# Devendra Prasad Srivastava & Ors v. State of U.P. & Ors

- **Citation:** (2019) 2 ILRA 2001
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-09
- **Case number:** Writ A No. 12175 of 2018
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devendra-prasad-srivastava-ors-v-state-of-u-p-ors-44692
- **Pages:** 19

## Headnote

A. U.P. Krishi Utpadan Mandi Act, 1964 -
Sections 2(x), 15, 19, 23-A, 25-A, 26- F,
26- L, 26-M, 26- P, 26- X; U.P. Krishi
Utpadan
Mandi
Samiti
(Centralized)
Retirement Benefit Regulations, 2013 -
The
conferment
of
pension
to
its
employees is a service condition which
the
Board
is
free
to
provide
by
making/amending the Regulations - with
prior approval of State Government and
in consonance with the provisions of Act,
1964 - Whether the State Government in
exercise of its powers under Act can
compel the Board to accept a Pension
Scheme other than that proposed by the
Board
by
framing
the
Regulations?
Answering the question in negative and
allowing the present petition, the High
Court held - The State Government lacks
power
and
authority
to
reject the
Pension Scheme (condition of service)
sought to be implemented by the Board
by making the Regulations, 2013, in
exercise of its powers conferred u/s 26X. The conferment of pension by the
Board to its employees is a service
condition which the Board is free to
provide
by
making/amending
the
Regulations. The only rider cast upon the
Board u/s 26-X is that it has to take prior
approval of the State Government and
that the Regulations was in consonance
with the provisions of the Act, 1964.
(Para 24 & 26)

B. Interpretation of Section 26-X -
"previous approval" - The expression
'previous approval' has to be read in the
context it is used in the statutory
provision.
The
only
requirement
mandated in S. 26-X is that before
embarking
upon
to
make
the
Regulations, the Board is bound to take
approval of the State Government- No
further permission thereafter is required
to be taken by Board from the State
Government before implementing the
Regulations. (Para 32)

Approval 'in principle' would mean that the
concerned authority (State Government) has
agreed to the proposal without getting into the
details
of
other
required
statutory/legal
compliances. If something is possible 'in
principle' there is no reason why it should not
happen, even though it has not happened
before. (Para 32, 34, 38 & 39)

C. U.P. Agricultural Produce Markets
Committee
(Centralized)
Service
Regulations, 1984 - Regulation 47 -
Regulations 1984, is distinct from the
Regulations, 2013. Regulations 1984
2002 INDIAN LAW REPORTS ALLAHABAD SERIES
would apply to the employees that came
to be appointed on or before January 1,
1999, whereas, the Regulations 2013
would apply to the employees appointed
on and after January 1, 1999 and before
April 1, 2005 - Both the Regulations
operate in different fields and cater to
separate class of employees insofar
entitled to distinct and different retiral
Schemes, therefore, Regulation 47 would
not be an impediment in implementing
the Pension Scheme. (Para 41)

D. Entering into the domain of framing and
implementing 'condition of service' by
thrusting upon the employees NPS Scheme
which was not proposed by the Board was
beyond the authority and jurisdiction of
State Government. (Para 48)

E. The State Government has been
conferred power u/s 26-M to issue
directions on 'question of policy' in the
discharge of its functions and not with
regard to conditions of service. (Para 46,
49 & 50)

Writ petition assails Orders dated 08.01.2016,
16.02.2018 by the State Government and
Order dated 19.03.2018, passed by the Board.

Writ Petition allowed (E-4)

Precedent followed: -

## Text

_Characters 0–39,949 of 60,833. This is a partial read: ask again with offset=39949 for what follows._

2 All. Devendra Prasad Srivastava & Ors Vs State of U.P. & Ors.
2001

20. The respondent No.1 is directed
to re-fix the seniority of the petitioners
and the respondent no.4 from the date of
their initial appointment and not from the
date of their confirmation. As the
petitioners and respondent no.4 have
already superannuated the consequences
of the re-fixation of seniority will follow.

21. The writ petition is allowed. No
order as to costs.
----------

(2019)10ILR A 2001

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2019

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Writ A No. 12175 of 2018

Devendra Prasad Srivastava & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Tarun Agrawal, Sri Vinayak Mithal, Sri
Ravi Kant

Counsel for the Respondents:
C.S.C., Sri Rajesh Kumar Yadav, Sri
Suresh C. Dwivedi

A. U.P. Krishi Utpadan Mandi Act, 1964 -
Sections 2(x), 15, 19, 23-A, 25-A, 26- F,
26- L, 26-M, 26- P, 26- X; U.P. Krishi
Utpadan
Mandi
Samiti
(Centralized)
Retirement Benefit Regulations, 2013 -
The
conferment
of
pension
to
its
employees is a service condition which
the
Board
is
free
to
provide
by
making/amending the Regulations - with
prior approval of State Government and
in consonance with the provisions of Act,
1964 - Whether the State Government in
exercise of its powers under Act can
compel the Board to accept a Pension
Scheme other than that proposed by the
Board
by
framing
the
Regulations?
Answering the question in negative and
allowing the present petition, the High
Court held - The State Government lacks
power
and
authority
to
reject the
Pension Scheme (condition of service)
sought to be implemented by the Board
by making the Regulations, 2013, in
exercise of its powers conferred u/s 26X. The conferment of pension by the
Board to its employees is a service
condition which the Board is free to
provide
by
making/amending
the
Regulations. The only rider cast upon the
Board u/s 26-X is that it has to take prior
approval of the State Government and
that the Regulations was in consonance
with the provisions of the Act, 1964.
(Para 24 & 26)

B. Interpretation of Section 26-X -
"previous approval" - The expression
'previous approval' has to be read in the
context it is used in the statutory
provision.
The
only
requirement
mandated in S. 26-X is that before
embarking
upon
to
make
the
Regulations, the Board is bound to take
approval of the State Government- No
further permission thereafter is required
to be taken by Board from the State
Government before implementing the
Regulations. (Para 32)

Approval 'in principle' would mean that the
concerned authority (State Government) has
agreed to the proposal without getting into the
details
of
other
required
statutory/legal
compliances. If something is possible 'in
principle' there is no reason why it should not
happen, even though it has not happened
before. (Para 32, 34, 38 & 39)

C. U.P. Agricultural Produce Markets
Committee
(Centralized)
Service
Regulations, 1984 - Regulation 47 -
Regulations 1984, is distinct from the
Regulations, 2013. Regulations 1984
2002 INDIAN LAW REPORTS ALLAHABAD SERIES
would apply to the employees that came
to be appointed on or before January 1,
1999, whereas, the Regulations 2013
would apply to the employees appointed
on and after January 1, 1999 and before
April 1, 2005 - Both the Regulations
operate in different fields and cater to
separate class of employees insofar
entitled to distinct and different retiral
Schemes, therefore, Regulation 47 would
not be an impediment in implementing
the Pension Scheme. (Para 41)

D. Entering into the domain of framing and
implementing 'condition of service' by
thrusting upon the employees NPS Scheme
which was not proposed by the Board was
beyond the authority and jurisdiction of
State Government. (Para 48)

E. The State Government has been
conferred power u/s 26-M to issue
directions on 'question of policy' in the
discharge of its functions and not with
regard to conditions of service. (Para 46,
49 & 50)

Writ petition assails Orders dated 08.01.2016,
16.02.2018 by the State Government and
Order dated 19.03.2018, passed by the Board.

Writ Petition allowed (E-4)

Precedent followed: -

1. N. Raghavendra Rao Vs Dy Commissioner, South
Kanara, Mangalore, AIR 1965 SC 136 (Para 27)
2. St. of Mysore &anr. Vs R. Basappa & ors.,
(1981) 3 SCC 659 (Para 27)
3. Life Insurance Corpn. of India Vs Escorts
Ltd. & ors., (1986) 1 SCC 264 (Para 28)
4. Shakir Husain Vs Chandoo Lal, AIR 1931 All.
567 (Para 28)
5. U.P. Avas Evam Vikas Parishad & anr. Vs
Friends Coop. Housing Society Ltd. & anr.,
(1995) (Suppl.) (3) SCC 456 (Para 30)
6. Director of Education & ors. Vs Gajadhar
Prasad Verma, AIR 1995 SC 1121 (Para 31)
7. UOI & ors. Vs Harananda & ors., (2019)
SCC Online SC 126 (Para 38)
8. St. of U.P. Vs Preetam Singh & ors., (2014)
15 SCC (Para 41, 50)
(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard Sri Tarun Agrawal, Sri
Vinayak Mithal, learned counsels for the
petitioner, Sri Suresh C. Dwivedi, learned
counsel for the second to tenth respondent, Sri
Anuruddh Charan Mishra, learned Additional
Chief Standing Counsel and Sri Jagdish Singh
Bundela, learned Standing Counsel for the
first respondent.

2. The State Agricultural Produce
Markets Board (for short ''the Board'), a body
corporate having perpetual succession and a
common seal and may sue or be sued by the
said name and acquire, hold and dispose of
property and enter into contracts. The Board
for all purposes is deemed to be a local
authority. It came into existence, consequent
upon the promulgation of the Uttar Pradesh
Krishi Utpadan Mandi Act, 1964 (for short
''Act 1964'). The employees of the Board and
the Committees (Mandi Samiti) were
members of a Contributory Provident Fund
Scheme (for short ''CPF Scheme'). The
Board desired to grant all the employees
better retiral benefits, consequently, a
proposal was made by the Board in its 86th
meeting vide resolution dated 23 April 1999
to extend pensionary benefits to the
employees, in lieu of the existing CPF
Scheme w.e.f. 1 January 1999.

3. Pursuant thereof, the Board
reminded the State Government on 31
May 1999, requesting to expedite the
proposal for grant of Pension/Gratuity
Scheme to its employees. The State
Government vide communication dated
11 February 2000, addressed to the
2 All. Devendra Prasad Srivastava & Ors Vs State of U.P. & Ors.
2003
Director of the Board, in principle,
granted approval with certain conditions,
including, that necessary amendments
accordingly be carried out in the Service
Regulations,
thereafter,
submit
the
Regulations to the Government with the
approval of the Board. The Board,
consequently, in its 91st meeting, vide
resolution
dated
18
January
2001,
enhanced
the
contribution
of
its
employees to the CPF Scheme from
8.33% to 10% w.e.f. 1 January 1999. The
increased contribution was with a view to
fund the pension scheme which was made
effective from 1 January 1999. The
employees of the Board, thereafter, have
been contributing the enhanced amount to
the CPF Scheme.

4. The matter, however, was kept
pending by the State Government and
w.e.f. 1 April 2005, the State Government
adopted the National Pension System (for
short
''NPS').
The
existing
Pension/Gratuity Scheme was done away
with
from
the
notified
date.
The
Government vide communication dated
25 May 2005, addressed to the Director of
the Board, sought opinion of the Board as
to whether the NPS could be made
applicable to all the employees of the
Board irrespective of their date of
appointment. The Board informed the
State Government vide communication
dated 1 August 2005 that the employees
have unanimously refused to accept NPS
scheme. The Board in its 143rd meeting
dated 24 September 2012, yet again
resolved to extend the benefits of
Pension/Gratuity Scheme to its employees
at par with the employees of other
Corporations/Development
Authorities.
Accordingly, the Board constituted a
Committee on 10 October 2012 to study
the
proposal
and
give
its
recommendations. Pursuant thereof, the
Committee recommended framing of
Regulations for grant of pension on the
lines
prevalent
in
the
other
Corporations/Development
Authorities.
The Board in exercise of powers under
Section 25-A and 26-X of Act, 1964,
framed the U.P. Krishi Utpadan Mandi
Samiti (Centralized) Retirement Benefit
Regulations, 2013 (for short ''Regulations,
2013'). The Regulation was remitted to
the
State
Government
for
approval/information.
The
State
Government vide communication dated 5
December
2013
sought
certain
clarifications which was duly replied by
the Board and again vide communication
dated 10 October 2014 Government
sought the opinion of the Board with
regard to the applicability of NPS to all
the employees in view of Government
Order dated 28 March 2005. In response,
the Board vide communication dated 17
November 2014 pointed out that NPS
cannot be made applicable uniformly, the
employees who were recruited/appointed
prior to 1 April 2005 from a separate
class. NPS is applicable upon those
employees who were recruited/appointed
on or after 1 April 2005 or have not put in
ten years qualifying service on the said
date. The Board again reiterated that the
State
Government
to
approve
the
Regulations,
2013.
The
State
Government, however, by the impugned
order dated 8 January 2016, extended
NPS Scheme to all the employees of the
Board irrespective of their date of
appointment/recruitment.
The
Board
again vide communication dated 18 April
2016 pointed out that NPS Scheme cannot
be made applicable to the employees who
were appointed/recruited prior to 1 April
2005. The Board again requested the
Government
to
approve
the
2004 INDIAN LAW REPORTS ALLAHABAD SERIES
Pension/Gratuity Scheme framed vide
Regulations, 2013, which was pending
with the Government.

5. Aggrieved by the conduct of the
State Government a writ petition came to
be filed by the employees being Writ
Petition No. 67292 of 2015, which came
to be disposed of on 10 January 2018,
directing the State Government to take a
final decision in the matter. Pursuant
thereof, the State Government vide order
dated 16 February 2018 rejected the
representation
of
the
petitioners
reiterating its earlier order that the all the
employees of the Board, irrespective of
their date of appointment, would be
entitled to NPS. The Board in compliance
issued letter dated 19 March 2018
succumbing to the stand of the State
Government.

6. The petitioners are retired
employees
of
the
Board/Committees
(Centralized Service), they came to be
appointed prior to 1 April 2005, by the
instant writ petition they are assailing the
orders dated 8 January 2016 and 16
February 2018 passed by the State
Government and the consequential order
dated 19 March 2018 passed by the
Board, uniformly applying NPS Scheme
to all the employees. A further prayer has
been
sought
to
direct
the
State
Government to accord approval to the
Regulations,
2013,
implementing
Pension/Gratuity Scheme framed by the
Board.

7. Learned counsel appearing for the
petitioners submits that the Board has
been conferred powers under Section 26F to appoint officers and servants as it
considers
necessary
for
efficient
performance of its function on such terms
and conditions as may be provided for in
the Regulations made by the Board.
Section 26-X confers powers upon the
Board to make Regulations with the
previous
approval
of
the
State
Government for the administration of the
affairs of the Board. The Regulations
provide for the salaries, allowances and
other conditions of service of the officers
and other employees of the Board, and of
officers referred to in sub-section (2) of
Section 23.

8. The Board in exercise of its
powers under Section 26-X framed the
U.P.
Agricultural
Produce
Markets
Committee
(Centralized)
Service
Regulations,
1984.
Regulation
47
provides for retirement benefits, but
pension was not admissible to the
employees (Centralized Service). The
employees were to contribute to the
provident fund. The Board, however, in
1999 resolved to provide Pension/Gratuity
Scheme in lieu of CPF Scheme to its
employees w.e.f. 1 January 1999, which
came to be accepted and approved, in
principle, by the State Government on 11
February 2000, thereafter, the Board in
exercise of power conferred under Section
26-X
framed
Regulations,
2013,
providing the benefit of Pension/Gratuity
Scheme to its employees who came to be
appointed/recruited after 1 January 1999
and before 1 April 2005. NPS Scheme
was made applicable upon the employees
of
the
Board
who
were
recruited/appointed on or after 1 April
2005, subject to ten years qualifying
service.

9. In this back drop, it is urged by
the learned counsel for the petitioner that
it was not open to the State Government
to have declined the employees of the
2 All. Devendra Prasad Srivastava & Ors Vs State of U.P. & Ors.
2005
Board
the
Pension/Gratuity
Scheme
sought to be implemented by framing
Regulations, 2013. The impugned order
imposing NPS scheme on all employees
uniformly is arbitrary without jurisdiction
and in violation of the Government Order
dated 28 March 2005. The Government
Order clearly stipulates that the NPS
scheme
would
be
applicable
on
employees
who
came
to
be
appointed/recruited on or after the cut of
date provided therein i.e. 1 April 2005.
The Pension/Gratuity Scheme would,
however, continue to apply to the
employees recruited/appointed prior to
that date.

10. It is further urged that the Board
is an autonomous body and is not funded
by the State Government, revenue is
generated by the Board to finance its
activities under Act, 1964. The salary,
allowance and other conditions of service
of employees are governed by the
Regulations framed by the Board from
time to time in exercise of powers under
Section
26-X.
The
Pension/Gratuity
Scheme sought to be made applicable to
the employees is to be funded and
financed by the Board from its own
resources, therefore, it is urged that it is
not open to the State Government to
impose upon the employees of the Board
a pension scheme i.e. NPS ignoring
Regulations, 2013. The Government had
clarified
in
February
2000
while
approving the proposed Pension Scheme
that the Government would not fund the
Pension/Gratuity Scheme and declined to
take any liability/burden upon itself to
fund the pension of the employees of the
Board.

11. It is further urged that the
determination
and
funding
of
salary/pension of the employees of the
Board falls exclusively within the powers
of the Board and would not fall within the
ambit of ''question of policy'. The Board
is bound by the directions on question of
policy as may be given to it by the State
Government in exercise of its power
under Section 26-M and not on conditions
of service. It is further urged that the
reasons
assigned
for
declining
the
Pension/Gratuity
Scheme
to
the
employees appointed prior to 1 April
2005, is not a ''question of policy', rather,
a statutory obligation cast upon the Board
to determine the service conditions of its
employees, including pension, in exercise
of powers under Section 26-X. The
Government lacks the power to withhold
the
Regulations,
2013,
seeking
to
implement the Pension/Gratuity Scheme
which came to be approved by the
Government in February 2000 itself.
Pursuant thereof, the Board proceeded by
enhancing deduction to the CPF Scheme
to fund the pension scheme and thereafter
framed the Regulations implementing the
Pension/Gratuity Scheme on the direction
of the State Government. It is submitted
that no further approval/permission is
required from the State Government.

12. Learned counsel appearing for
the respondent-Board submits that the
Board
has
resolved
to
provide
Pension/Gratuity
Scheme
to
its
employees, to be funded from its own
resources, accordingly, the contribution to
the CPF Scheme was enhanced from
8.33% to 10% w.e.f. 1 January 1999, the
employees,
thereafter,
have
been
contributing the amount since then. The
corpus to fund the Pension Scheme is
more than sufficient. It is not in dispute
that the Board went ahead with the
scheme after receiving approval of the
2006 INDIAN LAW REPORTS ALLAHABAD SERIES
State Government way back on 11
February 2000. The Board, and not the
Government, has been conferred powers
under Act, 1964 to determine the service
conditions of its employees. He further
submits that the direction issued by the
State Government, otherwise, cannot be
disobeyed by the Board, but the Board
still is awaiting the formal permission
from the State Government with regard to
the
pending
Regulations,
2013,
implementing the Pension Scheme.

13. Learned Standing Counsel
appearing for the State respondent submits
that the factual matrix inter se parties is not
in dispute, the Board did resolve in 1999 to
provide to its employees Pension/Gratuity
Scheme, accordingly, the contribution to
the CPF was enhanced. The State
Government, in principle, granted approval
to the Pension/Gratuity Scheme, however,
it is urged that since pension was not
admissible to the employees of the Board
in view of Regulation 47 of Service
Regulation
1984,
therefore,
after
enforcement of NPS scheme w.e.f. 1 April
2005, the State Government had taken a
conscious decision to implement the NPS
scheme upon all the employees of the
Board irrespective of their date of
appointment. Learned counsel further
submits that the impugned order is not
arbitrary or illegal as the scheme (NPS)
applicable on the date of passing of the
impugned order has been made uniformly
applicable to all the employees of the
Board. He, however, admits that the
Regulations, 2013 is still pending with the
State Government and no specific decision
thereon has been taken, however, it is
submitted that in view of the impugned
order, it tantamounts that the State
Government
has
disapproved
the
Regulations, 2013.

14. Rival submissions fall for
consideration.

15. The question that arises for
determination is as to whether the State
Government was justified in law in
rejecting the Pension/Gratuity Scheme
made by the Board for its employees in
lieu of CPF Scheme.

16. The facts, inter se, parties are not
in dispute. The scheme of the Act, 1964,
provides for the constitution of a Board,
the employees of the Board/Mandi Samiti
constitute the Centralized Service. The
service conditions of the employees is
required to be made by the Board by
framing Regulations in exercise of its
powers conferred under Section 26-X,
which inter alia, includes pension.

17. In exercise of its powers,
Regulation 1984 came to be framed by
the Board providing CPF Scheme to its
employees
which
was
subsequently
sought
to
be
modified/amended
conferring Pension/Gratuity Scheme to its
employees w.e.f. 1 January 1999. The
proposal came to be accepted and
approved by the State Government on 11
February 2000. The State Government
categorically stated while approving the
proposal that it would not finance the
pension
scheme
nor
would
the
Government be responsible to provide the
funds, accordingly, the State Government
directed the Board to frame/amend the
Regulations.
Pursuant
thereof,
Regulations, 2013 came to be made, inter
alia, providing Pension/Gratuity Scheme
to the employees who came to be
appointed on or after 1 January 1999 but
before 1 April 2005. The new NPS
scheme was made applicable to the
employees recruited/appointed on or after
2 All. Devendra Prasad Srivastava & Ors Vs State of U.P. & Ors.
2007
the said date in terms of the Government
Order. Accordingly, Regulation 47 of
Regulation 1984, to that extent came to be
modified by the proposed Regulations,
2013. The State Government by the
impugned order has instead imposed the
NPS scheme upon all the employees of
the Board irrespective of the cut of date
provided in the Government Order dated
28 March 2005. In other words, the State
Government rejected the Pension/Gratuity
Scheme framed by the Board and
approved the NPS scheme.

18. In the aforesaid backdrop the
issue that falls for consideration is as to
whether the State Government in exercise
of its powers under Act, 1964, can compel
the Board to accept a Pension Scheme
other than that proposed by the Board by
framing the Regulations.

19. It would be apposite to scan the
provisions of Act, 1964, in order to trace
the source of power of the Board and the
State Government.

20. Chapter V of Act, 1964 provides
for External Control. Section 26-A
provides for establishment of the Board
by the State Government on notification
in the Gazette. The power to appoint the
officers and servants, including, framing
of
Regulations
to
determine
their
conditions of service has been conferred
upon the Board under Chapter IV of Act,
1964. Section 26-F is extracted:

26-F. Appointment of Officers
and Servants.-(1) The Board may appoint
such officers and servants as it considers
necessary for efficient performance of its
functions on such terms and conditions as
may be provided for in regulations made
by the Board.

21.

The
constitution
of
the
Centralized Service and conditions of
employment of members of the cadre is
provided under Section 23A and 25A
which can be implemented by framing
Regulations. The provisions reads thus:

23.A.
Constitution
of
Centralised service and transfer of
employees- (1) Notwithstanding anything
contained in any other provision of this
Act, the Board may constitute cadres of
Secretaries and such other officers
common to all Committees as it may deem
fit to appoint under sub-section (2) of
Section 23.

[25-A. Terms and conditions of
employment of officers and servants of
Committees.- Subject to rules made in
this behalf under this Act, the terms and
conditions of employment of the members
of a cadre constituted under Section 23-A
and matters relating to discipline, control
and punishment including dismissal and
removal of such, officers shall be
governed by such regulations as may be
made by the Board.]

22. The Board has been vested with
exclusive powers to frame Regulations
under Section 26-X, inter alia, with regard
to the conditions of service of its
employees, but with the previous approval
of the State Government. Regulation 26-X
is extracted:

26-X.
Regulations.-(1)
The
Board may, with the previous approval of
the State Government make regulations,
not inconsistent with this Act, and rules
made thereunder, for the administration
of the affairs of the Board.

(2) In particular, and without
prejudice to the generality of the
foregoing power, such regulations may
2008 INDIAN LAW REPORTS ALLAHABAD SERIES
provide for all or any of the following
matter, namely-

(a) ..............

(b) the powers and duties of the
officers and other employees of the
Board;

(c) the salaries and allowances
and other conditions of service of
officers and other employees of the
Board and of officers referred to in subsection (2) of Section 23;

(3) Until any regulations are
made by the Board under sub-section (1),
any regulations which may be so made by
it may be made by the State Government,
and any regulations so made may be
altered or rescinded by the Board, in
exercise of its power under sub-section
(1)

23. The powers and function of the
Board is spelled out in Section 26-L
which reads thus:

26-L. Powers and functions of
the Board.- (1) The Board shall, subject
to the provisions of this Act, have the
following functions and shall have power
to do anything which may be necessary or
expedient
for
carrying
out
those
functions-

(i) superintendence and control
over
the
working
of
the
Market
Committees and other affairs thereof
including programmes undertaken by
such Committees for the1 [construction of
new Market yards and development of
existing Markets and Market areas];

(ii) giving such direction to
Committees in general or any Committee
in particular with a view to ensure
efficiency thereof;

(iii) any other function entrusted
to it by this Act;

(iv) such other functions as
may be entrusted to the Board by the
State Government by notification in the
Gazette.

(2) Without prejudice to the
generality of the foregoing provision,
such power shall include the power-

(i) to approve proposals of the
new sites selected by the Committee for
the development of Markets;

(ii) to supervise and guide the
Committees in the preparation of siteplans and estimates of construction
programmes
undertaken
by
the
Committee;

(iii)
to
execute
all
works
chargeable to the Board's fund;

(iv) to maintain accounts in
such forms as may be prescribed and get
the same audited in such manner as may
be laid down in regulations of the Board;

(v) to publish annually at the
close of the year, its progress report,
balance-sheet, and statement of assets
and liabilities and send copies to each
member of the Board as well as to the
Chairman of all Market Committees;

(vi)
to
make
necessary
arrangements for propaganda publicity
on matters related to regulated marketing
of agricultural produce;

(vii) to provide facilities for the
training of officers and servants of the
Market Committees;

(viii) to prepare and adopt
budget for the ensuring year;

(ix) to make subventions2 [and
loans] to Market Committees for the
purposes of this Act on such terms and
conditions as the Board may determine;

(x) to do such other things as
may be of general interest to Market
Committees or considered necessary for
the efficient functioning of the Board as
2 All. Devendra Prasad Srivastava & Ors Vs State of U.P. & Ors.
2009
may be specified from time to time by the
State Government.

24. The State Government thus, has
been conferred power to entrust the Board
such other function by notification in the
Gazette [Sub-Section (1)(iv)]. Further, the
State Government may specify to the
Board from time to time to do such other
things as may be of general interest of the
Market
Committees
or
considered
necessary for efficient functioning of the
Board [Sub-Section 2(x)]. On plain
reading of Section 26-L, condition of
service of the employees of the Board is
not a function of the Board. In other
words, the State Government lacks power
and authority to reject the Pension
Scheme (condition of service) sought to
be implemented by the Board by making
the Regulations, 2013, in exercise of its
powers conferred under Section 26-X.
The conferment of pension by the Board
to its employees is a service condition
which the Board is free to provide by
making/amending the Regulations. The
only rider cast upon the Board under
Section 26-X is that it has to take prior
approval of the State Government.

25. The funding of the activities of
the Board and the Market Committees in
discharge of their duties/functions has
been provided under Section 19 and
Section 26-P which includes, utilization
of the fund to meet the expenses towards
salary of its officers and servants,
including pension. Section 19 and 26-P is
extracted:

19. Market Committee Fund
and its utilisation-(1) There shall be
established for each Committee, a fund to
be called ''Market Committee Fund' to
which shall be credited all moneys
received by it including all loans raised
by it, and advances and grants made to it.

(2) All expenditure incurred by
the Committee in carrying out the
purposes of this Act, shall be defrayed out
of the said fund, and the surplus, if any,
shall be invested in such manner as may
be prescribed.

(3) Without prejudice to the
generality of the provisions contained in
Section 16, the Committee may utilise its
funds for payment of all or any of the
following -

(i).........

(ii)
salaries,
pensions
and
allowances including allowances for
leave,
gratuities,
compassionate
allowance, medical aid and contribution
towards provident fund and pensions of
the officers and servants employed by or
for it;

26-P. Board's Fund.-(1) The
Board shall have its own fund, which
shall be deemed to be a local fund and to
which shall be credited all moneys
received by or on behalf of the Board,
except the moneys required to be credited
in the Uttar Pradesh State Marketing
Development Fund under Section 26-PP.

2........................

(i) Payment of salary, leave
allowance, gratuity, other allowances,
loans and advances and provident fund
to the officers and servants employed by
the Board and pension and other
contribution to the Government servants
on deputation;

26. On conjoint reading of the
provision of the Act, 1964, extracted,
hereinabove,
it
is
explicit
and
unabmiguous that the Board has been
vested with powers to make and regulate
the conditions of service of its employees,
including, pension. The salary and retiral
2010 INDIAN LAW REPORTS ALLAHABAD SERIES
dues is to be funded by the Board from its
own resources. The Regulations made by
the Board would override the Regulations,
if any, framed by the State Government in
that regard (sub-Section (3) of Section 26X). The Board upon approval of the State
Government of its proposal/resolution to
provide Pension Scheme, in lieu of CPF
Scheme, acted thereon by enhancing the
contribution of its employees to the CPF
Scheme. The Board, thereafter, framed
Regulations, 2013, as directed by the
State. The condition of taking previous
approval stipulated in Section 26-X was
complied by the Board. Nothing more
was required to be done at the level of the
Board except to comply the conditions
imposed by the State Government in the
approval order. The State Government
was not justified, nor it was within its
jurisdiction to have rejected outright the
Pension/Gratuity Scheme sought to be
made applicable to the employees of the
Board. Such a power is not vested in the
State Government under the provisions of
Act, 1964.

27. The import of the expression
''previous approval' mandated in Section
26-X requires to be understood in the
context the expression is used in the
provision.
The
matter
fell
for
consideration by a Constitution Bench,
the Supreme Court observed as follows in
N.
Raghavendra
Rao
v.
Deputy
Commissioner,
South
Kanara,
Mangalore3 :

"The
expression
'previous
approval'
would
include
a
general
approval to the variation in the conditions
of service within certain limits, indicated
by the Union Government. It has to be
remembered
that
Article
309
the
Constitution
gives,
subject
to
the
provisions of the Constitution, full powers
to a State Government to make rules. The
proviso to Section 115(7) limits that
power, but that limitation is removable by
the Central Government by giving its
previous approval.... The broad purpose
underlying the proviso to Section 115(7)
of the Act was to ensure that the
conditions of service should not be
changed except with the prior approval
of the Central Government. In other
words, before embarking on varying the
conditions
of
service,
the
State
Governments
should
obtain
the
concurrence
of
the
Central
Government." (Para 4)
(Refer: State of Mysore and another v.
R. Basappa and others4)

28. In Life Insurance Corporation
of India vs. Escorts Limited and others,5
Supreme Court referred to the decision of
this Court in Shakir Husain v. Chandoo
Lal6,
to
explain
''permission'
and
''approval' para-62 is extracted:

"We do not propose to refer to
any dictionary to find out the meaning of
the word 'permission', whether the word is
comprehensive
enough
to
include
subsequent permission. We will only refer
to what Sir Shah Sulaiman, CJ. said in
Shakir Hussain v. Chandoo Lal

Ordinarily
the
difference
between approval and permission is that
in the first the act holds good until
disapproved, while in the other case, it
does
not
become
effective
until
permission is obtained. But permission
subsequently obtained may all the same
validate the previous act."

29. The Court observed that the
word 'prior" or "previous" may be implied
if the contextual situation or the object
2 All. Devendra Prasad Srivastava & Ors Vs State of U.P. & Ors.
2011
and design of the legislation demands it.
The
Court
declined
interpreting
'permission'
to
mean
'permission',
previous or subsequent, and there was no
justification for limiting the expression
'permission' to 'previous permission'.

30. In U.P. Avas Evam Vikas
Parishad and another Vs. Friends
Coop.
Housing
Society
Ltd.
and
another7, Supreme Court held that the
expressions
"prior
approval"
and
"approval" are two different connotations
and if the statute does not mention "prior
approval" what is material would be only
"approval".

31. Similarly, in Director of
Education and others Vs. Gajadhar
Prasad Verma8, it was held that in the
absence of "prior approval", would not
have an effect with regard to the creation
of the post, therefore, the State is not
obliged to reimburse the salary to the
management of the incumbent appointed
on the post without "prior approval" of the
Director or the competent authority under
the Act.

32. Learned Standing counsel has
placed heavy reliance on the communication
dated 11 February 2000, to emphasis that the
State Government had granted approval ''in
principle' and that would not satisfy the
condition ''previous approval' mandated in
Section 26-X. The submission taken on face
value appears to be attractive, but on close
analysis it lacks merit. The expression
''previous approval' has to be read in the
context it is used in the statutory provision.
The only requirement mandated in Section
26-X is that before embarking upon to make
the Regulations, the Board is bound to take
approval of the State Government. No
further permission thereafter is required to be
taken by Board from the State Government
before implementing the Regulations. On
perusal of the communication dated 11
February 2000, it is explicitly evident that the
State Government in essence or substance
had approved the proposed Pension Scheme
''in principle'. The State Government had
further directed the Board to frame/amend
the Regulations to that effect, this would
tantamount to ''previous approval' of the
State
Government
contemplated
under
Section 26-X. The expression ''in principle'
approval used in the communication is only
to convey to the Board that the approval is
subject to certain conditions stipulated in the
communication dated 11 February 2000. The
conditions, inter alia, include, that the State
Government would not bear the expenses nor
fund the pension scheme; separate fund
(Trust) would have to be earmarked by the
Board to fund the pension scheme and
finally, the Board was directed to make the
Regulations to that effect to implement the
Scheme. The Board on the conditional
approval of the State Government framed
Regulations,
2013,
incorporating
the
conditions stipulated in the communication
dated 11 February 2000. The State
Government under Section 26-X was not
required to give further approval/permission
with regard to the implementation of the
Regulations, but was to satisfy itself that the
Regulations, 2013, framed by the Board
incorporated the conditions stipulated by the
State Government in the communication
granting approval. Further, to ensure that the
Regulation framed by the Board did not
violate any provisions of Act, 1964.

33. The expression ''in principle'
approval
would
include
a
general
approval to the proposal seeking to
implement the Pension/Gratuity Scheme
within certain limits, indicated by the
State Government. But the limitation is
2012 INDIAN LAW REPORTS ALLAHABAD SERIES
removal by the State Government by
giving previous approval.

34. Approval ''in principle' would
mean that the concerned authority (State
Government) has agreed to the proposal
without getting into the details of other
required statutory/legal compliances. If
something is possible ''in principle' there
is no reason why it should not happen,
even though it has not happened before.

35. The communication dated 11
February 2000 is extracted:

**izs"kd

ds'ko nsfljktq

lfpo]

mRrj izns'k] 'kkluA

lsok esa]

funs'kd]

e.Mh ifj"kn]

mRrj izns'k] y[kuÅA

d`f"k vuqHkkx&5 @ y[kuÅ fnukad%& 1102-2000
isa'ku ;kstuk ds laca/k esa e.Mh ifj"kn }kjk
miyC/k djk;s x;s izLrko ij lE;d
fopkjksijkUr 'kklu }kjk e.Mh ifj"kn ,oa e.Mh
lfefr;ksa ds deZpkfj;ksa dks isa'ku lqfo/kk vuqeU;
fd;s tkus gsrq fuEu 'krksaZ ,oa izkfo/kkuksa ds
vUrZxr fl)kUrr% Lohd`fr iznku dj nh x;h
gS%& fo"k;%& e.Mh ifj"kn ,oa e.Mh lfefr;ksa
ds deZpkfj;ksa ds fy;s lh0ih0,Q0 ;kstuk ds
v/khu isa'ku dh lqfo/kk iznku fd;k tkukA

egksn;]

mi;qZDr fo"k;d vkids i= la[;k&
ifj"kn&ys[kk@isa'ku@99&721 fnukad 31 ebZ]
1999 ds lUnHkZ esa eq>s ;g dgus dk funsZ'k gqvk
gSA fd isa'ku ;kstuk ds laca/k esa e.Mh ifj"kn
}kjk miyC/k djk;s x;s izLrko ij lE;d
fopkjksijkUr 'kklu }kjk e.Mh ifj"kn ,oa e.Mh
lfefr;ksa ds deZpkfj;ksa dks isa'ku lqfo/kk vuqeU;
fd;s tkus gsrq fuEu 'krksaZ ,oa izkfo/kkuksa ds
vUrZxr fl)kUrr% Lohd`fr iznku dj nh x;h
gS%&

1- mDr ;kstuk ykxw djus ds iwoZ
dsUnz ljdkj ds Je eU=ky; ds bEIykbt
izksohMsaV Q.M ds fu;eksa dk v/;;u dj mlds
vuqlkj dk;Zokgh fd;s tkus ij fopkj fd;k
tk;sxkA rFkk fu;eksa ds vUrxZr deZpkfj;ksa ls
isa'ku ;kstuk xzg.k djus vFkok u xzg.k djus
ds fodYi ij Li"V lgefr yh tk;sxhA blds
fy, Je foHkkx ls ijke'kZ izkIr dj ;kstuk
rS;kj djus dh dk;Zokgh dh tk;sxhA

2- isa'ku ;kstuk dk fdz;kUo;u jkT;
ljdkj ds deZpkfj;ksa dks fn;s tkus okyh isa'ku
O;oLFkk ls fHkUu gksxhA rFkk bldks lh0ih0,Q0
ij vk/kkfjr vyx VaLV ds :i esa lapkfyr
fd;k tk;sxkA isa'ku ;kstuk isa'ku Q.M dh
fLFkfr ij gh vk/kkfjr gksxhA rFkk bl en esa
tek dh x;h /kujkf'k dks fdlh vU; en esa
[kpZ ugha fd;k tk ldsxkA

3- bl ;kstuk ds fy;s lh0ih0,Q0
Q.M esa 'kklu }kjk ;k e.Mh ifj"kn }kjk dksbZ
/kujkf'k ns; ugha gksxhA ;fn fdlh le; fdUgh
dkj.kksa ls isa'ku gsrq Q.M dh /kujkf'k vuqiyC/k
gksus ds dkj.k isa'ku ;kstuk cUn gks tkrh gS rks
bld fy;s 'kklu ;k e.Mh ifj"kn dk dksbZ
mRrjnkf;Ro ugha gksxkA

4- Q.M dk lapkyu VaLV ,oa FkMZ
ikVhZ isa'ku Q.M eSustj ds lkFk dh x;h
O;oLFkk ds vuqlkj lHkh vkfFkZd ,oa foRrh;
igyqvksa dks ns[krs gq;s vius iw.kZ mRrjnkf;Ro
ij dh tk;sxhA Q.M ds VaLV esa 'krksZa dk
vuqikyu djus gsrq e.Mh ifj"kn esa rSukr foRr
fu;a=d dk mRrjnkf;Ro gksxk vkSj VaLV esa mPp
Lrj ds vf/kdkfj;ksa dks lnL; ukfer fd;k
tk;sxkA ftlls fd VaLV lqpk: :i ls
lapkfyr gks ldsA

5- pwWfd e.Mh ifj"kn ,oa e.Mh
lfefr;ksa dh lsok fu;ekofy;ksa esa deZpkfj;ksa dks
isa'ku dh lqfo/kk vuqeU; u fd;s tkus dh
O;oLFkk gS] bl fy;s bu lsok fu;ekofy;ksa esa
bl vk'k; dk la'kks/ku Hkh fd;k tkuk gksxkA
blds fy;s lE;d izLrko funs'kd] e.Mh ifj"kn
miyC/k djk;saxsA

d`i;k rnuqlkj vko';d dk;Zokgh
lqfuf'pr djkus dk d"V djsA

Hkonh;]

g0 v0
2 All. Devendra Prasad Srivastava & Ors Vs State of U.P. & Ors.
2013

1⁄4ds'ko nsfljkt1⁄2

lfpoA**
[From,

Keshav Desiraju

Secretary,

Government of Uttar Pradesh

To,

The Director,

Mandi Parishad,

Government
of
Uttar
Pradesh,
Lucknow.

Krishi Anubhag-5 /Lucknow: Date:-
11.02.2000

Subject: Extending pension facility to
the employees of the Mandi Parishad and
Mandi Samitis under the CPF Scheme.

Sir,

With regard to your letter no. -
Parishad-Lekha/Pension/99-721
dated
May 31st, 1999 on the afore-mentioned
subject, I am directed to say that after due
consideration of the proposal made
available by Mandi Parishad for grant of
the pension facility to the employees of
Mandi Parishad and Mandi Samiti,
approval in principle has been accorded
by the government with the following
terms and conditions: -

1. Before the implementation of the
aforesaid scheme, the rules of the
Employees Provident Fund shall be
studied and action shall be taken
accordingly, and as per rules, consent of
the employees in clear terms shall be
taken for opting the pension scheme or
not opting it. For this purpose, the
process to prepare the scheme shall be
initiated after consultation with labour
department.

2.