# Anurag Mehrotra v. State of U.P. & Ors

- **Citation:** (2022) 1 ILRA 1105
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-24
- **Case number:** Service Single No. 33425 of 2019
- **Bench:** Vivek Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anurag-mehrotra-v-state-of-u-p-ors-47639
- **Pages:** 6

## Headnote

A. Civil Law - Constitution of India, 1950Article
226-challenge
to-denial
of
incentive bonus-representation rejected
deliberately as no reason is given for
denying the said benefit to the petitionerIt is settled that the State Government
cannot issue executive instructions with
regard to the field already occupied by the
G.P.F. Rules of 1985 issued under Article
309 of the Constitution of India, it also
cannot modify the said rules by an
executive order-no power left in the State
Government to withdraw or repeal the
said bonus in exercise of its executive
power-In exercise of power under Rule
11(1) of G.P.F. Rules of 1985 the State
Government
cannot
withdraw
the
incentive bonus required to be given
under Rule 12 of the G.P.F. Rules of 1985Therefore the said executive order is
declared to be ultra-vires and is set aside.
(Para 1 to 16)

The writ petition is allowed. (E-6)

List of Cases cited:

## Text

1 All. Anurag Mehrotra Vs. State of U.P. & Ors.
1105
V.U.Warrier; (2005) 5 SCC 245 and M/S.
Steel Authority of India Ltd. Versus
Raghbendra Singh and others decided
on 15th December 2020, by the Supreme
Court in Special Leave to Appeal (C)
No.(s) 11025 of 2020.

20. These all cases relied by learned
counsel for the respondents are not
applicable on the facts and circumstances
of the present case because in the said cases
the forfeiture of gratuity has been upheld
on account of misconduct resulting in
damage of the property of the employer,
whereas in the present case nothing has
been proved against the petitioner, even the
enquiry as proposed in the impugned
resolution appears to have not been done to
find out as to whether the loans were
wrongly and illegally disbursed by the
petitioner to the ineligible persons. It
appears that no effort has also been made
by the respondents to recover the amount
after retirement of the petitioner.

21. In view of above, this court is of
the considered view that the amount of
gratuity of the petitioner has wrongly and
illegally
been
forfeited
and
adjusted
towards the NPA Loan Accounts without
authority of law. Therefore the writ petition
is liable to be allowed.

22. The writ petition is allowed. The
impugned resolution dated 07.10.2013 is
hereby quashed so far as it relates to the
petitioner. The respondents are directed to
release and pay the amount of Gratuity of
Rs.6,17,905/- to the petitioner alongwith
interest @ 8% per annum w.e.f. the date of
retirement of petitioner till the date of
payment within a period of six weeks from
the date of production of a certified copy of
this order. No order as to costs.
----------
(2022)01ILR A1105
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.12.2021

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Service Single No. 33425 of 2019

Anurag Mehrotra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Anurag Mehrotra (In Person)

Counsel for the Respondents:
C.S.C., Deepak Seth

A. Civil Law - Constitution of India, 1950Article
226-challenge
to-denial
of
incentive bonus-representation rejected
deliberately as no reason is given for
denying the said benefit to the petitionerIt is settled that the State Government
cannot issue executive instructions with
regard to the field already occupied by the
G.P.F. Rules of 1985 issued under Article
309 of the Constitution of India, it also
cannot modify the said rules by an
executive order-no power left in the State
Government to withdraw or repeal the
said bonus in exercise of its executive
power-In exercise of power under Rule
11(1) of G.P.F. Rules of 1985 the State
Government
cannot
withdraw
the
incentive bonus required to be given
under Rule 12 of the G.P.F. Rules of 1985Therefore the said executive order is
declared to be ultra-vires and is set aside.
(Para 1 to 16)

The writ petition is allowed. (E-6)

List of Cases cited:
1. A.K Bhatnagar & ors. Vs U.O.I. & ors. (1991)
1 SCC 544
1106 INDIAN LAW REPORTS ALLAHABAD SERIES
2. K. Kuppusamy & anr. Vs St. of T.N. & ors.
(1998) 8 SCC 469

3. B.N. Nagarajan & ors. etc. Vs St. of
Karnataka & ors. etc (1979) AIR SC 1676:
(1979) 4 SCC 507

4. U.O.I. Vs S.S. Soma Sundaram Vishwanath
(1988) AIR SC 2255

5. Paluru Ram Krishnaiah Vs U.O.I. (1990) AIR
SC 166

6. St. of U.P. & ors. Vs Smt. Shakuntla Shukla
(1999) ACJ 1295

(Delivered by Hon'ble Vivek Chaudhary, J.)

1. Petitioner has filed present writ
petition
challenging
the
order
dated
13.11.2019 by which the representation of
petitioner is rejected by respondent no.2 and
further prayer for grant of bonus under the
Incentive Bonus Scheme as per Rule 12(1) of
General Provident Fund (U.P.), Rules, 1985
(hereinafter referred to as 'G.P.F. Rules of
1985'). Petitioner is also claiming interest on
delayed payment of dearness allowances
which
have
been
deposited
by
the
respondents deliberately with delay in his
provident fund account with a further a
prayer that respondents 2, 4 and 5 be directed
to calculate the interest on the payment made
by respondent no. 2 in his provident fund
account for the month of November, 1994,
December, 1994, October, 1997, March, 2001
and March, 2009 on his deposit amount. The
main grievance of the petitioner is that he is
denied payment of incentive bonus under
Rule 12(1) of G.P.F. Rules of 1985.

2. I have heard petitioner in person
and learned Standing Counsel for the State
at length.

3. Submission of petitioner is that the
G.P.F. Rules of 1985 were framed and
brought into operation in exercise of power
under Article 309 of Constitution of India.
The same was notified on 29.10.1985.
Petitioner submits that the impugned order
dated 13.11.2019 does not give any reason
for denying benefits of Rule 12(1) of G.P.F.
Rules of 1985 to the petitioner under which
he is entitled for bonus. He further submits
that even in the counter affidavit no reason
is given for denying the said benefit to the
him.

4. During course of argument learned
Standing Counsel placed before this Court
a Government Order dated 05.07.1986
which provides payment of interest at the
rate of 12% per annum on the amount
deposited in the general fund for the year
1986-87. Clause 2 of the said government
order
further
provides
that
w.e.f.
01.04.1988 no incentive bonus shall be
separately payable. Further reliance is
placed upon Rule 11(1) of the G.P.F. Rules
of 1985.

5. For convenience it would be
appropriate to quote Rule 11(1) and 12(1)
of
the
G.P.F.
Rules
of
1985
and
Government Order dated 05.07.1986 which
reads:-

General Provident Fund (U.P.) Rules,
1985

11. Interest.- (1) Subject to the
provisions of sub-rule (5) Government shall
pay to the credit of the account of a
subscriber interest at such rate as may be
determined
for
each
year
by
the
Government of India.

12. Incentive Bonus Scheme.- (1) A
subscriber who does not withdraw any
money from the amount standing to his
credit in the Fund by way of advance under
Rule 13 or withdrawn under Rule 16 during
1 All. Anurag Mehrotra Vs. State of U.P. & Ors.
1107
the preceding three years, shall be entitled
to a bonus at the rate of 1 per cent on the
entire balance at his credit on the last day
of the year.

उत्तर प्रदेश सरकार
दवत्त (सामान्य) अनुिाग --4
सांख्या -4 जी 0 आई0 -28 /दस -86-59-81
लखनऊ, ददनाांक 5 जुलाई 1986

जनरल प्रोदवडेंट िि (उ ० प्र ०) रूल्स 1985
दनर्म 11(1) तथा कन्ट्रीब्यूटी प्रोदवडेन्ड
िि (उ० प्र०) रूल्स , के दनर्म (11) (1) मे
दनर्म 9 के प्रादवधानोां के अनुसार राज्यपाल
महोदर् घोदषत करते हैं fd जनरल प्रोदवडेंट
िि (उ0प्र0), कन्ट्रीब्यूटी प्रोदवडेन्ड िि
(उ० प्र०) तथा उत्तर प्रदेश कन्ट्रीब्यूटी
प्रोदवडेन्ड िि पेंशन इांश्योरेंस िि ने
अदिदाताओां (सब्सिाइबसय) द्वारा दवत्तीर् वषय
1986-87 में जमा की गई तथा उनके नाम
अवशेष पर ब्याज की दर सिी खातोां में जमा
कुल रादश पर 12 प्रदतशत (बारह प्रदतशत)
प्रदत वषय होगी A र्ह हर पहली अप्रैल , १९८६ से
प्रारि होने वाले दवत्तीर् वषय के दौरान लागू होगी
A

2. 1 अप्रैल, 1988 से आरि होने वाले दवत्तीर्
वषय में तथा बाद के वषों में कोई प्रोत्साहन बोनस
अलग से देर् नहीां होगा A दजन मामलोां में वषय के
दौरान अस्न्तम दनष्कासन ( िाइनल र्ा नान
ररफ़ांडेबaqल) दलर्ा जार्ेगा, उसमे ली गई धनरादश
के एक प्रदतशत के बराबर दनकटतन रूपए तक
पूणाांदकत रादश, अदवदाता के खाते में जमा की
जाने वाली ब्याज को रादश में से घटा दी जार्ेगीA

3. ब्याज की गणना हेतु एक सदर्ोगणक
(रेडीरेकनर ) सांलग्न है
िवदीर्
सदचव
जे 0पी 0दसांह

7. Petitioner submits that G.P.F.
Rules of 1985 are framed in exercise of
power under Article 309 of the Constitution
of India and any change in the same can be
made only by exercising power under
Article 309 of the Constitution of India.
Rules framed under Article 309 of the
Constitution of India cannot be modified or
changed in exercise of executive powers by
the State Government. In support of his
case, petitioner relies upon the following
judgments:-

(i) A.K. Bhatnagar and Others Vs.
Union of India and Others; '(1991) 1 SCC
544';

(ii) K. Kuppusamy and Another Vs.
State of T.N. and Others; '(1998) 8 SCC
469';

(iii) B.N. Nagarajan and others etc.
Vs. State of Karnataka and Others etc.;
'AIR 1979 SC 1676: (1979) 4 SCC 507' .

8. Article 162 and Article 309 of the
Constitution of India read as under:-

"162. Extent of executive power of
State-Subject to the provisions of this
Constitution, the executive power of a State
shall extend to the matters with respect to
which the Legislature of the State has
power to make laws.

Provided that in any matter with
respect to which the Legislature of a State
and Parliament have power to make laws,
the executive power of the State shall be
subject to, and limited by, the executive
power
expressly
conferred
by
the
Constitution or by any law made by
Parliament upon the Union or authorities
thereof.

309. Recruitment and conditions of
service of persons serving the Union or a
State- Subject to the provisions of this
1108 INDIAN LAW REPORTS ALLAHABAD SERIES
Constitution, Acts of the appropriate
Legislature may regulate the recruitment,
and conditions of service of persons
appointed, to public services and posts in
connection with the affairs of the Union or
of any State:

Provided that it shall be competent for
the President or such person as he may
direct in the case of services and posts in
connection with the affairs of the Union,
and for the Governor [***] of a State or
such person as he may direct in the case of
services and posts in connection with the
affairs of the State, to make rules
regulating
the
recruitment,
and
the
conditions of service of persons appointed,
to such services and posts until provision in
that behalf is made by or under an Act of
the appropriate Legislature under this
article, and any rules so made shall have
effect subject to the provisions of any such
Act."

9. A perusal of Article 309 of the
Constitution of India shows that under the
same, the Governor of a State or such
person as he may direct in case of services
and posts in connection with the affairs of
the State can frame rules regulating the
recruitment and the conditions of service of
persons appointed and the same shall be
effective until provision in that behalf is
made by or under an Act of a appropriate
legislature. Therefore, any rule framed
under Article 309 can only be replaced by
an Act of an appropriate legislature. It
cannot be replaced by an executive order
under Article 162 of the Constitution of
India. The law in this regard is well settled
by the Supreme Court as well as by this
Court in number of cases. Suffice would be
refer to judgment passed in case of 'Union
of India Vs. S.S. Soma Sundaram
Vishwanath' reported in [AIR 1988 SC
2255] in which the Supreme Court held:-

"It is well settled that the norms
regarding recruitment and promotion of the
officer belong to the Civil Service can be laid
down either by a law made by the
appropriate Legislature or by the rules made
under the proviso to Article 309 of the
Constitution of India or by means of
executive instructions issued in Article 73 of
the Constitution of India in the case of Civil
Services in the Government of India and
under Article 162 of the Constitution of India
in the case of Civil Services in the State
Governments, if there is a conflict between
the executive Instructions and the rules
made under the proviso to Article 309 of the
Constitution of India the rule made under
the proviso to Article 309 of the Constitution
of India prevail and if there is a conflict
between the rules made under the proviso to
Article 309 of the Constitution of India and
the law made by the appropriate Legislature,
the latter prevails." (emphasis added)

10. Similarly in case of 'Paluru Ram
Krishnaiah Vs. Union of India' reported in
[AIR 1990 SC 166], comparing rules
framed under Article 309 and executive
instructions, the Court held:-

"It is thus apparent that an executive
instruction could make a provision only
with regard to matter which was not
covered by the Rules and that such
executive instruction could not override
any provision of the Rule."

11. Both the aforesaid judgments are
also considered by Division Bench of this
Court in case of 'State of U.P. and Others
Vs. Smt. Shakuntla Shukla' reported in
[1999 ACJ 1295]. Reaffirming the same,
the Division Bench held:-

".....Executive instructions operating in
a field cease to be operative as soon as the
1 All. Anurag Mehrotra Vs. State of U.P. & Ors.
1109
field is covered by any statutory rules or
rules made under the proviso to Article 309
of the Constitution....."

12. Further in paragraph-3 of the
judgment passed in case of 'K. Kuppusamy
and Another Vs. State of T.N. and Others?
reported in [(1998) 8 SCC 469], the Court
held:-

"3. The short point on which these
appeals must succeed is that the Tribunal
fell into an error in taking the view that
since the Government had indicated its
intention to amend the relevant rules, its
action in proceeding on the assumption of
such amendment could not be said to be
irrational or arbitrary and, therefore, the
consequential orders passed have to be
upheld. We are afraid this line of approach
cannot be countenanced. The relevant
rules, it is admitted, were framed under
the proviso to Article 309 of the
Constitution. They are statutory rules.
Statutory rules cannot be overridden by
executive orders or executive practice.
Merely because the Government had taken
a decision to amend the rules does not
mean that the rule stood obliterated. Till
the rule is amended, the rule applies. Even
today the amendment has not been
effected. As and when it is effected
ordinarily it would be prospective in
nature unless expressly or by necessary
implication found to be retrospective. The
Tribunal was, therefore, wrong in ignoring
the rule."

13. In paragraph-25 of the judgment
passed in case of 'B.N. Nagarajan and
others etc. Vs. State of Karnataka and
Others etc' reported in [AIR 1979 SC
1676: (1979) 4 SCC 507], the Court
held:-

"25............In other words, the
regularisation order, in colouring the
appointments of promotees as Assistant
Engineers with permanence would run
counter to the rules framed under Article
309 of the Constitution of India. What
could not be done under the three sets of
Rules as they stood, would thus be achieved
by an executive fiat. And such a course is
not permissible because an act done in the
exercise of the executive power of the
Government, as already stated, cannot
override rules framed under Article 309 of
the Constitution.? (emphasis added)

14. From the above it is settled that
the
State
Government
cannot
issue
executive instructions with regard to the
field already occupied by the G.P.F. Rules
of 1985 issued under Article 309 of the
Constitution of India. It also cannot modify
the said rules by an executive order. The
G.P.F. Rules of 1985 provides for 1%
bonus. There is no power left in the State
Government to withdraw or repeal the said
bonus in exercise of its executive power.
The same can only be withdrawn or
modified in exercise of power under Article
309 of the Constitution of India. The
Government Order dated 05.07.1986 is not
issued in exercise of power under Article
309 but is issued in exercise of its
executive power. Rule 11(1) of the G.P.F.
Rules of 1985 only empowers the State
Government the subscribed interest at such
rate as may be determined for each year by
Government of India. In exercise of power
under Rule 11(1) of G.P.F. Rules of 1985
the State Government cannot withdraw the
incentive bonus required to be given under
Rule 12 of the G.P.F. Rules of 1985.
Therefore, the Government Order dated
05.07.1986 to the extent it withdraws the
benefit of bonus required to be paid under
1110 INDIAN LAW REPORTS ALLAHABAD SERIES
Rule 12 of the G.P.F. Rules, 1985 is
declared to be ultra-vires and is set aside.

15. In view thereof, the impugned
order dated 13.11.2019 cannot stand and is
set aside.

16. Respondents are directed to
calculate and pay bonus to the petitioner as
per Rule 12(1) of G.P.F. Rules of 1985
along with permissible interest thereon
within a period of two months from today.
Respondents are also directed to decide the
claim of petitioner with regard to delayed
payment of interest on his dearness
allowances and provident fund account
within the aforesaid period of two months.

17. With the aforesaid, present writ
petition is allowed.
----------
(2022)01ILR A1110
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.01.2022

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Writ-A No. 7780 of 2019
With Writ-A Nos. 9058 of 2019, 6340 of 2020 &
17224 of 2019

Mohd. Saleem ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shiv Ram Misra, Sri Shashi Nandan, Sr.
Advocate

Counsel for the Respondents:
C.S.C., Sri Greesh Kumar Malviya, Sri Shesh
Kumar, Sri G.K. Singh, Sr. Advocate

A. Civil Law - Constitution of India, 1950Article 226-challenge to-STAT order-the
State Transport Authority had deliberately
granted permits to the five petitioners,
though they were lower in merit and
having vehicles of lower model-grant of
permit was totally against the dictum of
Apex Court as the relevant date was the
date of consideration of the applications
and not the date on which it was made
before
the
authority-Moreover,
the
transport
authority
was
required
to
consider all the applications strictly on the
basis of comparative merit which has been
ignored and applications of the contesting
respondents had been overlooked and the
appeals
and
revisions
filed
by
the
contesting respondents were dismissed
solely on the ground of limitation-the act
or the rules does not bar any remedy to
the applicants whose applications are
refused or they can be non-suited on the
technical ground-the Act or the Rule
nowhere
puts
embargo
upon
the
entertainment of any appeal or revision
filed
with
any
delay-Hence,
no
interference required as the order passed
by the STA was in defiance to the
directions of the Court.(Para 1 to 49)

The writ petition is dismissed. (E-6)

List of Cases cited:
1. A.S. Jalaluddin Vs Balasubramania Bus
Services (P) Ltd.

2. MSRTC Vs Mangrulpir Jt. Motor Service(P)
Ltd. (1971) 2 SCC 222

3. Esskey Roadways (Firm) Vs Annadhakrishnan
Bus Service (1994) 6 SCC 71

4. Collector, Land Acqusition, Anantnag & anr.
Vs Mst. Katiji & ors. (1987) 2 SCC 107

5. Zila Bus Operators. Assn. & ors.. Vs St. of U.P
& ors., Writ-A No 9993 of 2018

6. Automotive Prarivahan Sahkari Samiti Ltd. &
anr. Vs State Transport Appellate Tribunal &
anr. (Misc. Single No . 6760 of 2019)

(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)