# Km. Kalyani Mehrotra v. State of U.P. & Ors

- **Citation:** (2021) 5 ILRA 177
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-05-05
- **Case number:** Service Single No. 14930 of 2017
- **Bench:** Ramesh Sinha, Chandra Dhari Singh, Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-kalyani-mehrotra-v-state-of-u-p-ors-47056
- **Pages:** 19

## Headnote

A. Civil Law - U.P. Recruitment of
Dependants of Government Servants
Dying in Harness Rules (1974) - Rule 5 -
Compassionate
appointment
-
Applicability of Rules to employee of
District
Rural
Development
Agency
(DRDA)
-
Held
-
In
view
of
the
provisions of G.O. dated 17.03.1994,
particularly clause 2(9), the provisions
of Dying in Harness Rules, 1974 would
be applicable upon employees of the
DRDA - law laid in 'State of U.P. vs.
Ajeet
Kumar
Shahi,
Special
Appeal
No.714 of 2015' overruled (Para 63)

No Service Regulations notified for employees
of DRDA - State Government, issued G.O. Dt
17.03.1994 in which guidelines for conditions
of service of DRDA employees were laid down
- but para 2 (9) of Government Order
indicates that other matters which are not
covered specifically with G.O. would be
regulated by such rules, regulations and
orders which generally apply to Government
servants serving with regard to affairs of the
State - Held - Though no specific service
condition has been indicated in the said G.O.
pertaining to compassionate appointment but
at the same time there is no specific exclusion
of compassionate appointment being granted
to employees of the DRDA in terms of the
1974 Rules - no legal bar that beneficial
conditions
of
service
pertaining
to
Government employees made under Article
309 cannot be extended to a registered
society such as DRDA, which is ''State' under
Article 12 - provisions of the 1974 Rules
would be applicable upon employees of the
DRDA (41,42, 52, 63)

B. District Rural Development Agency
(DRDA) - Employee status - employees
of DRDA do not hold any civil post either
under the State or Central Government -
they do not, come within purview of the
definition ''government employees'
-
however
extending
the
benefit
of
compassionate appointment under the
1974 Rules upon the employees of the
DRDA would only have the effect of
providing the said beneficial benefit and
not
granting
them
the
status
of
Government servants (Para 54)

C. Interpretation - Doctrine of ''occupied
field' - Held - field pertaining to conditions
of service of employees of the DRDA being
unoccupied, the said void was filled by
issuance of Government Order dated
17.03.1994 (Para 39, 40)

D. Phrase - ''approbate and reprobate' - it
is used to express common law principles
of election that no party can accept and
reject the same instrument - A person
cannot say at one time that a transaction
is
valid
and
thereby
obtain
some
advantage, and then turn round and say it
is void for the purpose of securing some
other advantage - Held - opposite parties
cannot be permitted to repudiate the
conditions of service which are beneficial
to the employees of the DRDA while
178 INDIAN LAW REPORTS ALLAHABAD SERIES
applying
other
similar
such
service
conditions. (Para 48, 50)

Reference Answered. (E-4)

List of Cases cited:

## Text

_Characters 0–39,810 of 62,536. This is a partial read: ask again with offset=39810 for what follows._

5 All. Km. Kalyani Mehrotra Vs. State of U.P. & Ors.
177
Review
petition
lacks
merit
and
is
dismissed.
----------
(2021)05ILR A177
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.05.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE CHANDRA DHARI SINGH, J.
THE HON'BLE MANISH MATHUR, J.

Service Single No. 14930 of 2017

Km. Kalyani Mehrotra ....Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Vijay Kumar Srivastava, Upendra Nath
Mishra

Counsel for the Respondents:
C.S.C, Sultan Akhtar

A. Civil Law - U.P. Recruitment of
Dependants of Government Servants
Dying in Harness Rules (1974) - Rule 5 -
Compassionate
appointment
-
Applicability of Rules to employee of
District
Rural
Development
Agency
(DRDA)
-
Held
-
In
view
of
the
provisions of G.O. dated 17.03.1994,
particularly clause 2(9), the provisions
of Dying in Harness Rules, 1974 would
be applicable upon employees of the
DRDA - law laid in 'State of U.P. vs.
Ajeet
Kumar
Shahi,
Special
Appeal
No.714 of 2015' overruled (Para 63)

No Service Regulations notified for employees
of DRDA - State Government, issued G.O. Dt
17.03.1994 in which guidelines for conditions
of service of DRDA employees were laid down
- but para 2 (9) of Government Order
indicates that other matters which are not
covered specifically with G.O. would be
regulated by such rules, regulations and
orders which generally apply to Government
servants serving with regard to affairs of the
State - Held - Though no specific service
condition has been indicated in the said G.O.
pertaining to compassionate appointment but
at the same time there is no specific exclusion
of compassionate appointment being granted
to employees of the DRDA in terms of the
1974 Rules - no legal bar that beneficial
conditions
of
service
pertaining
to
Government employees made under Article
309 cannot be extended to a registered
society such as DRDA, which is ''State' under
Article 12 - provisions of the 1974 Rules
would be applicable upon employees of the
DRDA (41,42, 52, 63)

B. District Rural Development Agency
(DRDA) - Employee status - employees
of DRDA do not hold any civil post either
under the State or Central Government -
they do not, come within purview of the
definition ''government employees'
-
however
extending
the
benefit
of
compassionate appointment under the
1974 Rules upon the employees of the
DRDA would only have the effect of
providing the said beneficial benefit and
not
granting
them
the
status
of
Government servants (Para 54)

C. Interpretation - Doctrine of ''occupied
field' - Held - field pertaining to conditions
of service of employees of the DRDA being
unoccupied, the said void was filled by
issuance of Government Order dated
17.03.1994 (Para 39, 40)

D. Phrase - ''approbate and reprobate' - it
is used to express common law principles
of election that no party can accept and
reject the same instrument - A person
cannot say at one time that a transaction
is
valid
and
thereby
obtain
some
advantage, and then turn round and say it
is void for the purpose of securing some
other advantage - Held - opposite parties
cannot be permitted to repudiate the
conditions of service which are beneficial
to the employees of the DRDA while
178 INDIAN LAW REPORTS ALLAHABAD SERIES
applying
other
similar
such
service
conditions. (Para 48, 50)

Reference Answered. (E-4)

List of Cases cited:

1. St. of U.P. & ors. Vs Pitamber [S.A.(D)
No.687 of 2010] dt 19.08.2010

2. St. of U.P. Vs Ajeet Kumar Shahi, Special
Appeal No.714 of 2015

3. Anoop Rai Jain & ors. Vs St. of U.P. & ors.
[Writ Petition No.458 (S/B) of 2000

4. Smt. Reeta Mishra Vs St. of U.P. [Writ
Petition No.2205(S/S) of 2006]

5. Surya Bhan Singh Vs St. of U.P. [Writ Petition
No.6411(S/S) of 2005] dt 08.12.2006

6. State of Assam Vs Kanank Chandra Dutta
reported in AIR 1967 SC 884

7. Kalika Prasad Vs St. of U.P. & ors. [Writ
Petition No.45(S/S) of 2005

8. A.B. Krishna Vs St. of Kar (1998) 3 SCC 495

9. St. M.P. & ors. Vs Shardul Singh reported in
1970 (1) SCC 108

10. Vimal Kanwar & ors. Vs Kishore Dan & Ors
(2013) 7 SCC 476

11. Karam Kapahi & ors. Vs Lal Chand Public
Charitable Trust & anr. (2010) 4 SCC 753

12. M/s New Bihar Biri Leaves Co. & ors. Vs St.
of Bihar & ors. (1981) 1 SCC 537

(Delivered by Hon'ble Ramesh Sinha, J,
Hon'ble Chandra Dhari Singh, J.
 & Hon'ble Manish Mathur, J.)

1. This Full Bench has been
constituted upon orders of Hon'ble the
Chief Justice pursuant to order dated
28.08.2017 passed by learned Single Judge
in Writ Petition No.14930(S/S) of 2017
whereby the following two questions have
been referred to this Bench:-

(i) Whether in view of the
provisions of Government Order dated
17.3.1994, particularly clause 9 thereof,
the provisions of the Rules of 1974 would
be application upon the employees of
DRDA?

(ii) Whether the judgment of
Division Bench in State of U.P. vs. Ajeet
Kumar Shahi, Special Appeal No.714 of
2015, requires reconsideration in light of
the Government Orders dated 17.3.1994
and 18.7.2016?

2. The writ petitioner had challenged
an order dated 22.05.2017 whereby claim
for grant of compassionate appointment
under the U.P. Recruitment of Dependents
of Government Servant Dying in Harness
Rules, 1974 (hereinafter referred to as
'1974 Rules') was rejected on the ground
that the same are inapplicable in the case of
employees, such as mother of the writ
petitioner, who was employed in the
District
Rural
Development
Agency
(hereinafter referred to as DRDA) since the
same is a Society registered under the
Societies Registration Act, 1860.

3. The learned Single Judge has
noticed that a Division Bench of this Court
in State of U.P. & others v. Pitamber
[Special Appeal (Defective) No.687 of
2010] had by its judgment and order dated
19.8.2010 held the DRDA to be 'State'
within meaning of Article 12 of the
Constitution of India but at the same time
has also held that the employees of DRDA
do not hold any civil post either under the
State or the Central Government and do
not, therefore, come within purview of the
definition ''government employees'.
5 All. Km. Kalyani Mehrotra Vs. State of U.P. & Ors.
179

4. In the referral order, it has also
been noticed that another Division Bench
of this Court in State of U.P. & others v.
Ajeet Kumar Shahi [Special Appeal
No.714 of 2015] while following the
judgment in Pitamber (supra), rejected the
claim for compassionate appointment on
the ground that the 1974 Rules are
inapplicable upon employees of DRDA
since they do not come within definition of
''government employees'.

5. However, learned Single Judge
thereafter referred the matter to a larger
Bench while posing the question whether
the judgment rendered in Ajeet Kumar
Shahi (Supra) required reconsideration.

6. The reference was made upon
consideration by the learned Single Judge
that the Division Bench in the case of Ajeet
Kumar Shahi (Supra) was apparently not
made aware with regard to Government
Order dated 17.3.1994, which provided that
in respect of matters of employment of
DRDA employees, for which there is no
specific provision in the said Government
Order, such employees would ordinarily be
governed by provisions as are applicable
upon employees of the State Government.
The relevant portion of the order dated
28.08.2017 by learned Single Judge is as
follows:-

"7. The reason assigned to hold
that Rules of 1974 would not apply upon
employees of DRDA is that employee of
DRDA are not the Government Servant.
However, while holding the provision of
1974 Rules to be inapplicable upon the
employees of DRDA, attention of the
Division Bench apparently was not invited
to the Government Order dated 17.3.1994,
which clearly records that in respect of
matters
of
employment
of DRDA
employees, which are not covered by the
Government Order dated 17.3.1994, the
persons
employed
in
DRDA
would
ordinarily be governed by such provisions,
as are applicable upon the employees of the
State
Government.
The
provisions
contained in para 6 to 13 of the
Government Order dated 17.3.1994 clearly
contemplates that in the matter of such
employees, relevant provisions relating to
determination of seniority, application of
reservation rules, transfer etc. would all be
applicable as are applicable upon the
employees of the State Government. Once
such is the position, the Rules of 1974,
which are applicable upon the employees
of the State Government, would also be
applicable upon the employees of DRDA.
Moreover, by a subsequent Government
Order dated 18.7.2016 employees of DRDA
have now been absorbed in the department
of Rural Development of the State."

"8. For the aforesaid reasons, I
am of the opinion that the question as to
whether provision of 1974 Rules would
apply upon an employee of DRDA needs to
be considered by a Larger Bench."

7 . We have heard Mr. Upendra Nath
Mishra, Senior Advocate assisted by Mr.
Neel Kamal Mishra, learned counsel for
writ petitioner and Mr. Kuldeep Pati
Tripathi
learned
Additional
Advocate
General assisted by Mr. Vivek Kumar
Shukla learned Standing Counsel for the
State of U.P. and learned counsel for
DRDA who has adopted submissions of
learned State Counsel.

8. Learned counsel appearing on
behalf of petitioner has submitted that the
DRDA was created by various office
180 INDIAN LAW REPORTS ALLAHABAD SERIES
memorandums of Government of India and
consequent Government Orders by the
State Government. The DRDA is fully
funded
by
the
Central
and
State
Governments and has already been held to
be an instrumentality of State under Article
12 of the Constitution of India. As such,
power
of
the
Central
and
State
Governments to issue directions and policy
guidelines to the DRDA including service
conditions of the employees has been
recognised and accepted not only by the
opposite parties but by judgments of this
Court as well. It is submitted that upon
creation of DRDA, draft service rules were
made but were never notified. Due to the
said fact, although the DRDAs were set up
for different Districts and were separately
registered as Societies under the Societies
Registration
Act,
1860
but
all
the
conditions of service of employees of
DRDA
are
governed
by
various
Government
Orders
issued
by
the
Government
and
departmental
orders
issued
by
the
Commissioner,
Rural
Development for maintaining uniformity in
DRDA set up. It is submitted that the State
Government has the power to issue
Government Orders with regard to policy
guidelines to the DRDAs as provided in the
bye-laws.

9. Learned counsel for petitioner has
submitted that in view of the fact that no
Service Regulations were notified for
employees
of
DRDA,
the
State
Government, exercising its powers of
superintendence, issued the Government
Order dated 17.03.1994 in which guidelines
for conditions of service of the employees
were laid down. It is submitted that
paragraph 9 of the said Government Order
clearly provided that the service conditions
which are not specifically provided for in
the Government Order would be made
applicable upon employees of the DRDA
as they are ordinarily applicable upon State
Government employees. Attention has been
drawn to the fact that subsequently, the
employees of the DRDA have been
absorbed in the department of Rural
Development of the State Government vide
Government
Order
dated
18.07.2016
thereby recognising the fact that not only
was the DRDA established as a permanent
department but that the employees thereof
were also functioning on behalf of the State
Government.

10. Learned counsel for petitioner has
also submitted that the condition indicated
in paragraph 9 of Government Order dated
17.03.1994 thereafter stood ratified in view
of the fact that the same was adopted by the
DRDA , Raebareli vide Resolution dated
02.06.1994. In view of aforesaid, learned
counsel appearing for the petitioner has
submitted that the said Government Order
dated 17.03.1994 and the resolution dated
02.06.1994 were very relevant for the
purposes of determination of applicability
of the 1974 Rules upon employees of the
DRDA but the same were not brought to
the attention of the Division Bench in Ajeet
Kumar Shahi (Supra), which therefore
requires to be reconsidered. Learned
counsel has further submitted that the
Government Order dated 17.03.1994 and
the resolution dated 02.06.1994 are clearly
in the nature of legislation by reference. He
has further submitted that except for the
provisions of compassionate appointment,
rest of the service conditions indicated in
the Government Order dated 17.03.1994
have been implemented in the DRDAs
throughout the State irrespective of the fact
whether the same was adopted or not. As
such, it is submitted that the State
Government
cannot
approbate
and
reprobate at the same time. Learned
5 All. Km. Kalyani Mehrotra Vs. State of U.P. & Ors.
181
counsel has relied upon various judgments
in order to buttress his submissions, which
shall be considered subsequently.

11 . Learned counsel appearing on
behalf of the State has refuted the
submissions
of
learned
counsel
for
petitioner on the ground that the petitioner
has misconstrued the Government Order
dated 17.03.1994 which clearly provides
that it would be inapplicable in case of
Rules pertaining to Government Servants
made and notified under Article 309 of the
Constitution of India and since the 1974
Rules have been made under Article 309 of
the Constitution of India, the same are
exempt from applicability upon employees
of DRDAs by virtue of Government Order
dated 17.03.1994 itself. It has been further
submitted that a reading of the 1974 Rules
clearly indicates that it is applicable only
upon Government servants and since it has
already been held and is undisputed that the
employees of the DRDAs employed prior
to issuance of Government Order dated
18.07.2016 would not come within the
purview of Government servants, therefore,
there is no question of the 1974 Rules
being applicable upon them.

12. Learned counsel appearing on
behalf of the State has further submitted
that paragraph 9 of the Government order
dated 17.03.1994 is only an enabling
provision and would be applicable only
once it is adopted by each and every
DRDA in all the Districts. That having not
been
done,
the
same
would
not
automatically apply throughout the State of
U.P. It has been further submitted that
Ajeet Kumar Shahi (Supra) indicates the
correct position of law while following the
Division Bench judgment in the case of
Pitamber (supra). It is submitted that the
position has thereafter been made clear
by the Government Order dated 10.06.2013
in which also it has been stated that the
1974
Rules
are
inapplicable
upon
employees of DRDAs.

13.

We
have
considered
the
submissions advanced by learned counsel
for the parties and perused the record as
well as written arguments submitted by
learned counsel on behalf of petitioner as
well as the State.

Creation and background of
DRDA

14. For the purpose of answering the
reference, it would be worthwhile to
examine the creation, establishment and
nature of DRDA.

15. DRDAs have been created in each
district of the State under the directions of
the Government of India for ensuring
effective and speedy implementation of all
the
Central
and
State
Government
programmes
pertaining
to
rural
development. Before the establishment of
DRDA in its present form in 1980, the
Government of India issued instructions in
the year 1971 for creation of Small Farmers
Development Agency (SFDA) in each
district, which was registered as a Society
for
implementation
of
the
Central
Government programmes like IRDP etc.

16. Later on, when the IRDP was
extended to all the districts of the State
throughout the Country, the Government of
India vide notification dated 4.10.80,
decided to set up a single execution agency
at the district level for ensuring effective
implementation of Rural Development
Programmes. Formal creation of the DRDA
182 INDIAN LAW REPORTS ALLAHABAD SERIES
was
contemplated
under
the
office
memorandum of the Government of India
dated 24.10.80, which provided that DRDA
will be created as a Society in each district.
It was further provided that the DRDA
shall be controlled and governed by the
State Government and it will be headed by
the Collector/Deputy Commissioner in
each district. Apart from that, DRDAs were
to have full time Executive Officer
preferably a senior scale IAS officer. In the
State of U.P., Chief Development Officer is
currently the Executive Director of DRDA.

17. The State Government vide
government order dated 24.11.80 created
DRDAs in each district. In order to
maintain uniformity in the constitution of
all the DRDAs existing in various districts,
the Central Government issued an O.M.
dated 10.3.81, whereby guidelines were
issued regarding uniform structure of
DRDA.
Consequently,
the
State
Government issued the Government order
dated 10.7.81, whereby a uniform structure
of the Governing Body of the DRDA was
provided. Thus, each DRDA is headed by
the
District
Magistrate,
who
is
the
Chairman of the DRDA. The Deputy
Development Commissioner is to be the
Vice Chairman of the DRDA and thereafter
eight members were provided, which
include Deputy Registrar, Cooperative
Societies, Deputy Director Agriculture,
Deputy
Director
Animal
Husbandary,
ADM/DDO,
Assistant
Registrar,
Cooperative Societies, District Agriculture
Officer, District Animal Husbandry Officer
and Assistant Engineer, Minor Irrigation.
Since the earlier District Officers did not
have the provisions for a Governing Body,
hence directions were issued by the State
Government
to
all
the
DRDAs
to
incorporate
the
aforesaid
uniform
Governing Body in their Articles of
Association. In this regard, the Office
Memorandum
dated
10.3.81
of
the
Government of India and the Government
order dated 10.7.81 are relevant.

18. In compliance of the aforesaid
instructions of the Government of India
dated 10.3.81 as well as the directions
issued by the State Government vide
Government order dated 10.7.81, all the
DRDAs prepared almost identical byelaws. One of such bye-laws which has been
placed before us relating to DRDA,
Auraiya, in Rule 5 prescribe establishment
and appointment etc., wherein sub-rule (2)
of Rule 5 provides that subject to the
approval or under the directions of the
Government of India or State Government
from time to time, the Agency will create
new post. Sub-rule (4) of Rule 5 further
says that the directions of the Government
orders providing for duties, responsibilities
and powers etc. will be final and if required
will have an overriding effect on the old
and existing rule.

19. Rule 14 of the bye-laws provide
that every employee of Agency, whether
directly recruited or on deputation from
department of State Government or local
body shall be governed by Service Conduct
Rules of the State Government. Rule 15
further clarifies that service conditions and
service rules not covered under Rules 4 to
13 shall be the same as those applicable on
State Government employees.

20. From the aforesaid directions
issued by the Government of India and the
State Government and the object for which
the DRDAs have been established in each
district with present structure, it is clear
that the State Government has all pervasive
control over the administration of the
DRDA and all the DRDAs existing in
5 All. Km. Kalyani Mehrotra Vs. State of U.P. & Ors.
183
various districts of the State have a uniform
administrative set up, created by the State
Government under the directions of Central
Government.

21. The status of DRDAs was
considered by a Division Bench of this
Court in the case of Anoop Rai Jain and
others v. State of U.P. and others [Writ
Petition No.458 (S/B) of 2000 and other
connected matters]. The same formed the
basis of another Division Bench judgment
in Pitamber (supra) whereunder it was
held that the DRDA is 'State' within
meaning of Article 12 of the Constitution
of India. The said fact is undisputed
between the parties and has been followed
in various subsequent judgments of this
Court as well. However, the said judgment
also held that the employees of DRDA do
not hold any civil post under the
Government and consequently are not
Government employees.

22. It is on this latter reasoning that
the Division Bench in Ajeet Kumar Shahi
(Supra)
rejected
the
claim
for
compassionate appointment to dependent
of an employee of DRDA holding that the
1974 Rules are applicable only upon
Government employees.

23. Since the status of DRDA as
'State' under Article 12 of the Constitution
of India is neither being disputed by the
parties nor is a subject matter of reference,
as such, it is not being deliberated upon by
this bench.

Litigational
background
regarding DRDA employees.

24. Prior to the judgment of Division
Bench in Pitamber (supra), a learned Single
Judge in the case of Smt. Reeta Mishra
v.
State
of
U.P.
[Writ
Petition
No.2205(S/S) of 2006] had directed the
DRDA to consider appointment of the writ
petitioner therein on compassionate basis in
terms of the 1974 Rules in view of the fact
that in an earlier judgment rendered in Writ
Petition No.2280 (S/S) of 2006, the
DRDAs
had
been
declared
an
instrumentality of State. The learned Single
Judge vide order dated 26.07.2006 quashed
the Government Order dated 22.04.2004
whereunder the benefit of the 1974 Rules to
the employees of DRDA had been denied.

25. Subsequently, another case of
Surya Bhan Singh v. State of U.P. [Writ
Petition
No.6411(S/S)
of
2005]
was
decided vide order dated 08.12.2006 in
terms of the judgment rendered in Reeta
Mishra (supra). After Surya Bhan Singh
was granted appointment under the 1974
Rules, he was terminated from service,
which was challenged in Writ Petition
No.5332 (S/S) of 2007 and was allowed
vide judgment and order dated 27.09.2013.
Special Appeal No.33 of 2014 (D) filed by
the State of U.P. against the said order was
dismissed vide judgment and order dated
21.07.2014 on the ground that once the
petitioner therein had been appointed on
compassionate basis, it was not open for
the authority to terminate his services after
a lapse of six months. Apparently, neither
the Government Order dated 17.03.1994
nor the judgment of Division Bench in
Pitamber (supra) was considered in the
matter pertaining to Surya Bhan Singh
since in the meantime judgment in the case
of Pitamber (supra) came to be rendered
vide judgment and order dated 19.08.2010.
However,
consequent
upon
judgment
rendered in the case of Reeta Mishra
(supra), the cases of dependents of
184 INDIAN LAW REPORTS ALLAHABAD SERIES
employees of DRDA continued to be
entertained since the Government Order
dated 22.04.2004 had been set aside and the
judgment in Reeta Mishra (supra) had
become final as no appeal had been
preferred by either party.

26. The situation underwent a change
in 2010 with the advent of Division Bench
judgment in the case of Pitamber (supra).

Consideration of the case of
Pitamber (supra)

27. In the aforesaid case, Special
Appeal had been filed by the State of U.P.
against the judgment and order dated
23.03.2010 passed by a learned Single
Judge in Writ Petition No.10464 of 2009.
The issue in the said case was regarding
applicability of Fundamental Rule 56 of the
Financial
Handbook
pertaining
to
Government servants with regard to age of
superannuation of employees of DRDA.
The learned Single Judge in his judgment
had quashed the notice dated 29.12.2008
holding that the writ petitioner therein
would be entitled to continue up to the age
of 60 years as in the case of Government
Servants since the Fundamental Rules
would be applicable upon the employees of
DRDA in pursuance of paragraph 9 of the
Government Order dated 17.03.1994.

28. While noticing the background of
DRDA regarding its creation, status and the
deep and pervasive control of the State
Government, the Division Bench reached a
conclusion that the DRDA would be 'State'
within the meaning of Article 12 of the
Constitution of India despite being a
Society registered under the Societies
Registration Act, 1860. However, the
Division Bench relying upon the Supreme
Court Judgment in State of Assam v.
Kanank Chandra Dutta reported in AIR
1967 SC 884 held that the employees of
DRDA do not answer the tests for coming
within the purview of a Government
servant since they do not hold any civil
post either under the Central Government
or the State Government. It was held that
merely because an Association falls under
the expression ''instrumentality of State'
within the meaning of Article 12 of the
Constitution, it would not make its
employees come within the definition of
government employees. It was held that the
employees of DRDA are for all practical
purposes employees of the Society who are
not holding any civil post in the services of
the State and therefore Rule 56 of the
Fundamental Rules would be inapplicable
in their case. The Single Judge judgment in
the case of Kalika Prasad v. State of U.P.
& others [Writ Petition No.45(S/S) of
2005] holding Rule 56 of the Fundamental
Rules to be applicable upon DRDA
employees, was overruled.

29. The Division Bench held that if
the Government Order dated 17.03.1994
was applicable upon the employees of
DRDA being within competence of the
State Government to issue the same, it was
also within competence of the State
Government to issue the Government Order
dated 09.03.2004 restricting the age of
superannuation. The relevant portion of the
judgment is as follows:-

"The learned Judge in Kalika
Prasad (supra), has not discussed the
reason as to why F.R. 56 is applicable. If
F.R. 56 was applicable because of
Guideline No. 2 (10) of Government
Notification dated 17th March, 1994, then
it was within the competence of the State
Government to also have issued the
Government Order dated 09.03.2004. In
5 All. Km. Kalyani Mehrotra Vs. State of U.P. & Ors.
185
these
circumstances,
considering
the
Government Notification dated 09.03.2004,
the age of superannuation of employees of
DRDA would be 58 years from that date.
Question
(1)
is
answered
in
the
affirmative."

Consideration of the case of
Ajeet Kumar Shahi (Supra)

30. The said Special Appeal in the
case of Ajeet Kumar Shahi (Supra) arose
from judgment and order of a learned
Single Judge dated 24.04.2015 and was
particularly with regard to claim for
compassionate appointment under the 1974
Rules.
The
claim
for
compassionate
appointment of the writ petitioner therein
was rejected by authorities on the basis of
Government
Order
dated
22.04.2004
whereunder it was provided that the DRDA
being a society registered under the
Societies
Registration
Act,
1860,
its
employees would not come within the
purview of the 1974 Rules. Writ Petition
against rejection order was allowed. The
Division Bench noticed the judgment
rendered in the case of Reeta Mishra
(supra)
and
the
fact
that
the
said
Government Order dated 22.04.2004 had
been
quashed,
which
was
thereafter
followed in other cases as well. It also
noticed the judgment rendered by another
Division Bench in the case of Pitamber
(supra) and the fact that the employees of
the DRDA did not hold any civil post in the
services of State and continued to be
employees of DRDA which was a society.
In such circumstances, it was held that
provisions of Rule 2(a) of the 1974 Rules
would not be attracted in the case of
employees of DRDA. The relevant portion
of the judgment is as follows:-

"In view of the law which has
been laid down by the Division Bench in its
judgment dated 19 August 2010 in
Pitamber (supra), it is now a settled
principle of law that the employees of
DRDA are not holding civil posts in the
services of the State. They continue to be
the employees of DRDA which is a society
registered under the Societies Registration
Act, 1860. That being the position, the
provisions of Rule 2 (a) of the Rules of
1974 would not be attracted."

31. The case of Reeta Mishra (supra)
was distinguished on the ground that it was
rendered prior to judgment in Pitamber
(supra) and therefore cannot be considered
as laying down any principle of law as
such. The judgment of Division Bench in
Surya Bhan Singh (supra) was also
distinguished on the ground that the issue
of applicability of the 1974 Rules was not
being considered by the Division Bench,
which was considering only the fact that
once the writ petitioner therein had been
appointed on compassionate basis then
whether his services could be terminated
after a lapse of six months, without
complying with the principles of natural
justice. However, a reading of the judgment
indicates that neither the Government
Order dated 17.03.1994 nor the resolution
dated 02.06.1994 was placed before the
Division Bench and as such do not find any
mention therein.

Consideration of Question No.1
:- (i) Whether in view of the provisions of
Government Order dated 17.3.1994,
particularly
clause
9
thereof,
the
provisions of the Rules of 1974 would be
application upon the employees of
DRDA?
186 INDIAN LAW REPORTS ALLAHABAD SERIES

32. It is undisputed that : -

(a) the DRDA is a Society
registered under the Societies Registration
Act, 1860 but has nonetheless been held to
be 'State' under Article 12 of the
Constitution of India, which is an accepted
position.

(b)
there
are
no
service
regulations in any of the DRDAs pertaining
to its employees throughout the State of
U.P.

(c) in the absence of service rules,
the
State
Government
had
issued
notification dated 17.03.1994 indicating the
conditions of service which were to be
applicable upon all the employees of
DRDA in uniformity throughout the State
of U.P.

(d)
consequent
upon
their
establishment, almost identical bye-laws
were framed by the DRDA in all the
Districts in which the State Government
has been empowered to issue policy
directions and guidelines for the proper
functioning of DRDA throughout the Sate
of U.P. including conditions of service of
its employees.

(e) employees of the DRDA
throughout the State of U.P. has been
absorbed in the department of Rural
Development of the State Government vide
Government Order dated 18.07.2016.

33. Considering the aforesaid factors,
the reference has to be answered regarding
applicability of the 1974 Rules upon
employees of DRDA appointed or working
prior to issuance of Government Order
dated 18.07.2016 since the said employees
after absorption already have the status of
State Government employee upon whom
the 1974 Rules are automatically applicable
now.

34. It is an accepted fact that
subsequent to creation and establishment of
DRDA, all the DRDAs prepared almost
identical bye-laws pursuant to instructions
of
the
Government
of
India
dated
10.03.1981 and of the State Government
dated 10.07.1981. An exemplar bye-law
relating to DRDA, Auraiyya has been
placed before us in which Rule 14 of the
bye-laws provides that every employee of
DRDA whether directly recruited or on
deputation from a department of State
Government or a local body would be
governed by the service conduct rules of
the State Government. Rule 15 further
clarifies that service conditions and service
rules not covered under Rules 4 to 13 of the
bye-laws would be the same as those
applicable upon the State Government
employees. The bye-laws of DRDA have
already been considered in Pitamber
(supra) in the following manner :-

"11. There is no dispute that the
DRDAs are registered as Societies under
the Societies Registration Act. DRDAs are
registered for each District. The Bye-laws
provide for a Governing Body. The powers
of the Governing Body has been set out
under Bye-law 19 of the Bye-laws. Bye-law
20 provides for other powers conferred on
the Governing Body. Bye-law 35 provides
the manner in which the Society can sue or
be sued. The Memorandum of Association
of DRDA provides for Working Committee
of the Governing Body, which consists of
officers, who hold office in the Working
Committee, by virtue of their posts in
Government service. The members of the
Society hold the post of Chairman or
Members or the Executive Director by
5 All. Km. Kalyani Mehrotra Vs. State of U.P. & Ors.
187
virtue of the posts they hold in Government
service. By virtue of these Bye-laws, the
Governing Body can appoint staff subject
to the directions issued by the Central
Government/State Government. The State
Government issued Notification dated 17th
March, 1994 which provided for the
conditions of service of the employees in
respect of employees of DRDA. Once the
State Government has issued directions in
exercise of its power, the Governing Body
is bound by the said directions in the
matter of appointment of staff. The power
to appoint also includes the power to
terminate and/or superannuate."

35. Similarly bye-law 20 of the byelaws provides as follows:-

"20. In particular and without
prejudice to the generality of the foregoing
provisions, the Governing Body may :

(a) .... ....

(b) .... ....

.... ....

(h) Subject to the direction, if
any, of the Government of India/State
Government appoint such staff as may from
time to time be necessary for carrying out
day to day affairs of the Society."

36. From a perusal of the bye-laws, it
is apparent that although the governing
body of the DRDA is the appointing
authority of its employees but the same
would be subject to the directions issued by
the Central or the State Government. It is
pursuant to the said power of the State
Government, which is undisputed, that the
notification dated 17.03.1994 was issued
particularly to fill in the void created
due to the fact that no service rules were
notified with regard to employees of the
DRDA.

37. The opening paragraphs of
Government Order dated 17.03.1994 states
that with regard to employees of DRDA, no
service rules have been notified and the
DRDA being a registered society, rules
framed for Government employees under
Article 309 of the Constitution of India
would be inapplicable. It is further stated
that in view of the said lacuna, directions
are being issued by the State Government
for
regulating
and
bringing
about
uniformity of service conditions of the
DRDA employees since all the DRDAs are
registered separately as a Society in every
District. The relevant paragraphs of the
Government Order dated 17.03.1994 are as
follows:-

Þmi;qZDr fo"k; ij eq>s ;g dgus dk funsZ'k
gqvk gS fd mRrj izns'k ds leLr tuinksa eas ftyk xzkE;
fodkl vfHkdj.k jftLVas'ku vkQ lkslkbVht ,DV dh /kkjk
18 ds v/khu iathd`r lkslkbVh ds :i esa LFkkfir gS ftlds
v/;{k lEcfU/kr tuin ds ftyk eftLVasV gksrs gSA izR;sd
vfHkdj.k lkslkbVht jftLVas'ku ,DV ds v/khu jftLVMZ
lkslkbVht gS vkSj mlesa Lohd`r LVkQ Hkkjr ds lafo/kku ds
rgr vuqPNsn 309 esa cuus okyh lsok fu;ekofy;ksa ls
vkPNkfnr ugha gksrs gSA ,slh fLFkfr esa ftyk xzkE; fodkl
vfHkdj.kksa esa fofHkUu inksa ij dkfeZdksa dh HkrhZ fd;s tkus
gsrq LVsV ysosy] rFkk fMfLVaDV ysosy dSMlZ cuk;s tkus vkSj
muesa fu;qDr O;fDr;ksa dh lsok 'krksZ dks fofu;fer djus
rFkk vU; 'krksZ dks tkjh djus ds lEcU/k esa lkekU; lsok
fu;ekoyh cuk;s tkus dk izLrko o"kZ 1989 ls 'kklu ds
fopkjk/khu Fkk vkSj blds fy, dfri; vU; izns'kksa esa
fo?keku O;oLFkk dk Hkh v/;;u fd;k x;kA

2- pwWfd ftyk xzkE; fodkl vfHkdj.k esa
dk;Zjr ,oa Hkfo"; es fu;qDr gksus okys dkfeZdksa ds osrukfn
ij gksus okyk lEiw.kZ O;; Hkkjr ljdkj rFkk jkT; ljdkj
}kjk ogu fd;k tkrk gS vkSj pwWfd buds ckjs esa dksbZ lsok
fu;ekoyh xBu fd;k tkuk lEHko ugha gks ldk gS vr%
izns'k ds leLr ftyk xzkE; fodkl vfHkdj.kksa esa ,d;irk
cuk;s j[kus ds mn~ns'; ls ;g fu.kZ; fy;k x;k gS fd
iz'uxr vfHkdj.kkas esa dkfeZdksa dh fu;qfDr dh izfdz;k Jksr
188 INDIAN LAW REPORTS ALLAHABAD SERIES
'kSf{kd ;ksX;rk vkfn ds fu/kkZj.k rFkk lsok 'krksZ dks ykxw
fd;s tkus ds ckjs esa ,d lkeku; fn'kk funsZ'k 'kklu lrj
ls leLr vfHkdj.kksa ds fy, tkjh dj fn;s tk;s rkfd
lEcfU/kr vfHkdj.k viuh viuh vf/kdkfjr esa rn~uqlkj
fu;e vFkok mifu;e cukdj mls vaxhd`r dj ldsA-------------
---Þ

38. In terms of bye-laws of the DRDA
as
noticed
herein
above
and
the
pronouncement regarding the authority of
State Government to issue such directions
as already noticed in the case of Pitamber
(supra), it is evident that Government Order
dated 17.03.1994 would be binding upon
all the DRDAs in the State particularly
since the field pertaining to service
conditions of the employees of the DRDA
was unoccupied.

39. It is well settled that the doctrine
of ''occupied field' would be applicable in
case of subordinate legislation and issuance
of administrative instructions where no
rules have been made in terms of Article
309 of the Constitution of India pertaining
to service conditions. Hon'ble the Supreme
Court in A.B. Krishna v. State of
Karnataka, reported in (1998) 3 SCC 495
has held as follows:-

"8. The Fire Services under the
State
Government
were
created
and
established under the Fire Force Act, 1964
made by the State Legislature. It was in
exercise of the power conferred under
Section 39 of the Act that the State
Government made Service Rules regulating
the conditions of the Fire Services. Since
the Fire Services had been specially
established under an Act of the legislature
and the Government, in pursuance of the
power conferred upon it under that Act, has
already
made
Service
Rules,
any
amendment in the Karnataka Civil Services
(General Recruitment) Rules, 1977 would
not affect the special provisions Validly
made for the Fire Services. As a matter of
fact, under the scheme of Article 309 of the
Constitution, once a legislature intervenes
to enact a law regulating the conditions of
service, the power of the Executive,
including the President or the Governor, as
the case may be, is totally displaced on the
principle of "doctrine of occupied field". If,
however, any matter is not touched by that
enactment, it will be competent for the
Executive
to
either
issue
executive
instructions or to make a rule under Article
309 in respect of that matter."

"9. It is no doubt true that the
rule-making authority under Article 309 of
the Constitution and Section 39 of the Act
is the same, namely, the Government (to be
precise, the Governor, under Article 309
and the Government under Section 39), but
the two jurisdictions are different. As has
been seen above, power under Article 309
cannot be exercised by the Governor, if the
legislature has already made a law and the
field is occupied. In that situation, rules
can be made under the law so made by the
legislature and not under Article 309. It
has also to be noticed that rules made in
exercise of the rule-making power given
under an Act constitute delegated or
subordinate legislation, but the rules under
Article 309 cannot be treated to fall in that
category and, therefore, on the principle of
"occupied field", the rules under Article
309 cannot supersede the rules made by the
legislature."

40. In terms of aforesaid, it is clear
that the field pertaining to conditions of
service of employees of the DRDA being
unoccupied, the said void was filled by
issuance of Government Order dated
17.03.1994. The provisions pertaining to
applicability
of
service
rules
of
Government
employees
upon
the
5 All. Km. Kalyani Mehrotra Vs. State of U.P. & Ors.
189
employees of the DRDA have been
indicated in sub-paragraphs (6) to (13) of
paragraph 2 of the Government Order,
which are as follows : -

Þ2- 1⁄461⁄2- lh/kh HkrhZ }kjk fu;qDr deZpkfj;ksa dh
T;s"Brk dk fu/kkZj.k le; le; ij ;Fkk la'kksf/kr m0iz0
ljdkjh lsod T;s"Brk fu;ekoyh] 1991 ds vuqlkj fd;k
tk;sxkA