# Kallu Ali (Supervisor Retired) v. State of U.P. & Ors

- **Citation:** (2022) 8 ILRA 83
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-18
- **Case number:** Writ A No. 5483 of 2022
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kallu-ali-supervisor-retired-v-state-of-u-p-ors-48945
- **Pages:** 14

## Headnote

A. Service Law - Pension and post retiral
benefits
-
Pensionable
service
-
Computation - Non-adding the period of
service rendered as the daily wage -
Permissibility - Held, if an employee has
discharged duties whether temporarily or
as a daily wager or on ad hoc basis on a
post for which requirement was there and
services of such an employee have come
to be regularized on the said post or in the
same capacity, the period spent before
regularization should be considered and
added to pensionable services. (Para 28)
B. Constitution of India - Article 243-Q
-
Municipalities
and
Municipal
Corporations, and Local Development
Authority - Nature and Character -
Control of the St. Government - While
Municipalities
and
Municipal
Corporations deal with wider area of
public services, the Local Development
Authority only deals with the planned
urban
development
activities
of
notified areas and to that extent the
other two Acts give way. The nature
and character of these three Bodies is
the same except that Municipalities
and Municipal Corporations consist of
members elected by people, whereas,
the Local Development Authority is
constituted by St. Government under
the Act, 1973. However, in respect of
all the three bodies, St. Government
has deep pervasive administrative and
financial control. The Municipalities
and
Municipal
Corporations
as
conceived of under Article 243-Q enjoy
larger autonomy. So these are all Local
Bodies created to serve people and
upgrade living standard and public life
in city/ urban areas - Held, the St.
Government has absolute supervisory
and superintending control over the
Local
Development
Authority.
The
power can be exercised both by suo
moto and/ or on the application by a
party in the matter of dispute and the
provisions attached finality to the
decisions taken by the St. Government.
(Para 14 and 22)
Writ petition allowed. (E-1)
List of Cases cited:-

## Text

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8 All. Kallu Ali (Supervisor Retired) Vs. State of U.P. & Ors.
83

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24. Once the provisions of the
Maternity Benefit Act, 1961 has been
adopted by the State of U.P. as held by this
Court in the case of Anshu Rani Vs State
of U. P. then the said Act of 1961 would
apply with full force irrespective of the
provisions contained in the Financial
Handbook which is merely an executive
instruction and would in any case be
subsidiary to the legislation made by
theParliament. The judgment of Anshu
Rani (Supra) has been followed and
approved in D. Snehkiran Raghuvansi Vs.
V.C. King George'S Medical University
Gandhi Memorial & Ors. passed in writ
petition No.6532 (S/S) of 2020.

25. In light of the above discussions,
the summary of issues determined are as
under:-

(1) The Maternity Benefits Act,
1961 has been enacted by the Parliament in
exercise of powers under Entry 24 in List
III of the Seventh Schedule of the
Constitution of India and to secure the
goals stated in Articles 38, 39, 42 and 43 of
the Constituton of India and also to give
effect to the provisions contained in Article
15 (3) of the Constitution.

(2) The provision of Financial
Handbook are pre-Constitutional executive
instructions and would be subsidiary to the
Act of Parliament and in case of any
inconsistency,
the
statutoy
enactment
framed by the Parliament would prevail
and hence the provisions of Maternity
Benefits Act, 1961 would prevail over the
provisions of Financial Handbook and,
therefore, provision of Rule 153 (1) of the
Financial Handbook Volume I to IV are
read down with regard to admissibility of
leave to a woman with regard to second
pregnancy which would be governed by
Maternity Benefits Act, 1961 and not Rule
153 (1) of the Financila Handbook Volume
II to IV.

(3) The State Government already
having adopted the provisions of Maternity
Benefits Act, 1961 as per Government
Order dated 11.4.2011, as recorded by this
Court in the case of Anshu Rani Vs. State
of U.P. passed in Writ A No.3486 of 2019,
makes
it
abundantly
clear
that
the
provisions of Maternity Benefits Act, 1961
would prevail over any other law.

26. In light of the above, the writ
petition is allowed and the order dated
30.7.2019 is quashed, and the respondents
are directed to grant maternity benefit to
the petitioner in terms of the Maternity
Benefit Act 1961. They are also directed to
pass appropriate order in this regard within
a period of 4 weeks from the date a
certified copy of the order is produced
before the competent authority.
----------
(2022) 8 ILRA 83
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2022

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ A No. 5483 of 2022

Kallu Ali (Supervisor Retired)
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
84 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Wahaj Ahmad Siddiqui, Sri Mohd. Saeed
Siddiqui

Counsel for the Respondents:
C.S.C., Sri Gaurav Dhama, Sri Ajai Singh

A. Service Law - Pension and post retiral
benefits
-
Pensionable
service
-
Computation - Non-adding the period of
service rendered as the daily wage -
Permissibility - Held, if an employee has
discharged duties whether temporarily or
as a daily wager or on ad hoc basis on a
post for which requirement was there and
services of such an employee have come
to be regularized on the said post or in the
same capacity, the period spent before
regularization should be considered and
added to pensionable services. (Para 28)
B. Constitution of India - Article 243-Q
-
Municipalities
and
Municipal
Corporations, and Local Development
Authority - Nature and Character -
Control of the St. Government - While
Municipalities
and
Municipal
Corporations deal with wider area of
public services, the Local Development
Authority only deals with the planned
urban
development
activities
of
notified areas and to that extent the
other two Acts give way. The nature
and character of these three Bodies is
the same except that Municipalities
and Municipal Corporations consist of
members elected by people, whereas,
the Local Development Authority is
constituted by St. Government under
the Act, 1973. However, in respect of
all the three bodies, St. Government
has deep pervasive administrative and
financial control. The Municipalities
and
Municipal
Corporations
as
conceived of under Article 243-Q enjoy
larger autonomy. So these are all Local
Bodies created to serve people and
upgrade living standard and public life
in city/ urban areas - Held, the St.
Government has absolute supervisory
and superintending control over the
Local
Development
Authority.
The
power can be exercised both by suo
moto and/ or on the application by a
party in the matter of dispute and the
provisions attached finality to the
decisions taken by the St. Government.
(Para 14 and 22)
Writ petition allowed. (E-1)
List of Cases cited:-
1. Prem Singh v. St. of U.P. (2019) 10 SCC 516
2. Special Leave to Appeal (C) No. 1109 of
2022; The St. of Guj. & ors. Vs Talsibhai
Dhanjibhai Patel decided on 18.02.2022
3. Special Appeal (Def.) No. 1278 of 2020;
Chetram v. St. of U.P. & ors.
4. Writ A No. 5817 of 2020; Kaushal Kishore
Chaubey & ors. Vs St. of U.P. & ors. decided on
08.10.2021
5. Writ A No. 2449 of 2022; Awadhesh Kumar
Dubey v. St. of U.P. & ors. decided on
04.03.2022
(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard learned counsel for the
petitioner and Sri Ajay Singh, learned
counsel for the contesting respondent nos. 2
& 3 and learned Standing Counsel for the
State respondent.

2. Amendment application is allowed,
let the amendment be carried out forthwith.

3. By means of this petition filed
under Article 226 of the Constitution, the
petitioner has prayed for calling the records
and quashing the order dated 18.11.2020
passed by respondent no. 2, impugned
herein this petition.

4. Instructions obtained by Sri Ajay
Singh, learned counsel for the contesting
respondent nos. 2 & 3 placed before the
Court, are taken on record. Since the
instructions are complete and learned
counsel for the respondent submits that
8 All. Kallu Ali (Supervisor Retired) Vs. State of U.P. & Ors.
85
those were the ultimate instructions and the
matter may be decided, the Court proceeds
to decide the matter finally.

5. Learned counsel for the petitioner
submits that petitioner has retired from
Allahabad
Development Authority
on
28.02.2019 on attaining the age
of
superannuation and claims that even though
he was initially engaged by the respondent
Development Authority as a daily wage
Supervisor but he is entitled for pensionary
benefits on the ground that once his
services came to be regularized by
respondent Local Authority on 01.02.2011,
his past services rendered as a daily-wager
in the establishment w.e.f. 01.06.1989 were
liable to be taken into account towards
pensionable service for the purpose of
making him entitled for pension.

6. It is pleaded in the writ petition that
the factual position with regard to his
continuance in the establishment on daily
wage basis until his regularization in the
year 2011, is not disputed and even if he is
taken by the respondents to be in service as
Supervisor on daily wage basis prior to his
regularization as per order impugned
passed by the respondent no. 2, the
respondent has manifestly erred in rejecting
the claim of the petitioner for pension by
taking a stand contrary to the settled legal
position emerging out from the various
authorities of this Court and Supreme
Court.

7. Learned counsel for the petitioner
has relied upon the judgment of Supreme
Court in Prem Singh v. State of U.P.
(2019) 10 SCC 516, The State of Gujarat
and others v. Talsibhai Dhanjibhai Patel
(Special Leave to Appeal (C) No.- 1109 of
2022) decided on 18th February, 2022 and
the judgment of this Court in Special
Appeal (Def.) No. 1278 of 2020, Chetram
v. State of U.P. and 2 Others and that of a
coordinate bench of this Court in Kaushal
Kishore Chaubey and 4 Others v. State
of U.P. and 2 Others (Writ-A No. 5817 of
2020) decided on 08.10.2021 and also a
judgment of this very bench in Awadhesh
Kumar Dubey v. State of U.P. and 4
others in Writ - A No. 2449 of 2022
(decided on 04.03.2022).

8. Sri Ajay Singh, learned counsel for
the contesting respondents submits that as
per the instructions obtained by him, the
period during which the petitioner was
working as work charge/ daily wage
employee that could not have been taken
into
account
for
determination
of
pensionable service. Sri Singh argues that
factual and legal position in the local
development authority differs and cannot
be equated with local bodies created and
constituted under the Act of 1916 and 1959
and so those judgments relied upon by
learned counsel for the petitioner would not
be applicable.

9. Having heard learned counsel for
the respective parties and having gone
through the authorities cited before this
court, I find that the issue is no more res
integra. The temporary service, service
spent as work charge employee, service
spent on fixed pay or on day to day basis
by employees, if they continued in service
on the date of regularization, for the
purposes of pension such period deserves
to be counted to make service pensionable
if otherwise pension is admissible to the
employees of the establishment in question.

10. In this case, there is no dispute
that
petitioner
has
retired
from
establishment
to
which
pension
is
admissible. However, in order to meet the
86 INDIAN LAW REPORTS ALLAHABAD SERIES
arguments advanced by learned counsel for
the respondent Mr. Ajay Singh, it is
necessary to have a comparative study of
the relevant provisions of the U.p. Urban
Planning and Development Act, 1973, U.P.
Municipalities
Act,
1916
and
U.P.
Municipal Corporation Act, 1959 under
which these separate bodies like Urban
Development Authority, Municipal Board
and Municipal Corporation are created.

11. In order to provide organized and
planned development in urban areas of the
Districts in the State, the State Legislature
enacted
U.P.
Urban
Planning
and
Development Act, 1973 creating a local
statutory authority at District level called as
Urban Development Authority in the name
of the district concerned.

12. This above Act has universal
application
to
carry
out
planned
development in the State but subject to the
notification of an area of a District as
''Development
Area'.
By
virtue
of
notification as envisaged under Section 3 of
the Act it is the municipal area already
notified under the Municipalities Act, 1916
and the Municipal Corporation Act, 1959, a
Local Body, is taken over by such a Local
Authority created under the Act, 1973 for
limited purpose of organized and planned
urban development by such an authority
(hereinafter called as ''Local Development
Authority').

13. Unlike the Local Body such as
Municipal Board or Municipal Corporation,
the State Government has deep pervasive
administrative and financial control over
and above such authority. Under Section 4
of the Act, 1973 the State Government
creates and constitutes the Local Authority.
Further the Secretary and Chief Accounts
Officer
to
the
Local
Development
Authority are also appointed by the State
Government under Section 5 of the Act,
1973. Under Section 5 of the Act the State
Government has the authority to create
Centralized Services for such employees
provided for under sub Section 4 of Section
59 of the Act, 1973. Under Section 6 the
State Government has the power to
constitute an Advisory Council to advice
the Local Development Authority in
preparing Master Plan for development of
notified
area.
Development
Plan
is
submitted to the State Government under
Section 10 of the Act and comes into force
only after the approval of the State
Government. Every such land as the
Authority may require shall vest in it after
its compulsory acquisition by the State
Government under the Land Acquisition
Act, vide Section 17 of the Act, 1973 and
further also such Nazul Lands as the State
Government so decides may by notification
shall stand transferred to the Local
Development
Authority
and
then
if
Government wants it back, the Local
Development Authority shall replace the
same
at
the
disposal
of
the
State
Government
by
issuing
necessary
notification vide Section 19 of the Act,
1973. Section 20 of the Act, 1973 provides
for creation of fund for Local Development
Authority
which
consists
of
grants,
advances, loan from the State Government,
money received by disposal of property by
Local Development Authority and rents,
profits, loan, advance or debentures from
other sources. Under Section 21 of the Act,
1973 budget is prepared at the time when
State Government specifies and every year
annual report of the activities of Local
Development Authority is to be submitted
to the State Government under Section 23
of the Act, 1973. Section 24 of the Act,
1973 provides for creation of pension and
provident fund by the Local Development
8 All. Kallu Ali (Supervisor Retired) Vs. State of U.P. & Ors.
87
Authority for the benefit of its members
and employees but of course, subject to
such conditions as State Government may
specify and further State Government
reserves the right to declare that Provident
Fund Act, 1925 shall apply to such funds as
if it were of Government Provident Fund.
Section 29 of the Act, 1973 further
empowers
the
Local
Development
Authority or its Vice Chairman to exercise
such powers of a Local Body concerned or
its Chief Executive Officer as the State
Government may specify after notification.
The Master Plan and Zonal Development
Plan has been made operational under
Section 12 of the Act, 1973 with the
approval of the State Government. Under
Section 34 of the Act, 1973, the State
Government is empowered to reframe, to
provide
the
consensual
terms
and
conditions between the Local Authority and
Local
Development
Authority
for
maintenance of the amenities provided by
the Local Development Authority, falling in
the area of Local Authority / Body. Section
41 of the Act, 1973 provides for general
control upon the Local Development
Authority by the State Government in
following terms:

41.
Control
by
State
Government.-

(1)
The
[Authority),the
Chairman or the (Vice-Chairman] shall
carry out such directions as may be
issued to it from time to time by the State
Government
for
the
efficient
administration of this Act.

(2) If in, or in connection with,
the exercise of its powers and discharge
of its functions by the [Authority, the
Chairman or the Vice-Chairman) under
this Act any dispute arises between the
(Authority, the Chairman or the ViceChairman) and the State Government the
decision of the State Government on such
dispute shall be final.

(3) The State Government may,
at any time, either on its own motion or
on application made to it in this behalf,
call for the records of any case disposed
of or order passed by the [Authority or
the Chairman) for the purpose of
satisfying itself as to the legalitv or
propriety of any order passed or direction
issued and may pass such order or issue
such direction in relation thereto as it
may think fit:

Provided
that
the
State
Government shall not pass an order
prejudicial
to
any
person
without
affording such person a reasonable
opportunity of being heard.

(4) Every order of the State
Government made in exercise of the
powers conferred by this Act shall be
final and shall not be called in question in
any court.]

14. From bare reading of the
aforesaid provisions, it becomes clear
that the State Government has absolute
supervisory and superintending control
over the Local Development Authority.
The power can be exercised both by suo
moto and/ or on the application by a party
in the matter of dispute and the
provisions
attache
finality
to
the
decisions taken by the State Government.

15. Further, I find that Section 42
provides Local Development Authority to
furnish reports, returns and information as
the State Government may require from
time to time. Under Section 51 of the Act,
1973, the State Government may delegate
any of its powers to the Local Development
Authority except its rule making power,
prescribed for under Section 55 of the Act,
1973. The State Government also enjoys
88 INDIAN LAW REPORTS ALLAHABAD SERIES
extraordinary power under Section 53 of
the Act, 1973 to accept any land or building
or class of lands or buildings from
operation of the provisions of the Act, 1973
by issuing notification. Under Section 56 of
the Act, 1973 the Local Development
Authority may frame regulations/ rules
only with the previous approval of the State
Government and so also byelaws are to be
framed by Local Development Authority
with the previous approval of the State
Government. Under Section 58 of the Act,
the State Government also enjoys the
power to dissolve the Local Development
Authority, if to its satisfaction, purpose for
which such an authority was constituted,
has stood satisfied. Section 59 is a very
important provision that strikes balance
between the power of a newly created
Local Development Authority under the
Act, 1973 in respect of the notified area
under the said Act and the powers of the
Local Body that enjoyed the authority for
carrying out development activity in such
area
notified
earlier
under
the
Municipalities Act, 1916 and Municipal
Corporation Act, 1959 respectively. While
the operation of Municipalities Act, 1916 or
Municipal Corporation Act, 1959, as the
case may be, is suspended in respect of
notified development area under the new
Act, all the liabilities and responsibilities
stand transferred to the newly created Local
Development Authority and the provisions
under the Municipalities Act, 1916, U.P.
(Regulation of Building Operations) Act,
1958 and the U.P. Municipal Corporation
Act, 1959, as the case may be, in so far as
they are not inconsistent with the New Act,
1973, their enforcement/ application has
been made to continue. Vide Section 59(3)
employees of the U.P. Pradesh Palika
(Centralized) Service Rules, 1956 stand
transferred to the Local Development
Authority, even the employees outside the
centralized services cadre also stand
transferred if their number would not
exceed the number of posts.

16. The appreciation of various
sections of the Act, 1973, thus clearly
establishes
that
Local
Development
Authority called by the name of district,
is
a
Governmental
Authority
to
undertake planned development of a
notified development area by framing
zonal and Master Development Plans for
such areas. State Government enjoys
absolute administrative powers over and
above the Authority in every of its
spheres in discharge of functions. It is
also funded by means of grant and state
also advances, loans etc. even though it
may have its own sources of revenue. Its
employees are also both of centralized
and non centralized services and it has
its own byelaws governing the services
of
non
centralized
services
cadre
employees.

17. Now if we go through various
provisions of the Municipalities Act, 1916
and the U.P. Municipal Corporation Act,
1959, we would find that the Municipalities
were conceptualized with an idea of local
self government of city areas of the districts
to be notified as such. Municipalities have
larger area of governance looking to the
objects with which they are created.
Chapter VII of the Municipalities Act, 1916
that
deals
with
the
powers
of
a
Municipality
within
which
buildings,
public drains, streets, scavenging and water
supply and under Chapter VIII dealing with
markets, slaughter houses etc. are the areas
to be governed under the Act, 1973 while
preparing zonal development plan and
Master plan. Rest of the area of operation
under the Act, 1916 and Act, 1959 are still
covered under the respective Acts.
8 All. Kallu Ali (Supervisor Retired) Vs. State of U.P. & Ors.
89

18. Municipal Board is provided for
by virtue of Section 5 of the Act, 1916 and
Section 9 of the said Act provides for
constitution
of
Board
of
elected
Corporators. Section 10 confers power
upon the State Government to vary normal
composition
of
Board.
Section
30
empowers further the Government to
dissolve/ supersede the Board. Section 31A empowers the State Government to
appoint person or persons on Municipal
Board.
Section
31-B
provides
for
appointment of Director of Local Bodies in
the State who is to exercise powers in
matters of affairs of Municipalities in the
State as State Government may prescribed
for and under Section 33 of the Act, 1916
government officers are empowered to do
inspection
of
municipal
wards
and
institutions run by it. Under Section 34 the
State Government has been vested with a
power to override the resolution of the
municipal board and so also further
administrative power under Section 35 on
any representation being made or even suo
moto. Further the District Magistrate is
vested with the extraordinary power in case
of emergency under Section 36 of the Act,
1916, a power to remove elected President
of the Municipal Board. Section 69-B of
the Act, 1916 provides for centralized
services of Municipal officers and servants
by framing rules by the State Government.
Section 65 empowers the Government to
appoint executive officers. Section 70
empowers a Municipal Board to appoint
temporary servants to meet emergency.
Under
Section
71
the
power
of
Municipalities to determine permanent staff
is subject to directions by the state
government. Further under Section 73 the
appointment to the educational institution
run by a Municipality, is governed under
the rules to be framed by the State
Government.
Section
78
deals
with
provision of pension and dismissal of
employees of government whose services
are lent to the Municipality or transferred
by Municipality to the government or who
are partly employed by the government and
partly by the Municipality. Under Section
79 while Municipality has the power to pay
leave allowances, provident fund and pay
gratuity only with previous sanction of the
State Government, it also requires sanction
to arrange for purchase of annuity. It is also
entitled
to
grant
city
compensatory
allowance to an officer or servant or the
family of such officer or servant but all
these powers are subject to the condition
and
special
sanction
of
the
State
Government. Annual budget to be prepared
by the Municipality is to be submitted to
the State Government under Section 99 of
the Act, 1916 and the government is further
authorized under Section 107 to prescribe
the limit of minimum closing balance at its
discretion. Section 102 provides that in the
condition of indebtedness of a Municipality
the State Government has been vested with
absolute power over the budget and so can
make it subject to its sanctions. Under
Section 114 the Municipal fund includes
grant from the consolidated fund of the
State. The power of a Municipality to
borrow money, receive loans from the open
market or from any financial institution but
all this is subject to previous sanction of the
State Government. Vide Section 114-A of
the Act, 1916 the Municipal fund is kept in
the government treasury or sub treasury or
in the State Bank of India or with the
previous sanction of the Government in the
State Corporation bank or any other
scheduled bank vide Section 115 of the Act,
1916. Under Section 116 of the Act, 1916
the
property
that
vests
with
the
Municipality is subject to such restrictions
as may be prescribed by the State
Government. Municipality is vested with
90 INDIAN LAW REPORTS ALLAHABAD SERIES
the power to acquire land under Section
117 through compulsory acquisition by the
State Government. Section 127-C of the
Act,
1916
provides
for
Finance
Commission to study and review the
financial position of the Municipality and
the recommendations to the Governor as to
grant. The provisions run as under::

27C. Finance Commission. - (1)
The Finance Commission shall also review
the financial position of the Municipalities
and
make
recommendations
to
the
Governor as to, -

(a) the principles which should
govern -

(i) the distribution between the
State and the Municipalities of the net
proceeds of the taxes, duties, tolls and fees
leviable by the State which may be divided
between them and the allocation of shares
of such proceeds to the Municipalities;

(ii) the determination of the taxes,
duties, tolls and fees which may be
assigned to, or appropriated by, the
Municipalities;

(iii) the grants-in-aid to the
Municipalities from the Consolidated Fund
of the State;

(b) the measures needed to
improve the financial position of the
Municipalities;

(c) any other matter referred to
the finance commission by the Governor in
the interests of sound finance of the
Municipalities.

(2) Every recommendation of the
finance commission made under subsection
(1)
shall,
together
with
an
explanatory memorandum as to the action
taken thereon, be laid before both the
houses of the State Legislature.

19.

Now
this
Section
stands
superseded by Article 243 (I) read with
Article 243 (Y) of the Constitution. Article
243 (I) and 243 (Y) of the Constitution are
reproduced hereunder:

"243-I. Constitution of finance
Commissions to review financial position.

(1) The Governor of a State shall,
as soon as may be within one year from the
commencement of the Constitution (Seventy
third
Amendment)
Act,
1992
,
and
thereafter at the expiration of every fifth
year, constitute a Finance Commission to
review the financial position of the
Panchayats and to make recommendations
to the Governor as to--

(a) the principles which should
govern

(i) the distribution between the
State and the Panchayats of the net
proceeds of the taxes, duties, tolls and fees
leviable by the State, which may be divided
between them under this Part and the
allocation between the Panchayats at all
levels of their respective shares of such
proceeds;

(ii) the determination of the taxes,
duties, tolls and fees which may be
assigned to, or appropriated by, the
Panchayats;

(iii) the grants in aid to the
Panchayats from the Consolidated Fund of
the State;

(b) the measures needed to
improve the financial position of the
Panchayats;

(c) any other matter referred to
the Finance Commission by the Governor
in the interests of sound finance of the
Panchayats.

(2) The Legislature of a State
may, by law, provide for the composition of
the Commission, the qualifications which
shall be requisite for appointment as
members thereof and the manner in which
they shall be selected
8 All. Kallu Ali (Supervisor Retired) Vs. State of U.P. & Ors.
91

(3)
The
Commission
shall
determine their procedure and shall have
such powers in the performance of their
functions as the Legislature of the State
may, by law, confer on them,

(4) The Governor shall cause
every
recommendation
made
by
the
Commission under this article together
with an explanatory memorandum as to the
action taken thereon to be laid before the
Legislature of the State

243Y. Finance Commission.

(1) The Finance Commission
constituted under article 243 I shall also
review the financial position of the
Municipalities and make recommendations
to the Governor as to--

(a) the principles which should
govern

(i) the distribution between the
State and the Municipalities of the net
proceeds of the taxes, duties, tolls and fees
leviable by the State, which may be divided
between them under this Part and the
allocation between the Municipalities at all
levels of their respective shares of such
proceeds;

(ii) the determination of the taxes,
duties, tolls and fees which may be
assigned to, or appropriated by, the
Municipalities;

(iii) the grants in aid to the
Municipalities from the Consolidated Fund
of the State;

(b) the measures needed to
improve the financial position of the
Municipalities;

(c) any other matter referred to
the Finance Commission by the Governor
in the interests of sound finance of the
Municipalities

(2) The Governor shall cause
every
recommendation
made
by
the
Commission under this article together
with an explanatory memorandum as to the
action taken thereon to be laid before the
Legislature of the State."

20. Under Section 128 of the Act,
1916 Municipality's power to impose tax is
subject to general rules or special orders of
the State Government. Under Section 130A Government can ask a Municipality to
impose any tax and is vested with the
power to vary such taxes. Under Section
133 of the Act the State Government enjoys
power to reject or vary proposals of the
Municipality in respect of taxes under
Section 128. Chapter VII and VIII of the
Act, 1916 largely deal in the areas covering
an
urban
scheme
based
planned
development which now vests with the
Local Development Authority if such an
area is notified under the Act, 1973. Under
Section 296 of the Act, 1916 State
Government is the rule making authority
that includes a very important field i.e.
providing for the layout of the public
streets, residential and non residential
areas. This is what zonal development plan
and Master Plan are meant for in respect of
a notified area under the Act, 1973. Section
297
of
the
Act,
1916
empowers
Municipality to make regulations consistent
with the Act and the rules framed under
section 296 by the State Government.
Under Section 298 Municipality has the
power to frame byelaws and where State
Government so requires it is must for it to
frame byelaws. General power of appeal
against the order of a Municipality lies in
the
person
appointed
by
the
State
Government or the District Magistrate if no
such appointment is made.

21. Municipal Corporations are
constituted under the U.P. Municipal
Corporation Act, 1959 and it has an elected
Mayor who heads the body. Section 58
provides for appointment of Municipal
92 INDIAN LAW REPORTS ALLAHABAD SERIES
Commissioner and such Addl. Municipal
Commissioners
as
it
may
consider
necessary. Under Section 106 Municipal
Corporation can create certain posts. State
Government is entitled to get any particular
post created if it so directs and such a post
can not abolished without prior sanction of
the Government. Appointment on posts
mentioned under these sections shall have
to be by the Mayor in consultation with the
State Public Service Commission, however,
officiating and temporary appointments for
a tenure less than one year, can be made on
certain posts without having consultation
with State Public Service Commission.
Section 111 empowers State Government to
make appointments in consultation with the
State
Public
Service
Commission
if
authority specified under Section 107 fails
to make appointments. Section 112-A
empowers government to provide for
centralized services by making rules in that
behalf and creation of one or more services
of such officers and servants common to
the
Corporations
(Nagar
Panchayat,
Municipal Council and Jal Sansthans of the
State) and may also provide methods for
recruitment and other conditions of service.
Section 112-C provides that no member of
essential services created under Section
112-B can resign without the permission of
Municipal Commissioner. Section 112-D
empowers the State Government to declare
emergency so that there is no stoppage or
creation of performance of any essential
services. Section 112-E confers overriding
power upon Municipal Commissioner to
ensure services by any regular, ad hoc or
centralized services employee of the
Corporation who goes or remains on strike.
State Government has been vested further
with the rule making power under Section
113 of the Act, 1959, for the purposes of
bringing into effect the provisions of this
chapter.
Section
139
provides
for
composition and other funds and vide
section 140 firstly expenditure to be
incurred on such fund will be for payment
of salary and allowances to the Safai
Mazdoors. It is thereafter, the expenditure
will be incurred towards salary, pension,
gratuity of other employees and officers.
Section 140-A imposes restrictions upon
expenditure from corporation for litigation
etc. as permission/ sanction of Director,
Local Bodies, Uttar Pradesh is a must.
Borrowing power under Section 154 are
subject to sanction of State Government.
Chapter XII and Chapter XIII are the same
areas of operation as concerned under the
Act, 1973 in respect of a notified
development area. Other chapters envisage
some area of operation as prescribed under
the Municipal Corporation Act, 1959.
Chapter XXII deals with the powers of the
State Government qua proceedings of
Corporation, inspection of records and
further administrative powers including the
power to meet emergency and even
supersede the Corporation by dissolving it
for its incompetency, default in action and/
or abuse of its power. Chapter XXIII
confers power upon the State Government
a rule making power. While Section 541
empowers Corporation to frame byelaws,
section
547
empowers
the
State
Government to modify or even repeal its
byelaws. Still further, Section 549 of the
Act, 1959 provides that if in case
corporation fails to frame byelaws on any
subject enumerated under Section 541 or in
the opinion of State Government byelaws
framed are not adequate, State Government
may itself make byelaws. Section 580
confers power upon the State Government
to remove difficulties if situation so arises.

22. The reference, made above to
various sections of U.P. Municipalities Act,
1916 and U.P. Municipal Corporation Act,
8 All. Kallu Ali (Supervisor Retired) Vs. State of U.P. & Ors.
93
1959 and U.P. Urban Planning and
Development
Act,
1973
and
their
appreciation, lead to the conclusion that
while
Municipalities
and
Municipal
Corporations deal with wider area of public
services, the Local Development Authority
only
deals
with
the
planned
urban
development activities of notified areas and
to that extent the other two Acts give way.
The nature and character of these three
Bodies
is
the
same
except
that
Municipalities and Municipal Corporations
consist of members elected by people,
whereas, the Local Development Authority
is constituted by State Government under
the Act, 1973. However, in respect of all
the three bodies, State Government has
deep pervasive administrative and financial
control. The Municipalities and Municipal
Corporations as conceived of under Article
243-Q enjoy larger autonomy. So these are
all Local Bodies created to serve people
and upgrade living standard and public life
in city/ urban areas.

23. Now, I proceed to refer and
discuss the judgments relied upon by
learned counsel for the petitioner. Supreme
Court in the case of Prem Singh v. State of
U.P. (2019) 10 SCC 516, has held that
merely because an employee has worked
on month to month payment basis prior to
his
being
absorbed
in
permanent
establishment, he cannot be denied pension
provided of course he has retired from an
establishment
where
services
are
pensionable. Vide paragraph nos. 33, 34 &
35 the Court has held thus:

"33. The question arises whether
the imposition of rider that such service to
be counted has to be rendered in-between
two spells of temporary or temporary and
permanent service is legal and proper. We
find that once regularization had been
made on vacant posts, though the employee
had not served prior to that on temporary
basis,
considering
the
nature
of
appointment, though it was not a regular
appointment it was made on monthly salary
and thereafter in the pay scale of workcharged establishment the efficiency bar
was permitted to be crossed. It would be
highly
discriminatory
and
irrational
because of the rider contained in Note to
Rule 3(8) of 1961 Rules, not to count such
service particularly, when it can be
counted, in case such service is sandwiched
between two temporary or in-between
temporary and permanent services. There
is no rhyme or reason not to count the
service of work-charged period in case it
has been rendered before regularisation. In
our
opinion,
an
impermissible
classification has been made under Rule
3(8).
It
would
be
highly
unjust,
impermissible and irrational to deprive
such employees benefit of the qualifying
service. Service of work-charged period
remains the same for all the employees,
once it is to be counted for one class, it has
to
be
counted
for
all
to
prevent
discrimination. The classification cannot be
done on the irrational basis and when
respondents are themselves counting period
spent in such service, it would be highly
discriminatory not to count the service on
the basis of flimsy classification. The rider
put on that work-charged service should
have preceded by temporary capacity is
discriminatory and irrational and creates
an impermissible classification.

34. As it would be unjust, illegal
and impermissible to make aforesaid
classification to make the Rule 3(8) valid
and non discriminatory, we have to read
down the provisions of Rule 3(8) and hold
that services rendered even prior to
regularisation in the capacity of workcharged employees, contingency paid fund
94 INDIAN LAW REPORTS ALLAHABAD SERIES
employees
or
non-
pensionable
establishment
shall
also
be
counted
towards the qualifying service even if such
service is not preceded by temporary or
regular appointment in a pensionable
establishment.

35. In view of the note appended
to Rule 3(8), which we have read down, the
provision contained in Regulation 370 of
the Civil Services Regulations has to be
struck down as also the instructions
contained in Para 669 of the Financial
Handbook."

24. This Court in the case of Kaushal
Kishore Chaubey and 4 Others v. State
of U.P. and 2 Others (Writ-A No. 5817 of
2020) decided on 08.10.2021 has held that
the
employees
working
as
Seasonal
Collection Amin on different dates in the
Tehsil department of the district who were
regularized later on in service, the period so
rendered by them prior to regularization,
shall be considered for the purposes of
pension. After discussing and referring to a
number of decisions of this Court and
Supreme Court vide paragraphs 22, 23, 24
and 25, the Court has finally held thus:

"22. From the judgments referred
above, it is clear that the Courts has
consistently held that the services rendered by
an employee either as work charged
employee or Seasonal Collection Amin are to
be counted for granting the pensionary
benefit to them, and the nomenclature of their
appointment, be a daily wager, temporary or
whatever, is not material to consider their
claim for grant of pensionary and retiral
benefits.

23. Further, it is also pertinent to
mention that the petitioners have worked for
decades
as
Seasonal
Collection Amin
discharging the same duty which has been
discharged by the regular Collection Amin
and have been extended same benefits which
have been extended to the regular Collection
Amin, therefore, in such factual scenario
denying the petitioners the benefit of pension
and other benefits which have been extended
to Regular Collection Amin would not only be
arbitrary but against the concept of the right
to equality as enshrined in Article 14 of the
Constitution of India.

24. In view of the above discussion
and given the law elucidated by the Apex
Court as well as by this Court in various
pronouncements referred above, the services
rendered by the petitioners as Seasonal
Collection Amin cannot be ignored for
extending the benefits of pension and other
retiral benefits to them on the pretext that
their appointment is to be treated from the
date of regularization and not from the date
of their engagement as work charged
employee.

25. Consequently,the writ petition
is allowed.