# Parasnath Gupta v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 495
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-31
- **Case number:** Writ A No. 10088 of 2020
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/parasnath-gupta-v-state-of-u-p-ors-52131
- **Pages:** 16

## Headnote

A. Service Law - UP Cooperative Societies
Act, 1965 - Sections 92-A & 92-B - UP Cooperative Collection Fund and the Amins
and Other Staff Service Rules, 2002 - Rule
29 - Post retiral benefit - Superannuation
from the post of Junior Clerk in the office
of Commissioner, Cooperative Society -
Pension was claimed by clubbing service
rendered as a Cooperative Collection Amin
and Junior Clerk - Permissibility - Held, a
Clerk engaged in connection with the
Cooperative Collection Scheme is not
entitled to pension, gratuity or other post
retiral benefits - Rules of 2002 cannot be
extended in their application, including
Rule 29, to a Clerk serving in connection
with the Cooperative Collection Scheme.
(Para 1, 34 and 35)

B. Interpretation of statute - Literal
interpretation - Application - Held, if the
provisions of a statute are unequivocal and
clear, the rule of literal interpretation
ought
be
adopted
and
the
statute
understood for what it means, giving effect
to every word of it. (Para 34)

C. Enforcement of statute - Prospective
effect - Applicability of Rules of 2016
enforced on 26.08.2016 to the petitioner,
who was retired on 31.10.2015 - Held, the
Rules have not been given retrospective
operation, either expressly or by necessary
intendment. These Rules are substantive
Rules and the well settled canon of
construction is that all substantive law is
deemed to be prospective, unless expressly
made retrospective. (Para 36)

Writ petition dismissed. (E-1)

List of Cases cited:

## Text

_Characters 0–39,784 of 55,203. This is a partial read: ask again with offset=39784 for what follows._

5 All. Parasnath Gupta Vs. State of U.P. & Ors.
495
till the decision so taken by the committee
concerned. The petitioners as well as the
Manager of the Committee of Management
shall ensure their presence and would cooperate with the Regional Level Committee,
as and when required.
----------
(2024) 5 ILRA 495
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 10088 of 2020

Parasnath Gupta ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Kunwar Bahadur Srivastava

Counsel for the Respondents:
C.S.C.

A. Service Law - UP Cooperative Societies
Act, 1965 - Sections 92-A & 92-B - UP Cooperative Collection Fund and the Amins
and Other Staff Service Rules, 2002 - Rule
29 - Post retiral benefit - Superannuation
from the post of Junior Clerk in the office
of Commissioner, Cooperative Society -
Pension was claimed by clubbing service
rendered as a Cooperative Collection Amin
and Junior Clerk - Permissibility - Held, a
Clerk engaged in connection with the
Cooperative Collection Scheme is not
entitled to pension, gratuity or other post
retiral benefits - Rules of 2002 cannot be
extended in their application, including
Rule 29, to a Clerk serving in connection
with the Cooperative Collection Scheme.
(Para 1, 34 and 35)

B. Interpretation of statute - Literal
interpretation - Application - Held, if the
provisions of a statute are unequivocal and
clear, the rule of literal interpretation
ought
be
adopted
and
the
statute
understood for what it means, giving effect
to every word of it. (Para 34)

C. Enforcement of statute - Prospective
effect - Applicability of Rules of 2016
enforced on 26.08.2016 to the petitioner,
who was retired on 31.10.2015 - Held, the
Rules have not been given retrospective
operation, either expressly or by necessary
intendment. These Rules are substantive
Rules and the well settled canon of
construction is that all substantive law is
deemed to be prospective, unless expressly
made retrospective. (Para 36)

Writ petition dismissed. (E-1)

List of Cases cited:

1. St. of U.P. & ors. Vs Chandra Prakash Pandey
& ors., (2001) 4 SCC 78

2. Writ Petition No. 3832 of 2012, UP Sahkari
Sangrah Karmchari Union Vs St. of U.P. &
ors.decided on 11.05.2015

3. St. of U.P. & ors.Vs Chandra Prakash Pandey
& ors.; (1995) 3 UPLBEC 1491

4. Jagmal Singh Vs St. of U.P. & ors.; 2009 (3)
AWC 2461

5. Ramsevak Vs St. of U.P. & ors., 2019 : AHC:
136501

(Delivered by Hon'ble J.J. Munir, J.)

1. his writ petition is directed against
an order dated 30.06.2020 passed by the
Additional Chief Secretary, Department of
Cooperatives, Government of Uttar Pradesh,
Lucknow and a circular dated 22.04.2019
issued by the Commissioner and Registrar,
Cooperatives, Uttar Pradesh, Lucknow. By
the order of 30th June, 2020, the petitioner's
claim for grant of pension, clubbing his
services as a Cooperative Collection Amin
496 INDIAN LAW REPORTS ALLAHABAD SERIES
and Junior Clerk (Collection) in the office of
the Assistant Commissioner and Assistant
Registrar,
Cooperative
Societies,
Maharajganj, has been rejected.

2. he impugned circular issued by
the
Commissioner
and
Registrar,
Cooperatives, Uttar Pradesh, Lucknow
directs that other staff of the Cooperative
Department, like Clerks and Drivers, would
be entitled to the benefit of pension,
reckoning their entire services, if they have
superannuated after the enforcement of the
Uttar Pradesh Co-operative Collection
Other Staff Service Rules, 2016 (for short,
'the Rules of 2016'). The other staff, other
than Kurk Amins, like Clerks, Drivers etc.,
who retired before enforcement of the Rules
of 2016, would not be eligible for pension.

3. The petitioner was appointed on
25.04.1979 as an Amin on commission basis under
the provisions carried in the circular of the
Registrar, Cooperative Societies, U.P., Lucknow,
bearing No.C-28/Adhikashan/ Bakaya, dated 3rd
January, 1983. The District Magistrate, Gorakhpur
by an order dated 18.07.1983 appointed the
petitioner a Tehsil Level Cooperative Collection
Amin in the pay-scale of 354-10-424-EB-10-45412-514-EB-12-550/-. Pursuant to the orders passed
by the District Assistant Registrar, Cooperative
Societies, Gorakhpur dated 19.07.1983, the
petitioner was posted as a Tehsil Level Collection
Amin at Tehsil Bansgaon, where the petitioner
joined service on 22.07.1983. Later, in terms of an
order No.3703-06/ Collection/ Establishment dated
11.08.1997, the petitioner was promoted to the post
of a Junior Clerk (Collection) in the pay-scale of
950-20-1150-EB-25-1500/- in the office of the
Deputy Registrar, Cooperative Societies, U.P.,
Gorakhpur.

4. The petitioner claims that he
worked on the post of Junior Clerk for 18
years 3 months and 5 days. Detailing his
total service period, the petitioner claims
that he functioned as a Tehsil Level
Cooperative Collection Amin on regular
basis from 18.07.1983 to 11.08.1997 and
from 12.08.1997 onwards as a Junior Clerk
(Collection) in the office of the Assistant
Commissioner and Assistant Registrar,
Cooperative Societies, Maharajganj, till his
superannuation on 31.10.2015. He says that
upon retirement, apart from the due arrears
of salary to the tune of Rs.1,44,632/-, he was
paid leave encashment worth Rs.3,00,470/-
and gratuity in the sum of Rs.2,70,423/-,
making an aggregate post retiral benefits of
Rs.7,15,525/-. The petitioner did not receive
any pension for 7 months after retirement.

5. The petitioner represented his
cause to the Commissioner and Registrar,
Cooperative Societies, Lucknow through
registered post on 20.05.2016, but to no
avail. There were repeat representations in
this regard, of which mention is not
necessary. Since, there was no action, the
petitioner moved Writ Petition No.19156 of
2019 before this Court, in substance,
claiming relief for the sanction of his
retirement pension and revision of arrears of
his salary, leave encashment dues, gratuity
and pension in terms of his total period of
service, clubbing all of it. The said writ
petition was disposed of by this Court vide
an order dated 16.12.2019, directing the
Principal Secretary, Cooperatives, U.P.,
Lucknow to decide the petitioner's claim for
payment of pension, after exAmining it, in
accordance with the judgment dated
28.02.2018 passed in Writ Petition No.6349
(S/S) of 2018, within a period of three
months from the date of presentation of a
copy of the order made in that cause. The
petitioner served a copy of the judgment
along
with
a
representation
dated
31.12.2019 upon the Additional Chief
Secretary, Cooperatives.
5 All. Parasnath Gupta Vs. State of U.P. & Ors.
497
6. There was again a chase by the
petitioner, representing his cause before the
Additional Chief Secretary, who sat over the
matter. In the end of it all, by an order dated
30.06.2020, the Additional Chief Secretary
rejected the petitioner's claim for the
payment of pension, clubbing of all his
services together for the revision of his post
retiral benefits as well. There is another
circular, which the Commissioner and
Registrar (Cooperatives) addressed to all
Assistant Commissioners and Assistant
Registrars,
besides
all
Deputy
Commissioners and Deputy Registrars/
Joint
Commissioner/
Joint
Registrar
(Cooperatives), U.P., saying that pension
would be payable to Clerks, Drivers and
Sahyogi, in accordance with Rule 5 and
Rule 26 of the Rules of 2016, reckoning
their entire period of service, if they have
retired after notification of the said Rules, to
wit, on 26.08.2016.

7. Aggrieved by the order dated
30.06.2020
and
the
circular
dated
22.04.2019, the petitioner has instituted this
writ petition under Article 226 of the
Constitution.

8. A notice of motion was issued to
the respondents on 24.04.2020. A counter
affidavit was filed on behalf of respondent
Nos.2, 3 and 4 jointly by the Additional
District Collection Officer, Maharajganj on
11.08.2021. On 18.12.2023, when the writ
petition came up before this Court, it was
admitted to hearing, which proceeded
forthwith. Judgment was reserved.

9. Heard Mr. Kunwar Bahadur
Srivastava,
learned
Counsel
for
the
petitioner and Mr. Girijesh Kumar Tripathi,
learned Additional Chief Standing Counsel
appearing for the respondents.

10. It is submitted by the learned
Counsel for the petitioner that the petitioner
was appointed a Cooperative Kurk Amin in
the regular pay-scale on 22.07.1983 and
then continued to work on the substantive
post of a Junior Clerk (Collection) since
12.08.1997 up to 31.10.2015, that is to say,
for a total period of 18 years 2 months and
19 days in the regular pay-scale. He, thus,
rendered a total uninterrupted service of 32
years 3 months and 9 days as a government
servant on regular basis from the date of his
initial appointment to his superannuation.
The conditions of the petitioner's service, it
is argued, are governed by the Uttar Pradesh
Co-operative Collection Fund and the Amins
and Other Staff Service Rules, 2002 (for
short, 'the Rules of 2002'). It is submitted
that he is entitled to club his entire service
together for the purpose of reckoning his
post retiral dues, including pension.

11. It is urged that after the
judgment of the Supreme Court in State of
U.P. and others v. Chandra Prakash
Pandey and others, (2001) 4 SCC 78 (for
any further reference, this case would be
referred to as 'Chandra Prakash-I'),
Sections 92-A and 92-B were inserted in the
Uttar Pradesh Cooperative Societies Act,
1965 (for short, 'the Act of 1965') vide U.P.
Act No.8 of 2003 w.e.f. 28.02.2002. The
submission is that after the said amendment,
the service conditions of Amin and other
staff, including Clerks and Drivers were
governed by the provisions of Sections 92A and 92-B of the Act of 1965 and Rules
framed thereunder, to wit, the Rules of 2002.
These Rules, however, did not define
properly the cadre of service, governed by
the said Rules. Taking advantage of this
lacuna, the rightful claim to pensionary
benefits of Clerks was denied whereas they
received regular salary, gratuity and leave
498 INDIAN LAW REPORTS ALLAHABAD SERIES
encashment from the same fund established
under Section 92-B of the Act of 1965.

12. It is urged that despite several
communications
by
the
Registrar,
Cooperative
Societies
to
the
State
Government, when the Government failed
to take a final decision in the matter of
proposed amendment to the Rules of 2002,
Civil Misc. Writ Petition No.20073 of 2010,
Bhopal Singh v. State of U.P. and others,
was instituted before this Court, seeking a
writ of mandamus directing the State
Government to take a final decision in the
matter of effecting these amendments. This
writ petition was disposed of in terms of an
order dated 06.05.2010 with a direction to
the Government to take decision within a
period of three months of the date of
production of a copy of the order. This was
followed in the year 2012 by an action
commenced by the Union of Employees of
the Cooperative Collection Department.
They instituted Writ Petition No.3832 of
2012, Uttar Padesh Sahkari Sangrah
Karmchari Union through its President
v. State of U.P. through Principal
Secretary, Cooperative Department and
others, which was disposed of by an order
dated 11.05.2015, directing the Principal
Secretary,
Cooperative
Department,
Government of U.P., to take a decision in
the matter expeditiously, preferably within
a period of three months of the date of
receipt of a certified copy of the order in
consultation with other Departments that
may be involved in the decision making
process, to borrow the words of the
learned Judge, who disposed of the said
writ petition. This was not complied with
by the respondents. Contempt Petition
(Civil) No.1945 of 2015 was then
instituted by the Karmchari Union,
wherein
after
appearance
of
the
respondents on various dates, the Rules of
2016 were framed and notified w.e.f.
26.08.2016.

13. In compliance with these
various judgments of this Court and the
Supreme
Court,
it
is
argued,
the
respondents have preferred not to amend
the Rules of 2002, and, instead framed the
new Rules or the Rules of 2016 for
regulating the service of other staff
recruited
and
appointed
under
the
collection scheme of the Cooperative
Department. It is, particularly, argued by
Mr. Srivastava, learned Counsel for the
petitioner that the impugned order is based
on the reasoning that the petitioner having
been appointed as a Cooperative Kurk
Amin on salary basis w.e.f. 22.07.1983, a
post he held upto 11.08.1997, when he was
promoted to the post of a Junior Clerk
(Collection), a position that he held until
his retirement on 31.10.2015, his services
were not governed by the Rules of 2002.
He is not entitled to pension under the said
Rules, which do not extend to him and are
limited in their application to the Kurk
Amin; not the other staff. It is pointed out
further by the learned Counsel for the
petitioner that the other ground to found
the impugned order is a circular of the
Commissioner and Registrar, Cooperative
Societies,
where
it
is
opined
that
pensionary benefits are admissible to only
those employees, who have retired after
enforcement of the Rules of 2016 i.e. on or
after 26.08.2016 and since the petitioner
has
retired
on
31.10.2015,
before
enforcement of the Rules 2016, he is not
entitled to pension.

14. It is submitted by Mr. Srivatava
that indisputably pensions to various
similarly situate incumbents, like Jagmal
Singh, Brij Lal Shukla, Raj Kumar Shukla,
have been sanctioned in accordance with the
5 All. Parasnath Gupta Vs. State of U.P. & Ors.
499
Rules of 2016, whereas the petitioner has
been denied the benefit, causing him much
prejudice. It is submitted that denial of
pension to the petitioner is discriminatory,
arbitrary and mala fide. It violates Articles
14 and 16 of the Constitution. It is next
submitted that like the Collection Amin,
Collection Clerk is also the holder of a civil
post under the State as both work under the
same Collection Scheme. The State has
power and right to select and appoint a Clerk
and the power to suspend and dismiss him.
He is a subordinate public servant working
under the supervision and control of the
District Assistant Registrar, Cooperative
Societies. He receives regular salary from
the same fund, provided under Section 92-B
of the Act of 1965. There exists a
relationship of master and servant between
the State and the Assistant Clerk, like the
petitioner. He holds office in the Revenue
Administration and performs duties in
connection with affairs of the State. He
renders service in the Collection Scheme as
provided under Rule 2(o) of the Rules of
2002. The office, that a Junior Clerk holds,
if falls vacant on the death of an incumbent,
is filled up by offering compassionate
appointment.

15. It is urged, on the basis of all
these telltale features and bearing in mind
the system of Junior Clerk's recruitment,
employment and functions that he is a
government servant and the holder of a civil
post under the State. It is next submitted that
admittedly after judgment of the Supreme
Court in Chandra Prakash Pandey-I, the
State Government brought amendments and
Sections 92-A and 92-B were inserted to the
Act of 1965. Apart from the specific
provisions carried in Section 92-B, there
were statutory Rules of 2002, occupying the
field, which in substance were clarified by
the Rules of 2016, wherein Chapter VIII was
added relating to provision of pensions for
other staff, other than the Kurk Amin.

16. It is urged that in pursuance of
various decisions, as already pointed out, the
Government had framed Rules of 2002,
providing for the absorption of existing staff
in service. The Rules of 2002 as well as the
Rules of 2016, the Amin and the other staff
are entitled to pension, gratuity and post
retiral benefits, to be paid out of the Sahkari
Sangrah Nidhi, governed by Sections 92-A
and 92-B, inserted in the Act of 1965 by
amendment. The petitioner was appointed as
a Cooperative Kurk Amin in the regular payscale w.e.f. 22.07.1983 and continued on the
said post till he was promoted a Junior Clerk
on 12.08.1997, where he functioned up to
31.10.2015, a period of 18 years 2 months
and 19 days. He has rendered a total service
of 32 years 3 months and 9 days under the
respondents as a government servant,
throughout on regular basis as a member of
the service. He is, therefore, entitled to be
governed by the Rules of 2002 for the
purpose of his retirement dues and pension.
The impugned circular dated 22.04.2019 is
based on ambiguous reasoning and a
misreading of the statutory provisions of the
Rules of 2002. It is arbitrary, discriminatory
and irrational. It has the effect of prejudicing
the petitioner and frustrating the scheme of
Section 92-B of the Act of 1965 and the
Rules framed thereunder. The impugned
circular,
therefore,
issued
by
the
Commissioner and Registrar, Cooperatives,
is manifestly illegal and fit to be quashed as
the learned Counsel for the petitioner says.
In the last, it is submitted by the learned
Counsel that in view of the provisions
carried in Rules 5(d), 5(j), 5(k) of the Rules
of 2016, the petitioner's claim to pension is
fit to be granted, entitling him to pension
with arrears with effect from the date of
superannuation.
500 INDIAN LAW REPORTS ALLAHABAD SERIES

17. Mr. Girijesh Kumar Tripathi,
learned Additional Chief Standing Counsel,
on the other hand, submits that the petitioner
is not at all entitled to pension bearing in
mind the date of his retirement. He submits
that the Rules of 2002 made provision for
pension for Kurk Amins, but not for the other
staff, engaged in connection with the
Cooperative Collection Scheme. There was
no provision for payment of pension to the
Clerks and Drivers. He submits that it is no
doubt correct that there were efforts by the
Union of these employees to enforce their
right to receive pension, like Kurk Amins,
which led to litigation and the ultimate
frAming of the Rules of 2016, which came
into w.e.f. 26.08.2016. The said Rules
provide for pension to Clerks, Drivers and
Sahyogi (peon). The difficulty is that the
petitioner
retired
on
31.10.2015
and
according to Mr. Tripathi, the benefit of the
Rules of 2016 cannot be retrospectively
extended to an employee, who has demitted
office prior to enforcement of the Rules of
2016.

18. This Court has carefully
considered the submissions advanced by
learned Counsel on both sides and perused
the record.

19. At the centre-stage of the
controversy, here is the issue, if the Rules of
2002 made provision for payment of
pension to Kurk Amin alone or the 'other
staff', engaged in connection with the
Cooperative Collection Scheme as well. The
other issue is, if the Rules of 2016, that did
provide for pension to the 'other staff'
engaged in the Cooperative Collection
Scheme, would enure to the benefit of those
employees, like the petitioner, who retired
prior to enforcement of the last mentioned
Rules. There is no doubt that the Kurk Amin
and the other staff engaged in connection
with the Cooperative Collection Scheme,
appointed on commission basis, let alone
those regularly appointed in a pay-scale,
came to be regarded as civil servants in the
employ of the Government in consequence
of two judgments, where the issue was
settled. The first was a Bench decision of
this Court at Lucknow in State of U.P. and
others v. Chandra Prakash Pandey and
others, (1995) 3 UPLBEC 1491 (for any
further reference, this case would be referred
to as 'Chandra Prakash-II'). The other
decision was the one rendered by the
Supreme Court on appeal by special leave
from Chandra Prakash-II. This decision
was Chandra Prakash-I. These decisions
need not detain us for the point here is
different than what was decided in the
aforesaid decisions.

20. The only significance of those
very seminal decisions is that Kurk Amin on
commission basis and others retained
regularly in connection with the Cooperative
Collection
Scheme,
came
to
be
acknowledged as government servants. The
establishment of their status and the others
staff employed under the Scheme led to the
next issue if they were entitled to receive
pensions and post retiral benefits, like other
government servants. It is the latter issue, or
so to speak some subtler aspects of it that are
the concern of this Court here. The
immediate impact of the two decisions, to
wit, Chandra Prakash-II and Chandra
Prakash-I, was that the Act of 1965 came to
be amended by U.P. Act No.8 of 2003.
Sections 92-A and 92-B came to be inserted
in the Act of 1965 w.e.f. 28.02.2002, which
read:

"92-A. Appointment of Amins
and other staff.- (1) There shall be
appointed such number of Amins and other
staff as may be determined by the State
5 All. Parasnath Gupta Vs. State of U.P. & Ors.
501
Government from time to time, for
collection of an amount due to a Cooperative Society or for execution of a
process issued in the proceedings of
execution of an award, order or certificate
for recovery under clause (a) or clause (b) of
section 92.

(2) The State Government may by
rules regulate the recruitment and conditions
of service of Amins and other staff.

92-B. Co-operative Collection
Fund.:- (1) There shall be established a
fund, to be called the Cooperative Collection
Fund to which the following amounts shall
be credited, namely :-

(a)
all
costs
of
collection
recovered on an amount due to a
Cooperative Collection Society;

(b)
all
costs
of
execution
recovered on an award, order or certificate
for recovery under clause (a) or clause (b) of
section 92;

(c) such other amounts as the State
Government may direct.

(2) The fund established under
sub-section (1) shall be utilized for meeting
out all expenses relating to collection of
dues in the manner as may be prescribed by
rules to be framed by the State Government.
The expenses relating to collection of dues
shall also include payment of commission,
salary, leave encashment at the time of
retirement,
if
any,
gratuity,
other
allowances, loans and advances, due interest
on Provident Fund and pension to Amins and
other staff appointed under section 92-A."

21. Now, Sections 92-A and 92-B
conferred power upon the State Government
to make Rules regarding service conditions
of Kurk Amin and the other staff, including
Clerks and Drivers employed in connection
with the Cooperative Collection Scheme.
The Rules of 2002 came to be made by the
Governor in exercise of powers under
Section 130 read with Section 92-A and 92B of the Act of 1965. As the short title of
these Rules would suggest, these apply not
only to the Amin, but the 'other staff' as well.
The difficulty that arose was that under the
Rules of 2002, both in Part VII and Part
VIII, the employees, who were spoken of,
were Amin and Sahyogi. There was no
mention of others, like Clerks and Drivers.
Part VII and Part VIII of the Rules of 2002
read:

"Part-VII
Pay, Allowances, Commission
20. Scales of Pay of Amin and
Sahyogi.-(1) The scales of pay admissible
to persons appointed shall be such as may be
determined by the Government under these
rules from time to time.
(2) Until any change under sub-rule
(1) the scales of pay, payable from the Fund
shall be as follows-

Sl.
No.

Name of the post

Pay scale (in Rs)

1
Amin
3050-75-3950-80-4590

2
Sahyogi
2550-55-2660-60-3200
 21. Allowances admissible to
Amin and Sahyogi.-Dearness allowance.
City compensatory allowance, H.R.A.,
Travelling allowances, and other allowances
shall be at the rate admissible to the State
Government employees and shall be paid
from Fund.

22. Pay during probation.-(1)
Notwithstanding
any
provision
in
Fundamental Rules to the contrary, a person
on probation, if he is not already in
permanent
service,
shall
be
allowed
increment in the time scale after satisfactory
completion of probation period.

(2) The pay during probation of a
person who was already holding a post, shall
be regulated by the relevant fundamental
rules.
502 INDIAN LAW REPORTS ALLAHABAD SERIES

(3) The pay during probation of a
person already permanent, shall be
regulated by the relevant rules.

23. Target of Recovery.-Target
of recovery for Amins and Amins on
commission basis shall be fixed by
Registrar from time to time.

24. Commission admissible to
Amin on commission basis.-(1) The rate
of commission to Amins on commission
basis shall be as follows-
(a) From April to July - 4%
(b) From August to March - 6%

(2) In case of recovery more than
the target fixed under Rule 23 additional
commission may be allowed by Registrar.

25. Records to be submitted.-
For payment of salary, commission and
additional commission to Amins, they shall
have to deposit the following records-

(a) The amount for which the
citation/attachment or arrest warrant has
been served by the Amin and duly certified
by the Assistant Development Officer (Coop.).

(b) The amount for which the
receipt of the recovery has been issued by
the Amin.

(c) The payment of the salary,
commission/additional commission to the
Amin shall be made only in that situation
when the collection income received as
described above in clause (a) and clause (b)
is deposited in the Fund and the compliances
of the provisions as laid down under rules
have been made.
Part-VIII

Leave, Provident Fund, Gratuity

26. Leave.-The provisions of
financial handbook, Vol. II, Part-2 to 4 shall
mutatis mutandis apply in respect of leave
admissible to the Amins and Sahyogi.

27. Provident Fund.-Amins and
Sahyogies shall be eligible for the Provident
Fund as may be admissible to Group-C and
Group-D Government employees and shall
be maintained in the manner prescribed by
Registrar.

28. Advance.-House building/
construction/repair,
vehicle
and
other
advances may be granted to Amins and
Sahyogies as per rules applicable to
Government employees and shall be payable
from the Fund.

29. Retirement Benefit.-Amins
and Sahyogi shall be eligible for pension,
gratuity and other retirement benefits as may
be admissible from time to time to the
Government employees of the respective
category. These retiral benefits shall be paid
only from the Fund."

 (emphasis by Court)

22. In particular, Rule 29 of the
Rules of 2002 unequivocally laid down that
Amin and Sahyogi shall be eligible for
pension, gratuity and other retirement
benefits,
as
may
be
admissible
to
government servants of corresponding
categories. There is no mention about Clerks
and Drivers or what may be called the 'other
staff' in Rule 29. The stand, therefore, taken
by the State in answer to any claim for
pension, gratuity etc. by a Clerk, part of the
Cooperative Collection Scheme, was that
under Rule 29, it was only the Amin and the
Sahyogi, who were entitled; not others. This
was particularly the case in matters like the
present one, where an employee started
serving the Cooperative Collection Scheme
as a Kurk Amin and then moved on to
become a Clerk. The Clerk's post was a
higher post and, therefore, there was passage
of staff from Amin to the higher position of
a Clerk. Nevertheless, when these more
accomplished and experienced hands retired
from service and demanded pension or other
post retiral benefits, the claims were resisted
by the State falling back upon Rule 29 of the
Rules of 2002.
5 All. Parasnath Gupta Vs. State of U.P. & Ors.
503
23. One of the important decisions,
where this issue arose and answered against
the State was Jagmal Singh v. State of U.P.
and others, 2009 (3) AWC 2461. Jagmal
Singh had started his career as a
Cooperative Kurk Amin on 28.07.1975 in
the pay-scale of Rs.200-320/-. Later on, on
28.02.1984, he was appointed on the post of
a Cooperative Kurk Amin at the Tehsil Level
in the office of the Additional District
Cooperative
Officer,
Sadar,
Muzaffar
Nagar. He was placed in the pay-scale of
Rs.354-550/-. Still later, the Additional
Registrar (Banking) Cooperative Societies,
U.P.,
Lucknow
by
an
order
dated
29.11.1990 directed the Deputy Registrar
(Cooperatives), Meerut to appoint the
petitioner a Junior Clerk. The Deputy
Registrar (Cooperatives), Meerut directed
the
District
Assistant
Registrar
(Cooperatives), Haridwar to appoint the
petitioner on the position of a Junior Clerk
in the then newly created District of
Haridwar in the pay-scale of Rs.950-1500/-.
As the facts gathered from the report in
Jagmal Singh (supra) would show he
served as a Kurk Amin without any break for
16 years and 17 days and then moved on to
become a Junior Clerk (Collections) at the
Tehsil
Level
w.e.f.
21.08.1991.
He
superannuated on 31.10.2006, completing a
total of 31 years and 87 days of service in
the regular pay-scale. The petitioner was
denied pension. He was recommended for
pension by the District Assistant Registrar
(Cooperative Societies), Muzaffar Nagar on
ground that pension was granted to
Cooperative Kurk Amins under the Rules of
2002. Jagmal Singh's claim was resisted on
the short case that being a Junior Clerk, his
services are not regulated by the Rules of
2002, which applied to an Amin and a
Sahyogi, described in the report in Jagmal
Singh as an Associate Amin. It was,
particularly, urged that under Rule 29 of the
Rules of 2002, Jagmal Singh was not
entitled to pension. Repelling the contention
of the State in Jagmal Singh, Sunil
Ambwani, J. (as the learned Chief Justice
then was) held:

"9. In State of U. P. and others v.
Chandra Prakash Pandey and others, (2001)
4 SCC 78 : 2001 (2) AWC 1399 (SC),
arising out of the Division Bench judgment
of this Court referred to above, the Supreme
Court held that the Kurk Amins appointed on
commission
basis
for
recovery
of
outstanding dues of the Co-operative
Societies were members of service and
Government servants on the ground that Cooperative Kurk Amins were appointed by the
Collectors and were being paid out of the
cost recovered according to the provisions
for the recovery of land revenue, and were
also given the revised pay scale. They were
performing
the
same
duties
and
responsibilities as Kurk Amins of other
department on salary basis. They enjoy and
exercise the power to arrest a person, who is
a defaulter; can attach his property, which he
can put to auction, like his counter part on
regular basis. A Kurk Amin on commission
basis and on regular basis similarly follows
the provisions of U. P. ZAmindari Abolition
and Land Reforms Act, 1951 and U. P. Land
Revenue Act, 1901 in so far as the recovery
of land revenue is concerned. Once the
District Magistrate issues a recovery
citation, both the sets of Kurk Amins in order
to execute the recovery follow the same
procedure and exercise the powers and they
are under the control of one and same
authority. Both work in the same capacity
under control of the State Government and
that their appointments and duties fully
comply with the tests laid down by the
Supreme Court in the decision of State of
Gujarat v. Raman Lal Keshav Lal Soni,
(1983) 2 SCC 33, in which a Constitution
504 INDIAN LAW REPORTS ALLAHABAD SERIES
Bench held that the panchayat service
constituted under Section 203 of the Gujarat
Panchayats Act, 1962 was a civil service of
the State and the members of the service
were Government servants. It was found that
the right of appointment; the right to
terminate the employment; the right to take
other disciplinary action; the right to
prescribe conditions of service; the nature of
duties performed by the employees; the right
to control the employees; manner and
method of work; for issuing directions and
the right to determine the source from which
wages or salary are paid and a host of such
circumstances, have to be considered to
determine the exigency of the relationship of
master and servant.

10. The issue, as to whether a
Cooperative Kurk Amin is a Government
servant holding a civil post, is thus, no
longer res-integra. This Court and Apex
Court have held that the Cooperative Kurk
Amins are Government servants, the
petitioner, appointed as Co-operative Kurk
Amin of the Collectorate on the regular pay
scale on 28.7.1975; working continuously
thereafter in the capacities of the Sahkari
Kurk Amins, and Junior Clerk, continued to
serve as a Government servant throughout
on regular basis from the date of his initial
appointment on 28.7.1975 to the date he
attained superannuation and retired at the
age of 60 years as a member of service of
whose service conditions are, regulated by
the Rules of 2002. He is thus entitled to club
his entire services together for the purposes
of retirement dues and pension."

24. Jagmal Singh was appealed.
Their Lordships of the Division Bench,
before whom Special Appeal No.436 of
2009 came up, admitted the appeal on
30.07.2009 by the following order:

 "Admit.

Mr. M.C. Chaturvedi, appearing
on behalf of the appellants submits that in
view of Rule 19 of U.P. Co-operative
Collection Fund Regulation, 1982, the post
held by the respondent, who. happens to
have superannuated from the post of junior
clerk, is not a pensionable post. He points
out that respondent at his own request was
appointed as a junior clerk.

During the pendency of the
appeal, operation of the impugned order
shall remain stayed

Pendency of the appeal shall not
stand in the way of the State Government in
taking decision for grant of pension to the
junior clerks."

25. The issue, that because of the
provisions of Rule 29 of the Rules of 2002,
the Clerks and Drivers cannot be treated at
par with Amin and Sahyogi, was agitated in
U.P. Sahkari Sangrah Karmchari Union
through its President (supra), which was
disposed of in terms of the following order:

 "Heard Sri S.K. Kalia, learned
Senior Counsel assisted by Sri Nirankar
Singh for the petitioner and Sri Neeraj
Chaurasia, learned Standing Counsel for the
respondents.

The petitioner is a registered
Union of Employees of Group-C & D
Clerical Assistants and Driver Cadre of
Cooperative Societies.

The petitioner is aggrieved by the
act of the Government in not treating the
Clerks, Drivers, Sahyogi (Class IV post) as
Government Service as has been done in the
case of Amin. Earlier a writ petition no. 6755
(S/S) of 2006, Uttar Pradesh Sahkari
Sangrah
Karmchari
Union
through
President Vs. State of U.P. through
Secretary Revenue and Others had been
filed by the petitioner which was disposed of
by this Court by order dated 21.09.2011 with
5 All. Parasnath Gupta Vs. State of U.P. & Ors.
505
a direction to the Principal Secretary,
Revenue Department, U.P. Lucknow. It is
stated that in pursuance of the said direction
the impugned order had been passed, copy
of which has been filed at page 18,
Annexure-1 to the writ petition.

Sri S.K. Kalia, learned Senior
Counsel submitted that inspite of the order
of this Court no decision has been taken by
the respondents and in fact the matter is still
engaging the attention of the Government in
the
Cooperative
Department
of
the
Government regarding requisite amendment
in the Rules. The impugned order however
mentions that the competent authority who
is required to take a decision in this regard is
the Administrative Department and the
Cooperative Department. This does not
appear to be a positive categorical decision
as to whether the members of the petitionerUnion as mentioned above are eligible to be
treated as Government Servant or not.
In the counter affidavit in paragraph 4 all
that has been stated is that the matter for
frAming the Rules in respect of the petitioner
is under departmental consideration and the
same is the averment in the supplementary
affidavit also.

It is submitted by the learned
Senior Counsel that the members of the
petitioner-Union as aforementioned are
working along with the Amin and Amin
Sahyogi in the matter of recovery of
collection dues and that they are also holders
of civil posts as held by the Division Bench
in the Special Appeal no. 15 (S/B) of 1994,
State of U.P. and Others Vs. Chandra
Prakash Pandey and Others by judgment
dated 05.05.1995 which was confirmed by
the Supreme Court in the case reported in
(2001) 4 SCC 78, Civil Appeal No.8467-68
of 1995, State of U.P. and Others Vs.
Chandra Prakash Pandey and others.
Learned Senior Counsel submitted that
thereafter the respondents have framed the
U.P. Cooperative Clerk Funds Amin and
Other Staffs Service Rules, 2002.

The
submission
is
that
the
petitioners are also the holders of civil posts
working in the same Department and
engaged in the same job of recovery of
collection dues therefore the case of the
petitioners must be considered at par with
the Amin and Amin Sahyogi.

No useful purpose would be
served by keeping this writ petition pending.

This writ petition is therefore
disposed of with the consent of the learned
counsel for the parties with a direction to the
respondent
no.1,
Principal
Secretary,
Cooperative Department, Government of
U.P., Civil Secretariat, Lucknow to take a
decision
in
the
matter
expeditiously
preferably within a period of three months
from the date of receipt of a certified copy
of this order in consultation of the other
requisite Departments that may be involved
in the decision making process."

26. When the order in U.P. Sahkari
Sangrah Karmchari Union through its
President remained uncomplied with, as
already mentioned, contempt proceedings
were launched, which ultimately led to the
making and enforcement of the Rules of
2016 w.e.f. 26.08.2016. It would be noticed
that the Rules of 2016 by their short title
were about the 'other staff' employed in the
Collection Scheme of the Cooperative
Department. Rule 3 of the Rules of 2016
reads:

 "3. Application of the Rules.-
These Rules shall apply to the post of Clerk,
Drivers
and
Sahyogies
appointed
in
Collection Scheme of the Co-operative
Department."

27. 'Clerk' was defined under these
Rules by Rule 5(d) whereas members of
506 INDIAN LAW REPORTS ALLAHABAD SERIES
service were defined under Rule 5(j) and the
other staff under Rule 5(k). Rules 5(d), 5(j)
and 5(k) read:

 "5. Definition.-

(d) 'Clerk' means Collection Clerk
who is working or appointed under these
rules: Provided that the clerks appointed
before the commencement of these rules
shall be deemed to be appointed under these
rules;

(j) 'Member of Service' means
Clerk, Driver and Sahyogies substantively
appointed under these rules or deemed to
have substantively appointed under orders in
force prior to the commencement of these
rules;

(k)
Other
Staff
means
the
employees of the Uttar Pradesh Cooperative
Collection other than Amins;"

28. Chapter VIII, Part I of the Rules
of
2016
are
concerned
with
the
miscellaneous provisions and these are
leave, advance and retiral benefits. Rule 26
of the Rules of 2016 govern the subject of
post retirement benefits. Rule 26 reads:

"26.
Retirement
Benefit.-
Clerks, Drivers and Sahayogies shall be
eligible for pension, gratuity and other
retirement benefits as may be admissible
from time to time to the State Government
employees of the respective category. These
retiral benefits shall be paid only from the
Fund.
Qualifying
service
shall
be
determined on the basis of Civil Service
Regulations as applicable in State of Uttar
Pradesh and amended by Government from
time to time."

29. On the other hand, the appeal
arising out of the decision in Jagmal Singh
came up before the Division Bench and their
Lordships dismissed the appeal by their
order dated 29.01.2019, where the short
remark to part with the appeal reads:

 "4.