board vests in the Board, and the said power can be exercised only by framing Regulations under clause (f) of sub-section (1) of Section

95. So long as Rules are not framed by the State Government under clause (nn) of subsection (1) of Section 95 for overriding the provisions of the Regulations framed by the Board for prescribing the service conditions, the provisions of Regulations shall always govern the field. Except for the exercise of the Rule making power under clause (nn) of sub-section (1) of Section 94, there is no specific power conferred under the 1965 Act, or for that matter under the 1975 Act, on the State Government to nullify or to override the conditions of service of its officers and servants determined by the Board by the Regulations framed in the exercise of powers under clause (f) of sub-section (1) of Section

95. [Para 27][661-C-F]

3. This Court concurred with the view taken by this Court in Preetam Singh’s case and answered as follows: Q.1 Whether the judgment of this 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 ?

A: The decision lays down the correct proposition of law.

Q.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 the 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.

A: The first part of the question is answered in the affirmative. The functions of the Board are as specified in Section

15 and other relevant sections in Chapter III of the 1965 Act. The second part is answered in the negative.

Q.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?

A: Answered in affirmative. But the State Government can always frame Rules in the exercise of powers under clause (nn) of sub-section (1) of Section 94 of the 1965 Act for determining the conditions of service of the servants and officers of the Board. Whenever there is any inconsistency between Regulations framed under clause (f) of sub-section (1) of Section 95 and the Rules framed under clause (nn) of sub-section (1) of Section 94, the Rules will prevail and to that extent, the provisions of the Regulations which are repugnant to the Rules shall be void. [Para 34][668-A-H]

4. This Court concluded as under :

(i) This Court upheld the decision of this Court in Preetam Singh’s case with a modification that the State Government can always exercise the powers under clause (nn) of sub-section (1) Section 94 of the 1965 Act for determining the conditions of service of the officers (other than the Housing Commissioner) and employees of the Board. If such power is exercised, those provisions of the Regulations framed under clause (f) of sub-section (1) of Section 95 which are repugnant to the Rules, shall be void;

(ii) All the officers and employees of the Board who have not received the benefit of the old scheme till 07th September 2012 and have retired on or after 1st January 2006 shall be entitled to benefit of the new pension scheme as per the notification dated 19th May 2009 issued by the Board provided they are otherwise eligible. However, the officers and employees appointed on or after 1 st April 2005 will be governed by the newly defined Contributory Pension Rules notified by the State Government;

(iii) Those officers and employees of the Board who have retired on or after 1st January 2006 and who have not received benefits under the old scheme till date shall be entitled to interest as directed by this Court in paragraph 21 of the decision in Preetam Singh’s case. Even those officers and employees who are entitled to benefit of the new pension scheme in terms of the notification dated 19th May 2009 and who have taken benefits under the old scheme pursuant to the interim order dated 07th September 2012, will be entitled to interest on differential amounts, as directed in terms of paragraph 21 of the decision of this Court in Preetam Singh’s case;

(iv) Those officers and employees of the Board who have accepted the benefit under the old scheme before 7th September 2012 after giving an undertaking in terms of the Office Order dated 16th January 2004 shall not be entitled to the benefit of the new pension scheme made applicable as per the notification dated 19th May 2009;

(v) While calculating the pension amount payable to those who are entitled to the new pension scheme in terms of the notification dated 19th May 2009, the benefit of notional pay fixation in terms of the revised pay structure with effect from 1st January 2006 shall be provided; and

(vi) All the officers and employees of the Board who are entitled to benefit of the revised pay structure in terms of the Government Order dated 14th January 2010 shall be provided the said benefit within a period of three months from today, if not provided earlier. While extending the said benefit, their pay shall be notionally determined as per the revised pay structure with effect from 1st January 2006. However, they shall not be entitled to arrears of salary as per the revised pay structure from 1st January 2006 till 14th January 2010. However, in the cases of the employees and officers who have already received the arrears, no recovery proceedings shall be initiated against them. [Para 45][677-D-H; 678-A-G]

State of Uttar Pradesh v. Preetam Singh & Ors. (2014)

15 SCC 774 : [2014] 10 SCR 910; D.S. Nakara & Ors. v. Union of India (1983) 1 SCC 305 : [1983] 2 SCR

165 V. Sukumaran v. State of Kerala & Anr. (2020) (8) SCC 106 : [2020] 6 SCR 991; A.R. Antulay v. Ramdas Sriniwas Nayak & Anr. (1984) 2 SCC 500 : [1984] 2 SCR 914; Dhananjaya Reddy etc. v. State of Karnataka (2001) 4 SCC 9 : [2001] 2 SCR 399; Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd. (2008) 4 SCC

755 : [2008] 4 SCR 822; DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana (2003)

5 SCC 622 : [2003] 2 SCR 1; Commercial Tax Officer, Rajasthan v. Binani Cements Ltd. & Anr. (2014) 8 SCC

319 : [2014] 3 SCR 1; Harwindra Kumar v. Chief Engineer, Karmik & Ors. (2005) 13 SCC 300 : [2005]

5 Suppl. SCR 317; Institute of Chartered Accountants of India v. Price Waterhouse & Anr. (1997) 6 SCC 312 : [1997] 2 Suppl. SCR 267; State of Rajasthan & Anr. v. Prem Raj (1997) 10 SCC 317 : [1997] 2 SCR 60; Nazir Ahmed v. The King Emperor (1936) SCC OnLine PC 41 – referred to.